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The Shaming of George H.W. Bush Is Obscene

The recent allegations against former President George H.W. Bush for "sexually assaulting" young women who stood next to him during photo shoots are obscene -- but not because of what the president did or did not do. Enough is enough. President Bush is 93 years old. He sits in a wheelchair, and anyone who witnessed his appearance last week when all the living former presidents gathered to help raise funds for hurricane victims can plainly see that he is much diminished, physically and mentally. Unlike former President Ronald Reagan, who publicly announced that he was suffering from Alzheimer's disease, neither Bush nor his family has talked much about his declining mental capacity -- but it is clearly there.

President Bush did not assault young women when his hand, which rests at a lower level because he cannot stand, touched their bottoms and he covered up his awkwardness with a bad joke about his favorite magician, "David Cop-a-Feel," as they allege. His behavior is perfectly consistent with what doctors who treat patients with dementia call sexually disinhibited behavior. The risk of developing Alzheimer's or other forms of dementia increases with age, doubling every five years after age 65. At age 80, 1 in 6 people will have developed the disease. By 85, it goes up to 1 in 3, and by 90, 85 percent of people lucky enough to still be alive are likely to have some dementia, according to the Alzheimer's Society.

Like many elderly men -- and women -- President Bush said and did something inappropriate not out of malice or with the intent to harm but because he now lacks the judgment to behave as he did all his life. And those who are using this incident to score political points or to turn themselves into victims akin to women who have been assaulted by individuals with all their mental faculties intact should show a little mercy.

I saw this behavior firsthand with a relative who had Alzheimer's for at least 10 years before dying of the disease at 93. One of the first signs that something was wrong was inappropriate sexualized talk. At first, the comments were just out of character and inappropriate, but they grew to be very disturbing over time. As far as I know, nothing physical ever happened, but having spoken with those who work with the elderly in nursing homes, it happens every day, and both men and women engage in such behavior. It is one of the most embarrassing things about dementia for those whose family members suddenly start acting in ways they never would have if disease were not eating away at their brains.

According to a scholarly paper on the issue published in Current Treatment Options in Neurology, inappropriate sexual behavior "should be seen as a part of the symptom cluster of behavioral and psychiatric disturbances associated with dementia, which is disruptive and distressing, and impairs the care of the patient." It isn't something for which others should shame someone, much less criminalize. We should recognize when behavior is driven by disease -- in this case a devastating, fatal disease that strips individuals of everything that made them who they were.

It broke my heart to see President Bush onstage with his son and other former presidents. His eyes were vacant. He seemed not to know where he was or even why he was there. When the national anthem played, his hands stayed at his side and his eyes wandered. Does anyone think that President Bush would have sat there so confused if he were in control of his faculties?

The former president's office has issued an apology on his behalf to the women who have come forward, which is absolutely appropriate. And perhaps the family should say more about the former president's condition; President Reagan's candor did a great service for those families who have suffered through the experience of their loved ones' dementia. But to treat this incident as if it were akin to the stories about men who used their power and fame to demean women and solicit or force sex or sexual contact is disgraceful. It not only hurts an honorable man who served his country but also demeans the real victims of sexual assault.

Apple Turnover

Once again we learn that, in Silicon Valley as elsewhere in Corporate America, there is no place for politically incorrect truth-telling. What’s more, what the law says is not even part of the conversation.

The latest kerfuffle involves Apple’s vice president of “inclusion and diversity,” who made the following statement during a panel discussion: “There can be twelve white blue-eyed blond men in a room and they are going to be diverse too because they’re going to bring a different life experience and life perspective to the conversation.”

Well, talk about your mansplaining, and isn’t that just what you’d expect to hear from some corporate white guy?

Except that this particular executive happens to be a black woman, and of course she’s exactly right. Those twelve individuals may have wildly dissimilar life stories and outlooks, and for that matter you could also choose twelve people of wildly dissimilar ethnicities but nearly identical upbringing and mindset.

