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Why Evolution is True is a blog written by Jerry Coyne, centered on evolution and biology but also dealing with diverse topics like politics, culture, and cats.
If you’ve been on this site for a longish while, you’ll know about the legal fight between Gibson’s Bakery and Oberlin College, which has dragged on since 2016. My many posts on it can be seen here, and if you want a summary, I’ll refer you to the Wikipedia page on Gibson’s Bakery v. Oberlin College.
In short, what happened is that on November 9, 2016, proprietor Allyn Gibson caught a few Oberlin students, one of whom was black, shoplifting wine (and also trying to buy more booze with fake IDs. Trying to apprehend the thief, a younger Gibson, Allyn (not the one mentioned below) got involved in a scuffle, with several Oberlin students beating and kicking him on the ground. The three students later pleaded guilty.
Because there was race involved, Oberlin administrators, as well as students, framed this as some kind of racist attack by Gibson’s, and instead of keeping silent, which is what they should have done, the administrators encouraged (legal) student protests against the bakery, stopped doing business with it, and defamed it. The administration also used College money to buy food and supplies for the student protestors. The protests, of course, were on the grounds of racism, though Gibson’s had no history of racism and a black employee said he’d never seen any.
My posts contain some of the emails between Oberlin administrators that were introduced as evidence, and they’re pretty damning. Have a look at this post to see how hard Oberlin dug in its heels, and how intemperate they were.
All this, of course, occurred despite the students’ admission of guilt.
Originally, Gibson’s just wanted an apology, but when they got attacked by Oberlin instead, they sued the college in 2017 for “libel, slander, interference with business relationships, and interference with contracts.” They won the civil suit: the jury, obviously fed up with the College, awarded Gibson’s $11 million in compensatory damages and $33 million in punitive damages. That’s a cool $44 million—a big nut for the College. The judge later reduced the award to $25 million but tacked on another $6.5 million for legal fees. As I recall, Oberlin had to post bond for that amount if it appealed, which it did in 2020.
The Gibsons also appealed over the monetary damages and the exclusion of witnesses. The judges affirmed the lower court ruling against Oberlin; as Wikipedia notes,
In a 3-0 decision, the panel upheld the jury verdict that Oberlin College defamed, inflicted distress, and illegally interfered with the bakery. The damages were capped by Ohio state law at $25 million in total damages, in place of the jury’s original verdict of $11.1 million in compensatory and $33.2 million in punitive damages. Oberlin was also ordered to pay $6.3 million in attorney’s fees to the bakery
Oberlin wouldn’t give up, even though it was losing students because of its behavior, and also stood to lose money as interest mounted on the amount of the fine. They appealed to the Supreme Court of Ohio, and yesterday the judgment came down.
It is below: the Supreme Court refused to hear the appeal. GIbson’s won!
The decision was 4-3, and the Gibsons were awarded $36 million. That’s a lot of dosh for a small school, and represents a lot of scholarships that could have been awarded had the chowderheads at Oberlin just apologized in the first place.
It’s all over; the Fat Lady has sung. Oberlin is an ex-reputable college, singing with the Choir Invisible. In the article below (click on screenshot), the site Legal Insurrection, which has consistently and accurately covered the whole issue, describes the swan song:
There’s not much more to report except for the statements of the victors. The first is from Lee Plakas, lead trial counsel for the Gibsons:
On behalf of the Gibson family and the trial team, Truth Still Matters, David can still overcome Goliath.
We and the Gibson family are gratified that all judges on the court of appeals and the majority of the Ohio Supreme Court recognized the rights of individuals rather than the bullying tactics of the big institutions.
And here are quotes “from the Gibsons and the trial team”:
“Oberlin tried to frame this case with claims and issues that weren’t on trial. This has never been a case about a student’s first amendment rights. Individuals’ reputations should never be sacrificed at a false altar of free speech. The Gibsons and the entire State of Ohio should appreciate that the jury, a unanimous Ninth District Court of Appeals, and a majority of the Justices on the Ohio Supreme Court recognized that the deplorable conduct of Oberlin College could not be camouflaged by misleading claims of free speech.”
“The jury recognized Oberlin College’s bullying tactics. The students admitted their misconduct, but Oberlin College could never admit that they were wrong. They presumed that they could bring the Gibsons to their knees. The power of truth has enabled the Gibson family to survive Oberlin’s onslaught.”
Legal Insurrection adds this:
We reached out to Oberlin College for comment, but have not yet received a response.
They will wait a long time!
As far as I know, this exhausts Oberlin’s options. Sadly, Allyn Gibson, the real victim, who was beaten up, didn’t live to see this day: he died in February of this year. Here’s a photo of the Gibsons after one of their victories. Allyn is in the center with the walker. He and the bakery were much beloved by the community, which may be one reason why the punitive damages were so high.
The lesson for Oberlin is clear: in the words of Davy Crockett: “Be always sure you’re right — THEN GO AHEAD!” Oberlin knew that the students were guilty of shoplifting and that Gibson’s had no history or reputation for racism, but they still went after the bakery like a pack of rabid wolves. That’s because they thought, I suppose, that because one of the shoplifters was a black student, the College was on the side of the angels by attacking the bakery.
They weren’t. It’s a simply matter of the facts, and a case of a college, marinated in self-styled virtue and delusions of power, going after the Little Guys for no good reason. I savor every penny that Oberlin will have to cough up.
Oberlin, I hardly need to mention, is one of the wokest colleges in America.
Today we have a collection of insect and spider photos from regular Mark Sturtevant. His captions and IDs are indented, and you can enlarge the photos by clicking on them.
Here is a short set of spider and insect pictures from a couple of summers ago. All were taken near where I live (eastern Michigan). The spider in the first picture is a broad-faced sac spider (Trachelas tranquillus) that was in the backyard. Its meal is a species of cobweb spider (family Theridiidae).
