Last September, DeVos publicly called for fairness to both sides in campus adjudications. About two weeks later, the Education Department withdrew the Title IX “guidance” that the Obama administration had imposed to specify guilt-presuming procedures for the nation’s colleges and universities to use. DeVos has also ended the Obama practice of turning every allegation of sexual harassment into a sweeping, publicized federal investigation of all allegations university-wide over the past three years.

But these actions will only begin to undo the damage done by the previous administration. And to date, DeVos has had little impact on the deeper problem of systematic discrimination by universities against the accused. (Almost all students accused of sexual assault are male.)

In this #MeToo era, it might seem counterintuitive to suggest that campus systems have prioritized the interests of accusers over the need to achieve a just outcome. But in the context of student-on-student accusations, at least, college campuses are unlike the workplace, due both to campus ideology and to the effects of the Obama administration mandates. In 2011, 2014, and 2015, the Education Department’s Office for Civil Rights (OCR) issued “guidance” documents in the name of interpreting Title IX that effectively required more than 7,000 universities and colleges to use specified, guilt-presuming procedures to respond to sexual misconduct allegations. Announced with no public notice or opportunity for comment, these decrees resulted in procedures that “lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation,” as 28 Harvard law professors wrote in an eloquent indictment in 2014. More than 70 judges have issued rulings (some of them preliminary) against schools for violating accused students’ rights.

Most schools executed the Obama-era guidance so zealously as to be even more unfair to accused students than OCR explicitly required. But now virtually all have refused to implement provisions of the DeVos OCR’s interim guidance. (After scouring the country, a trio of accusers’ rights organizations was able to find only one school—the University of Houston—that was even considering changing its campus adjudication policies along the lines that DeVos had proposed.) And the pattern of injustice, which continues unabated, will almost certainly go on indefinitely unless and until the federal government takes much more forceful corrective action than anything DeVos has done so far.

Fortunately, the education secretary may be preparing to do just that, and make campus Title IX proceedings far more just, through a necessarily protracted and complicated “notice and comment” rulemaking process that she announced last September. It is designed to produce by 2019 new regulations for enforcing Title IX that will seek fairness for both complainants and accused students.

DeVos has committed to a two-step process to create a fairer campus Title IX system. First, in September, OCR issued new “interim guidance” containing several promising policy changes. Among other components, the interim guidance tells schools to: avoid “sex stereotypes or generalizations” and give accused students detailed, timely written notice of the allegations against them; use the same standard of proof in sexual misconduct cases that “the school applies in other student misconduct cases,” reversing the Obama demand that schools use the lowest possible standard of proof in sexual misconduct cases, even if they use a higher standard in other disciplinary cases; ensure that the investigator(s) be “free of actual or reasonably perceived conflicts of interest and biases for or against any party,” which seemingly excludes Title IX coordinators (whose powers the Obama administration sought to expand greatly) from the adjudication process, a provision that the final rules should make explicit; produce a written report “summarizing the relevant exculpatory and inculpatory evidence,” rather than simply looking for evidence that would support the accuser’s version of events.

Finally, the interim guidance placed “the burden . . . on the school—not on the parties—to gather sufficient evidence to reach a fair, impartial determination as to whether sexual misconduct has occurred.” While this wording strongly implied that the accused student was entitled to a presumption of innocence, final regulations should make that implication clear-cut.

As the Supreme Court has stressed, effective due-process protections in noncriminal cases are most critical when the impact and “risk of an erroneous deprivation” is great. Yet even these modest steps toward fairness drew frenzied denunciations from virtually every Democratic politician who has spoken publicly about them and a hostile or cool reaction from almost all university officials who have commented.

As a result, DeVos has not yet been able to change things very much on the ground.

Notice and Comment Rulemaking

DeVos foreshadowed more important, detailed, and lasting regulatory changes when she vowed in September that “we will launch a transparent notice-and-comment process to incorporate the insights of all parties in developing a better way,” as provided in the Administrative Procedure Act of 1946 (APA).

She stressed that just as one rape or one “aggressive act of harassment” is one too many, “one person denied due process is one too many.” The primary reference to due process for accused students in Obama-era OCR guidance, by contrast, was to caution that “steps to accord any due process rights do not restrict or unnecessarily delay the protections provided by Title IX to the complainant.”

DeVos has eschewed what she calls Obama’s “rule by letter” approach. “We want to build a rule that’s enduring and seen by all as fair,” a top DeVos aide explains. “It’s a steady, thoughtful process, not a rush.”

The DeVos OCR initially has focused on developing detailed proposed rules for campus disciplinary proceedings involving alleged student-on-student sexual misconduct. After being finalized, approved by DeVos, and reviewed by the Office of Management and Budget and other agencies, the proposed rules will be published in the coming months. Interested parties then would have several weeks to file public comments.

The APA requires that agencies such as OCR respond in detail to the comments, which could take months; make any appropriate revisions in the proposed rules; seek input on those from OMB, the Justice Department, and perhaps other agencies; and issue final rules.

Accusers’ rights groups doubtless will criticize any new regulations, and court challenges are inevitable. But the final rules will have the force of law unless and until provisions are struck down by the courts or overhauled by the next administration, in another protracted rulemaking, or (less likely) by Congress.

Proposed Procedural Rules for Campus Sex Cases

The final regulations seem likely to include all the promising elements (presumption of innocence, requirement to document exculpatory evidence, avoidance of sex stereotypes, notice of allegations, prohibition of conflicts of interest and bias, elimination of a separate, lower standard for sexual assault cases) contained (and implied) in the interim guidance. But the interim guidance omits three requirements—two of them endorsed by federal appeals courts—that are absolutely critical to fairness.

First, the regulations should require schools to tell both complainants and accused students at the outset of the process that they have a right to have a lawyer at their own expense, or another advocate, represent them at every stage of the process.

They also should require schools to give every complainant and accused student a hearing before a panel of impartial adjudicators, with a right to meaningful and non-disruptive direct cross-examination of all witnesses, including the opposing party, on all contested issues of fact. The questions may be asked by the party’s lawyer, or by another chosen advocate, except that a complainant who objects to a personal, face-to-face confrontation with an accused student’s lawyer or advocate has a right to answer his questions on video if she so requests.

(Many schools now forbid lawyers from cross-examining the complainant or other witnesses or even speaking on their client’s behalf. These restrictions make it difficult for innocent students to present an effective defense.)

These changes would reverse the Obama-era OCR’s strong opposition to meaningful cross-examination of accusers, which the overwhelming majority of schools now prohibit.

That prohibition flouts both the Supreme Court’s description (quoting a legal scholar) of cross-examination as “the greatest legal engine ever invented for the discovery of truth” and the decision of the U.S. Court of Appeals for the Sixth Circuit, in a case filed by an accused student from the University of Cincinnati, recognizing that “cross-examination takes aim at credibility like no other procedural device.” The unanimous three-judge Sixth Circuit panel castigated the university for assuming that cross-examination only benefited the accused student: “In truth, the opportunity to question a witness and observe her demeanor while being questioned can be just as important to the trier of fact as it is to the accused.” That’s because “few procedures safeguard accuracy better than adversarial questioning.”

Second, the regulations must specify that procedures that are structurally unfair to either party—not just to the accuser—constitute gender discrimination under Title IX. From 2011 onwards, the Obama administration employed Title IX on behalf of a victims’ rights viewpoint, contending that campus policies it perceived as insufficiently tilted toward the interests of accusers constituted gender discrimination in violation of Title IX—even though not all complainants are victims and not all victims are female.

The logical corollary of this approach is that if a campus system that tilts too far in favor of the accused violates Title IX, a system that tilts too far in favor of accusers also constitutes gender discrimination. But the majority of courts that have addressed this issue have concluded (as a district judge in a case filed against Rider University recently did) that bias, even overwhelming structural bias, “in favor of the alleged victim of sexual assault . . . is not the equivalent of demonstrating bias against male students.” The more compelling view, which the regulations should adopt, is that of a unanimous three-judge panel of the U.S. Court of Appeals for the Second Circuit.

It refused in July 2016 to dismiss a student’s Title IX claim against Columbia University for anti-male discrimination. It ruled that a “university that adopts, even temporarily, a policy of bias favoring one sex over the other in a disciplinary dispute, doing so in order to avoid liability or bad publicity, has practiced sex discrimination, notwithstanding that the motive for the discrimination did not come from ingrained or permanent bias against that particular sex.”

Even assuming for the sake of argument that discrimination against accused students does not violate Title IX, an obscure provision of the Higher Education Amendments adopted by Congress in 1992 appears to provide an independent source of authority for Education Department regulations designed to ensure fairness in campus adjudications of sexual assault. This provision requires colleges and universities to adjudicate all accusations of student-on-student sexual assault as part of their disciplinary systems. And that seems a sufficient basis for Education Department regulations to ensure that the adjudications be fair.

