Author Archives: Benjamin F. Alexander

Medical Treatment for Transgender Youth: Two Updates from the South

A lot of conservatives are of the opinion that minors are too young to know for sure about the need to alter their gender, and therefore that gender-affirming treatments such as hormone therapy and puberty blockers shouldn’t be made available to them.  In two states, actions by state government have been challenged in the courts.

In Texas, Governor Greg Abbott some time ago ordered the Department of Family and Protective Services (DFPS) to investigate for child abuse those parents who allowed their children to receive such treatment.  One affected family sued to get this stopped.  The lower court that heard the case issued a blanket injunction against such investigations.  The Texas supreme court reversed that injunction, which means that DFPS) can investigate parents of transgender youth getting gender-affirming treatment for child abuse, while also saying that (1) the governor can’t order such investigations, and (2) the investigation of the particular family involved in the suit could not continue.  Article in Texas Tribune, May 13, 2022  And now it appears that some such investigations may be going forward, though it’s too early to tell how far it’s going to go.  What it definitely means is that families of transgender youth must continue to live under a cloud of fear.  Article in Dallas Morning News, May 19, 2022  Note that it’s entirely Texas’s own state courts, not federal courts, that have been involved.

Alabama’s state legislature, meanwhile, recently passed a law making such treatment for youth under 19 years of age a felony.  This was promptly challenged in federal district court.  Although the federal judge didn’t issue a preliminary injunction against enforcement right away, he has issued one now, so a key part of the law can’t be enforced until the case is resolved.  The injunction applies to the ban on gender-affirming medicine: transgender youth will be able to get gender-affirming medicine while the trial proceeds.  Surgery is still illegal for transgender youth, but that hasn’t been taking place in Alabama, and school counselors are still required to notify the parents if their child self-reports having a transgender orientation.  NPR report, May 14, 2022

A few things to be aware of:

Reminder of a basic textbook concept:  To bring suit, a party has to prove “standing to sue,” that is, a personal stake in the matter, rather than just an opinion.  In both the Texas and Alabama cases, families of transgender youth have filed suit.

About parents:  Not all parents of transgender youth have the same response.  Some are supportive of their child’s orientation; others think it’s a phase their child needs to get over, or that it’s a sin against God to try to change one’s gender.  So in some instances, it’s the child and the parents together against the state government’s interference; in other instances, the parents resent the schools for being supportive of their child’s transgender orientation, even to the point of accusing the school of promoting it, or “grooming.”

About transgender people themselves:  I can’t speak from any personal experience, but I can quote a friend of mine who was previously male and is now female; she said to me, “It’s either this or commit suicide.”  And there have been some suicides of underage youth who were suffering from issues of gender orientation.  It should also be noted that gender-affirming treatment has the approval of the mainstream of the medical profession, though the governor of Texas likes to think it’s a cynical profit-driven racket of the pharmaceutical companies.

U.S. Foreign Relations: Some Brief Updates

This is mainly a follow-up to the concluding class session on foreign policy in my two current classes, though it should be of interest to past students as well (because I hope you’re all still following what’s going on).

Sweden and Finland, who have not been members of the North Atlantic Treaty Organization (NATO) thus far, want to join now to insure themselves against any aggression from Putin’s Russia.  Because NATO is a treaty among all of its members pledging to come to each other’s defense, agreement to let new members in has to be unanimous and has to pass each member country’s procedure for treaty ratification.  One current NATO member, Turkey, has doubts about letting Sweden and Finland in.  The government of Turkey feels that Sweden and Finland have been too friendly to the Kurdistan Workers’ Party (PKK), a Kurdish nationalist group that Turkey regards as a terrorist organization.  The Kurds are an ethnic minority living mostly within Turkey.  NPR report, May 19, 2022

