November 2021 round-up: attacks on academic freedom in Florida and Texas

There’s a lot to include in any wrap-up of the battle going on in the U.S. right now to make colleges and universities nothing more than weapons in the hands of Americans who want to dismantle our democracy. Through sheer chance, we began our coverage of the University of Florida on the first of this month, and that story has continued to evolve throughout November. In our November 1 post, we described how three political science faculty members were refused permission to serve as expert court witnesses during a lawsuit challenging Florida’s new voting restriction law because, as UF president Kent Fuchs put it in a written statement,

It is important to note that the university did not deny the First Amendment rights or academic freedom of professors Dan Smith, Michael McDonald and Sharon Austin. Rather, the university denied requests of these full-time employees to undertake outside paid work that is adverse to the university’s interests as a state of Florida institution.

That is, UF employees will not testify against a state policy because then the state will cut funding to the university. The idea that state universities will lose funding if their faculty criticize the state is a new one, at least in the U.S., and it makes “the state” sound a lot less like Florida and a lot more like “the State”, as in “state-controlled media” or “state-controlled education”.

Reaction was swift, from inside and outside UF. The next day, higher ed reporters wrote that “Administrators denied requests from a fourth professor who had asked to participate in litigation supporting mask mandates against [the state of] Florida…

The professor, the pediatrician Jeffrey L. Goldhagen, was asked to testify and serve as a declarant in litigation that followed Gov. Ron DeSantis’s executive order that forbade mask mandates in schools as the Delta variant of Covid-19 tore through the state. Goldhagen is chief of the division of community and societal pediatrics at the University of Florida‘s College of Medicine, in Jacksonville, and a professor in pediatric palliative care. Goldhagen said he would have spoken about why masks work and why children need protection from the virus.

…Goldhagen’s case appears to contradict the university’s earlier explanation for why the political-science professors’ testimony was blocked. The campus’s president, W. Kent Fuchs, and provost, Joe Glover, wrote on Monday night that the political-science professors would be “free” to testify “pro bono on their own time without using university resources.” Goldhagen wrote in the disclosure he submitted to the university that he would not be using university resources and indicated, when asked if he would be paid more than $5,000 annually, that he would not. He told The Chronicle that administrators never separately asked him if he would be paid at all.

The very next day–November 3–it was revealed that a faculty member at another state university, Florida International University, who supported the Florida voting restriction law was allowed to testify in its favor by FIU:

Court records show that the Republican National Committee and the National Republican Senatorial Committee hired a Florida International University professor, Dario Moreno, as an “expert witness” in League of Women Voters of Florida v. Lee, which challenges the restrictive voting law.

At Florida International, a public university, administrators signed off on Moreno’s outside-employment request with little fanfare. The “Outside Activity/Conflict of Interest Form” includes no comments or feedback to Moreno — just a couple of sign-offs by his superiors. Though the filled-out form does not specify the lawsuit, it names a law firm — Shutts & Bowen — listed on the same court documents that name Moreno as an expert witness for the Republican committees.

…Moreno, who could not be reached for comment, is an associate professor in the politics and international-relations department. He has previously been paid by the Florida Legislature to defend Republican-drawn redistricting maps in court. According to a 2015 article in the Tampa Bay Times, Moreno had been “hired by the Florida Legislature to be an expert witness in defense of every GOP-drawn redistricting map since 1994.”

Uproar over the discrepancy led UF to issue a statement saying their faculty could indeed testify against the voting law, but only if they were not paid. FIU put no such stricture on Moreno as he testified in favor of the law, and he billed for 112 hours’ worth of compensation.

Where does the fault lie–with the State of Florida’s Republican-led government, which may send a message to its colleges and universities that any criticism of the government will be punished? or with those institutions, like UF and FIU, that are all too willing to accept this situation? or with the general public, which includes people who support the situation and people who do not support it, who do nothing?

Silke-Maria Warnock, a faculty member at the University of Michigan at Ann Arbor, throws down the challenge we are all facing:

It’s rarely a good sign if you find yourself wondering how to translate certain German words: Gleichschaltung,for instance, or vorauseilender Gehorsam. But reading the news out of the University of Florida, where two administrators informed three faculty members that they were not permitted to testify as expert witnesses in a court challenge to Florida’s voter-suppression laws, will send you down that road.

Gleichschaltung is the process by which institutions are brought under the control of totalitarian ideology. It is frequently rendered as “coordination” or “synchronization,” but those terms lack the terrifying connotation of switches flipped, one by one, until the same ideological current flows through every previously independent institution.

Vorauseilender Gehorsam means “obedience ahead of the command.” The Yale historian Timothy Snyder translates it as “anticipatory obedience,” and that is close enough, but it doesn’t quite capture the scurrying servility implied in “vorauseilen,” to hurry ahead.

We don’t know on whose orders David E. Richardson, dean of the university’s college of arts and sciences, rejected the request of Daniel A. Smith, chair of its political-science department, to testify as an expert witness in the voting-rights case; or on whose orders Gary Wimsett, UF’s assistant vice president for conflicts of interest, rejected the requests of Michael McDonald, who studies national elections, and Sharon Wright Austin, who studies the political behavior of African Americans, to do the same. All three faculty members had previously testified as expert witnesses against the state in other cases, and the university had never declared them to be subject to conflicts of interest.

Unless we want to believe that two different administrators independently invented the same policy from scratch and presented it in near-identical terms, we have to conclude that Richardson and Wimsett acted on orders from above. The notion that they simply anticipated such orders is, in some regards, even worse… Whether they got their orders from the trustees, the president, the provost, or from Gov. Ron DeSantis or one of his minions will emerge in due course. But no matter where the directive originated, both men should have refused to carry it out. They should instead have offered their resignations. You do not obey such commands, you do not hurry ahead to destroy your university’s reputation at the bidding of an authoritarian regime.

…The implications of the assertion that the faculty must not act in a manner adverse to the regime’s interest — “activities that may pose a conflict of interest to the executive branch of the state of Florida create a conflict for the University of Florida” — are staggering. If you are not allowed to bear witness against voter suppression in court, why would you be allowed to study the effects of voter suppression in the first place, or to teach your students about them? Such research and such teaching are not in Ron DeSantis’s interest, either, and by the logic of Richardson’s denial, any activity that is not in Ron DeSantis’s interest is not in the interest of the University of Florida.

…the university’s decision to declare itself an arm of DeSantis’s government rather than an independent institution beholden to the production and dissemination of knowledge and expertise represents an instance of Gleichschaltung that will be more difficult to reverse. It will only get worse. That it is the democratic franchise itself that is at stake in the court case in question only highlights how deep the threat is. Access to the vote is to democracy as freedom of speech is to the university: fundamental, constitutive. Democracies go bankrupt the same way everybody else does: very slowly, then all of a sudden. We are still at “slowly.” All of a sudden is scheduled for Tuesday, November 8, 2022. If Florida’s administrators have ever asked themselves how they would have acted in 1932, now they know.

The date of November 8, 2022 refers to the next election day, when Governor DeSantis is up for re-election.

Of course, it’s not just Florida. If our CRT page has taught us anything, it’s that democracy is under attack in all 50 states, and that higher ed is a much-hated target. Most recently, the University of Texas at Austin has halted a research study “on the effectiveness of antiracism training for white children”–the original “critical race theory” topic that began our own coverage of CRT.

The name of the university is different, but the attack is the same:

This follows a complaint to the Department of Education’s Office for Civil Rights that the project is racially discriminatory, among other criticism. his follows a complaint to the Department of Education’s Office for Civil Rights that the project is racially discriminatory, among other criticism.