Third, the rules should require colleges both to make public all materials used to train investigators and adjudicators in campus Title IX tribunals and to ensure that the training does not discriminate against either complainants or accused students, including by generalizing about truthfulness. Federal regulations have required training disciplinary panels in all Title IX cases, even though no such requirement exists for other campus disciplinary offenses. Almost all schools now cloak their training materials in secrecy, even from accused students. As we have reported, the materials currently used by many schools stack the deckagainst the accused by suggesting without a scientific foundation that false allegations of rape are very uncommon; that any internal inconsistencies in the complainant’s account or contradictions of other evidence should be attributed to “the effects of trauma”; and that rigorous questioning of complainants is forbidden as “blaming the victim.”

Beyond these three critical components, Title IX regulations that seek to ensure a fair process rather than a pre-conceived result must:

Remind colleges that Title IX does not trump the Constitution’s protection of free speech or a professor’s right to academic freedom. Such a disclaimer would safeguard against notorious cases such as that of Northwestern University Professor Laura Kipnis, who— in the guise of policing “sexual harassment”—was subjected to a harrowing Title IX investigation for writing an article that criticized how Northwestern handled Title IX complaints.
Specify that the notice of allegations that must be provided to accused students before they are asked to respond must include copies of any written complaint by the accuser or witness statements and a detailed written summary of any verbal complaint or witness statement.
Accommodate criminal investigations by affording accused students a right to remain silent and requiring schools to defer campus proceedings for a reasonable time if so requested by police.
Prevent investigators from also serving as adjudicators and prevent both from deciding appeals in the same case.
Guarantee accused students a right to a meaningful appeal of any adverse finding for insufficient evidence, procedural violations, excessive sanctions, and newly discovered evidence.
Permit schools to mediate between parties and help them settle cases on an informal basis (a practice forbidden by OCR since 2001).
Reaffirm that OCR has no interest in limiting schools’ ability to provide counseling, medical, academic or housing accommodations, or other services to alleged victims of sexual misconduct.
The new regulations also should reverse one of the most troubling elements of the Obama-era guidance—a double-jeopardy requirement that schools with appeals processes (as virtually all do) must allow accusers to appeal not-guilty findings.

As could have been predicted, this provision has resulted in institutions using dubious reasons to overturn panel decisions in favor of accused students. Unlike the civil justice system, in most campus Title IX tribunals the accused student faces not only the accuser, but also a college employee of some type who functions as investigator or even de facto prosecutor, followed by an adjudicator trained with one-sided material. Forcing a student who overcomes all these obstacles to then obtain a second finding of innocence is deeply unfair.

The Need and Legal Justification for the Proposed Rules

“Any school that uses a system biased toward finding a student responsible for sexual misconduct . . . commits discrimination,” DeVos has said.

Congressional Democrats critical of DeVos, by contrast, too often appear to have viewed such bias as an irrelevant concern. In this pernicious framing—most recently offered by Rep. Jackie Speier (D-Calif.), the House Democrats’ point person on campus sexual assault policy—campuses need not much worry about fair procedures, since between 92 and 98 percent of accused students are guilty. Yet the studies referenced by Speier indicate that the evidence in more than half of allegations is ambiguous, demonstrating why in many cases, even a careful, unbiased, fair, professional fact-finding process cannot reliably separate the innocent from the guilty.

It’s undeniable that some schools, especially in cases involving allegations against high-profile athletes who bring in money to their schools, have made it difficult or impossible for student victims to achieve justice. Nonetheless, overwhelming evidence exists in the public record of campus procedures that have the effect, if not the intent, of denying accused students a fair opportunity to defend themselves. As Harvard Law professors Elizabeth Bartholet, Nancy Gertner, Janet Halley, and Jeannie Suk Gersen noted in a white paper titled “Fairness for All Students,” filed with OCR in August:

Definitions of sexual wrongdoing on college campuses are now seriously overbroad. They go way beyond accepted legal definitions of rape, sexual assault, and sexual harassment. They often include sexual conduct that is merely unwelcome, even if it does not create a hostile environment, even if the person accused had no way of knowing it was unwanted, and even if the accuser’s sense that it was unwelcome arose after the encounter. . . . The procedures for enforcing these definitions are frequently so unfair as to be truly shocking. . . . Title IX officers have reason to fear for their jobs if they hold a student not responsible or [fail to impose] a harshly punitive sanction.
The prevalence of discrimination against accused students has been detailed by myriad journalists and scholars as well as by our 2017 book, “The Campus Rape Frenzy,” and books by Laura Kipnis and Robert L. Shibley. The journalists include Emily Yoffe, Cathy Young, Ashe Schow, and Robby Soave. The scholars include the 24 Harvard law professors mentioned above; 16 Penn Law School professors who issued a similarly reasoned open letter; and law professors Aya Gruber, Tamara Lave Rice, R. Shep Melnick, and Ben Trachtenberg, who have written individually on the issue. The nation’s leading campus civil liberties group, the Foundation for Equal Rights in Education (FIRE), for several years has cautioned that the implementation of Title IX has threatened fair treatment for accused students.

Finally, schools should voluntarily distinguish among allegations of (1) violations of the criminal law as defined by the state where the campus is located; (2) sexual harassment as defined in these rules; and (3) any lesser form of sexual misconduct specified in the school policies. (For DeVos to make these distinctions mandatory would arguably conflict with existing Clery Act regulations.) As DeVos has said, many schools enforce “ambiguous and incredibly broad definitions of assault and harassment.” Trivializing what is a felony in all 50 states serves the interests of no one.

These proposed rules may strike many as too prescriptive for a conservative administration that has vowed to cut back on federal regulation. And we wish we could think of a better way to protect the constitutional rights of independent-minded college students and professors.

But we can’t. The courts, limited to case-by-case decisions, cannot do it on a broad scale. And Congress, never a champion of the rights of accused people, will not do it. Nor will the states.

The paradox is that nothing short of muscular federal regulation will stop our politically correct universities from trampling the liberty of students and faculty.

Stuart Taylor Jr. is an author and former nonresident senior fellow at the Brookings Institution who has written extensively on legal and policy issues.

“KC Johnson and Stuart Taylor Jr. are coauthors of The Campus Rape Frenzy: The Attack on Due Process at America’s Universities (Encounter Books, 2017).”

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Those follow-on regulations could require schools to presume that accused students are innocent unless proven guilty, to allow rigorous cross-examination of accusers, and perhaps also to grant the accused the unqualified right to appeal adverse decisions, and more.

Meanwhile, the modest improvements that DeVos included in the “interim guidance” of September 22 let universities know how to comply with the Education Department’s requirements during the time between the end of the Obama decrees and the final adoption of new, carefully considered regulations.

DeVos and her team have good reason for this two-stage approach to reforming enforcement of Title IX, the federal law prohibiting sex discrimination in higher education. She has vowed not to emulate the process used by the Obama administration in its now-notorious decrees of 2011 and 2014, when it issued dozens of pages of detailed “guidance” on Title IX compliance without prior notice and without giving the public a chance to comment.

The Obama decrees flouted basic principles of sound policymaking and, in the view of many experts, violated the notice-and-comment provisions of the Administrative Procedure Act of 1946. Catherine Lhamon, Obama’s second head of the Education Department’s Office for Civil Rights, recently derided those provisions as “essentially a popular vote.”

The Education Department’s announcement on September 22 was presaged two weeks earlier in a major address by DeVos at George Mason University’s law school, where she expressed grave concern about the unfairness of the Obama decrees and of many campus sex tribunals and declared that “no student should be forced to sue their way to due process.” Around 180 accused students have sued their schools since the Obama administration’s April 2011 “Dear Colleague” letter.

The DeVos criticisms echoed those of distinguished civil libertarians, law professors, and journalists. They have deplored the now-revoked Obama requirements that schools, among other measures, use a very low burden of proof (“preponderance of the evidence”) for branding an accused student a rapist; all but abolish meaningful cross-examination of accusers; and subject accused students to a form of double jeopardy by allowing accusers to appeal not-guilty findings.

These requirements dramatically increased the chances of finding an innocent student guilty, as scholarly research by John Villasenor has confirmed. As a group of Penn Law School professors stated, the Obama-era guidance placed “improper pressure upon universities to adopt procedures that do not afford fundamental fairness.” And as 28 Harvard law professors asserted, this led too many schools to establish procedures that “lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.”

The “Dear Colleague” letter rescinding the 2011 and 2014 guidance quoted each of these passages, emphasizing the importance of due process in a way that would have been inconceivable during the Obama years.