Andrés Manuel López Obrador, president of Mexico, has said he won’t attend the Americas Summit in Los Angeles next month if heads of state from Cuba, Venezuela, and Nicaragua aren’t invited.  The U.S. is trying to get him to relent, while also saying that final decisions about who’s invited haven’t been made yet.  President Biden has been putting great emphasis on the need for the U.S. to shore up its relations with democracies as a bulwark against totalitarianism; those three countries currently have totalitarian dictators.  NPR report, May 19, 2022

President Biden is about to visit South Korea and Japan, and among the main topics will be the China challenge.  NPR report, May 18, 2022  There’s a possibility that North Korea’s dictator Kim Jong Un will be marking the occasion with a missile test.  NPR report, May 19, 2022

Praying on the 50-Yard Line

High school football coach Joseph A. Kennedy of Bremerton, Washington, feels that his Christian faith requires him, at the end of a football game, to give thanks to God for the accomplishments of his players and his role in their lives as a football coach, and to do so in the physical space where the good experience took place: on the field.  Thus, at the end of each football game, he would kneel down on the 50-yard line and pray.  Some students who shared his beliefs started joining in the prayer with him.  Other students, apparently, felt that maybe they had better join in too, in the hopes that he would look upon them favorably, since a football coach holds a lot of power in young players’ lives.

This situation came to the attention of the school authorities, who instructed Coach Kennedy to stop, as they did not want to be sued for violating the establishment clause.  It should be remembered that there is a firm body of Supreme Court case law prohibiting school districts from leading prayers in school.  One such case specifically involves football games: Santa Fe Independent School District v. Doe (2000).  Kennedy refused to stop, so the district fired him.  He sued, claiming that he was being deprived of both freedom of speech and the free exercise of religion.  He lost in both federal district court and the Ninth Circuit Court of Appeals.  Now the case is before the Supreme Court, which heard the arguments from both sides on Monday, April 25.

At first glance, it might seem like an open-and-shut case with Coach Kennedy on the losing side, and it probably would have been precisely that just a few years ago.  But now, the conservatives dominate the Court by 6-3, and the conservatives on the Court do not agree that there needs to be a rigid separation of church and state.  Thus, Kennedy may well win this case.

One of the issues involved is whether Kennedy, in kneeling down on the 50-yard line and saying a prayer with some of the students joining in, is acting as a private person or as a representative of the school district.  But there’s another issue, which is where case law precedent may shift:  Even if Kennedy is acting in his official capacity when he prays, does the establishment clause prohibit it?

A public school district is an agency of government, and thus bound by the words “no state shall…” in the Fourteenth Amendment, which gives the federal courts jurisdiction.  An important precedent in any case that involves government and religion is Lemon v. Kurtzman (1971), where the Court ruled that an agency of government cannot endorse a religion.  But in the questions and remarks offered by the conservative justices during the arguments session, one could sense that some of them want that precedent to be modified, so that the key criterion would not be endorsement of religion, but rather, coercion to participate in a religious activity.

The school district, in ordering Coach Kennedy to stop praying on the 50-yard line after a game, was trying to make sure it obeyed the “establishment of religion” clause, but that district may soon be told that, in so doing, it violated the “free exercise” clause.

Full text of the 2021 ruling by the Ninth Circuit Court of Appeals

Article by Amy Howe on Scotus Blog, April 25, 2022

Report by Nina Totenberg on NPR, April 25, 2022  (In this report, the 1971 case referred to is Lemon v. Kurtzman.)

Ketanji Brown Jackson’s Confirmation Hearings

This week, Monday through Thursday, the Senate Judiciary Committee is holding hearings for President Biden’s nominee for the Supreme Court, Ketanji Brown Jackson.  If you’re going to tune in and watch some of it, I would suggest that Tuesday and Wednesday are the key days, because Tuesday and Wednesday is when you’ll be seeing senators question her directly.  You can expect Democrats to ask her friendly questions designed to bring out good answers from her, and you can expect most of the Republicans to ask her challenging questions.