If Apple thinks having a diversity of life experiences and background is important in assembling a good team, fine, but why use skin color, national origin, and sex as a proxy for how people grew up and what they believe? That’s stereotyping, and by the way Title VII of the 1964 Civil Rights Act makes it illegal to discriminate on the basis of race, ethnicity, or sex in employment. (I discussed all this a decade ago in testimony before the U.S. Equal Employment Opportunity Commission — see especially parts III and V.)

No matter. The outcry was immediate and loud, and an apology has been issued.

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MLB: No White Men Need Apply -- Major League Baseball recently announced a “Diversity Fellowship Program” that is explicitly limited to “person[s] of color” and women.
What can I say? This is of course worse than the NFL’s Rooney Rule, which is also illegal, but which at least does not bar people on the basis of race from applying for and obtaining a position. This does.

There is no legal justification for this; Title VII of the 1964 Civil Rights Act bans discrimination on the basis of race, ethnicity, and sex in private employment. Bizarrely, MLB’s announcement includes at the end this boilerplate: “Individuals seeking employment at MLB . . . are considered without regards to race, color, . . . national origin, . . . sex . . . ”

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Local Control over Schools at Stake – The Southeastern Legal Foundation and Center for Equal Opportunity have filed an amicus brief with the U.S. Court of Appeals for the Eleventh Circuit,  supporting a group of Gardendale City, Alabama, residents who want to form a new municipal school system but are burdened by a 40-year old desegregation decree, and a federal court who insists on controling the local schools.

This case, Stout v. Jefferson County Board of Education, originated over 50 years ago when Linda Stout sued the Jefferson County school board for racially segregating the school system. Such de jure segregation is of course unconstitutional, and accordingly the court entered an order directing the school system to desegregate. By 1976, the County’s dual system was fully dismantled. 

Fast forward to 2012. Residents of Gardendale City, within the County, began a campaign to raise property taxes to form their own school system, hoping to increase local control over education, improve test scores, and decrease overall size of the system their children attended. They succeeded in raising sufficient funds and in 2014, formed the Gardendale City Board of Education.  But because the federal district court still controls the local school board, the new school board had to seek its permission to operate. The court ultimately allowed the two elementary schools, but not the middle and high schools. Both sides appealed.

SLF and CEO filed their amicus brief to bring one particular issue to the Court’s attention — the inherent violation of federalism that results from continued federal court control over local school boards. The U.S. Supreme Court has, time and time again, indicated that the time for federal court control over an area which is constitutionally reserved to the States has come. Unless there is a constitutional violation that needs to be remedied, federal courts should return control of our children’s education to the local and state governments.

Click here for SLF's and CEO’s 11th Circuit amicus brief.

Some Americans More Equal Than Others

"We will support you today, tomorrow and the day after," President Donald Trump promised those devastated by Hurricane Harvey. "When one part of America hurts, we all hurt. When we see neighbors in need, we rush to their aid. We don't ask their names or where they're from. We help our fellow Americans every single time. This is the spirit of America," he said way back on Sept. 1. But that was then, and the Americans in question were mostly from Texas -- a state that had voted for Trump in the 2016 election.

On Thursday, he had a very different message to 3.4 million other Americans, more than 80 percent of whom have no electricity and many of whom have no access to potable water. Many of their homes and businesses were destroyed, and many can't get to work because so many roads are still unpassable. "We cannot keep FEMA, the Military & the First Responders, who have been amazing (under the most difficult circumstances) in P.R. forever!" Trump tweeted angrily, just three weeks after the worst disaster to hit Puerto Rico in history. Trump did what he's best at doing -- cast blame on others: "Electric and all infrastructure was disaster before hurricanes. Congress to decide how much to spend," he tweeted as the House was preparing to vote on a $36.5 billion aid package.

Let's be clear here. President Trump doesn't really consider Puerto Ricans Americans. And judging from the more than 30,000 likes his tweet received (and that was just the initial number immediately after the president tweeted), there are many in his base who don't consider them Americans, either. They are the same people, I'd bet, who don't think children born in the United States to undocumented immigrants are Americans, despite the 14th Amendment, Supreme Court rulings and the fact that the right to citizenship by birth on American soil dates back to Colonial times.