–It’s astounding and depressing that a single, horrible argument has gained so much credibility: that teaching about racism is racist. Our first CRT page post, Truth v. Myth: Trump’s Executive Order on Diversity Education, thoroughly explores this double-speak. Teaching Americans that racism existed in the past and still exists in the present, and takes the form of white racism against non-white people in our laws (institutional racism), is, the argument goes, racist because it makes white people feel bad by assuming that they are racist until they prove themselves non-racist. It is imperative, in this argument, that no white person ever feel bad or consider whether they participate in or benefit from racism, institutional and otherwise, and the deeper, much more screwed-up message is that non-white people are racist. Non-white people assume that white people are racist, which is racist.

To be brief, in a society where racism against non-white people is deeply embedded in law and social more, every white person does indeed have to make an effort to change this situation, and remove racist laws and representations from our nation.

To return to this particular UTA story, it seems logical that if CRT is “new” and suspect, it should be objectively, scientifically tested through studies of its impact. That’s what was happening at UTA. But its opponents could not take the chance that the study might prove that white children were not damaged by learning about racism, and so have shut it down, with the university’s meek acquiesence–or its gleichschaltung:

Numerous professors are asking the university to allow the research to proceed during the internal and external reviews, arguing that UT Austin’s institutional review board previously approved the project, as did peer reviewers during a competitive internal funding process.

These professors warn that halting research due to outside complaints threatens the integrity of the study at hand and, more generally, chills free inquiry into timely subjects such as antiracism.

UT Austin “leadership’s decision to pause elements of the study based on the mere filing of a complaint, and before any assessment of whether the complaint poses a credible claim, compromises the integrity of the research and the academic freedom to conduct research and draw conclusions rooted in evidence,” 18 UT Austin education professors said this week in a letter to President Jay Hartzell and Provost Sharon Wood.

…“The leadership’s decision to pause any aspects of the study has the effect of legitimizing actions that, however unfounded, seek to suppress scholarly pursuit of truth and the advancement of scientific knowledge.”

The purpose of the study, according to a recruitment flier, is to explore “overall engagement with the GoKAR! program, as well as the potential for the program to reduce bias and increase awareness of racism.”

The study hit a speed bump after Mark Perry, a professor emeritus of economics at the University of Michigan and a scholar at the American Enterprise Institute, filed a complaint with the Dallas OCR office alleging violations of Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race.

UT Austin “blatantly violates Title VI by illegally engaging in racial discrimination on the basis of skin color by promoting, sponsoring, offering, and marketing a discriminatory program that engages in racial segregation,” Perry wrote to the OCR. “In violation of Title VI, the University’s GoKAR! Program operates illegally and exclusively for caregivers and their 4-5 year old children who both must identify as white and illegally excludes and discriminates against and excludes non-white caregivers and their 4-5 year old children on the basis of their race and skin color.”

…Victor Saenz, chair of educational leadership and policy at UT Austin and the first of the 18 education professors to sign the letter of concern, said via email that he wanted “to clarify that we’ve been in constant communication with all levels of UT leadership throughout this review process.” The university is “working expeditiously to help resolve this matter to ensure our faculty are being fully supported.”

Saenz’s letter to Wood and Hartzell tells something of a different story: “We are deeply concerned by the request to pause any aspect of the research. The university’s actions raise serious concerns regarding the differential treatment of research based on subject matter and viewpoint. In our experience, and in consulting with individuals who have extensive experience interacting with the [OCR] and/or expertise in academic freedom and civil rights, this is an atypical and unprecedented response from a university.”

…Referencing several critical blog posts and news articles about the study, some of which suggest that the project amounts to training, not research, [a letter from UTA faculty] says that “to succumb to political coercion, especially as it relates to scholarship that confronts anti-Black racism, white supremacy, and any other forms of oppression, compromises the central function of a public university. The university’s actions send a message that risks censoring and chilling professor speech based on viewpoint, running afoul of central tenets of the First Amendment.”

Yes, Perry is saying that a study of white children’s responses to educational materials that will help change racist attitudes about non-white people is racist because it doesn’t allow non-white children to participate–it’s segregation. Perry is deeply concerned that non-white children are not being given the chance to learn how not to be racist, perhaps against other non-white children, but given everything we have learned about this topic, it seems safer to bet that Perry wants non-white children to learn not to be racist against white children.

If only this type of university-supported attack on science, the objectivity of higher ed, and our national commitment to liberty and justice for all were truly “atypical and unprecedented”. This snowball is quickly growing and the hill it rolls down becomes steeper and steeper.

We’ll end as we always do–everyone must do their part to stop this takeover and dismantling of our democracy. Get involved in whatever legal and non-violent ways that you can, where you are, locally and nationally. Stop the gleichschaltung before it becomes a way of life.

Freedom of double-speak

We’re back once again to flag just one of the many open, unembarrassed attacks on our democracy going on right now, and it’s clear that this is not going to stop until that work is accomplished, or an equally powerful bloc of pro-democracy Americans occupy positions of authority in federal, state, and local governments, in K-Ph.D. education, and in corporations.

This time, it’s the University of Florida: three of its political science department faculty submitted requests to serve as expert witnesses in court during a lawsuit challenging Florida’s new voting restriction law. UF released a “University statement on academic freedom and free speech” on October 20, 2021, that was short and not sweet:

Recent news reports have indicated the University of Florida denied requests of some faculty members to participate in a lawsuit over the state of Florida’s new election laws.

The University of Florida has a long track record of supporting free speech and our faculty’s academic freedom, and we will continue to do so. It is important to note that the university did not deny the First Amendment rights or academic freedom of professors Dan Smith, Michael McDonald and Sharon Austin. Rather, the university denied requests of these full-time employees to undertake outside paid work that is adverse to the university’s interests as a state of Florida institution.

…the university’s interests as a state of Florida institution. What does this mean? One can quickly infer that it means “we don’t testify against the state government that funds us–our main interest is existing.” If we continue to browse UF Statements by Year, we see that on August 26, 2021, President Kent Fuchs included this paean in his state of the university address:

Despite the economic challenges faced by the State of Florida due to Covid, our elected officials invested even more in the University of Florida this past year, for which we are incredibly grateful.  In the past five years we are the only university in the nation to have increased the size of our faculty by 500, and this past year the Governor and the State Legislature invested additional funding in UF to further increase the size of the faculty, particularly in the area of artificial intelligence.  Although no new funds were provided for salary increases, the provost, vice presidents, and deans reallocated funds from existing budgets to provide compensation increases for both faculty and staff this year. 

So “incredibly grateful” is UF that it is paying back the favor by refusing to allow its faculty to testify against state voting policy. This inevitably leads one to wonder if that state financial support for UF was predicated on the State of Florida’s understanding that the gift would make UF (even more) unwilling to criticize any state laws. Fuchs has made no secret of his own sense of being a figurehead, saying in the same August 26 address that he could not issue a mask mandate: “I literally don’t have that power… within hours, another message would go out from someone to everyone, again saying we’ve been informed that there will be no such mandate. We’re part of the state government.”

State funding is meant to fuel the inquiry, knowledge creation, and intellectual work of a university. It’s not supposed to be a muzzle or a leash. It’s supposed to be freeing–instead of relying on private money, which is given at the whim of wealthy individuals, state universities get public funding that is regular, objective, and not predicated on the university doing what a few people want it to do. It receives public money in return for serving the public good.

If a state university will not allow its faculty to testify in a case against state policy, no matter the reason, then that university cannot logically refer people to its “long track record of supporting free speech and our faculty’s academic freedom” and vow that “we will continue to do so” when they protest this shutdown of free speech and active democratic participation. This is just more of the open double-speak that is so hard to witness, so unbelievably brazen and acceptable and, it seems, often so persuasive to the American people.