The frenzied reactions of many Democratic politicians and campus activists to DeVos’s carefully reasoned, balanced speech and to the September 22 guidance show how difficult it will be to replace today’s systematic discrimination against accused students with disciplinary systems that will be fair to accusers and accused alike.

The Education Department announcement included an apt quotation from one of the nearly 70 state and federal court decisions upholding (often on preliminary motions) lawsuits filed by accused students. The opinion, by Judge F. Dennis Saylor, assailed a decision by Brandeis University in which a student had been found guilty of “sexual violence” for such offenses as awakening his sleeping boyfriend with kisses.

In an understated indictment of the unfairness at the core of the Obama approach, Judge Saylor wrote: “Whether someone is a ‘victim’ is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning. . . . Put simply, a fair determination of the facts requires a fair process, not tilted to favor a particular outcome.”

The interim guidance, which will remain in place until the Education Department conducts its notice-and-comment process and issues new regulations, points universities toward procedures designed to pursue the truth rather than presume the guilt of the accused.

Thus, for example, the interim guidance allows a college to depart from the Obama-required “preponderance” standard and to use instead the more rigorous “clear and convincing” standard of proof, if that is the standard that the school uses in non-sex disciplinary cases.

The interim guidance also gives colleges the option of allowing meaningful cross-examination, which the Supreme Court has described as “the greatest legal engine ever invented for the discovery of truth,” and of giving accused students the right to appeal without subjecting them to appeals by accusers of not-guilty findings.

But it seems likely that few colleges or universities will respond to the interim guidance by creating fairer procedures. University of California president Janet Napolitano, for example, who had castigated the Obama decrees in a 2015 article, has changed her tune since DeVos started championing due process. Napolitano claimed that DeVos was too focused on “outlier” cases of unfairness and vowed that the UC system would retain its current procedures — which one state judge compared to a “kangaroo” court — no matter what the Education Department does.

Accusers’ rights organizations roundly condemned DeVos’s move and doubtless would join their many faculty supporters in aggressively attacking any college president who chooses fairness to both accusers and accused over presuming male guilt.

If most schools, as we expect, reject the Education Department’s invitation to abandon their current one-sided policies, what will Betsy DeVos do?

We hope and believe that she and her team will issue strong new regulations specifying procedures that schools must use to qualify as fair, including those sketched above.

During the months before new regulations can be adopted, probably the greatest impact of the interim rules will be felt by university lawyers, who can no longer argue in court — as they have done with some success — that any unfairness in their procedures was mandated by the Education Department. That dog won’t hunt any more.

The interim guidelines still leave much to be desired. For instance, the Education Department continues to allow schools to use a deeply problematic, Obama-blessed system in which a single person serves as lead investigator, prosecutor, judge, and jury.

But we hope to see such flaws fixed in the final regulations. And if they are not, the courts might have the last word. In a major decision issued September 25, a three-judge panel for the Sixth Circuit Court of Appeals, including judges nominated by presidents of both parties, ruled against the University of Cincinnati because it failed to give an accused student any chance to cross-examine his accuser.

The Sixth Circuit concluded that in “he said/she said” cases that turn on the credibility of the two parties, a university’s “failure to provide any form of confrontation of the accuser made the proceeding . . . fundamentally unfair.” This was an implicit rebuke to the Obama policy and makes it more likely that DeVos will not merely permit but also require cross-examination rights for accused students.

For the most part, DeVos continues to move in the right direction, against overwhelming odds, to create a fairer system for all students.

KC Johnson and Stuart Taylor Jr. are coauthors of The Campus Rape Frenzy: The Attack on Due Process at America’s Universities (Encounter Books, 2017).

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shows that his claim that his accuser consented to have sex is as credible as her often-revised account.
The Times’ coverage of the Winston controversy (and others like it) shows the nation’s most influential newspaper exemplifying bias in the Winston case in particular and on the issue of campus rape in general. It comes at a time when Winston will soon be back in the news due to the 2015 NFL draft and a forthcoming film on campus sexual assault, “The Hunting Ground,” which showcases his accuser’s public campaign against him while suggesting that the NFL should shun him.

The uncomfortable truth is that whether Winston committed a rape or whether his accuser is telling a false story cannot be established with confidence. This past December Florida State announced the results of its investigation of the accusation against Winston after a two-day hearing before retired Florida Supreme Court Justice Major Harding. He reviewed over 1,000 pages of evidence and legal arguments. Under university rules, the accuser needed to prove only that it was more probable than not that Winston subjected her to “any sexual act” without her consent or any other “sexual misconduct.” Harding found that the case against Winston did not meet even that low threshold. “I do not find the credibility of one story substantially stronger than that of the other,” he wrote, “or that this encounter was nonconsensual.”

The New York Times has devoted enormous resources to covering this controversy – more than 40 articles, including a 5,200-word piece by three-time Pulitzer Prize winner Walt Bogdanich — probing the legal processes that have cleared Winston. But the newspaper’s coverage has been characterized by the same selective and agenda-driven presentation of the facts it faults Florida authorities for exhibiting.

The accuser, anonymous until last month, has now publicly identified herself and told her story in “The Hunting Ground.” Her name is Erica Kinsman. In her version of events, she was not only raped by Winston but also mistreated by her university and the criminal justice system in order to protect a nationally famed athlete. This is what The Times’ coverage would lead readers to believe. But The Times has excluded a large body of evidence that undermines Kinsman’s credibility and supports Winston.

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Kagan did discriminate against military recruiters for some months to protest the exclusion of openly gay people from the military. Is this a big blot on her record?

A little blot at worst, I’d say, and one offset by Kagan’s energetic and consistent support of students who had served and who planned to serve in the military, which she praised as a “noble” and “deeply honorable” profession.

One of Kagan’s great virtues was her success in taking a sledgehammer to the Harvard faculty’s high quotient of left-wing mindlessness.

Kagan’s short-lived denial to military recruiters of the same help that the law school provided to private employers was, in my view, an unwise way to protest the unjust 1993 law — adopted by a Democratic Congress and signed by President Clinton — that excluded openly gay people from the military.

“At a time of war, in the face of the grand civilizational challenge that radical Islam poses,” charges Ed Whelan, head of the conservative Ethics and Public Policy Center, in National Review Online’s Bench Memos blog, “Kagan treated military recruiters worse than she treated the high-powered law firms that were donating their expensive legal services to anti-American terrorists.”

Ouch. But Kagan’s restrictions on military recruiting were both inherited and largely symbolic. They do not appear to have impeded recruiters’ access to interested students. She held annual Veterans Day dinners at her home for students who had served. And three Iraq War veterans who were students on her watch praised “Dean Kagan’s strong record of welcoming and honoring veterans on campus” in a letter to the Senate Judiciary Committee.

In an October 2007 speech to the cadets at West Point, Kagan said, “I am in awe of your courage and your dedication,” and, “I know how much my security and freedom and indeed everything else I value depend on all of you.”

Some facts:

Kagan did not “ban” military recruiters from the campus, as many critics have erroneously said. Before, during, and after her deanship in 2003-2008, the Harvard Law School Veterans Association provided military recruiters access to classrooms and other campus space for recruiting events, with the law school’s approval.

Kagan did for a time deny the assistance of the law school’s Office of Career Services to recruiters for the military and other interested employers (if any) that discriminate against gay people. That office helps employers schedule interviews and recruit students. It is not a place where they can meet. Most private employers interview students in nearby hotels.

The law school’s policy did not prevent the military from recruiting law students who were interested in enlisting. Indeed, 18 went into the military during her tenure.

And the policy was not Kagan’s invention. It dated back to a 1979 faculty vote to bar any employer that discriminates on the basis of race, sex, age, or sexual orientation from using the Office of Career Services. Other law schools had similar policies.

I largely agree with Kagan’s assertion in a 2003 e-mail to the law school community that the government’s exclusion of open gays was “a profound wrong” and “a moral injustice of the first order.” (I reserve “the first order” for, say, mass murder.)

But I fault Kagan for aiming her denunciations at what she (among many others) has over and over again called “the military’s” discriminatory recruitment policy. In fact, the “don’t ask, don’t tell” policy was set by Clinton’s implementation of the 1993 law that he signed after a Democratic Congress had passed it.

Although Congress and Clinton acted at the behest of military leaders, it was unwise for Kagan (and many others) to discriminate against military recruiters who were bound by the Clinton-signed law and policy while giving a pass to the Democratic politicians who (along with most congressional Republicans) adopted them.

In addition to Clinton, whom Kagan would later serve as a White House aide from 1995 to 1999, the politicians who voted in 1993 to perpetuate discrimination against gays in the military included then-Sen. Joe Biden and 18 current Democratic senators, among them Majority Leader Harry Reid, Senate Judiciary Committee Chairman Patrick Leahy, and 2004 presidential nominee John Kerry.