Next are pictures of nursery web spiders (Dolomedes tenebrosus), one of our largest spiders. The first two pictures were of a spider that startled me while I was lifting up dead tree bark. When getting up close with a lens, one can fortunately rely on their strong desire to NOT jump when spooked. The last picture is a wide-angle macro view of a gravid female.
The next pictures show a strange and cryptic moth called the dark-spotted palthis, Palthis angulalis. These images were focus stacked from several hand-held pictures.
The rather gaudy caterpillar shown here is the larva of the red-spotted purple butterfly (Limenitis arthemis), and the picture below that is the adult of this species.
Next up are insect eggs. I don’t know what these are, but they look like stink bug eggs. When they hatch, the circular lids on top pop open and the nymphs will emerge together.
To close, here is is a Chinese mantis nymph (Tenodera sinensis), which posed very nicely, resulting in one of my favorite pictures of the season.
Welcome to Hump Day, or “Hump Päivä, as the Finns say. It’s the final day of August, 2022, and National Trail Mix Day. My preferred trail mix is, I fear, unhealthy: M&M’s (chocolate ones), raisins, and peanuts.
EP Minerals, the creators of National Diatomaceous Earth Day, say the day can be used to learn more about diatomaceous earth. The best way to do this may be to use it, so pick some up! Food grade diatomaceous earth can be consumed, and diatomaceous earth has many other home uses that make the day easy to celebrate.
Yes, as a source of silica, the food-grade stuff has some benefits, but the last thing we want to do today is eat diatomaceous earth.
Not many things of note happened on August 31, but they include:
Four more were to follow in the summer and fall of 1888, and Wikipedia even gives a morgue photo of Nichols, whose throat had been cut (trigger warning: dead person):
And here, five years later, is the first flight of a Zeppelin, with the caption and a Wikipedia description:
On 2 July 1900, Zeppelin made the first flight with the LZ 1 over Lake Constance near Friedrichshafen in southern Germany. The airship rose from the ground and remained in the air for 20 minutes, but was damaged on landing. After repairs and some modifications two further flights were made by LZ 1 in October 1900, However the airship was not considered successful enough to justify investment by the government, and since the experiments had exhausted Count Zeppelin’s funds, he was forced to suspend his work.
Below is a photo of the first flight, although it looks a bit retouched. The gas, of course, was hydrogen, which was to lead to the big Hindenburg disaster in 1937. Now Zeppelins (there are a few) use helium gas.
Why they no longer use hydrogen as the lifting gas (note the swastikas on the tail):
The wooden tower still stands, and I’d like to see it, for this is where WWII really began. Made of wood, it’s still the tallest wooden structure in Europe (118 m or 387 feet):
2006 – Edvard Munch‘s famous painting The Scream, stolen on August 22, 2004, is recovered in a raid by Norwegian police.
There are four versions of this work, two in oils and two in pastels. Both painted versions have been stolen and recovered. Here’s the recovery of the one stolen in 2004, back in the Museum in 2006 but before it was re-hung after restoration in 2008 (there was water damage after the theft). I didn’t know it was so big! One of the pastel versions was auctioned off for nearly $120 million in 2012.
Da Nooz:
*You’ve probably heard this one, so I’ll just say it: former Russian president Mikhail Gorbachev, admired for dismantling Soviet control of Eastern Europe, died yesterday at the age of 91. From CNN’s obituary:
“Mikhail Sergeevich Gorbachev died this evening after a severe and prolonged illness,” the Central Clinical Hospital said, according to RIA Novosti Tuesday.
The man credited with introducing key political and economic reforms to the USSR and helping to end the Cold War had been in failing health for some time.
With his outgoing, charismatic nature, Gorbachev broke the mold for Soviet leaders who until then had mostly been remote, icy figures. Almost from the start of his leadership, he strove for significant reforms, so the system would work more efficiently and more democratically. Hence the two key phrases of the Gorbachev era: “glasnost” (openness) and “perestroika” (restructuring).
*Lordy, Ukraine has gone on the offensive, launching an attack in the southern Kherson region of the country—just north of the Crimean Peninsula. Rather, it’s a counter-offensive, as that land was taken by Russia early in the war:
Fierce battles have been reported as Ukraine tries to retake the Russian-occupied southern Kherson region – but military experts have told the BBC it “won’t happen quickly”.
“Heavy fighting is continuing, our soldiers are working around the clock,” said Vitaliy Kim, who heads the neighbouring Mykolaiv region.
Ukraine earlier said it had broken through Russia’s first line of defence.
But Russia said Ukrainian troops had been defeated during a failed attack.
The defence ministry in Moscow also said there had been heavy casualties among the Ukrainian forces, but the claims by both Ukraine and Russia have not been independently verified.
Kherson became the first major Ukrainian city to fall into Russian hands in the opening days of Moscow’s invasion that began on 24 February.
I’m growing more optimistic as the plucky Ukrainians hang on, but still think they’ll come out of this a substantially smaller country.
*And more about the plucky Ukrainians: they’re tricking the Russians into wasting expensive cruise missiles on dummy targets. According to the Washington Post, Ukraine has constructed mock artillery batteries out of wood, and they fool drones, who report the location of the fake batteries to Russian ships in the Black Sea, who launch cruise missiles. (American cruise missiles cost about $2 million each.)
“When the UAVs see the battery, it’s like a VIP target,” said a senior Ukrainian official, referring to unmanned aerial vehicles encountering long-range artillery replicas.
After a few weeks in the field, the decoys drew at least 10 Kalibr cruise missiles, an initial success that led Ukraine to expand the production of the replicas for broader use, said the senior Ukrainian official, who like others spoke on the condition of anonymity to discuss sensitive military matters.
The use of rocket system decoys, which has not been reported previously, is one of many asymmetrical tactics Ukraine’s armed forces have adopted to fight back against a bigger and better-equipped invading enemy. In recent weeks, Kyiv’s operatives have blown up rail and electricity lines in occupied Russian territory, detonated explosives inside Russian arms depots and assassinated suspected collaborators.
Very foxy! But why on earth would “senior Ukrainian and U.S. officials” reveal this? You can bet the Russian drones will be making closer inspections from now on.