In particular, you can expect to hear Republican senators press her on allegations that she is “soft on crime.”  For part of her career she was a public defender, which means that it was sometimes her job to try to get nefarious criminals acquitted, and she was also on a sentencing commission where some of her recommendations will be subject to questioning.  One Republican senator in particular, Josh Hawley, has been alleging that she has been easy on sex offenders.  (Reminder:  When the Capitol was being attacked on January 6, 2021, Josh Hawley was the one who made the solidarity fist with the attackers.  He is not merely a conservative Republican; he is a full-fledged member of the Trump loyalist cult.)

In order for Judge Jackson to be confirmed for the Supreme Court, she will need at least 50 votes from elected senators.  If she gets only 50 votes (that is, if all 50 Democrats and no Republicans vote for her), Vice President Harris will cast the tie-breaking vote.  It’s uncertain whether she’ll have any Republican votes, but she did get a few when Biden appointed her to the DC Circuit Court of Appeals last year.  The moderate Democrats, that is, Joe Manchin and Kyrsten Sinema, will probably vote to confirm her, but their votes aren’t automatic, as we have seen.

Anyway, it’s worth tuning in for parts of the hearings Tuesday and Wednesday, March 22 and 23, to get the flavor of this kind of hearing and to see what a few of the characters on Capitol Hill look and sound like.  And if you do watch, feel free to post your observations on the OpenLab discussion board (click here for that).

Why We’re Hearing Talk of World War III

Currently, the United States and its Western allies are imposing heavy punitive economic sanctions on Russia, sanctions that are already throwing the Russian economy into crisis, and although no country is sending troops to Ukraine, weapons are being sent.  But there are two things the West isn’t doing.  Although the West is cutting off other forms of trade with Russia, the West is not cutting off the purchase of oil and natural gas from Russia.  Doing that would punish the West at least as much as it would punish Russia.  In fact, Russia could severely punish the West by cutting off the sale of fuel.  So far, neither of those things is happening, but the situation with the fuel trade is precarious.

But that’s not the worst of it.

The government of Ukraine is asking the U.S. and its allies to declare a no-fly zone over Ukraine.  What would that mean?  In short form, it would mean that the U.S. and its allies would be shooting down Russian planes as they attempted to fly over Ukraine, which Russia would certainly regard as an act of war against Russia.  It would lead Russia to launch some kind of retaliatory attack. Because Biden knows that, he has made it fairly clear that the no-fly zone isn’t going to happen, much to the anger and frustration of Ukrainians.  But even without the no-fly zone, Putin is calling the punitive economic sanctions an act of war.  And here’s the rub:  If Russia attacks any member of the North Atlantic Treaty Alliance (NATO), that means all of the NATO member countries have to treat it as an attack upon them, and thus must cooperate in the response.

And thus, if Russia attacks any NATO member, it will mean that the United States will be formally and officially at war with Russia.

And both countries have nuclear weapons.

And one of the two countries is ruled by a mad man who doesn’t have the kind of restraint that rational people have.

This is why we’re hearing talk of World War III as a serious possibility.

(For updates, see the news feeds that I have built into this OpenLab site., on the right side of the page if you’re on a computer.)

The RNC’s Censure Resolution: This Is Dangerous

I do not consider this post to be an expression of political opinion.  Political opinion would be if I were to say that a particular set of policies was good or bad, or that a particular candidate or group of candidates should be voted in or voted out.  I do not put what I’m about to say in the category of expressing a political opinion; rather, I feel that I am simply showing an awareness of an obvious crisis in this country.