It’s what Chief Judge Beryl Howell, FDC in Washington, DC, sharply rebuked on October 28, 2021:

“No wonder parts of the public in the U.S. are confused about whether what happened on January 6 at the Capitol was simply a petty offense of trespassing with some disorderliness, or shocking criminal conduct that represented a grave threat to our democratic norms,” Judge Beryl A. Howell said in court Thursday. “Let me make my view clear: The rioters were not mere protesters.”

Why, she asked, when prosecutors called the riot an “attack on democracy . . . unparalleled in American history,” were Griffith and other participants facing the same charge as nonviolent protesters who routinely disrupt congressional hearings?

“It seems like a bit of a disconnect,” Howell said – “muddled” and “almost schizophrenic.”

“Is it the government’s view that the members of the mob that engaged in the Capitol attack on January 6 were simply trespassers?” Howell asked incredulously. “Is general deterrence going to be served by letting rioters who broke into the Capitol, overran the police . . . broke into the building through windows and doors . . . resolve their criminal liability through petty offense pleas?”

She said it was also unusual that prosecutors were not asking for defendants to be under court supervision until they paid their fines. “This is the first time I’ve ever had the government ask for a restitution payment and not ask for a term of probation,” she said. “Is it because the government thinks these defendants are more trustworthy?”

…”In all my years on the bench, I’ve never been in this position before, and it’s all due to the government, despite calling this the crime of the century, resolving it with a . . . petty offense.”

The worst attack ever, slap on the wrist. Academic freedom, no testifying against the state. Killing our democracy, petty offense. We’re far beyond the stage of a foundation for dictatorship being laid. It’s been laid, the concrete has set, and the framing is going up. All Americans who value democracy in general, and our historic democracy in particular, need to be as active as the fascists are, to get into politics at all levels at the rates they do, to be as forceful in fighting for democracy as they are forceful in attacking it, and to stop letting anti-democratic Americans dominate policy, media, and society.

This is that email with the subject line that says ACTION REQUIRED. We don’t call for riots or bloodshed, which is just another thing that distinguishes us from anti-democracy activists. We call for legal action to take the place of the amazing inaction and bystandering that seems to characterize even those Americans who support our democracy.

It’s much like the latest environmental crisis: people watch it grow and grow, and they get scared, but they comfort themselves that some small group of people will fix it. Some scientist will come upon a solution. Someone will solve it. Someone else. This is partly the result of the last 150 years or so of medical and scientific exploration and development: there have been many, many times when a small group or even one individual did create or discover a cure or a solution–vaccines, non-aerosol dispensers, seat belts.

But we cannot all sit back and wait for some free individual or team to solve our national or global problems. To bring it back to American democracy, there are likely many opportunities for you, wherever you live, to take up the long, slow work of participating in local government. Wherever you live, you can join the fight to prevent anti-democratic Congresspeople from calling a new Constitutional Convention that, with the solid voting bloc formed by anti-democratic Republicans, would be sure to shred our Constitution and institute the same kind of dictatorship that other countries whose leaders have re-written their constitutions (Hungary, for example).

Never heard of the “Article V Convention” effort? Just put it into a search engine and you’ll find plenty about it–sharply divided into pro-Convention stories from right-wing orgs and anti-Convention stories from left-wing orgs.

Whatever you do, do something to defend democracy. You may be that individual or in that small group that could change things.

Why are anti-choice”heartbeat” laws unconstitutional?

We’re back with a follow-up to our post on the unconstitutional Texas Senate Bill 8 – or, as we call it, the Fugitive Abortion Act.

We had promised back in our first post to talk about how the bill, now a law, has been playing out. As expected, other states controlled by Republican legislators are gearing up to pass equivalent bills; Florida’s are working on the basically identical “Florida Heartbeat Act” – “ban most abortions as early as around six weeks, allow members of the public to sue anyone who helps end a pregnancy beyond that point and fine physicians $10,000 for each abortion they perform later in pregnancy.”

You will always hear opponents say these bills are unconstitutional. You will never hear them explain why. Is the right to get an abortion protected by name in the Constitution? It is not. So how are these laws unconstitutional? Here’s a very useful explainer from Cornell Law School’s Legal Information Institute:

In Roe v. Wade [1973], the [Supreme] Court established a right of personal privacy protected by the Due Process Clause [of the Constitution] that includes the right of a woman to determine whether or not to bear a child. In doing so, the Court dramatically increased judicial oversight of legislation under the privacy line of cases, striking down aspects of abortion-related laws in practically all the states, the District of Columbia, and the territories. To reach this result, the Court first undertook a lengthy historical review of medical and legal views regarding abortion, finding that modern prohibitions on abortion were of relatively recent vintage and thus lacked the historical foundation which might have preserved them from constitutional review. Then, the Court established that the word “person” as used in the Due Process Clause and in other provisions of the Constitution did not include the unborn, and therefore the unborn lacked federal constitutional protection. Finally, the Court summarily announced that the “Fourteenth Amendment’s concept of personal liberty and restrictions upon state action” includes “a right of personal privacy, or a guarantee of certain areas or zones of privacy” and that “[t]his right of privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

In other words, the Supreme Court interpreted the Fourteenth Amendment of the Constitution, guaranteeing personal privacy, to include the personal decision about whether to end a pregnancy. It also interpreted the Due Process Clause of the Constitution to refer only to people, not embryos or fetuses (“the unborn”), sensibly acknowledging that embryos and fetuses cannot be understood the enjoy the right to due process before the law because they are not people.

This is the decision that anti-choice and anti-woman forces have been successfully working to overturn for the past 49 years. Their identification of embryos and fetuses as “children” and “babies”, even from the moment the first cell divides, has been very effective in convincing their followers that the unborn are indeed people with rights–rights that even overrule the rights of the actual people who are pregnant.

This deliberate untruth has impacted the U.S. in many ways aside from the battle to allow people who are pregnant to decide whether they should continue their pregnancy. It’s one of the foundational arguments of anti-vaccine activists who “have objections because the vaccines were developed or tested on cell lines derived from aborted fetal tissue”. They are willing to infect and potentially kill actual people, including themselves, in order to claim “rights” to life for cells, embryos, and fetuses.

As we cannot state often enough, this is a prime example of the dangers of claiming that the Constitution protects “religious belief.” We’ve said it before, we’ll say it again:

…What the First Amendment does regarding religion is: first, it forbids our federal legislature from making any laws creating an official state religion; second, it forbids our federal legislature from preventing people from worshipping as they see fit. That’s what “free exercise” means–how you worship. Whether you go to a church, synagogue, mosque, or have a prayer room in your home, you are protected. If you wear a head covering like a yarmulke or turban as a form of worship, you are protected.

The First Amendment is all about physical forms of religious worship. It comes from a time when people would burn Catholic churches or refuse to let Jewish Americans build synagogues. It stops this, and stops schools from forbidding students to wear religious clothing.

It does not protect religion itself, or as we usually put it, religious beliefIt does not protect anyone’s right to believe certain things. If one’s religion prohibits homosexuality or birth control, that is a belief, not a form of worship. Belief is not protected because belief is so amorphous. One could claim any crazy notion as a religious belief and demand that it be protected. We could say that our religion says women shouldn’t ride public transportation, or men should not be allowed to use public restrooms, or cats can’t be kept as pets, and we would have to be accommodated.

The Founders were wise enough not to get into religious belief. They just made a safe space for public and private physical worship.