*Speaking of Ukraine, I wasn’t aware that when Christopher Hitchens was alive, he maintained that Ukraine would eventually have to give Russia land concessions for peace, and that the intercession of NATO only prolonged the agony. I guess this is why I’ve seen several mentions of Hitchens in connection with the war.
Grozoubinski says this claim is based on a number of faulty or dubious assumptions, including that Russia can sustain a strong invasion, that Ukraine will inevitably negotiate from a position of weakness, and so on. Dmitry isn’t absolutely confident that Ukraine will win, but he does say this:
17/ Every shipment, and every hard won victory that shipment enabled, has increased Ukraine’s bargaining power, humiliated Russia, and left it more and more isolated on the world stage as the quick victory it promised allies like China turned to smoke.
18/ Don’t listen to the fatalists and the fools. Give Ukraine what you can spare, and trust they’ll use it right.
Victory may not be inevitable, but the defeat contrarians prognosticate is more distant every day.
*According to the NYT, two top public university systems, the University of California and the University of Michigan, have failed to increase minority admissions in the face of statewide bans on affirmative action. The Supreme court has already scheduled an October hearing on two challenges to affirmative action (from Harvard and North Carolina)
The outreach programs are extremely costly. The University of California system says it has spent more than a half-billion dollars since 2004 to increase diversity among its students.
In the briefs, lawyers for the universities argue that, without affirmative action, achieving racial diversity is virtually impossible at highly selective universities.
“Despite persistent, vigorous and varied efforts to increase student body racial and ethnic diversity by race-neutral means,” the brief from Michigan stated, “the admission and enrollment of underrepresented minority students have fallen precipitously in many of U-M’s schools and colleges” since the end of affirmative action.
. . . The Supreme Court is scheduled on Oct. 31 to hear the lawsuits brought by the anti-affirmative action organization Students for Fair Admissions that challenge the race-conscious methods that Harvard and the University of North Carolina use to pick freshman classes.
The organization says that Harvard discriminates against Asian Americans and that North Carolina gives an admissions boost to underserved racial minorities. And the group argues in its own brief, filed this week, that ending affirmative action nationwide would help improve diversity at the University of California and the University of Michigan, “because they could better compete with universities who currently use race.”
. . . Affirmative action is banned by local edict in nine states, including Michigan and California.
*The deforestation of the Amazon is the subject of a long, semi-animated piece in the Washington Post. Brazilian President Jair Bolsonaro is not only no fan of environmentalism, but he’s corrupt. That combination is helping destroy one of the world’s precious resources, the Amazonian rainforest, at a depressing pace:
This mismatch — too few inspectors for too much deforestation — is one of a cascading series of shortfalls and failures that are enabling criminals to raze the world’s largest rainforest with impunity. Law enforcement misses the majority of deforestation in the Amazon. The fines that the few state and federal inspectors herewrite are seldom paid. The occasional cases that spill into the criminal justice system languish for years. And in the rare instance of a criminal conviction, it almost never draws a prison sentence, The Washington Post found in areview of a year’s worth of cases.
The violent and lawless erasure of the Amazon is perhaps the world’s greatest environmental crime story. Scientists warn that the forest, seen as vital to averting catastrophic global warming, is at a tipping point. But in Brazil, home to about 60 percent of the Amazon, nearly one-fifth has already been destroyed. And virtually no one, law enforcement officials say, has been held accountable.
. . .nearly every [legal] tool has been dulled to the point of ineffectiveness, snagged by bureaucracy, case overloads and a grinding appellate system that has long stymied the country’s criminal justice system. The atrophy has deprived Brazil of what should be its most potent weapons against deforestation: credible regulations and the threat of consequences for those who violate them.
“It’s the economic theory of crime,” said Jair Schmidt, a government environmental analyst who studies law enforcement failings. “Will you make more money from deforestation than you stand to lose if you are cited for an infraction?”
And the answer is that, at present, you gain a lot more from clearing the forest than you stand to lose for breaking the law—if you’re even caught.
*And here’s an article worth reading, a bit snarky but it rings true. It’s from Leighton Woodhouse’s Substack site, Social Studies comes a snarky article that smells like truth: “The Lumpenbourgeoisie“. The argument is this: because so many people go to college, the value of a college degree has declined. And that has created a new niche:
So over the last couple of decades we’ve been minting more college graduates than ever, but their career prospects are bleaker than they used to be. It’s a quandary that has forced these new job entrants to adapt in ways that have transformed the industries they’ve infiltrated.
Quite understandably, these young, educated professionals aspire to the upper-middle class lifestyles that they believed their college degrees promised to provide for them. But as less than a third of college degrees awarded each year are in STEM fields, they tend to lack clearly marketable skill sets. Their Comparative Literature and Political Science classes haven’t taught them how to build or design new products or how to plan and implement new business strategies. What they have in abundance, however, is cultural capital, and more specifically, its college-inculcated subvariant, moral capital.
What’s the result of having that “moral capital”? The creation of “moral industries” like the policing of society by various progressive initiatives:
But probably no industry has scooped up more of this labor market overflow than the non-profit sector. Unlike in tech and media, in the world of progressive NGOs, there is an actual organic demand for the moral capital that these job applicants have spent four years of college accumulating. There, one’s finely calibrated sensitivity to microaggressions, one’s native fluency in the obscure grammar and lexicon of social justice speak, and one’s acute ability to discern the structures of racism in literally anything are assets rather than liabilities. And from there, one can literally create the consumer market for those talents out of thin air, simply by inventing new social problems to solve.
He uses the explosion of the DEI industry (especially in colleges) as one example of an unfilled consumer market. (It’s rapidly being filled.)