Still, I would be less harsh on Kagan than Peter Beinart, a moderate-liberal columnist for The Daily Beast, who called her policy “a statement of national estrangement” and a surrender to “the left-wing mindlessness that sometimes prevails on campus.”

Indeed, one of Kagan’s great virtues as dean was her success in taking a sledgehammer to the Harvard faculty’s previously quite high quotient of left-wing mindlessness.

Kagan became dean in 2003, the year after Harvard had suspended its discrimination against military recruiters in response to a Bush Defense Department threat to strip the university of more than $300 million a year in federal research funding. (None of the money went to the law school.)

The department had invoked the 1996 Solomon Amendment, in which Congress called for defunding any educational institution that “prohibits or in effect prevents” military recruiting.

Kagan continued to give military recruiters access to the Office of Career Services during her first two years as dean. Meanwhile, in 2003 a consortium of other law schools and professors sued to challenge the Solomon Amendment as contrary to the First Amendment.

While hundreds of law professors made the same argument in amicus curiae briefs in a federal Appeals Court and later the Supreme Court, 54 of Harvard’s 81 law professors, including Kagan (in her capacity as a professor but not as dean), took a different tack.

Apparently foreseeing that the First Amendment claim had little chance of success if the case reached the Supreme Court, the Harvard professors argued in another amicus brief that the Solomon Amendment’s language should be read as allowing institutions to exclude military recruiters as part of a general policy of excluding all groups that discriminate against gays. Most of the same professors, including Kagan, later made the same argument — which would have astonished the Solomon Amendment’s authors — in the Supreme Court.

The Appeals Court held the Solomon Amendment unconstitutional by 2-to-1 in November 2004. Although the decision was stayed pending Supreme Court review, Kagan immediately reinstated her law school’s policy of relegating military recruiters to working through the campus veterans’ group.

The veterans’ group said at the time that its “tiny membership, meager budget, and lack of any office space” would prevent it from “duplicating the excellent assistance provided by the Office of Career Services” or doing much else besides coordinating campus recruiting via e-mail. “In other words,” Whelan wrote, “it appears that Kagan’s decision … was, in practice, the substantial equivalent of kicking them off the campus altogether.”

With all respect to Whelan, who is perhaps Kagan’s most factually meticulous and trenchant critic, this strikes me as overstated and unfair. However inconvenient her policy may have been for some, Kagan never sought to prevent military recruiters from using classrooms or other campus space to meet students.

In the summer of 2005, the Defense Department again threatened to yank federal funds, and the university again backed down. Kagan announced that the law school would give military recruiters equal access. Lamenting the inequity to gay students, she explained that “the importance of the military to our society — and the great service that members of the military provide to all the rest of us — heightens, rather than excuses, this inequity.”

The Supreme Court put an exclamation point on the Defense Department’s fund-stripping threat in an 8-0 decision reversing the Appeals Court in March 2006. The opinion, by Chief Justice John Roberts, rejected both the plaintiffs’ First Amendment challenge and the Harvard brief’s strained interpretation. His tone seemed to suggest that the legions of law professors supporting the lawsuit had showed little understanding of law.

In fairness to Kagan, the brief that she signed took a more defensible position than those attacking the Solomon Amendment as unconstitutional. She believed passionately in the justice of her cause. And refusing to sign might have offended Harvard’s overwhelmingly liberal faculty and student body so much as to set back Kagan’s campaign to make the law school more open to conservative perspectives and healthy debate.

A conservative Kagan critic might retort: Aren’t you admitting that Elena Kagan’s world is a legal academic complex oozing politically correct bias, moral vanity, detachment from the real world, and a cynical view of the law as meaning whatever you can manipulate it to mean?

Yes, to some extent. But while she was unwise to discriminate against military recruiters, Kagan is not part of the p.c. problem. She is part of the commonsense solution.

This article appeared in the Saturday, May 15, 2010 edition of National Journal.

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Kagan did discriminate against military recruiters for some months to protest the exclusion of openly gay people from the military. Is this a big blot on her record?

A little blot at worst, I’d say, and one offset by Kagan’s energetic and consistent support of students who had served and who planned to serve in the military, which she praised as a "noble" and "deeply honorable" profession.

Kagan’s short-lived denial to military recruiters of the same help that the law school provided to private employers was, in my view, an unwise way to protest the unjust 1993 law — adopted by a Democratic Congress and signed by President Clinton — that excluded openly gay people from the military.

"At a time of war, in the face of the grand civilizational challenge that radical Islam poses," charges Ed Whelan, head of the conservative Ethics and Public Policy Center, in National Review Online’s Bench Memos blog, "Kagan treated military recruiters worse than she treated the high-powered law firms that were donating their expensive legal services to anti-American terrorists."

Ouch. But Kagan’s restrictions on military recruiting were both inherited and largely symbolic. They do not appear to have impeded recruiters’ access to interested students. She held annual Veterans Day dinners at her home for students who had served. And three Iraq War veterans who were students on her watch praised "Dean Kagan’s strong record of welcoming and honoring veterans on campus" in a letter to the Senate Judiciary Committee.

In an October 2007 speech to the cadets at West Point, Kagan said, "I am in awe of your courage and your dedication," and, "I know how much my security and freedom and indeed everything else I value depend on all of you."

Some facts:

Kagan did not "ban" military recruiters from the campus, as many critics have erroneously said. Before, during, and after her deanship in 2003-2008, the Harvard Law School Veterans Association provided military recruiters access to classrooms and other campus space for recruiting events, with the law school’s approval.

Kagan did for a time deny the assistance of the law school’s Office of Career Services to recruiters for the military and other interested employers (if any) that discriminate against gay people. That office helps employers schedule interviews and recruit students. It is not a place where they can meet. Most private employers interview students in nearby hotels.

The law school’s policy did not prevent the military from recruiting law students who were interested in enlisting. Indeed, 18 went into the military during her tenure.

And the policy was not Kagan’s invention. It dated back to a 1979 faculty vote to bar any employer that discriminates on the basis of race, sex, age, or sexual orientation from using the Office of Career Services. Other law schools had similar policies.

I largely agree with Kagan’s assertion in a 2003 e-mail to the law school community that the government’s exclusion of open gays was "a profound wrong" and "a moral injustice of the first order." (I reserve "the first order" for, say, mass murder.)

But I fault Kagan for aiming her denunciations at what she (among many others) has over and over again called "the military’s" discriminatory recruitment policy. In fact, the "don’t ask, don’t tell" policy was set by Clinton’s implementation of the 1993 law that he signed after a Democratic Congress had passed it.

Although Congress and Clinton acted at the behest of military leaders, it was unwise for Kagan (and many others) to discriminate against military recruiters who were bound by the Clinton-signed law and policy while giving a pass to the Democratic politicians who (along with most congressional Republicans) adopted them.

In addition to Clinton, whom Kagan would later serve as a White House aide from 1995 to 1999, the politicians who voted in 1993 to perpetuate discrimination against gays in the military included then-Sen. Joe Biden and 18 current Democratic senators, among them Majority Leader Harry Reid, Senate Judiciary Committee Chairman Patrick Leahy, and 2004 presidential nominee John Kerry.

Still, I would be less harsh on Kagan than Peter Beinart, a moderate-liberal columnist for The Daily Beast, who called her policy "a statement of national estrangement" and a surrender to "the left-wing mindlessness that sometimes prevails on campus."

Indeed, one of Kagan’s great virtues as dean was her success in taking a sledgehammer to the Harvard faculty’s previously quite high quotient of left-wing mindlessness.

Kagan became dean in 2003, the year after Harvard had suspended its discrimination against military recruiters in response to a Bush Defense Department threat to strip the university of more than $300 million a year in federal research funding. (None of the money went to the law school.)

The department had invoked the 1996 Solomon Amendment, in which Congress called for defunding any educational institution that "prohibits or in effect prevents" military recruiting.

Kagan continued to give military recruiters access to the Office of Career Services during her first two years as dean. Meanwhile, in 2003 a consortium of other law schools and professors sued to challenge the Solomon Amendment as contrary to the First Amendment.

While hundreds of law professors made the same argument in amicus curiae briefs in a federal Appeals Court and later the Supreme Court, 54 of Harvard’s 81 law professors, including Kagan (in her capacity as a professor but not as dean), took a different tack.

Apparently foreseeing that the First Amendment claim had little chance of success if the case reached the Supreme Court, the Harvard professors argued in another amicus brief that the Solomon Amendment’s language should be read as allowing institutions to exclude military recruiters as part of a general policy of excluding all groups that discriminate against gays. Most of the same professors, including Kagan, later made the same argument — which would have astonished the Solomon Amendment’s authors — in the Supreme Court.