People are allowed to believe anything they like, including that a dividing cell is a baby. But they are not allowed by our Constitution to enforce their beliefs through laws, for the simple reason that laws apply to everyone, no matter their personal beliefs. That’s one of the reasons why the new laws in Texas and Florida and elsewhere are so dangerous: they include the innovation of having other citizens, rather than state officials or law enforcement officers, enforce the laws by bringing lawsuits against people who seek abortions. This weaponizes people whose personal beliefs align with denying pregnant people control over their own bodies, and gives their personal feelings the power of law.

It also turns our established legal principle of “innocent until proven guilty” on its head by forcing people into court to prove that they have not had an “illegal” abortion–guilty until they prove themselves innocent, and guilty on the basis of violating someone else’s personal, religious beliefs.

This is not the America we want. It’s not what the Founders who wrote the Constitution wanted. Americans who value their natural rights as guaranteed by the Constitution have to be as active in defending them as Americans who do not value them are in tearing them down.

Texas Senate Bill 8 is the Fugitive Abortion Act of 2021

Section 7 – And be it further enacted, That any person who shall knowingly and willingly obstruct, hinder, or prevent such claimant, his agent or attorney, or any person or persons lawfully assisting him, her, or them, from arresting such a fugitive from service or labor, either with or without process as aforesaid, or shall rescue, or attempt to rescue, such fugitive from service or labor, from the custody of such claimant, his or her agent or attorney, or other person or persons lawfully assisting as aforesaid, when so arrested, pursuant to the authority herein given and declared; or shall aid, abet, or assist such person so owing service or labor as aforesaid, directly or indirectly, to escape from such claimant, his agent or attorney, or other person or persons legally authorized as aforesaid; or shall harbor or conceal such fugitive, so as to prevent the discovery and arrest of such person, after notice or knowledge of the fact that such person was a fugitive from service or labor as aforesaid, shall, for either of said offences, be subject to a fine not exceeding one thousand dollars, and imprisonment not exceeding six months, by indictment and conviction before the District Court of the United States for the district in which such offence may have been committed, or before the proper court of criminal jurisdiction, if committed within any one of the organized Territories of the United States; and shall moreover forfeit and pay, by way of civil damages to the party injured by such illegal conduct, the sum of one thousand dollars for each fugitive so lost as aforesaid, to be recovered by action of debt, in any of the District or Territorial Courts aforesaid, within whose jurisdiction the said offence may have been committed.

That’s Section 7 of the Fugitive Slave Act of 1850. This Act of Congress allowed states and territories of the U.S. to create commissioners to hunt down black Americans who escaped slavery and return them to their enslavers. If an enslaved person was able to reach a state that had legally banned slavery, their enslaved status was not overturned. Instead, the people of that state were forced, by Section 7, to void their own antislavery laws by helping the slave commissioners in whatever way those commissioners demanded: help them to find enslaved people, take them into custody, guard them while they awaited return to their enslaver, and turn them over to the enslaver. Preventing a slave commissioner from enforcing slavery in a free state was illegal. Helping an enslaved person hide or escape was illegal. Knowing about people who were helping or hiding enslaved people was illegal, because it was a form of “hindering” the slave commissioner. The penalty for those who hindered slavery, directly or indirectly, was a $1,000 fine (a fortune in the mid-1800s), up to six months in prison, and another $1,000 fine to pay back the enslaver the “civil damages” they experienced as “the party injured by such illegal conduct”. Since very few Americans would have $1,000 to pay the first fine, the second $1,000 would be collected “by action of debt” – that is, seizure of property and/or any other asset the person might possess.

We posted about the FSA four years ago, in September 2017 in “The 2017 Fugitive Slave Act”; that time, we were comparing it to laws making it criminal to help immigrants who are in the U.S. illegally, and turning police officers into “immigrant-catchers” just like the slave commissioners were “slave-catchers”. When you are rewarded for doing something, you will find ways to do it. When you are punished for doing something, you’ll stop. That’s how these acts work.

This September, in Part 1 of a short series, we’re comparing the Fugitive Slave Act of 1850 to the 2021 Texas Senate Bill 8. Why? Because this Bill, now law, makes it illegal for a woman to get an abortion after six weeks of pregnancy in the state of Texas, and therefore illegal for anyone to provide an abortion or, crucially, to help a woman to get an abortion in Texas after six weeks in any way. Abortion is realistically banned by this procedure, not just or primarily because not all women know that they are pregnant at just six weeks, but because

–all women are forced to make two appointments with an abortion provider, one to get an ultrasound so they can be shown their “baby” and told that they will be “murdering” it if they get an abortion, and one to get another ultrasound before the procedure;

–women under age 18 are forced to get written and signed parental approval to get an abortion; and

–only women with strong support systems, money, and flexible employers who allow time off are able to travel out of Texas to a state that does provide abortions after six weeks.

With the passage of this bill into law, it’s not just illegal to perform an abortion; it’s also illegal to drive a woman out of state to get one elsewhere, to pay for one, or, potentially, to tell a woman where she can get an abortion after six weeks. The law is purposefully vague, using the phrase “conduct that aids or abets the performance or inducement of an abortion” to cover just about anything.

Let’s do a close reading. We took the text of this Bill from the website Texas Legislature Online, which is part of the official State of Texas government website. We’re not reproducing the entire text, but letting you know which sections we’re looking at.

AN ACT

relating to abortion, including abortions after detection of an unborn child’s heartbeat; authorizing a private civil right of action.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1.  This Act shall be known as the Texas Heartbeat Act.

–The use of the word “child” is already a red flag for subjectivity. A fetus at 6 weeks is a fetus, not a “child”. Anti-choice advocates have long used the words “baby” or “child” to describe something that could one day be a baby or child, but currently is not. From the moment an egg is fertilized by sperm, it’s a “baby”, as Section 171.201 (5) says: “‘Pregnancy’ means the human female reproductive condition that: (A)  begins with fertilization”.

Calling the Bill the “Texas Heartbeat Act” technically refers to the fact that a fetal heartbeat is detected between 3-6 weeks after fertilization. But even the language of this Bill in Section 171.201 (1) reveals what a technicality this is: “‘Fetal heartbeat’ means cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac.” Is this what anti-choice advocates want you to think of when you hear “Texas Heartbeat Act”? No; they want you to think of a valentine-shaped heart that represents a baby with feelings and emotions.

Basically, calling a 6-week old fetus a “child” or “baby” is like calling someone you enslave a “laborer” or “worker”, as the Fugitive Slave Act of 1850 did, consistently calling people who escaped slavery “fugitives from labor.”

Sec. 171.207.  LIMITATIONS ON PUBLIC ENFORCEMENT. (a)  Notwithstanding Section 171.005 or any other law, the requirements of this subchapter shall be enforced exclusively through the private civil actions described in Section 171.208.  No enforcement of this subchapter, and no enforcement of Chapters 19 and 22, Penal Code, in response to violations of this subchapter, may be taken or threatened by this state, a political subdivision, a district or county attorney, or an executive or administrative officer or employee of this state or a political subdivision against any person, except as provided in Section 171.208.       

–Here the Bill leads early with its key component: it’s not being enforced by the State government. No enforcement of the Bill may be taken or threatened by anyone representing the state. Here’s the first part of that following section they refer to:

Sec. 171.208.  CIVIL LIABILITY FOR VIOLATION OR AIDING OR ABETTING VIOLATION. (a)  Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who:

–Texas never claimed that this Bill is constitutional. The evil genius of it is that it doesn’t have to be constitutional if the state is not carrying it out. No one working for the state government of Texas will be asked to prevent a woman from getting an abortion, or take anyone to court for having an abortion or helping a woman to get one. The state’s hands are off. It’s private citizens who will do this work. Yes, they’re authorized by state law, but this means that anyone who wants to challenge this law will have to go after every individual citizen who acts on it–which could be thousands or tens of thousands of people. No one can sue the State of Texas over it.