The business model is simple: extortion. The non-profit world’s moral technicians scan the landscape for organizations, whether public or private, that can afford their services, diagnose them as acutely infected by some form of structural oppression or another, and then offer up their suite of services to set them on their public path to healing and redemption. As Malcom Kyeyune has noted, the ideology of wokeness operates like a political protection racket, insinuating its practitioners into every industry and enterprise as intermediaries between creators and their creations. You can run your company, you can write your screenplay, you can draft your bill, you can bring your product to market — but not without bringing in an outside team of minders to ensure that it conforms to the ideological standards of the moral intelligentsia, for a hefty fee. For a class devoid of any discernible skills of actual economic value, this parasitical function is an enviable source of political and social power.
And there’s GOOD NEWS!:
*. . . good news for Lucas the Penguin from the San Diego zoo, who’s afflicted with a bad case of bumblefoot, an infection that causes sores. That gave him a limp that made the other penguins reject him. But now they’ve made him a special orthopedic shoe, padded on the bottom, so he can walk almost normally. Not only is he getting better, but the other penguins now accept him, and he even has a girlfriend! Here’s a heartwarming video:
Meanwhile in Dobrzyn, Hili and Szaron are upset that they’re not getting in on food:
Hili: They are picking apples again.
Szaron: And what do we get out of this?
In Polish:
Hili: Oni znowu zrywają jabłka.
Szaron. I co nam z tego?
******************
From Malcolm, an amazing underwater dancer:
From Nicole:
From the Internet. Would you use the toilet?
The Tweet of God, who despises us and holds us like a spider over a fiery pit:
“Here’s Alan Dershowitz being interviewed on far-right network Newsmax by Sean Spicer. (You remember him, don’t you, Jerry?)
The Dersh claims he’s become a verb, which sounds like the worst metamorphosis since Gregor Samsa woke-up a bug.
Dershowitz: I can tell you that six lawyers have called me and have said we will not defend Trump even though we’d like to because of what happened to you Alan Dershowitz… I had a lawyer say to me “I just don’t want to be Dershowitzed” pic.twitter.com/YdXtOrZIRL
A kid who’s done nothing illegal (giving a cop the finger) sticks up for himself. Nor is it illegal to curse at a cop, and you don’t have to give your name in this situation. The cop doesn’t know the law!
This little kid knew to stick up for himself. Thankfully, the cards were in his favor and it was caught on video. Wouldnt recommend for darker skin tones or rougher neighborhoods. pic.twitter.com/wrCaqj0R25
. . . is bleak. According to the New York Times, two cases involving affirmative action will be heard by the Supreme Court this fall:
The Supreme Court is scheduled on Oct. 31 to hear the lawsuits brought by the anti-affirmative action organization Students for Fair Admissions that challenge the race-conscious methods that Harvard and the University of North Carolina use to pick freshman classes.
The organization says that Harvard discriminates against Asian Americans and that North Carolina gives an admissions boost to underserved racial minorities. And the group argues in its own brief, filed this week, that ending affirmative action nationwide would help improve diversity at the University of California and the University of Michigan, “because they could better compete with universities who currently use race.”
With the Supreme Court’s recent shift to the right, the affirmative action cases could upset 40 years of precedent that says race can be considered as one factor in determining university admission.
Does anybody have any doubt that the Supreme Court will rule against affirmative action, overturning the Bakke decision of 1978? In that decision, the Court ruled that race could be taken into consideration in admissions decisions, but ruled against the use of quotas. Yet, as we saw with Dobbs, the Court has apparently lost all respect for precedent, and I’d be willing to bet a substantial sum that the Justices will overturn Bakke and completely ban the use of race in admissions decisions.
The reason that Students for Fair Admissions mentions California is that the main point of the article was that two other big and high-quality university systems—the University of California and the University of Michigan, have been unable to boost minority enrollment after those states outlawed affirmative action by local edict. (They’re among nine states that do this.) Lawyers for those schools are submitting briefs to the Supremes to try to forestall a foregone conclusion:
It has been more than 15 years since two of the country’s top public university systems, the University of Michigan and the University of California, were forced to stop using affirmative action in admissions.
Since then, both systems have tried to build racially diverse student bodies through extensive outreach and major financial investment, well into the hundreds of millions of dollars.
Those efforts have fallen abysmally short, the universities admitted in two amicus briefs filed this month at the Supreme Court, which is set to consider the future of affirmative action in college admissions this fall.
. . . The outreach programs are extremely costly. The University of California system says it has spent more than a half-billion dollars since 2004 to increase diversity among its students.
In the briefs, lawyers for the universities argue that, without affirmative action, achieving racial diversity is virtually impossible at highly selective universities.
I have to say, the argument for getting rid of affirmative action so that Michigan and California can compete with everyone else for racial diversity is both sleazy and unconvincing. Without affirmative action, what would increase diversity? That’s why the programs are there! Unless I don’t get it, the argument that competition with schools lacking affirmative action will increase diversity in elite schools that already have it—but won’t in the future—makes no sense.
At any rate, the failure of outreach and other efforts to increase diversity is depressing, for I still think we should have some form of affirmative action. While changing admissions standards has always troubled me, since I wouldn’t know how to do it, I still ponder how to do it in a palatable way. But I also thought that increased outreach to minority communities and finding other ways to single out promising but “minoritized” students was another possible way. (Others include mentoring and special pre-college classes.) But even standardized tests, which are one way to find minority students who are good bets but don’t have stellar academic grades, are on the way out. We’re left with the risible concept of “holistic” admissions, based on personal statements, grades, and (yuck) letters of recommendation.
This article from Inside Higher Ed (click on screenshot) tries to suggest ways around the upcoming Supreme Court ban:
Here’s one solution by Tichavakunda and Kolluri (henceforth, T&K):
. . . universities committed to the ideals of racial justice might push back by requiring their applicants to think and act on issues of racial justice. Could racial equity be expanded by requiring all applicants to have taken an ethnic studies class or by requiring students to include in their application a statement on their commitments to racial justice? Though universities may soon be denied the ability to consider race in admissions, they can consider a commitment to racial justice as part of a holistic admissions process.