The Appeals Court held the Solomon Amendment unconstitutional by 2-to-1 in November 2004. Although the decision was stayed pending Supreme Court review, Kagan immediately reinstated her law school’s policy of relegating military recruiters to working through the campus veterans’ group.

The veterans’ group said at the time that its "tiny membership, meager budget, and lack of any office space" would prevent it from "duplicating the excellent assistance provided by the Office of Career Services" or doing much else besides coordinating campus recruiting via e-mail. "In other words," Whelan wrote, "it appears that Kagan’s decision … was, in practice, the substantial equivalent of kicking them off the campus altogether."

With all respect to Whelan, who is perhaps Kagan’s most factually meticulous and trenchant critic, this strikes me as overstated and unfair. However inconvenient her policy may have been for some, Kagan never sought to prevent military recruiters from using classrooms or other campus space to meet students.

In the summer of 2005, the Defense Department again threatened to yank federal funds, and the university again backed down. Kagan announced that the law school would give military recruiters equal access. Lamenting the inequity to gay students, she explained that "the importance of the military to our society — and the great service that members of the military provide to all the rest of us — heightens, rather than excuses, this inequity."

The Supreme Court put an exclamation point on the Defense Department’s fund-stripping threat in an 8-0 decision reversing the Appeals Court in March 2006. The opinion, by Chief Justice John Roberts, rejected both the plaintiffs’ First Amendment challenge and the Harvard brief’s strained interpretation. His tone seemed to suggest that the legions of law professors supporting the lawsuit had showed little understanding of law.

In fairness to Kagan, the brief that she signed took a more defensible position than those attacking the Solomon Amendment as unconstitutional. She believed passionately in the justice of her cause. And refusing to sign might have offended Harvard’s overwhelmingly liberal faculty and student body so much as to set back Kagan’s campaign to make the law school more open to conservative perspectives and healthy debate.

A conservative Kagan critic might retort: Aren’t you admitting that Elena Kagan’s world is a legal academic complex oozing politically correct bias, moral vanity, detachment from the real world, and a cynical view of the law as meaning whatever you can manipulate it to mean?

Yes, to some extent. But while she was unwise to discriminate against military recruiters, Kagan is not part of the p.c. problem. She is part of the commonsense solution.

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Things are not going so well for those of us who fear that the Lilly Ledbetter Fair Pay Act, which President Obama co-sponsored as a senator and signed on Thursday, and other job discrimination bills in the congressional pipeline may be bad for most workers and may benefit mainly lawyers.

Ledbetter waited more than five years after learning that she was paid substantially less than most male co-workers to file her Title VII claim.

These measures seem likely to make it harder than ever for employers to defend themselves against bogus (as well as valid) discrimination claims, effectively adding to the cost of each new hire.

This would be justified if job discrimination were indeed pervasive. But the evidence suggests otherwise. Study after study has, for example, cast grave doubt on what appears to be the myth that sex discrimination in the workplace remains rampant more than 40 years after Congress adopted one law broadly banning job discrimination and another requiring equal pay for women and men doing equal work.

Congressional Democrats, liberal groups, and the media have thoroughly distorted the facts underlying the Ledbetter law to advance their agenda of opening the door wide to all manner of job-discrimination lawsuits.

The new law will virtually wipe out the 300-day time limit (180 days in Alabama and some other states) during which employees can file claims of discrimination under Title VII of the 1964 Civil Rights Act. Disgruntled employees will now be free to wait many years before hauling employers into court for supposedly discriminatory raises, promotions, or any other actions affecting pay.

The longer the wait, the more difficult it will be for the employer to contest an employee’s one-sided and perhaps false account of the case, because key witnesses may have retired or died and records such as performance evaluations may have been discarded.

Indeed, some of the Ledbetter law’s vague language could be construed as opening the doors for people to sue a company even years after retiring, on the theory that each new pension check is too small because of some claim of discrimination by some long-since-departed (or dead) supervisor.

This law represents an overreaction to a May 2007 Supreme Court decision, Ledbetter v. Goodyear Tire & Rubber Co., that provoked an explosion of ill-informed media outrage and propelled the losing party, retired Goodyear employee Lilly Ledbetter of Alabama, to a speaking role at last year’s Democratic National Convention.

The 5-4 decision reasonably (if debatably) held that the 180-day time limit for Ledbetter to file her Title VII claim had started running with the most recent act of intentional discrimination that affected her pay in the ensuing years. Ledbetter had argued — and the new law now provides — that the 180-day clock should restart with each new paycheck.

For this, the conservative majority was widely reviled as having denied any remedy to Ledbetter, because employees often don’t know what their co-workers are paid and thus might not learn that they are victims until more than 180 (or 300) days after the supposed discrimination occurred.

But some critical facts — ignored by the media and Congress — belie their portrayal of the case, as detailed in my June 9, 2007, column.

First, Ledbetter waited more than five years after learning that she was paid substantially less than most male co-workers to file her Title VII claim for back pay, compensatory, and punitive damages. Second, by that time a key supervisor — whom she belatedly accused of holding down her pay raises after she rejected his sexual advances — had died. Third, Ledbetter chose not to pursue a claim under the Equal Pay Act of 1963, which has a much longer time limit (three years) than Title VII but does not (yet) provide for big-bucks damage awards.

Fourth, her years of poor performance evaluations, plus repeated layoffs that affected her eligibility for raises, convinced a federal magistrate judge (although not the jury) that her relatively low pay did not prove sex discrimination. Maybe Ledbetter was a victim of discrimination, as the jury found. Maybe not. The evidence is too stale to allow for a confident conclusion — which is one reason the justices ruled against her.

That said, it would have been reasonable for Congress to amend Title VII by specifying (as some lower courts have held) that the clock does not start running until the employee is or should be aware that she is earning less than co-workers.

Instead, Congress chose to shift the balance dramatically against employers by effectively eliminating time limits for filing all manner of discrimination claims that have some impact on pay.

Another bill that may reach President Obama is the House-passed Paycheck Fairness Act. Its confusingly worded amendments to the Equal Pay Act of 1963 seem designed — or at least likely — to force pay raises for women who have never been victims of anything that most people would call discrimination.

The bill would, for example, expose an employer to liability for paying a woman less than a man in a similar job unless the employer can convince a jury that the differential is "job related" and "consistent with business necessity" — and also that no "alternative employment practice exists that would serve the same business purpose."

What’s that parade of nebulosities supposed to mean? I think it would invite judges and juries to go beyond providing remedies for real discrimination and to play Robin Hood by second-guessing justifiable pay disparities. It would force some employers who are entirely innocent of sex discrimination to settle unwarranted lawsuits.

An employer that has long paid higher salaries to employees with more experience or better scores on written tests of their job-related skills might be hit for a big damage award for failing instead to provide special training for inexperienced women or to use a different test.

A very big damage award, perhaps: The Paycheck Fairness Act would allow unlimited awards of both compensatory and (in cases of "reckless indifference") punitive damages. Other proposals likely to emerge during this Congress would eliminate the current caps on damages in Title VII lawsuits as well.

Worse, the Paycheck Fairness Act would allow lawyers to include masses of women who have little or no interest in suing in class-action lawsuits, excepting only those who go to the trouble of "opting out." This is a formula for lawyer-generated lawsuits to extort millions of dollars from companies without proving that they ever intentionally discriminated against anyone.

One of the myths underlying this bill is that, as then-Sen. Hillary Rodham Clinton of New York said on January 8: "It is disgraceful that… women in this country still earn only 78 cents on the dollar" earned by men.

No, it’s not disgraceful. Nor is it true that "in many instances, the pay disparities can only be due to continued intentional discrimination or the lingering effects of past discrimination," as stated in the findings attached to the Paycheck Fairness Act.

Labor Department data and academic studies show that much of the male-female pay differential is explained by such factors as disproportionate child-rearing and caregiving responsibilities.These cut into women’s working hours and motivate many to sacrifice higher pay for shorter hours and the flexibility to take career breaks.

The data also demonstrate that women who work 40 hours a week make 88 percent as much as men who work 40 hours. Economics professor June O’Neill of Baruch College reported in a 2003 article that the female-to-male wage ratio rises to 95 percent when other data — on child-related factors, demographics, academic majors, work experience, and occupational characteristics — are also taken into account. The "gender gap can be explained to a large extent by nondiscriminatory factors," O’Neill concluded.

"Men and women generally have equal pay for equal work now — if they have the same jobs, responsibilities, and skills," wrote Diana Furchtgott-Roth of the conservative free-market Hudson Institute. She added, in a January 21 commentary published by Reuters, that the 5.9 percent unemployment rate for adult women is lower than the 7.2 percent for adult men.