It should be remembered that Democratic House Speaker Nancy Pelosi created a special committee to investigate last year’s January 6 attack on the Capitol.  The attack, it should remember, was by a crowd that had just listened to a speech by then-president Donald Trump declaring that the election was fraudulent, that Congress was acting wrongfully by certifying the election results, and that they should all be furious.  Members of the crowd gained entry into the Capitol building, assaulted law enforcement officers (one officer was killed, as were several other people), and expressed the intention of physically assaulting members of Congress and Vice President Mike Pence.  House Republican Minority Leader Kevin McCarthy (the one who would be Speaker of the House if the Republicans had the majority, and who will become Speaker if the Republicans get the majority in the next election) refused to appoint any Republicans to the special committee after Speaker Pelosi refused to let him appoint two congressmen who had voted to reject the election results.  Pelosi then proceeded to appoint two Republicans herself:  Liz Cheney of Wyoming and Adam Kinzinger of Illinois, both of whom voted to impeach Trump for his involvement that day.  The committee has been at work since last summer; among other aspects of the attack, the committee is probing Trump’s behavior and his communications surrounding that day.

On Friday, February 4, 2022, the Republican National Committee, meeting at Salt Lake City, voted to censure Representatives Cheney and Kinzinger for their participation in that committee’s work.  In effect, it’s a resolution calling them bad Republicans.  In the resolution, the RNC called the investigation “a Democrat-led persecution of ordinary citizens engaged in legitimate political discourse.”

This is dangerous.  When things are normal, the Republican Party represents ideologies and policy preferences that one can legitimately agree or disagree with.  As an instructor of American government, I have no difficulty whatsoever talking about debate over public policy without putting any emphasis on my own opinions, or even giving a clue to what my opinions are.  That’s when things are normal.  But I cannot pretend to see two sides to the question of whether it’s a huge danger to the stability of our country and its institutions when we have one party signing itself over to a cult of personality and willfully pretending that things are one way when they’re really another.  The attack on the Capitol was not “legitimate political discourse,” and “legitimate political discourse” is not what that committee in the House is probing.  People have the right to say that they wish Donald Trump had won the election.  In fact, they have a right to say that Donald Trump did win the election, although they’re engaging in willful self-delusion when they say it.  The committee is not investigating people for expressing opinions; it’s investigating a physical attack on the Capitol by a mob where people were killed and more people’s lives were put in danger, and it’s investigating the role that the president of the United States played in instigating that attack.

What the RNC is showing, purely and simply, is that it is totally dominated by loyal disciples of Donald Trump, and whatever Trump wants from them, Trump will get.  I would feel both foolish and dishonest if I pretended to see two ways of looking at it.  Get me on the subject of what social welfare policy should be, what the response to Russia’s actions toward Ukraine should be, what gun laws should be, whether there should be Affirmative Action in higher education, whether a baker should be required to make a wedding cake for a gay couple–get me on any of those subjects, and I’ll be glad to say to the class, “Well, this side feels one way, that side feels another; it’s a debate.”  But on the subject of whether it’s dangerous that the Republican Party has been taken over by the cult of personal loyalty to Donald Trump, no, I do not recognize two sides and I won’t pretend to.  Trump is just dangerous, as are all of the people in positions of power and influence who are aiding and abetting this danger.

Article in Politico, February 4, 2022

Report on NPR, February 4, 2022

 

The Crisis over Ukraine Continues

As we’ve been hearing for weeks, Russia has approximately 100,000 soldiers amassed close to the border with Ukraine, appearing ready to invade.  President Biden, while he has explicitly said that U.S. troops won’t be sent to Ukraine, has threatened Russian President Vladimir Putin with severely punitive economic sanctions if the invasion takes place.  He has also ordered about 5,000 U.S. troops to be ready for possible deployment, not to Ukraine, but to neighboring Eastern European countries–countries that are members of NATO (see below)–to make sure Russia knows better than to invade those countries and, perhaps, as a symbolic show of support for Ukraine.  The U.S. is also providing arms to Ukraine.  Great Britain is totally supporting the U.S. in all this; Germany and France are supporting the U.S. somewhat.