This is the equivalent of requiring DEI statements for appliants, to which I’m opposed for reasons I’ve stated in earlier posts. And, no doubt, it will lead to massive duplicity on the part of college applicants. Can you imagine all the rich kids, both black and white, who would hire people to write their diversity statements? (You can already hire people to do that.) This would favor those from higher socioeconomic classes, not people of specific ethnic backgrounds. That, in turn, might lead colleges to admit those students with ideologically acceptable statements who are also minorities—but that would be forbidden as a form of affirmative action. Most important, no ideological commitments should be required for admission to college, or be considered for admission to college.
This solution doesn’t seem much better, though I like the outreach part:
In addition, universities might partner with school districts serving students of color to expand the resources of those communities. For example, schools like Yale University, located in New Haven, Conn., and Stanford University, situated in the Bay Area of California, often have scant reach into their local urban schools and neighborhoods. These elite institutions might collaborate with high school students on projects seeking justice in their communities. Meanwhile, these students might be connected to resources on these campuses and offered support with the application process. Racial justice requires community uplift, and elite universities can play a more active role with high schools and their neighborhoods in serving communities of color.
As a whole, though, this program turns the university into enacting a specific ideological program and getting involved in things the government should be doing.
The solution that seems best to me, and liable to create more equal opportunity and achievement for minorities, is the last one suggested by T&K: renewed support for MSIs (minority serving institutions) and HBCUs (historically black colleges and universities). If affirmative action is overturned, there will suddenly be a lot of qualified and available minority students who were in elite institutions because of affirmative action. If MSIs and HBCUs were funded much more intensively, they could be highly attractive alternatives to elite schools, and would have the advantage that fewer minority students would drop out or feel they were admitted because of their race. This is not affirmative action, but it’s a way of affording reparations—if, like me, you see reparations as a rationale for affirmative action.
When the Supreme Court overrules Bakke, people like T&K, and colleges themselves, will begin thinking of ways to effect the same results, but in a less obvious manner. Some of those ways are more efficacious than others. But in the end, I simply don’t want to see elite colleges that comprise only white and Asian students. We must find ways—and they will be hard and expensive—to prevent that from happening.
Title IX is a federal statute that prohibits sex-based discrimination in education or activities in schools that receive federal assistance. That includes nearly all schools, including private ones that benefit from federal grant money. Sexual harassment or a climate inimical to members of one sex are violations of Title IX, and properly so. But it’s also been used to weaken the civil rights of students accused of some violations.
On June 3 I noted, based on several reports, that the Biden administration was preparing to roll back some of the safeguards to due process for adjudicating claims of sexual assault or harassment by colleges. The standards for such adjudication were set out by the Obama administration in a 2011 “Dear colleague” letter to various government-aided colleges, and those standards weren’t fair in a number of ways I outlined in my post above. Those who were accused weren’t allowed lawyers, weren’t allowed to face or cross-examine the accuser, had no right to a live hearing or even see the evidence against them, and permitted a single individual to both investigate the accusation and decide on a verdict. That is, one college employee could be both the cops and the jury.
Worst of all, the finding of “guilty” under the Obama regulations (soon to be reinstated) were based on a “preponderance of the evidence”, i.e. a judgment call. Here are the degrees of “certainty” used in both courts and in Obama’s Title IX regulations, taken from my earlier post.
Conviction requires guilt “beyond a reasonable doubt”, which of course means that the bar is very high for conviction.
Conviction requires “clear and convincing evidence”, that is, it must be “highly probable or reasonably certain” that harassment or assault occurred. This is conventionally interpreted to mean a likelihood of 75% or higher that the assault took place.
Conviction requires a “preponderance of the evidence” for assault or harassment. This means that it is more likely that not (likelihood > 50 %) that the offense occurred.
Civil cases require a the third criterion: one is culpable if accused of something more likely to have happened than not. But criminal cases, of course, require criterion #1: guilt beyond a reasonable doubt. Since accusations of harassment in colleges can and have led to expulsion of students and permanent blots on their records, I’d favor either criterion #1 or #2, but certainly not criterion #3.
Yet that is what was used in the Obama regulations. In what I’ve always said is one of the few good things done by the Trump administration, Education Secretary Betsy DeVos replaced Obama’s regulations with ones I see as fairer, allowing cross-examination, lawyers, “judges” separate from investigators, and reversion to a “clear and convincing evidence” standard (#2 above).
In fact, readers agreed with me that if there is a charge of assault or harassment that is a violation of the law, it should go to the courts first, and only if the legal system finds an accused person guilty should colleges then decide what to do. Below are the results of an admittedly unscientific poll that I took of the readers. The results are shown below and were reported in another post (see also here, here and here for my other thoughts of the Title IX changes). As you see, nearly 80% of readers favored a “courts-first” approach, and then, if the accused were found guilty, the college could adjudicate. But even for those in-house judgments, readers favored the “clear and convincing” evidence standard—the DeVos standard:
In June, the Biden administration proposed ditching the DeVos standards and largely reverting to the Obama ones. The document with Biden’s proposed changes is here, and is 701 pages long. I’ve only skimmed it, so I’ll take the word of the Foundation for Individual Rights and Expression (FIRE), set out in a post objecting to Biden’s proposal, as to what’s in the behemoth document. FIRE doesn’t like the changes, and if their characterization is correct, I agree with them.
You can read their objections in this short post (click on the screenshot):
The old Obama standards led, as will the new ones, to a spate of lawsuits—over 600, according to FIRE, with 239 listed here—brought by accused and college-convicted students claiming that their civil rights had been violated by universities. Many of those suits were won by the plaintiffs. And those victories cost colleges big time.
The new Biden standards are a recipe for similar lawsuits and for huge payments by universities. Behind eroding the rights of students, that’s the second reason not to favor the proposed changes.
According to the FIRE article, the proposed changes “roll back student rights” in these ways.
eliminating students’ right to a live hearing;
eliminating the right to cross-examination;
weakening students’ right to active legal representation;
allowing a single campus bureaucrat to serve as judge and jury;
rejecting the Supreme Court’s definition of sexual harassment in favor of a definition that threatens free speech rights;
requiring colleges and universities to use the weak “preponderance of the evidence” standard to determine guilt, unless they use a higher standard for other alleged misconduct.