This is not to suggest that sex discrimination is no longer a serious problem. I worry that my two daughters may run into the barriers that still lurk in some unknown percentage of workplaces. But I worry more that they and their peers will have a harder and harder time finding jobs in the first place if the government burdens employers with lawsuits that make it more and more expensive to bring in new hires.

CORRECTION: The original version of this column misspelled Diana Furchtgott-Roth’s name.

This article appeared in the Saturday, January 31, 2009 edition of National Journal.

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In The Times, that headline could only refer to one grouping: The usual four conservatives plus sometime-conservative Justice Anthony Kennedy voting down the usual four liberals. With Bush-appointed Justice Samuel Alito writing the majority opinion, and Clinton-appointed Justice Ruth Bader Ginsburg reading her dissent from the bench and urging Congress to "correct" the Court, this rather technical case, Ledbetter v. Goodyear Tire & Rubber, instantly became a magnet for media moaning of the barbarians-at-the-gate genre.

"The Supreme Court struck a blow for discrimination this week," The Times began. The Court "has read the law so rigidly that it has misread life," chimed in the Los Angeles Times. The Washington Post‘s front-page news report devoted (by my count) four paragraphs to the nuts and bolts of the decision, four and a half paragraphs to the majority’s analysis and supportive quotes, and 17 and a half paragraphs to Ginsburg, her dissent, and other critics. "A harsh and rigid reading of the law … striking for its lack of empathy," Ellis Cose complained in Newsweek. He seconded the American Civil Liberties Union’s charge that this was an "astonishing decision" by an "activist court."

Are Alito and company really such heartless, pro-discrimination brutes? Hardly. Ginsburg’s dissent was well put. But Alito had the better of the argument as to congressional language and the Court’s own precedents, in my view. And as a policy matter, it’s far from clear that justice would be better served by the Ginsburg approach of opening the door wide to employees who, like the plaintiff in this case, wait for many years to claim long-ago—and thus difficult to disprove—pay discrimination.

The majority’s reading of the relevant provisions of Title VII of the 1964 Civil Rights Act, which bans employment discrimination based on (among other things) sex, rested on three points that Ginsburg did not dispute.

• Congress provided an unusually short statute of limitations for Title VII lawsuits such as plaintiff Lilly Ledbetter’s—180 days "after the alleged employment practice occurred"—in a political compromise designed to promote conciliation over litigation.

• Title VII required Ledbetter to prove that the "employment practice" involved intentional discrimination in pay based on sex.

• Her employer, Goodyear Tire & Rubber, did not intentionally discriminate against her during the 180 days before she filed her complaint.

Case closed, one might think: This lawsuit was time-barred by Congress.

But lawyers for Ledbetter, who was paid significantly less than any of her male colleagues, and Justice Ginsburg had a theory to get around the 1964 act’s seemingly plain language:

Because supervisors intentionally discriminated against Ledbetter by putting her on a lower-paid track than her male colleagues years before she filed her claim, the argument goes, then—even if nobody ever intentionally discriminated against her again—each new paycheck amounted to a new act of discrimination, resetting the 180-day clock.

That’s a stretch. True, most federal appeals courts have reached similar conclusions, but never, as Alito stressed, has the Supreme Court allowed such a Title VII suit to proceed without evidence that at least some intentional discrimination occurred within the 180-day period.

Four of the Court’s prior decisions—in 1977, 1980, 1989, and 2002—held that Title VII’s statute of limitations cut off any claims based on discriminatory acts that occurred more than 180 days before the claim was filed, even if those acts continued to adversely affect the plaintiff’s pay or status into the 180-day period.

Ginsburg stressed another decision, Bazemore v. Friday, from 1986. But while somewhat ambiguous, Bazemore involved allegations of intentional, race-based pay discrimination during, as well as before, the 180-day period.

The Ledbetter case exemplifies the policy judgment underlying such congressionally mandated time limits. The main acts of discrimination alleged by Ledbetter dated to the early 1980s and mid-1990s, when she says a supervisor retaliated against her for shunning his sexual advances by giving her smaller raises than similarly situated men. Ledbetter knew no later than 1992 that she was earning less than most male colleagues. But she waited to sue until July 1998, when she was ready to retire. By the time of trial, the alleged harasser had died, leaving Goodyear in no position to dispute her claims.

The approach proposed by Ginsburg and the three other dissenters could effectively nullify Congress’s 180-day statute of limitations in all, or at least most, pay-discrimination lawsuits—even, Alito suggested, if the plaintiff waits 20 years to sue after learning of a single allegedly discriminatory act. Ginsburg responded that judges could use legal doctrines including "laches" to throw out claims filed unreasonably late. Or, as Alito explained, they might not.

The inevitable cost of any statute of limitations is that some valid claims will be time-barred. Congress, not the courts, is supposed to strike the cost-benefit balance. And Congress is free to change or fine-tune the provision to make it more plaintiff-friendly, as Ginsburg and others have urged. But is it the Court’s job to fine-tune it by strained interpretation?

Meanwhile, the suggestions by Ginsburg and the media that the decision leaves women such as Ledbetter with no adequate remedy for pay discrimination—because they may not even know what their male peers are paid until more than 180 days after the allegedly discriminatory pay-setting decision—are vastly exaggerated.

It’s true that some victims of pay discrimination will be initially ignorant of their peers’ pay and thus out of luck as far as Title VII is concerned. But Ledbetter, who waited six or more years to sue after learning of the pay disparities, is not one of them.

Besides, Title VII is not the only remedy for sex-based pay discrimination. The Equal Pay Act of 1963 requires employers to pay women as much men doing "equal work" in the same establishment, with exceptions including merit pay. This law does not require proof of intentional discrimination. And it has a much longer, three-year statute of limitations.

Ledbetter sued under the Equal Pay Act as well as under Title VII. But the trial judge threw out the former claim. The exact reasons are unclear, but it appears that few men at Goodyear had jobs similar enough to Ledbetter’s to meet the definition of "equal work." Ledbetter did not appeal, perhaps because the big bucks are in punitive damages, which are unavailable under the Equal Pay Act.

The judge allowed the Title VII claim to go to trial. The jury found sex-based pay discrimination and awarded Ledbetter $223,776 in back pay, $4,662 for mental anguish—and $3,285,979 in punitive damages. The judge reduced this to $60,000 in back pay and the congressional maximum $300,000 in (mostly punitive) damages.

This is the award that the justices overturned (as had a federal appeals court) on the ground that the Title VII claim should never have gone to the jury because there was no proof of intentional discrimination during the 180-day period set by Congress.

By the way, it’s debatable, if legally irrelevant, whether the jury was right to find that Ledbetter was a victim of sex discrimination. While she and two other women testified that male supervisors at the plant were openly biased against women, other witnesses disagreed. And the evidence as to Goodyear’s intent was old and stale.

It was clearly established, on the other hand, that the pay disparities between Ledbetter and similarly situated men were largely attributable to the cumulative effect of repeated layoffs, which made her ineligible for raises in 1986, 1987, 1988, and 1990, and which she has not alleged to be discriminatory.

Beyond that, before the case went to the jury, a federal magistrate judge found that Ledbetter’s relatively low pay reflected "weak" job performance, not sex discrimination. He noted that most of her performance evaluations were "at or near the bottom": 15th out of 16 area managers, and 23rd out of 24 salaried employees in tire assembly in both 1996 and 1997, for example. Ledbetter said the evaluations were tainted by discrimination.

Ginsburg, whose dissents from this and other 5-4 conservative rulings have brought much media adulation, has said she feels "lonely" on the bench since Justice Sandra Day O’Connor, her only female colleague, retired. And some suggest that O’Connor would have voted with Ginsburg in this case.

Perhaps. But a 2002 decision relaxing Title VII’s filing deadline in a case involving a years-long pattern of racial harassment suggests otherwise. The majority opinion, then described by The New York Times as "an important victory for workers," was written by Justice Clarence Thomas, whom Adam Cohen of The Times maligned after the Ledbetter decision for "reflexively" opposing "discrimination claims of minorities and women." The author of the dissent, which called for strict enforcement of the statute of limitations against "all types of Title VII" plaintiffs, was Sandra Day O’Connor.

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–U.S. Constitution, Amendment XIV

The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin….