To make sense out of any of this, it’s important to identify exactly what NATO is and where it fits in.  The North Atlantic Treaty Organization was created in 1949 when the Cold War was heating up.  At that time, Russia was the Soviet Union and had installed Communist satellite dictatorships in most Eastern European countries in the aftermath of World War II.  (World War II started in 1939; the U.S. entered it at the end of 1941.  The U.S., Britain, and the Soviet Union were fighting on the same side against Hitler’s Nazi regime in Germany.)  NATO, at the time of its founding, consisted of the U.S. and its mostly Western European allies, with the mutual pledge that an attack on one was an attack on all, designed to inhibit the Soviet Union from attempting to extend its control into Western Europe.  The Communist countries of Eastern Europe had their own alliance with Soviet Russia, known as the Warsaw Pact.

It also needs to be noted that in the years of the Soviet Union, Ukraine was part of the Soviet Union.  When the Soviet regime collapsed in 1991, Ukraine (like several other countries including Armenia, Azerbaijan, and Georgia) became an independent nation-state.  In 2014, Russia invaded Ukraine and took control of a region called Crimea, which had previously been part of Russia and had a fair proportion of Russian sympathizers in its population.

Since the collapse of the Soviet Union, a number of Eastern European countries, though not including Ukraine, have joined NATO.  (Here’s NATO’s website with the full list.  Note, by the way, that in the years of the Cold War Germany was divided between the Communist East and the anti-Communist West, and it was West Germany that joined NATO in 1955.)  Putin doesn’t like that, nor does he like having a country moving toward being a Western-style liberal democracy right on Russia’s borders.  (Putin has no intention of letting Russia be any sort of democracy.)  Putin is demanding a promise that Ukraine will never join NATO; he also wants NATO to pull back its involvement in Eastern Europe.

And now a note on the punitive economic sanctions being threatened.  France and Germany get a lot of their fuel from Russia.  Biden would like to see France and Germany punish Russia by cutting back on their purchases, but actually, Russia is in at last as good a position to punish France and Germany by cutting off sales completely.

Whatever Putin plans to do, it’s going to wait a few weeks, because there’s apparently an understanding between Russia and China that Russia isn’t going to do anything that will upstage the Winter Olympics that are about to be held in Beijing.

The news feeds attached to this OpenLab site have constant updates on this crisis as well as other political news; interested persons should check those out.  Here’s a report on NPR, January 31, 2022, and here’s an article about the British role on the Politico site, January 31, 2022.

Newsflash: Justice Breyer Will Retire

Liberal Supreme Court justice Stephen Breyer has announced that this will be his last season.  The Democrats in the Senate intend to lose no time confirming his successor, and it is fully expected that Biden will keep his campaign promise to nominate an African American woman.  The Senate Democrats are earnestly hoping that Joe Manchin and Kyrsten Sinema won’t give them a hard time, and also that the Republicans won’t pull any delaying tactics.

Article in Politico, January 26, 2022

Back at the Court: Affirmative Action in Higher Education

Years ago, the elite colleges routinely discriminated against African Americans in their admissions practices.  When psychologist Kenneth Clark applied to the doctoral program at Cornell University, he received a letter telling him that, although he met all the requirements, they were denying him entrance because, as they put it, “you wouldn’t be happy here.”  (Clark wrote them back to tell them that he was perfectly capable of tending to his own happiness, then proceeded to get his PhD from Columbia.)  Now, elite colleges want racially diverse student bodies, and thus they want  to engage in some degree of race-based Affirmative Action to ensure diversity.

It needs to be noted that admissions offices at competitive colleges employ all kinds of measures of diversity in the selection processes.  With or without race as a factor, they want students from different regions, different cultural backgrounds, different interests (they want some of their students to be athletes, some to be actors, singers, dancers, etc.), and different everything else.  It also needs to be noted that Harvard (one of the defendants in the cases the Court will soon be hearing) openly practices legacy admission, giving special preference to the sons and daughters of Harvard alumni.