Fire doesn’t mention the issue of transsexual women (or men) competing against biological women (or men) in sports, probably because FIRE is concerned with free speech and expression, and sports does’t fall under that rubric. But sports participation remains an issue of concern, especially if, as I recall, the Biden construal of “gender” is independent of whether there’s been any medical intervention. It will be—and again, I may be wrong—purely a matter of which sex you identify with.
Although the ACLU and other “liberal” organizations were against the DeVos changes, we all know that the ACLU, like the Southern Poverty Law Center, now favor weakening civil rights if that helps what they see as a beleaguered minority (in this case, accusers, often seen as “survivors”). But it helps nobody to erode standards of justice that apply to everyone.
FIRE is of course against the Biden-esque changes, and has filed an objection. (There’s still time for people to weigh in on the regulations, as the article below notes.) A few excerpts from the FIRE post:
“This new proposal is a non-starter for student and faculty rights,” said FIRE Legislative and Policy Director Joe Cohn. “These regulations eliminate the right to live hearings, eliminate the right to cross-examination, weaken protections for free speech, and authorize schools to deny students the right to have the active assistance of a lawyer. That’s a recipe for constitutional violations that courts are unlikely to ignore.”
“The current Title IX regulations are one of the biggest victories for student rights in memory. But as I predicted when they went into effect in 2020, our work is not over,” said FIRE Executive Director Robert Shibley. “FIRE will fight to ensure all students are afforded the free speech and due process rights that they have every right to expect as Americans.”
. . . . The regulations proposed today, if allowed to go into effect in their current form, would undo many of the victories for student rights won in 2020. However, despite their hostility toward fair procedures, even today’s proposed regulations do not entirely roll back hard-won protections for students. Institutions are still required to provide an express presumption of innocence, which shockingly was neither required nor common until the 2020 regulations. Schools are also still required to turn over exculpatory evidence they may possess (albeit now upon request) — another long-overdue improvement made in the 2020 regulations.
Now that was in early June, but the regulations appear to be the same today. And so we have a new multi-authored article at Heterodox STEM, a group of scientists who are, well, heterodox, which in effect means “anti-woke”. Click on the screenshot to read their piece.
Apparently the Biden rules have converted Title IX, intended to protect the rights of both sexes in colleges, and give everyone equal opportunities, to “gender”. That doesn’t bother me much except for those cases where the notion of “biological women” becomes important, as in sports, rape counseling, and the like. But those aren’t issues as large as that of how accusations of harassment and assault are handled.
The authors of the Heterdox STEM paper are worried about due process, of course, but also have a few concerns that I don’t think are substantive:
Freedom of Speech: The redefinition of sex in the proposed Title IX revisions would threaten the academic freedom of researchers, faculty, and students who oppose the redefinition of gender and sex. It will also make criticism of aspects of Diversity Equity and Inclusion (DEI) mandates involving gender and sex more difficult.
I doubt the new regulations can override the First Amendment, so if you criticize DEI or the change of “sex” to “gender”, or what one defines as gender, that would still be legal, though it may lead to charges of harassment if a professor expresses these opinions in the classroom. But the First Amendment has always been weaker inside classrooms than outside of them: I can espouse creationism as a private individual but cannot teach it in class. What these regulations may do is not so much change freedom of speech as to “chill” speech by normalizing ways of thought that become more difficult to oppose.
This one I think is a non-problem:
Freedom of Religion: There is a binary interpretation of sex in many religious texts such as Genesis 5:2, which reads, “Male and female created He them.” If enacted, the proposed revisions to Title IX will force believers to affirm non-binary claims regarding gender and sex against their conscience. Therefore, Title IX would promote a violation of people’s First Amendment guarantee of freedom of religion.
I cannot imagine a case in which a student could claim that enforcement of the new guidelines could infringe on one’s freedom of religion. I know of no religion that, for example, dictates that one use certain pronouns. And I can’t see how Title IX, in practice, could “force believers to affirm non-binary claims regarding gender and sex against their conscience.”
This also goes for another objection (there are seven in the article):
Scientific Integrity: There are only two gametes in mammals (including humans): eggs and sperm. Mammals are sexually dimorphic, and sex is binary.
Well, yes, I agree with this definition of “sex”, and the fact that sex is binary in humans with a miniscule percentage of exceptions, but I’m not sure how the Biden regulations would infringe on this. Perhaps professors who use this construal of sex in class could be taken to task, but I can’t imagine anyone saying, “Biologists define sex in this way. . . ” could get them into trouble.
Nevertheless, there are a whole bunch of ramifications of the new regulations that are worrisome. If you want to comment on any aspect of the new document, you can go go to the Federal Register site to express your views. Comments are due by midnight on September 12.
Reader Jim Belcher sent in some lovely photographs of hummingbirds. His captions and narrative are indented, and you can enlarge the photos by clicking on them.
Allen’s Hummingbird (Selasphorus sasin) is a native to coastal California. Although migratory, there is a pocket of non-migratory Allen’s Hummingbirds in southern California. These birds seem to do well in suburban settings, and they are frequent denizens of flower gardens and coastal suburbia. They are very territorial and will defend their patch of garden or nectar feeder from trespassing hummingbirds.
Allen’s can be difficult to identify conclusively because females and juveniles resemble the closely related Rufous hummingbird that has an overlapping range. I’m no expert in identifying hummingbirds, but I assume my photos are Allen’s Hummingbirds because they seem to be the dominant population. Complicating the story, it was recently discovered that the two species interbreed, so who knows? If I’ve gotten any of the identifications wrong, I’m sure someone will pipe up!
Unfortunately, climate change is predicted to further restrict their range in the coming years.
For most viewers of Allen’s Hummingbirds, they appear as a zooming blur in the garden, or a tiny bird perched high in a tree with a raspy squawk. My goal in taking these photos was to get as close and detailed as possible of these small birds because they are exceedingly beautiful.