The Constitution declares that all people are equal, but this president seems to believe what the pig Napoleon said in George Orwell's "Animal Farm": "All animals are equal, but some animals are more equal than others."We can have a healthy debate over the status of Puerto Rico. Should it become the 51st state, which has been the position of the GOP for many years? Should it remain a U.S. territory? Or should it be given its independence? The people of Puerto Rico periodically vote their preference, most recently in June, when 97 percent opted for statehood (though less than 1 in 4 registered voters participated in the largely symbolic vote). In plebiscites prior to 2012, pluralities voted to maintain their commonwealth status. But only Congress can decide. The Constitution gives Congress sole authority to decide the fate of U.S. territories, which Puerto Rico became when it was acquired after the Spanish-American War in 1898. "The Congress shall have the Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States," declares Article 4.

But for now, Puerto Rico is part of the United States. Puerto Ricans are Americans, whether born on the island or on the mainland or anywhere else in the world, provided at least one of their parents is Puerto Rican. They are U.S. citizens, period. And they deserve to be treated as such by their fellow Americans. But most of all, they deserve to be treated as such by the president of the United States.

Of all the despicable things Trump has done since he announced his campaign for the presidency and assumed office Jan. 20, the president's words on Puerto Rico may be the worst. Trump has decided that he is not president of all the people and that he has no desire to be. In Trump world, you are for him or against him, no matter what he says or does, and if you fall in the latter camp, he's not your president. Don't expect him to care about what happens to you. It's your fault. You should have been with him from the beginning. Then he'd be with you. Maybe. Unless he thinks there's an advantage in abandoning you, as he has with some of his faithful aides.

Trump's tweets and threats are un-American. We are better than this. A Texan is no more American than a Puerto Rican -- and both equally deserve the help of their fellow citizens when they are in need, for as long as they need it.

The Republican Establishment Strikes

In remarkable speeches this week, two members of what skeptics like to call the "Republican establishment" took on President Donald Trump and his brand of nationalist populism. Neither man mentioned the president by name, but their criticisms were unmistakable. Speaking in Philadelphia, where he received a Liberty Medal from the National Constitution Center, Sen. John McCain said of the current president's policies, "To abandon the ideals we have advanced around the globe, to refuse the obligations of international leadership and our duty to remain 'the last best hope of earth' for the sake of some half-baked, spurious nationalism cooked up by people who would rather find scapegoats than solve problems is as unpatriotic as an attachment to any other tired dogma of the past that Americans consigned to the ash heap of history."

Former President George W. Bush, speaking on Thursday, followed suit: "Our politics seems more vulnerable to conspiracy theories and outright fabrication," he warned. "We've seen our discourse degraded by casual cruelty. ... We've seen nationalism distorted into nativism -- forgotten the dynamism that immigration has always brought to America." Bush has been reluctant to take center stage since leaving office more than eight years ago, withholding criticism from his Democratic successor, President Barack Obama, even when the latter did not return the favor by calling out the Bush administration in his first inaugural address for "greed and irresponsibility." But apparently, Bush felt compelled to say something now, perhaps because he sees President Trump as destroying the Republican Party, as well as harming the country.

Trump is an expert at branding; it is the thing he did best as a private businessman. He made his millions mostly by selling his eponymous brand, putting his name on garish casinos, gilded condominium buildings and lush golf courses around the world. The brand stood for glitz and glamour, a reflection of Trump's outsize persona, not necessarily good taste or high quality. Trump has now branded the Republican Party -- and a lot of men and women who have spent their lives building and supporting the GOP, including McCain and Bush, don't like the Trump makeover. To dismiss their criticisms as the establishment's trying to hold on to power misses the point.

Political parties change. The Democratic Party of John F. Kennedy in 1960 was not the same party as it had become by 1972, when George McGovern won its presidential nomination. The former supported tax cuts and opposed communism; the latter believed that the communist threat was overblown and that government should redistribute wealth by taxing and spending more. Nor is the Republican Party of Ronald Reagan the party of Donald Trump. Their styles couldn't be more different, but more importantly, Reagan promoted the very principles and ideals McCain and Bush spoke of.