Pro-choice advocates will certainly take the first private citizen who acts on this law to court, and hope to work that individual case up to the Supreme Court, just like Brown v. Board of Education or Plessy v. Ferguson. But in the meantime, unknown numbers of people will continue to act on it–far greater numbers than work in Texas state government. 25 million people live in Texas. Far fewer work in state government.

This is an authorization of vigilantism, as we will see. Let’s continue that last section:

Sec. 171.208.  CIVIL LIABILITY FOR VIOLATION OR AIDING OR ABETTING VIOLATION. (a)  Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who:

(1)  performs or induces an abortion in violation of this subchapter;

(2)  knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this subchapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter;

(1) is clear: no abortions can be provided after six weeks. (2) is that horribly vague “conduct that aids or abets the performance” of an abortion that could cover anything. The only specific they give is that insurance companies that pay for abortion can be sued. The vanishingly small number of insurance companies that ever cover abortion will soon, one fears, be reduced to zero.

You may be asking at this point, where is the burden of proof? How can anyone prove that someone “aided or abetted” in an abortion in any way? It’s just hearsay–I can go to court and say “I know that Person A drove Person B to get an abortion” or, worse, “I know that Person A encouraged Person B to get an abortion,” or even “Person A knew that when Person B left the house that day they were going to drive out of state to get an abortion and didn’t try to stop them.” There’s no end to the dystopian nightmare that is made possible here.

This law also makes someone guilty until proven innocent, which is the opposite of the legal principle the U.S. is founded on. If Person A is sued, they are forced to appear in court and argue that they are innocent. The Bill refers to someone in this situation as the “defendant” and the person who sued them as “the claimant”, and never was the word “claim” so accurately and awfully used. No one making a claim against someone will be thrown out of court, and every groundless case will have to be heard–and the “defendant” will pay all the legal fees if they are found guilty, and the state will pay all the legal fees if they are not, as we see here:

[3] (b)  If a claimant prevails in an action brought under this section, the court shall award:

(1)  injunctive relief sufficient to prevent the defendant from violating this subchapter or engaging in acts that aid or abet violations of this subchapter;

(2)  statutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced in violation of this subchapter, and for each abortion performed or induced in violation of this subchapter that the defendant aided or abetted; and

(3)  costs and attorney’s fees.

So if Person X takes Person A to court and wins, Person A is first made incapable of repeating their crime (“injunctive relief” is a court order that demands that someone stop doing something), and Person X, the Claimant, gets “not less than” $10,000 for each abortion performed or “aided and abetted” by Person A, and the court will pay for Person X’s court costs and attorney’s fees. Person X, of course, pays their own costs and fees.

Remember how the Fugitive Slave Act guaranteed $1,000 to anyone who turned in someone hindering a slave commissioner? And put the hinderer in jail, and made them pay another $1,000 so they couldn’t do it again (injunctive relief)? Just add a zero to the Texas law and we’ve got the same situation, except that in 1850 the person found guilty paid the reward to the person who had turned them in. Now, it’s all taxpayers in Texas. Everyone, regardless of their stance on abortion, is helping to prosecute people who provide or “aid and abet” abortion.

(d)  Notwithstanding Chapter 16, Civil Practice and Remedies Code, or any other law, a person may bring an action under this section not later than the fourth anniversary of the date the cause of action accrues.

–There’s a statute of limitations of four years on suing someone for providing, aiding or abetting abortion. We’re surprised it’s that short. Why fear that memory or hearsay or “claims” will be harder to prove with passage of time? Concerns about proof don’t seem to trouble anyone who wrote or passed this Bill.

Sec. 171.212.  SEVERABILITY.      

(c)  The legislature further declares that it would have enacted this chapter, and each provision, section, subsection, sentence, clause, phrase, or word, and all constitutional applications of this chapter, irrespective of the fact that any provision, section, subsection, sentence, clause, phrase, or word, or applications of this chapter, were to be declared unconstitutional or to represent an undue burden.

–This is surprisingly frank. The Texas state legislature would have passed last word of this bill, “irrespective of the fact” that any part of it “were to be declared unconstitutional or to represent an undue burden.”

Part of this lack of concern for constitutional law comes from their deviant removal of enforcement from the state to the private citizen–again, it doesn’t matter if the law is unconstitutional if the state is not carrying it out (even though the state is, of course, carrying it out by allowing cases to be heard and punishing the courts if they don’t hear the cases).

But the larger part is that this is meant to be read as a brave, moral stand against the immorality of abortion. Even if the whole world tells us we’re wrong, the lawmakers say, we know that we’re right, and we stand by it. This wrapping oneself in morality is very selective in the U.S., and seems mostly to occur when right-wing politicians go against something liberal politicians support.

It’s also almost always about life-or-death stands that are fairly meaningless: support our troops by funding weapons and wars, because they’re fighting for our freedom… but don’t give military personnel a living wage, safety from rape and/or abuse based on sexuality, good life and health insurance, easy access to quality mental or physical health care, or good housing.

Here, it’s don’t “kill” an unborn “child” because that’s “murder”… but once that child is born, do nothing to fund early childhood education, school breakfasts, mother and infant health care, affordable and safe day care, after-school programs, or anything else that will help that child live a good life. This is not being “pro-life” but “pro-birth”.

People who ban abortion are almost always “pro-birth”. They want huge governmental involvement, investment, and protection for stopping abortion, and zero of the above for helping all children thrive, regardless of race, religion, first language, income, sex, sexuality, etc. They usually follow pro-birth laws with measures designed to prevent exactly that kind of level playing field for the children they insist be born, from segregated schools to gay “conversion camps” (aka torture centers).

There’s no room for this in a democratic nation. The history of the United States is one of incrementally increasing democracy, of getting closer to liberty and justice for all. Making a Christian position against abortion the law for all Texans, and, one day, for all Americans, is a violation of our founding principle of separation of church and state. Un-American oppression and disregard for the Constitution, vigilantism and sexism, have no place in our nation. Religious belief is not protected by the Constitution, as we’ve noted before:

…What the First Amendment does regarding religion is: first, it forbids our federal legislature from making any laws creating an official state religion; second, it forbids our federal legislature from preventing people from worshipping as they see fit. That’s what “free exercise” means–how you worship. Whether you go to a church, synagogue, mosque, or have a prayer room in your home, you are protected. If you wear a head covering like a yarmulke or turban as a form of worship, you are protected.

The First Amendment is all about physical forms of religious worship. It comes from a time when people would burn Catholic churches or refuse to let Jewish Americans build synagogues. It stops this, and stops schools from forbidding students to wear religious clothing.

It does not protect religion itself, or as we usually put it, religious belief. It does not protect anyone’s right to believe certain things. If one’s religion prohibits homosexuality or birth control, that is a belief, not a form of worship. Belief is not protected because belief is so amorphous. One could claim any crazy notion as a religious belief and demand that it be protected. We could say that our religion says women shouldn’t ride public transportation, or men should not be allowed to use public showers, or cats can’t be kept as pets, and we would have to be accommodated.

The Founders were wise enough not to get into religious belief. They just made a safe space for public and private physical worship.

Laws like the ones passed in Texas, and getting closer to passage in many other states, define one specific version of Christianity as “religious belief”, and seek to make it the state (and national) religion. That’s not what we’re supposed to do in America.

Next time, details of how the law is playing out in Texas–and beyond–and a primer in why these anti-choice laws are unconstitutional.