Portrait of a male Allen’s Hummingbird on a feeder:
Another male.
Allen’s Hummingbirds in flight:
Juvenile male on the feeder.
Allen’s Hummingbird covered in pollen.
Female Allen’s on the feeder.
Injured hummingbird on its way to rehab. Occasionally a bird will be injured or killed by flying into window glass, so lovers of hummingbirds will put UV-visible (to hummingbirds) stickers on windows to warn them away.
Good morning on the penultimate day of the month: August 30 2022: National Toasted Marshmallow Day. I like to ignite mine so that it winds up looking like the one on the extreme right (“well done”). Like with fried chicken, the crust is the best part!
Speaking of Mary Shelly, a first edition of her 3-volume Frankenstein, with the original boards, sold last year for $1,170,000: a record for a book written by a woman (it was published anonymously). Here it is; photo courtesy of Christie’s:
Read “Wonderful Life” by Steve Gould for an overview, though many of the taxa Gould said were novel have now been placed within existing groups. Here’s a fossil of Hallucigenia, now recognized as an early lobopodian. (The “spines” are not legs, as they were first thought to be.)
If you like adventure stories do read a good one about Shackleton’s Imperial Trans-Antarctic expedition. (I recommend Endurance, by Alfred Lansing.) After their ship was crushed in the ice and the men marooned on Elephant Island, Shackleton and five men traveled 720 nautical miles to South Georgia, an island with a whaling station. That they made it was a miracle, and Shackleton ultimately returned to Elephant Island to retrieve his crew. Not a single man perished.
Here’s Shackleton photographed taking off from Elephant Island in the desperate attempt to effect a rescue; he’s in a modified lifeboat called the James Caird:
Here’s a photo of the grim site where the men were marooned for 4½ months, taken on my first Antarctic trip in 2019. The statue is to the tugboat captain who took Shackleton to the island to rescue the men (note the penguins).
Kaplan was executed on September 3. Wikipedia reports the toll of the resulting Terror:
Estimates for the total number of victims of Bolshevik repression vary widely in numbers and scope. One source gives estimates of 28,000 executions per year from December 1917 to February 1922. Estimates for the number of people shot during the initial period of the Red Terror are at least 10,000. Estimates for the whole period go for a low of 50,000 to highs of 140,000 and 200,000 executed. The most reliable estimations for the number of executions in total put the number at about 100,000.
The shooting, in which a bullet passed through Lenin’s neck and the other lodged in his left shoulder. The injuries are thought to have contributed to the stroke that killed Lenin in 1924.
One of the main people justifying this slaughter was Leon Trotsky. Here’s a Polish poster of Trotsky with the caption, “Bolshevik freedom” – Polish propaganda poster with nude caricature of Leon Trotsky from the Polish–Soviet War:
Here’s a photo of Kaplan, looking as if she’s just been beat up by the Cheka:
The current westbound record was set by the S.S. United States in 1952 (3 days, 12 hours, 12 minutes), and the eastbound record set by the same ship on the trip just before: (3 days, 10 hours, 40 minutes). I traveled on that fantastic ship when I was a child and my father was being transferred to Athens by the Army. That was a lovely ship:
I’ll show this video again, as it documents the desperation of Afghans to get out before the Taliban took over. Whenever I see this video, I wonder if anybody got hurt.
Da Nooz:
*Trump is getting deeper and deeper into trouble as the Mar-a-Lago search and affidavit come to light. First, the Justice Department has already set aside those documents seized from Trump’s mansion that might be subject to attorney-client privilege. This is a blow to Trump, because the DOJ isn’t going to use those documents as it moves forward with a criminal investigation, rendering the appointment of a document review “master” (requested by Trump) as moot:
On Saturday, Judge Aileen M. Cannon of Federal District Court for the Southern District of Florida suggested she was leaning toward the appointment of a special master to look at the materials taken by federal agents from Mar-a-Lago. She ordered the Justice Department to respond by Tuesday and share a complete list of documents, some of them highly classified, taken in the search on Aug. 8.
Mr. Trump’s request for a special master — which was filed far later than is typical — is significant because it could provide his legal team with an opportunity to contest the government’s seizure of specific documents whose ownership, and possibly classification levels, they see as being in dispute.
But the Justice Department’s three-page filing on Monday, noting that its review of the materials was completed, threw up a significant obstacle to that request. In the filing, lawyers at the department disclosed that its privilege review team had finished its assessment of the documents and set aside “a limited set of materials that potentially contain attorney-client information,” a requirement that was mandated by the original search warrant issued by a federal magistrate judge in Florida this month.
While Mr. Trump and his legal team have advanced arguments about executive privilege, most of the cases they cited in their filing asking for a special master concerned independent reviews of seized documents for those shielded by attorney-client privilege.
*Further, the NYT reports that Trump’s legal team is desperately flailing around looking for some good explanation for the purloined classified documents found at Mar-a-Lago. And they don’t have one, it seems. Trump’s claims that he can wave his pudgy little hand over the documents, miraculously “de-classifying” them, is simply not going to wash. And of course Trump hasn’t shown particularly good judgment in choosing lawyers. (Giuliani, anyone?)
As the partial release of the search warrant affidavit on Friday, including the May 25 letter, illustrated, Mr. Trump is going into the battle over the documents with a hastily assembled team. The lawyers have offered up a variety of arguments on his behalf that have yet to do much to fend off a Justice Department that has adopted a determined, focused and so far largely successful legal approach.
“He needs a quarterback who’s a real lawyer,” said David I. Schoen, a lawyer who defended Mr. Trump in his second Senate impeachment trial. Mr. Schoen called it “an honor” to represent Mr. Trump, but said it was problematic to keep lawyers “rotating in and out.”
Often tinged with Mr. Trump’s own bombast and sometimes conflating his powers as president with his role as a private citizen, the legal arguments put forth by his team sometimes strike lawyers not involved in the case as more about setting a political narrative than about dealing with the possibility of a federal prosecution.