The Supreme Court has made a number of things clear.  First, the Fourteenth Amendment does not require state universities to use race-based criteria to correct historic imbalances, and thus states are free to prohibit it.  Secondly, it is not all right to have quotas, that is, seats expressly reserved for nonwhites or members of other protected affinity groups (Regents of University of California v. Bakke, 1978).  Third, when a university does take race into account as part of a broader system of angling for diversity in its admissions, the system that it uses must be narrowly tailored to serve a compelling interest and must be able to withstand strict scrutiny (Grutter v. Bollinger, 2003).  A more recent attempt to drive a stake into the heart of race-based Affirmative Action failed; that was the Abigail Fisher case (Fisher v. University of Texas at Austin, 2016).

But there is a differently configured Supreme Court now.  Three of the currently sitting justices–Roberts, Alito, and Thomas–were on the side of prohibiting any consideration of race at all in college admissions, and they have been joined by three Trump appointees–Gorsuch, Kavanaugh, and Barrett–who are likely to agree.  And the Court has just agreed to hear two Affirmative Action cases in the coming year, one involving Harvard (for which the relevant law is the Civil Rights Act of 1964, because Harvard is a private university), the other involving the University of North Carolina (for which the Fourteenth Amendment applies, because UNC is a state school).  In the suit against Harvard, the claim is that Harvard’s policy discriminates against Asian students, in spite of the fact that Asian numbers at Harvard are actually greater than the numbers of African American students.

Like the Abigail Fisher case, these two cases are being orchestrated by an organized interest group, Students For Fair Admissions (SFFA).  In fact, this interest group is run by the same individual who was behind Abigail Fisher’s suit, Leon Blum.

If Blum’s group wins, it may still be possible for colleges to ensure racial diversity in more subtle ways.  What effect it will have on racial diversity at elite colleges if the suits win remains to be seen, but given the current makeup of the Court, that is a very real possibility.

Article in Politico, January 24, 2022

Press Freedom, Libel, and Sarah Palin’s Suit against the Times

Sarah Palin is suing the New York Times for an opinion piece that ran on June 14, 2017.  In that opinion piece, the editorial board of the Times referred to a parking lot shooting that had occurred in 2011 in Tucson, Arizona, where six people were killed and Democratic representative Gabby Giffords was wounded.  The editorial, in its original form, implied that Sarah Palin’s Political Action Committee bore some responsibility for the shooting for having displayed a map with Rep. Giffords shown at the end of a gun sight as a target.  In corrected form, the editorial made clear that it was Rep. Giffords’ district that was displayed in that manner, and that no connection had been shown between that campaign ad and the shooting.  (Here is the corrected version.) Not long after, the editorial board member responsible for that careless wording left the staff of the Times.  For the initial suggestion that Palin had done something to encourage violence against Rep. Giffords and other elected officials, Palin is suing for libel.

When it comes to libel suits brought by public figures, there is a clear and well-known rule of law that applies.  It comes from a 1964 Supreme Court ruling, New York Times v. Sullivan.  That case involved a suit brought by the police commissioner of Montgomery, Alabama, over an ad that had been placed by civil rights activists describing his behavior in a bad light.  The ad had some factual errors, which formed the basis of his suit.

As we all know, the First Amendment assures that there will be “freedom of the press,” and as we also know, the press can still be sued for defamation.  How to reconcile those two necessities?  In the New York Times v. Sullivan ruling, the Court articulated the standard for a libel suit brought by a public figure, summed up in these words:

The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

And thus, Police Commissioner Sullivan lost that case, and it will now be the task of Sarah Palin to convince a federal district court in New York City that the New York Times acted with malice or with reckless disregard for the truth when it ran that editorial.

The trial was originally set for this week, but it has had to be delayed, because the plaintiff has COVID.  Palin is unvaccinated, and is quoted as having said such vaccinated would happen “over my dead body.”  (Side note:  Even Trump has gotten vaccinated; he’s been booed at rallies when encouraging his devotees to do same.)  Assuming that her dead body doesn’t become a reality, jury selection is set to start next week.

Full text of New York Times v. Sullivan

Article in Politico, January 23, 2022

Article in Politico, January 24, 2022