Powerful history of voting rights in North Carolina in a 15-min listen

The WNYC (New York Public Radio) show “The Takeaway” has a great recent episode on the latest expansion of voting rights to former felons in North Carolina–great in large part because of the terrific summary the show created of the battle over granting black Americans their Constitutionally given right to vote that has been waged in the state since Reconstruction–1875 to the present.

Check out the story here: “A Win for Felony Offender Enfranchisement in North Carolina” – click the yellow “LISTEN” button just under the headline to hear the piece, which documents the wins and losses that civil rights activists have had in their battle to uphold the Constitution.

As host and narrator Melissa Harris-Perry notes, the story of un-American attempts to stop black Americans from voting is not unique to North Carolina, or even former Confederate states, nor is it new: it’s a nationwide problem with a long history that every democratic American will naturally condemn.

Go listen and enjoy this well-done piece of history writing!

Nebraska update, site upgrade, and a new home for our posts on censorship and banning teaching about racism

Hey, it’s a positive update for once! In fact, there are a couple of them to share.

You’re seeing the most obvious one – our new site format. We haven’t updated the site since we created it… IN 2008, and while we value history and being old-school, we felt the time had come. We hope you like it.

We’ve also updated our Pages, most notably to include a one-stop shop for all of our continuing coverage of the anti-democratic attempts to censor K-12 and college education in this country by forbidding people to teach about racism or any other “problematic” features of our past and our present in America.

We hope you enjoy both of these upgrades, and that they help you locate the information you need more easily. Maybe we won’t wait another 13 years to make some changes on the old HP.

Meanwhile, we celebrate a positive update on Nebraska, the most recent state we posted about making attempts to ban instruction about racism and other “divisive” facts: the University of Nebraska Board of Regents voted against regent Jim Pillen’s resolution that critical race theory should not be “imposed” on academic curriculum or staff training.

It was close at 5-3, and undoubtedly another attempt will be made after those who did vote against it are worked over by the press and by lobbyists. Nebraska governor Pete Ricketts “strongly urged” the regents to support the resolution, so this battle is not over–both Ricketts and Pillen have “vowed to continue fighting on the issue”. Pillen plans to run for governor, a race that doesn’t seem to be starting in good faith:

Despite the vote, Pillen expressed optimism that Nebraskans have a better understanding of the issue now and that there will be accountability if critical race theory is imposed on students in the future. When asked, he did not provide any examples of such impositions in the past.

Pillen added that “critical race theory should not be forced on our students and staff as an unquestionable fact. They should be free to debate and dissent from critical race theory without fear of silencing, retribution, or being labeled. They should also be free to avoid the concept of critical race theory altogether without penalty, if that’s what they choose.”

This type of unbearable double-speak is so unbearably common now: people should be free to debate and criticize this theory freely, and also free to choose not to do so, and that’s why I want censorship to step in to take away that freedom to debate and freedom to choose.

This censorship as freedom, censorship as freedom of choice, is only gaining momentum.

But it’s a moment of triumph for Truth in its never-ending battle against Myth, and we have to celebrate it. Here’s what NU president Ted Carter said:

Speaking before the vote, NU President Ted Carter told the regents to hold him accountable if there are problems with critical race theory at the university in the future.

“If something actually is being imposed on our students and it’s wrong, we’ll fix it,” he said.

But Carter emphasized that critical race theory is not required for graduation, and he defended the integrity of the faculty and the ability of the students to deal with the subject appropriately.

“Our students are not children,” he said. “Our students are not at threat of having this discussion. They’re there to think for themselves.”

The Chronicle of Higher Education (no public website to link you to) makes the important note that students who are not white “spoke about the importance of discussing topics of race and racism in the classroom”. It’s maddening that the people who are most impacted by racism past and present are so rarely given the chance to speak to the people making the rules about what they can learn, and how free their speech is.

Stay with us in this new format and this new fight for real history and real democracy.

This time it’s Nebraska: another state to ban teaching about racism?

This time it’s Nebraska. On July 26, Governor Pete Ricketts tweeted (because Twitter is where state policy should be formed and debated) that

I strongly urge the Board of Regents to pass the resolution opposing the imposition of Critical Race Theory on students, so we keep academic freedom alive and well at the University of Nebraska.

Additionally, the University of Nebraska should consider it an honor to be listed on the AAUP’s censure list alongside notable conservative institutions, including Brigham Young University, Catholic University of America, and Hillsdale College.

The AAUP is the American Association of University Professors. Nebraska is only the latest state to join the movement to censor K12 and college instruction:

  • On March 18 we wrote about the Iowa state legislature working to incorporate the anti-justice language and intent of the Trump Executive Order 13950 of September 22, 2020 (Combating Race and Sex Stereotyping), which we spilled so much ink on late last year. The University of Iowa is being pressured by the state legislature to end diversity education for students and staff.
  • Then on March 23 we posted about the Idaho state legislature attempting to do the same. Then, just over a month later came the terrible update: they did. On April 29 the Idaho House approved legislation aimed at preventing public and charter schools and universities from teaching critical race theory, which examines the ways in which race and racism influence American politics, culture and the law.
  • On May 14, we posted about New Hampshire, whose House Bill HB544–“An Act relative to the propagation of divisive concepts”–is yet another move to make teaching Americans about racism illegal.
  • On June 7, we posted about Oklahoma and Kansas: Oklahoma Governor Keven Stitt signed legislation to ban critical race theory, and department chairs at Pittsburg State received an urgent email summons to “inquire” whether Critical Race Theory is being taught in any PSU classes. “The specific information would be 1. yes or no and 2. if yes which course(s). The response needs a short timeline as I need to have this information to the Dean’s office by the end of the day.”

We believe at this point Nebraska makes 17 states that have passed or are considering legislation to censor instruction. The irony of using censorship to protect freedom is so grating; how can this transparently illogical strategy be so successful every time?

The resolution Ricketts speaks of was introduced by U of Nebraska Regent Jim Pillen. It reads:

Whereas the campus and facilities of a university are places for open reflection, discussion, study, research, and learning and

Whereas America is the best country in the world and anyone can achieve the American Dream here and

Whereas education, free speech, and sound learning are the keys to freedom and opportunity in this country and

Whereas we oppose discrimination in any form and

Whereas Critical Race Theory does not promote inclusive and honest dialogue and education on campus and

Whereas Critical Race Theory proponents seek to silence opposing views and disparage important American ideals

Be it resolved that the Regents of the University of Nebraska oppose any imposition of Critical Race Theory in curriculum.

The vague language is so insulting. “Any” “imposition” of “Critical Race Theory”? What’s an “imposition”? Isn’t any syllabus with required reading on it “imposing” that content on students? The word “any” allows just that–a definition of “imposition” so broad it becomes at once meaningless and an effective total ban on anything that anyone decides is “critical race theory”.

The University of Nebraska has been simmering ever since 2018, when a white grad student teaching adjunct flipped off a white undergrad campaigning on campus for the neo-conservative Turning Point USA organization. The two got into an argument, the grad student gave the undergrad the finger, it was filmed, and all hell broke loose as neo-conservatives claimed it as yet another proof that white Americans are under constant threat and attack on college campuses.

The AAUP censured UNL for suspending Lawton from teaching, and that’s the censure list that governor Ricketts says the state should be proud to be on.

U of Nebraska system president Ted Carter and four campus chancellors have published a defense of academic freedom, which reads in part “Issues around race, equity and the fight against racism are an important part of our country’s story and they have an appropriate place in our classrooms,” which says it as well as we ever could.

Once a term like CRT becomes widespread, it’s pretty reasonable to assume most people using it don’t know what it really means. That’s the way neo-conservatives and white supremacists want it: vague enough to be scary, broad enough to include anything they don’t like.