He didn’t have to take those documents from the White House; what did he have to gain? But Trump being Trump, he dived into the swamp anyway.
*This is some really bad news from the Washington Post. It turns out that human-induced global warming has reached the point that even if we stopped pumping out greenhouse gases right now, 3.3% of the big Greenland ice sheet would still melt (this is from a new paper in Nature Climate Change). Here’s the science lingo from the paper’s abstract (“SLR” is “sea level rise”):
We find that Greenland ice imbalance with the recent (2000–2019) climate commits at least 274 ± 68 mm SLR from 59 ± 15 × 103 km2 ice retreat, equivalent to 3.3 ± 0.9% volume loss, regardless of twenty-first-century climate pathways. This is a result of increasing mass turnover from precipitation, ice flow discharge and meltwater run-off. The high-melt year of 2012 applied in perpetuity yields an ice loss commitment of 782 ± 135 mm SLR, serving as an ominous prognosis for Greenland’s trajectory through a twenty-first century of warming.
274 mm is 274 centimeters, or about 10.7 inches: a much higher rise than predicted by others. And this will probably happen within the lifetime of your newborn children—by 2100.
“Every study has bigger numbers than the last. It’s always faster than forecast,” Colgan said.
One reason that new research appears worse than other findings may just be that it is simpler. It tries to calculate how much ice Greenland must loseas it recalibrates to a warmer climate. In contrast, sophisticated computer simulations of how the ice sheet will behave under future scenarios for global emissionshave produced less alarming predictions.
Well, that’s for the experts to judge. But a one-foot rise in sea level is not innocuous:
A one-foot rise inglobal sea levels would have severe consequences. If the sea level along the U.S. coasts rose by an average of 10 to 12 inches by 2050, a recent report from the National Oceanic and Atmospheric Administration found,the most destructivefloodswould take place five times as often, and moderate floodswould become 10 times as frequent.
Other countries — low-lying island nations and developing ones, like Bangladesh— are even more vulnerable. These nations, which have done little to fuel the higher temperatures that are now thawing the Greenland ice sheet,lack the billions of dollars it willtake to adapt to rising seas.
*Yesterday I reported on a new study of Doppelgängers—pairs of unrelated people who were so similar in appearance that they could be taken for identical twins. DNA analysis showed that members of a pair shared far more DNA sequence than did other unrelated people, implying that the shared DNA helps produce physical and facial features. And I wondered if they were more behaviorally similar as well. Well, they did assay behavior via questionnaires, and I simply missed it. The answer is in this except from the paper:
Physical traits such as weight and height as well as behavioral traits such as smoking and education were correlated in look-alike pairs, suggesting that shared genetic variation not only relates to shared physical appearance but may also influence common habits and behavior.
So there are similarities in behavior as well as appearance. Why? The only reasons i can think of are a.) the Doppelgängers share blocks of linked genes (small DNA segments) that include genes affecting behavior as well as morphology. Alternatively, some of the genetic variation affecting “looks” could also affect behavior, a phenomenon known as pleiotropy (mutations can affect several traits at once). That seems less likely, since behavior genes are likely to be expressed in the brain and not necessarily the face and body. But who knows? This is an intriguing observation that we can’t yet explain.
*As you noticed if you were watching, the Artemis launch was scrubbed after a problem was detected 40 minutes before launch. The problem was that the system used to cool the engines before takeoff failed. (The fuel is a mixture of liquid hydrogen and liquid oxygen, and if that fuel were suddenly pumped into ambient-temperature tanks, all hell would break loose.) As CNN reports:
The launch team knew that the bleed test was a risk because they weren’t able to include it in previous wet dress rehearsal tests simulating the launch, and Monday was the first time demonstrating that, Sarafin said. [Mike Sarafin is the Artemis mission manager.]
Currently, the issue doesn’t suggest an engine problem, but rather an issue within the bleed system that is used to cool the engine, he said.
“We need the engine to be at the cryogenically cool temperature such that when it starts, it’s not shocked with all the cold fuel that flows through it. So we needed a little extra time to assess that,” Sarafin said.
It may be a while before we see the rocket take off. The earliest opportunity is this coming Friday:
The next launch window is September 2, opening at 12:48 p.m. ET and closing at 2:48 p.m. ET. The next window after that is September 5, opening at 5:12 p.m. ET and closing at 6:42 p.m. ET.
We shouldn’t regard this as a failure, as glitches are normal when trying out a new vehicle (a Space Shuttle flight was scrubbed four times). “Failure” would have been an explosion. (h/t: Bat)
Meanwhile in Dobrzyn, both Hili and Szaron didn’t come in last evening, so, as usual, nests were prepared for them in chairs on the veranda. Here’s Hili sleeping on Malgorzata’s coat:
Hili: I have a serious problem.
A: What problem?
Hili: Whether to exchange the comfort of the rattan chair for the bed or go into the garden.
In Polish:
Hili: Mam poważny problem.
Ja: Jaki?
Hili: Czy zmienić komfort wiklinowego fotela na łóżko, czy iść do ogrodu?
Ducklings can do this trick as soon as they’re out of the nest. This is why it was so hard for me to catch the ones for rehab (I got 31, and no losses!)
— why you should have a duck 🦆 (@shouldhaveaduck) August 29, 2022
From Malcolm, a rescue Amur leopard:
An emaciated Amur leopard cub rescued by the team of @Leopard_land , Far East of Russia; there are only 121 grown up leopards living in the wild, & 14 cubs. Likely the cub’s mother died, so the kit will need to go through rehabilitation before being re-introduced back to the wild pic.twitter.com/PcUGyLNT4R
On this day in 1884, @Cambridge_Uni scientist William Caldwell sent #zoology's most famous telegram: ‘Monotremes oviparous, ovum meroblastic’. It meant that the #platypus & echidnas lay eggs – ending an 85-year evolutionary controversy – and that they develop like reptile eggs. pic.twitter.com/lWHoB1GSoC