–California Civil Rights Initiative

(added to state constitution by voters’ adoption of Proposition 209 on Nov. 5)

The question presented is whether the second of these two laws violates the first. The question should answer itself, even for those who think the CCRI is bad policy. The notion that a state violates the 14th Amendment’s prohibition of almost all racial discrimination when it prohibits all racial discrimination is absurd on its face. Butt a little absurdity has not deterred civil rights groups, led by the American Union, from rushing into federal court (and shopping for a sympathetic judge) with a claim that the CCRI must be enjoined as contrary to the equal protection clause. Nor has it prevented U.S. District Judge Thelton Henderson of San Francisco from issuing a temporary restraining order (on Nov. 27) finding that the plaintiffs have "a strong possibility of success on the merits."

How strong? Some predictions: Assuming that Judge Henderson grants a preliminary injunction, the U.S. Court of Appeals for the 9th Circuit will reverse him and uphold the CCRI’s constitutionality. The Supreme Court will then either decline to hear the case or add an exclamation point by upholding the CCRI-unanimously.

The strategy of the ACLU and its allies represents "an Orwellian assault on democracy," in the words of columnist Charles Krauthammer.

Whether it is wise for the voters to tell a state and its subdivisions to stop discriminating against, for example, Asians and whites (and in favor of blacks and Latinos) in university admissions is debatable. But the notion that it violates equal protection for the voters to ban such racial preferences lakes one’s breath away.

This is not to deny that there may be rare cases in which federal law will override the CCRI by. requiring .racial preferences to remedy discrimination. Nor is it to deny that the plaintiffs and Judge Henderson have found a couple of Supreme Court precedents that give a surface plausibility to the effort to strike down the CCRI on its face. But their argument melts away on closer inspection of those precedents, and of other precedents and principles that limit their teach.

The plaintiffs’ favorite precedent is Washington v. Seattle School District (1982), which struck down, by a vote ©f 5-4, a ballot initiative adopted by the state’s voters to end the Seattle school board’s use of mandatory busing to achieve racial integration of the schools. The Court held that the initiative would place "special burdens m the ability of minority groups to achieve beneficial legislation."

While noting that the school board would have been free to repeal the busing plan in favor of a neighborhood-schools policy, the Court held that the state’s voters could not do so-at least, not In a fashion that "lodges] decisionmaking authority over the question at a new and remote level of government " This, the Court said, would’ violate the :principal of its 1969 decision in Hunter v, Erickson (the plaintiffs’ other key precedent) by forcing racial minorities who seek race-related benefits (such as integration through busing) "to surmount a considerably higher hurdle than persons seeking comparable legislative action."

The equal protection attack on the CCRI goes something like this: The CCRI, like the initiative in Seattle, would not only wipe out race-related policies that benefit certain minorities, but would also block future adoption of such policies unless their advocates could persuade "a new and remote level of government" to repeal the CCRI. This would make it harder for racial minorities than, say, the elderly, veterans, or children of alumni, to win preferential treatment through the political process.

But even assuming that Seattle is good law-which is dubious, given the internal incoherence of that opinion and the Court’s more recent decisions curbing racial preferences-the plaintiffs are unpersuasive in seeking to stretch Seattle to void the CCRI.

First, their interpretation was repudiated in the Seattle opinion itself-which explicitly suggested that the Court would not strike down a statewide law or amendment barring all racial discrimination and preferences.

Justice Harry Blackmun’s majority opinion reaffirmed the settled rule that the "central purpose of the Equal Protection clause…is the prevention of official conduct discriminating on the basis of race." That is also precisely the purpose of the CCRI.

More specifically, Blackmun rejected Justice Lewis Powell Jr.’s complaint in dissent (at note 14), that Seattle could lock in racial preferences forever by casting doubt on the constitutionality of state laws repealing them. Blackmun said (in note 23) that this and other warnings by Powell "evidence a basic misunderstanding of our decision," and that "the horribles paraded by the dissent…-which have ‘nothing to do with the ability of minorities to participate in the process of self-government-are. entirely unrelated to this case."

Second, while Seattle rested on the premise that a [political] powerless" racial minority "cannot be subjected to ‘a debilitating and often insurmountable [political] disadvantage," the CCRI-which bans preferences based on sex, ethnicity, and national origin, as well as race-is in no sense aimed at harming or disadvantaging minorities. Nor can the blacks, Hispanics, and women who receive most of the preferences that the CCRI would abolish be described as politically powerless.

To the contrary, they represent the vast majority of California’s electorate. Arid the CCRI seeks to end governmental discrimination against not only whites, bat also Asians-a racial minority with less political clout than blacks or Hispanics. Thousands of Asians have been excluded by implicit or explicit racial quotas from the University of California and other-institutions.

The CCRI would also end discriminatory preferences that favor Hispanics over blacks, blacks over Hispanics, and whites over both groups. Such preferences exist, and have been spreading as California’s politics have increasingly evolved into a racial and ethnic spoils system, and as state and local bureaucrats have increasingly become fixated on counting by race in all walks of life.

Third, while Seattle involved a law that the Court found to be a constitutionally suspect "racial classification," the CCRI is clearly not a racial classification, but rather a ban on racial classifications.

This point is underscored by another ruling issued on the same day as Seattle. In that case, Crawford v. Board of Education of Los Angeles, the Court upheld by 8-1 a ballot initiative in which California’s voters amended-as they were later to do in adopting CCRI-the equal protection provisions of their state constitution to overrule the state supreme court’s prior interpretation. Specifically, the voters had barred state courts from ordering school integration through busing absent a need to remedy the kind of de jure segregation that is prohibited by the federal equal protection clause.

Justice Powell’s majority opinion in Crawford stressed-in a holding in some tension with Seattle-that this amendment "does not embody a racial classification" because it "neither says nor implies that persons are to be treated differently on account of their race." Of course, the same is true of the CCRI.

Any claim that a state ban on racial preferences is itself a constitutionally suspect racial classification also flies in the face of the Supreme Court’s rulings in both Adarand Constructors v. Peña (1995) and Richmond v. J.A. Croson Co. (1989) that "the standard of review under the equal protection clause is not dependent on the race of those burdened or benefited by a particular classification." This no-double-standard rule means that if any antidiscrimination law violates the equal protection principle, then all of them do.

That would include, for example, the 1991 law in which Congress banned "race-norming" of test scores-and thus blocked black people from seeking state or local race-norming in hiring and promotions. It would also include the entire 1964 Civil Rights Act, which of course makes it harder for any racial group as such-than for, say, alumni children-to obtain preferential treatment from the government.

If this is starting to sound a bit too much like gibberish about how many law professors can deconstruct on the head of a judge, that’s because sometimes you have to fight gibberish with gibberish.

The most important reason, however, why the Supreme Court will never hold that it violates the equal protection of the laws for a state to require the equal protection of the laws is not an argument from precedent but rather the most important test in all of law-the straight-lace test.

The post Why the Courts Will Uphold 209 appeared first on Stuart Taylor, Jr..

STUART TAYLOR, The American Lawyer: The court ruled that it violates the equal protection guarantee of the 14th Amendment for VMI–for the state of Virginia, I should say, to deny to women what it called the unique and extraordinary benefits that men get from attending Virginia Military Institute, a 150-year-old institution with a unique prestigious role in Virginia life.

MS. WARNER: And what was the majority’s reasoning in coming to this, the majority opinion written by, I gather, Justice Ginsberg?

MR. TAYLOR: Justice Ruth Bader Ginsberg, who was a crusader for equal rights for women before she came on the court, basically reasoned that women should have all the opportunities men do in Virginia and elsewhere unless there’s what she called an exceedingly persuasive justification why they should not. She reviewed all the justifications Virginia had advanced for keeping VMI all male and rejected them. In particular, she said there are some women who could benefit from a VMI type education, which is sort of a boot camp style approach to education. Even if there aren’t many, there are some, and they should have that opportunity. She also rejected the state’s argument that it would destroy the boot camp style approach VMI uses to admit women.

MS. WARNER: And so VMI, of course, had tried to start a separate program for women at a nearby women’s college. What did the court say about that?

MR. TAYLOR: Yes. The lower court had, had ruled that that was an adequate remedy for excluding women from VMI, give them their own place, and the Virginia Women’s Institute for Leadership was created recently at Mary Baldwin College. The Supreme–the court said today–Justice Ginsberg said today that it wasn’t equal, it wasn’t funded, it didn’t have a history, it didn’t have the prestige, the students didn’t have as high average SAT scores, they don’t have lots of the same courses, and she said this is just not an adequate substitute for letting women into VMI, itself.

MS. WARNER: So what is going to be the practical effect of this ruling beyond VMI?

MR. TAYLOR: The court didn’t really say. It will certainly mean that the Citadel in South Carolina, the only other all-male state-supported college in the country, will also have to take women, unless perhaps it–it goes private, or something like that, same for VMI. It’s harder to tell what effect it will have on other institutions. Justice Scalia, the lone dissenter, said that it basically means private–it means public single-sex education is dead. He also suggested that it casts some doubt on all state support for private single-sex education, and, of course, there are dozens of thriving private single-sex institutions all over the country that depend heavily on state and federal aid. Now the majority disclaimed any intent to cast a shadow on those institutions.