To allow an individual to define, on his own, what CRT is and does, and therefore to ban it for all, is something we would expect in a dictatorship, like when Viktor Orbán re-writes the Hungarian constitution on his lunch break to confirm his own dictatorial powers.

Our response?

Whereas a crucial component of any claim that America is the best country in the world is an appreciation of the Founders, and

whereas the Founders welcomed and dedicated themselves to open debate, and

whereas the Founders wrote in great detail and great specificity about how they thought this country should be governed, and

whereas the Founders did not hide behind vague wording to hide their agenda, and

whereas the Founders didn’t write threats into our founding documents, and

whereas the Founders didn’t impose censorship to protect any individual agenda,

Be it resolved that all of these vague, threatening censorship laws are un-American, and destroy anything that was great about America.

What makes a country great is its dedication and commitment to facing its problems honestly, in order to slowly but surely resolve them. Find out what your state legislature and state education system are doing and speak out against any attempts to introduce censorship defined as patriotism.

Why did Americans fight in wars?

There are many correct answers to this question, from the noble to the mundane to the misguided. But we feel confident claiming that making it hard for Americans to vote was never a stated purpose for going to war in the United States.

Texas state representative Jack Enfinger does not agree. We’ll get to him in a moment. For now, the background. We were listening to a story on the radio about Texas Senate Bill 1, which is titled thusly:

An act relating to election integrity and security, including by

preventing fraud in the conduct of elections in this state;

increasing criminal penalties; creating criminal offenses;

providing civil penalties.

It is one of the many state bills that have been or are about to be passed to stop non-white people from voting in the name of correcting election fraud. It’s not a leap to make this statement, as the decisions of the Supreme Court has been openly stating since 2013 and its Shelby County decision that times have changed, non-white Americans no longer suffer from institutional discrimination, and there is no need to keep the Voting Rights Act of 1965.

We posted about this at the time – see The Supreme Court strikes down Section 4 of the Voting Rights Act of 1965. Section 4 of the VRA sets out the criteria for determining when a state/local jurisdiction is violating fair elections and voting. As we said back then,

the Court was reviewing two things: whether racial minorities still face voting intimidation and restriction nearly 50 years after the 1965 Act; and whether it was unfair to keep singling out Southern states for closer inspection than other states. The answer to both these questions was “no”.  The current system, says the majority opinion written by Chief Justice Roberts, is “based on 40-year-old facts having no logical relationship to the present day. Congress—if it is to divide the states—must identify those jurisdictions to be singled out on a basis that makes sense in light of current condition. It cannot simply rely on the past.”

That is, we can’t say that since Southern states prevented black citizens from voting during Reconstruction, in the 1870s, those states should still be identified as requiring federal oversight. The problem with this logic is that one does not have to go back to the 1870s to find voter repression in the Southern states singled out (Texas, Louisiana, Mississippi, Alabama, Georgia, Florida, South Carolina, and Virginia). These states were preventing black people from voting in the 1920s, 1950s, 1970s, and today. The history of intimidation, arson, and murder used to prevent black Americans from voting in those states is unbroken from 1865 to 2013.

The proof of this claim is in the hundreds of proposed changes to state voting laws in the Southern states currently pending at the U.S. Department of Justice. It’s in the statements made yesterday by Republican leaders in those states that they will take “immediate action” to not only introduce new laws restricting voting rights, but to revive and pass old laws that were rejected by the Justice Department as infringing on the right to vote.

“After the high court announced its momentous ruling Tuesday, officials in Texas and Mississippi pledged to immediately implement laws requiring voters to show photo identification before getting a ballot,” reports the Houston Chronicle. “North Carolina Republicans promised they would quickly try to adopt a similar law. Florida now appears free to set its early voting hours however Gov. Rick Scott and the GOP Legislature please. And Georgia’s most populous county likely will use county commission districts that Republican state legislators drew over the objections of local Democrats. …Laughlin McDonald, who heads the American Civil Liberties Union’s voting rights office, said he agrees that pending submissions to the Justice Department are now moot. It’s less clear what happens to scores of laws that the feds have already denied since the 2006 reauthorization.”

The Southern Republicans in question say that the ruling is a validation of their states’ move away from racial discrimination, an acknowledgement that times have changed. In one way they are right: over the past 20 years, Southern politicians widened the scope of their ambition to attempt to prevent not just black Americans from voting, but the poor, elderly, and Latino as well—all groups they perceive as voting for Democratic party. They have moved away from purely racial discrimination to a much broader discrimination.

Chief Justice Roberts, writing for the majority, said, “Voting discrimination still exists; no one doubts that. The question is whether the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements. As we put it a short time ago, ‘the Act imposes current burdens and must be justified by current needs.’”

There are many things to question here:

If, as the Court claims, voter discrimination still exists, but southern states are no longer the single source of that voter discrimination, then why didn’t the Court expand the VRA to include northern states, rather than kill the VRA?

If the states that wanted the VRA overturned have representatives publicly stating that they would immediately introduce laws that restricted voting, how can the Court state that overturning the VRA will not make voter discrimination worse?

If the VRA is outdated because it’s not current, then what just happened with the Court’s decision in Brnovich v Democratic National Committee?

We won’t go into all of the details of this decision here – you can find an objective, very detailed explanation here at BallotPedia. What we will focus on is the decision’s selection of 1982 as the standard for judging state voting laws: here’s a clear reference from the decision itself:

(B) The degree to which a voting rule departs from what was standard practice when §2 was amended in 1982 is a relevant consideration. The burdens associated with the rules in effect at that time are useful in gauging whether the burdens imposed by a challenged rule are sufficient to prevent voting from being equally “open” or furnishing an equal “opportunity” to vote in the sense meant by §2.

If the problem in 2013 was that an Act from 1965, and thus 48 years old, was too outdated to be relevant (a dubious claim), then how is 1982 okay in 2021? That was 38 years ago, and will only get older.

This discrepancy is just a token for the overall violation of voting rights that the Brnovich decision represents.

Now to circle back to our question about why Americans fought in wars. When we were listening to the radio, we heard many Texas residents saying their piece for and against the legislation. Then we heard state rep Jack Enfinger, of San Antonio, say this:

“This thing about voter suppression is a major false claim—a joke.”

Jack Enfinger, a San Antonio Republican, testified that Texas offers multiple ways to vote, including two weeks of early voting.

“How much more does Texas have to bend over backwards for… the voters? Voting is not supposed to be easy. That’s what our men died for.”

The disdain and incomprehension in Enfinger’s voice when he said “the voters” was remarkable. He makes it very clear that “voters” are a subspecies of American that somehow cannot be equated with “citizens.”

But it’s his claim that American men [sic] fought to prevent Americans from being able to vote easily is so alarming and cray that it takes your breath away. What can it mean? Because the bill in Texas makes it harder for non-white people to vote, the only possible answer seems to be that he’s saying white American men fought and died in foreign wars to make sure that only white American men could ever vote here at home. Americans fought and died in WWII to keep America white.

This is, by now, mainstream, often-heard white fascist content in America (we never thought we’d be saying this in our lifetimes). It hardly causes a stir anymore–since 2020, we’ve become used to fascism in the mainstream. This comment will win Enfinger more Republican support, and otherwise disappear.

But the Supreme Court is on his side, and that’s a problem that’s larger than Texas, and won’t go away. The Shelby decision and the Brnovich decision and the decisions that are coming soon don’t use Enfinger’s direct language, but they are of a piece, and they shore him up and support him.

We seem to end every post the same way lately – do what you can on your local level, vote, protest, get involved in local politics. The minority of people who are passionately devoted to destroying democracy in America are active every day in these ways. SIgn a petition, go to a speech by your representative or a candidate. America has a long tradition of making this relatively easy to do… for now.