MS. WARNER: Did they specifically say they didn’t mean the decision to apply to that kind of private institution?

MR. TAYLOR: They didn’t quite say it that way. They emphasized that this is about VMI and the unique role of VMI, and they had a couple of footnotes in which they suggested that it wouldn’t necessarily apply to private institutions. But they didn’t go so far as to say no problem, don’t worry.

MS. WARNER: Yeah. Now the Clinton administration Justice Department had brought this case. Did they get everything they wanted out of this?

MR. TAYLOR: Actually, it started in the Bush administration in 1990 and the Justice Department continued it during the Clinton administration. they got almost everything they wanted, not quite. They had had asked the court to adopt a new test treating sex discrimination by the government exactly like race discrimination, and the court almost did that but not quite. They did, I would say, use language that more broadly condemns sex–government sex discrimination–makes it harder to justify than ever before in the court’s history.

MS. WARNER: All right. Now let’s turn to the second decision on a case from Colorado today, and that involved what political parties can spend in support of candidates. What was that ruling? Explain this to us.

MR. TAYLOR: The court knocked another big hole in a scheme of federal campaign finance regulation that’s already in tatters as a result of a series of court decisions over the past 20 years, finding various parts of those, parts of that law to be contrary to the First Amendment right of people that spend money on political campaigns. But the specific case is a 10-year-old case from Colorado in which the Colorado Republican Party had spent some money to take out radio ads attacking the presumed Democratic nominee for a Senate race. That was then Rep. Tim Wirth, and the Federal Election Campaign said they had exceeded the amount they were allowed to spend under federal election laws, and, and tried to find them. They attacked the constitutionality of the laws, and it went on up to the Supreme Court.

MS. WARNER: And just to be clear on this, I gather that the law basically restricts parties from spending on congressional races, on some formula, what, based on population or something.

MR. TAYLOR: There’s a formula based on voting age population, depending on how much you can spend on various races, including presidential races, which is a separate provision, and there is a cap on how much any political party can spend in support of its candidate. And what the court did today is it said that cap is unconstitutional insofar as it limits what it called independent expenditures by a political party. They cannot be limited. Political parties have a constitutional right to spend as much as they want as long as it’s independent of the candidate.

MS. WARNER: And what had been the rationale for this cap in the first place when this law was passed in the 70’s?

MR. TAYLOR: In general, the federal election campaign finance laws are trying to prevent the appearance that politicians are being bought, that influence is being bought, and they contain a whole number of restrictions. The particular restriction on political parties was they can spend some money. Congress thought they ought to be able to spend fairly substantial amounts of money, but they didn’t want them to be able to spend unlimited amounts, because they were afraid that large contributors to the parties could use that as a back door way of buying influence from their candidates.

MS. WARNER: Because they’re allowed to give a whole lot more to parties than they are to candidates?

MR. TAYLOR: That’s right. You can give $20,000 to a party, and you can only give $1,000 to a candidate for each election.

MS. WARNER: Okay. And so explain this distinction that the court was making today, saying that as long as these expenditures are independent, as you and they put it, that they were unlimited. What does independent mean?

MR. TAYLOR: Well, the Federal Election Commission, there’s a whole history of this. Independent expenditures are expenditures that aren’t coordinated with the candidate. For example, if Bob Dole or Bill Clinton sits down with his party leaders and say, okay, how about you buy some radio ads attacking my opponent, that’s coordinated. If the party goes out and does it by itself, that’s independent. There’s a rough line there. And the Federal Election Commission had argued that parties and their candidates are so much a unity and it’s so hard to draw lines between them that there’s no such thing as an independent expenditure by a party. The Supreme court today said that’s wrong, they looked to the facts of this case where there wasn’t even a nominee or even a presumptive nominee for the Republicans in Colorado at the time of this spending. The party spent the money on its own, and they said that’s independent, constitutionally protected.

MS. WARNER: And so what impact do you think this really will have on this year’s elections?

MR. TAYLOR: In a broad brush way, it will, it will liberate the parties, which have already found all sorts of ways to get around the limits on campaign spending. It will make it even easier. And it may embolden, embolden them just to take off the gloves entirely and spend as much as they want on anything they want, because four members of the court said that all restrictions on spending by parties are unconstitutional. The rest of the majority wasn’t willing to go quite that far, but three of them reserved judgment on it, so a party might say, well, all we need is one more vote, and that’s reasonable enough, particularly since it’ll take ’em years to litigate this, and maybe we pay a fine ten years down the road, but in the meantime, we’ve got an election to win.

MS. WARNER: Well, thank you, Stuart, very much.

MR. TAYLOR: Thank you.

MS. WARNER: Thanks.

The post NewsHour: Supreme Court Decision on Women at VMI – June 26, 1996 appeared first on Stuart Taylor, Jr..

STUART TAYLOR: Yes. Deputy Solicitor General Paul Bender led off for the Justice Department, and he stressed that VMI’s unique adversative-style education, that’s the buzz word which is kind of the boot camp approach of being abused and harassed by upperclassmen, is a valuable asset and that the VMI degree is a valuable asset to those men who go there, particularly because it’s a very prestigious institution with a loyal alumni body that channels people into successful careers.

He said that there’s no reason women should be denied the benefit of that sort of education; that there are some women who can hack it at a place like VMI, in the records yes, there are some, and that they ought to have that opportunity. He also claims that the arguments VMI has made and the Mary Baldwin people have made for the solution of keeping them in separate places depended on outmoded stereotypes, basically depended on the idea that there are some things women can’t handle, and this is one of them, and that the only remedy, in his view, is to integrate VMI. He says that the Mary Baldwin institution 35 miles down the road is not equal, is not the same, is not as good in, in various ways.

ELIZABETH FARNSWORTH: How about the opposing side?

STUART TAYLOR: Theodore Olsen was the Washington lawyer arguing for VMI. He began stressing the general import of this case, and his suggestion was that all single-sex education, at least at the college level, public education and at the high school level perhaps as well, things like all-girl math classes, would be threatened by a ruling against VMI, and even private women’s colleges would be threatened to the extent that they depend on federal money, especially, he emphasized, if the very broad arguments for treating sex discrimination like racial discrimination that the Justice Department and feminist groups have made are accepted as the basis of ruling in this case.

Specific to VMI, he said, that their style of education has benefits for a certain type of young man who can’t do quite as well in a coed environment and thrives on this kind of boot camp thing, builds self-confidence. You know you can do anything if you can survive this, that sort of thing, and that, and that if you admit women, even a few women, he claims, the benefit, the uniqueness of the place would largely be destroyed.

It would have to–it would have to change to accommodate women because there’s no respect for privacy now. You would have to have some respect for privacy. There would be a problem, the constant harassment of underclassmen by upperclassmen might be perceived or appear to be sexual harassment if it were done by men to women, and that the strict equality of treatment would, would also kind of have to go by the boards.

ELIZABETH FARNSWORTH: Could you tell anything from the questions that the Justices asked? Did they tip their hands at all?

STUART TAYLOR: All eight participating Justices, the ninth being Clarence Thomas, whose son goes to VMI, so he was disqualified, were very active and lively, and various people were making head counts of how they would vote. The two comments that, that stood out the most in my mind were Justice Breyer towards the end said, uh, in essence, what is there that is so important about this really hard-to-grasp adversative thing, and there was laughter in the courtroom at that point as though well, Justice Breyer, the Harvard man, has trouble understanding this weird little adversative thing. And he quickly added, "I’m not being facetious." He really wanted to know.

But the burden of his question was, you, VMI, have to make a pretty good argument to convince me that I should say to a woman who wants to go there, sorry, you can’t go there, because you’d wreck the place, and part of his point was, would women really change it so much, and his part of his point was, to the extent that they would change it, would it really hurt it that much? And I think Justice Sandra Day O’Connor, who’s the swing vote on a lot of cases, perhaps including this one, seemed to strike a little bit of a similar tone in which she suggested that maybe one solution to this case was to have VMI admit women but perhaps keep them in a separate barracks, have them separate in private matters, but, in her words, that the program would be just as tough, just as mean.

And I think the vote counters came out of the argument with a little more confidence than they had when they went in that, that it looks like an uphill battle for VMI to win this case, but it also looks like if the court rules against VMI, it will probably do so on rather narrow ground specific to the facts of the case, rather than throw out some broad pronouncement casting doubt on all single-sex education.

ELIZABETH FARNSWORTH: Well, Stuart, thanks for being with us.

STUART TAYLOR: Thank you.

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