Oklahoma and Kansas ban diversity education

…if it seems like the HP only rears its head when another state legislature or university initiates a crackdown on democracy, in the form of banning instructors from teaching American students that racism was, and is still, a real thing that we are all a part of, some of us benefiting from it even without trying to, others of us suffering from it, then… you’re right!

That is what we’re devoted to this year, ever since we began a series on examining the Biden Administration’s January 20, 2021 Executive Order on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government, which you can find here on the official White House site.

We’ve always been about civics here, and the ever-lengthening roll call of states in the list below is an abject object lesson in how sometimes democracy is chipped away at bit by bit, and sometimes it falls in an avalanche. If you’ve ever seen a glacier bridge calving in-person or on YouTube–an unfortunately common sight as climate change rages on mostly unchecked–you’ll see that small bits fall off, then much larger pieces, then enormous shards, and then the whole structure falls.

We’ve been seeing small bits and larger pieces falling in our democracy for years, as dedicated efforts to shore up and protect white power began in this country in the 1970s, when the impact of legislation from the most recent Civil Rights Era (1950s and 60s) began to be felt. It only took a few small instances of non-white Americans benefiting from equal rights to send those white Americans who are racist into a rage, and the effort to undo all of that Civil Rights legislation began under Nixon, and his touting of the “silent majority” of Americans who were not on board with revolution, rioting, drugs, and all the other fearsome things he associated with Americans living up to our founding principle of liberty and justice for all. There was a break in the action under Ford and Carter, and then neo-conservative forces regrouped under Reagan, and the fight to keep the “real” America–white people–safe from welfare queens and drug dealers and everything else non-white began in earnest.

Now enormous shards are falling. The attempted racist coup on January 6 hit the water hard. But multiple shards are falling in individual states, where it should be so much easier for people to fight back, because it’s their local legislatures hacking away at democracy. This very learned helplessness is itself one of the tools that right-wing conservatives use constantly, telling Americans that their government is corrupt and dangerous at every level, and they should just a) elect a strong-man to go in and “drain the swamp” for them, then b) stay far away from their governmental institutions and let the strong men go to work unchecked and unquestioned.

Perhaps this seems like editorializing rather than history. People often make the mistake of conflating objectivity with neutrality. When we study the atrocities of human history, the failures, the wars, the greed and destructiveness that characterizes all eras, we have to do all we can to gather all the data available to us, so we know what really happened, and we’ve gotten enough information from all sides to understand how the actors in those events defined what they were doing and their reasons for taking action. We then draw conclusions from the evidence about whether those actions helped improve human life, or whether they contributed to making it more miserable, narrow, and hopeless. We are, after all, studying human beings, not electrons or tectonic plates. We’re studying human actions born of human intention. No one takes action without hoping that the action will have a lasting impact on their own life, lives immediately near to them, and, sometimes, on their society or even the world as a whole.

History describes, then assesses those intentions and impacts. The objectivity part is in the work of reading critically and gathering all available data, not just from a few actors, and not just the parts that confirm your theory, or the parts you agree with, or want to hear. The assessment is necessarily subjective, because “impacts” are felt and borne by human beings, objectively (people can’t vote) and subjectively (people feel inferior). Historical actors want to achieve both objective and subjective impact in order to make the change wrought by their actions more impactful, and long-lasting.

So when people attempting to pass, and succeeding in passing, legislation that forbids Americans to learn that racism against black citizens was and still is carried out by white citizens make very clear, plain, unashamed statements about their desire to protect white people from ever feeling implicated in racism at all costs, including the cost of censorship, silencing of black people, and continued racism, we gather that data. It’s in all of these sources:

  • On May 14, we posted about New Hampshire, whose House Bill HB544–“An Act relative to the propagation of divisive concepts”–is yet another move to make teaching Americans about racism illegal.

And then we analyze those statements and draw our conclusions from facts. And the conclusions are, necessarily, objective descriptions of attempts to subjugate black Americans, which can only provoke a subjective response, whether that’s positive, because you want black Americans to be subjugated, or negative, because you don’t.

We don’t. So we will add to our list this week, and feel the alarm of adding not one but two states to that shameful roll call:

  • Oklahoma: Governor Keven Stitt signed legislation to ban critical race theory from being taught in schools. “The bill prohibits public schools and universities from teaching that “one race or sex is inherently superior to another,” and that “an individual, by virtue of his or her race or sex, is inherently racist, sexist or oppressive.” Proponents say it also bans the teaching of critical race theory, which examines systemic racism and how race influences American politics, legal systems and society. The Oklahoma GOP called on Stitt, a Republican, to sign the bill to “ensure that children are not indoctrinated by dangerous leftist ideologies.” The University of Oklahoma and Oklahoma State University have announced their student diversity trainings can no longer remain mandatory under the new law, and the first course has been “paused” – a euphemism for “shut down forever.”
  • Kansas: On June 2d department chairs at Pittsburg State received an urgent email: “Good evening. I have received an email this evening from Dr. Pomatto inquiring for the Provosts office if Critical Race Theory is being taught in any PSU classes. The specific information would be 1. yes or no and 2. if yes which course(s). The response needs a short timeline as I need to have this information to the Dean’s office by the end of the day. Please reach out to the faculty within your programs and have them, or you, get back to me ASAP by the end of the day tomorrow.” Why this information was needed so urgently is unclear, but given our growing list, it seems that someone at Pittsburg State is anticipating inquiries from the Kansas state legislature.

In each of these cases, there is pushback, but it’s very weak. The Oklahoma City Board of Education has protested the new law, but that will not do much to overturn it. And some faculty at Pittsburg State are angrily commenting on Twitter, which is equally impotent. Unless Americans can shake off the political paralysis they are rewarded for, existing laws will not be overturned, and more will come.

Perhaps you will say these new laws must represent the wishes of the majority, and so must be honored as truly American, and consonant with what America is all about and meant to be all about. In reply, we steer you firmly to the original of our “tyranny of the majority” posts: Court decisions are not democracy? It focuses on the judiciary, not the legislature, so after you read that, go to one of our many “tyranny of the majority” series posts that covers state legislation banning gay marriage being overturned by state judiciaries–try Gay marriage in Alaska v. Tyranny of the majority.

We’ll be back with more; that seems clear.

Jen Psaki on the proposals to penalize teaching the history of racism

You know the drill: another week, another installment in our unhappy, once short, now long series on examining the Biden Administration’s January 20, 2021 Executive Order on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government, which you can find here on the official White House site.

On March 18 we wrote about the Iowa state legislature working to incorporate the anti-justice language and intent of the Trump Executive Order 13950 of September 22, 2020 (Combating Race and Sex Stereotyping), which we spilled so much ink on late last year. The University of Iowa is being pressured by the state legislature to end diversity education for students and staff.

Then on March 23 we posted about the Idaho state legislature attempting to do the same. Then, just over a month later came the terrible update: they did. On April 29 the Idaho House approved legislation aimed at preventing public and charter schools and universities from teaching critical race theory, which examines the ways in which race and racism influence American politics, culture and the law.

On May 14, we posted about New Hampshire, whose House Bill HB544–“An Act relative to the propagation of divisive concepts”–is yet another move to make teaching Americans about racism illegal.

The surprise? We don’t have a new state to report on this week. And we’re not going to bend your ear forever about this attack on democracy.

Instead, a very short video of Jen Psaki, press secretary for the Biden Administration, dealing with it more concisely and definitively than we ever could. If the link doesn’t work, go to YouTube and type in “Psaki on Proposal to Penalize Teaching History of Racism.”

Enjoy hearing from someone else this week who is as devoted to Truth v. Myth as we are!