I cannot imagine President Reagan demonizing immigrants and threatening to build a wall or putting family members in choice West Wing space and assigning them portfolios for which they had no experience or expertise as Trump has. During my tenure in the Reagan West Wing, I once locked horns on policy with President Reagan's daughter Maureen, who held no formal position and whose views were very different from her father's. Maureen called and yelled a lot, but the White House came down on my side, opposing a resolution that favored comparable worth at an international women's conference in Kenya. Reagan's political loyalty was to ideas, no matter how much he loved family members.

And Reagan's ideas were a far cry from Trump's. The GOP of Donald Trump will be forever branded as nativist and protectionist, like some gated community more interested in excluding than expanding. If "establishment" means being respectful, behaving with decorum, honoring tradition and upholding principle, count me alongside President Bush and Sen. McCain, and I suspect a lot more Reagan Republicans feel the same. What will emerge from the Republican Party after Trump is unpredictable. But such voices as those of Bush, McCain and others -- notably Sens. Bob Corker, Ben Sasse and Jeff Flake -- don't represent the past so much as they do the future if the GOP is to survive.

The Swamp Gets Deeper

Tom Price resigned his post as secretary of health and human services because the president didn't like the optics of his using taxpayer money to fly in private jets to venues easily accessible by commercial flights -- or even by car. But plenty of others in the administration have exercised similar bad judgment and are still on the job.

Treasury Secretary Steven Mnuchin tried to commandeer a military plane for his honeymoon but was refused. However, he used a government plane to fly to Kentucky during the solar eclipse in August, with his wife in tow, ostensibly to visit Fort Knox. Mnuchin is worth nearly $400 million; if he wants to avoid commercial travel, he can afford to pay for private jets. That's what Secretary of Education Betsy DeVos does. She owns her own plane, which she uses for official travel, and doesn't charge the government a cent. Not so with Secretary of the Interior Ryan Zinke, who is under investigation for chartering a private plane so he could fly from Las Vegas to his hometown in Montana and another one to fly between Caribbean islands to attend a ceremony honoring Denmark, even though commercial flights were available in both cases. And Veterans Affairs Secretary David Shulkin took his wife along for a 10-day trip to Europe that included both government business and several days of sightseeing, with the taxpayers footing the bill for the secretary's wife's travel and per diem. Zinke and Shulkin are relative paupers among Trump's Cabinet; Shulkin is worth about $17 million, and Zinke is worth just under $2 million. Forbes magazine estimates the Cabinet's total net worth at $4.3 billion, the richest in modern history.

Trump's Cabinet members aren't the first in history to abuse their travel schedules, and the president did force Price to resign, though the failure of health care reform may have been the real impetus and the travel just a good excuse. However you look at it, Trump's swamp is deeper than most administrations'. His own conflicts of interest are legion: His Washington hotel is a magnet for foreign governments and lobbyists trying to curry favor; his sons get Secret Service protection while they fly around the world attending to Daddy's empire, at a cost of millions to the taxpayers; his daughter and her husband occupy prime West Wing offices without any experience or expertise to justify their expansive portfolios; and, despite promising to distance himself from managing his financial holdings, he reportedly gets frequent updates from his sons, which would be illegal for any other government official.

Trump's supporters don't seem to care. They still believe he'll "drain the swamp" as he promised. I'm still waiting to learn what a deal breaker would look like to the most die-hard Trumpkins. Maybe there isn't one for the one-third of voters who have been with him from the beginning. They've stuck by through Trump's embarrassing lack of knowledge about policy. Remember the nuclear triad and the Quds Force? Trump had no clue about the former, which Sen. Marco Rubio gently schooled him on during the presidential debate, and now he commands the nuclear-armed submarines, bombers and ballistic missiles, which he could launch without any check on his power. As for the elite Iranian troops, they've killed Americans in Iraq and committed unspeakable crimes against the Syrian people, but has Trump ever learned the difference between the Quds Force and the Kurds, our allies in Iraq?

It might be one thing if his supporters could point to major achievements of this administration, but so far those achievements have been elusive. Yes, he got an excellent Supreme Court justice through confirmation, and his administration has made some important changes in regulatory policy. But there is no major legislation to point to, and he's yet to learn how to use the power of the presidency to get his own party members in Congress to get things done.

Trump supporters may be willing to ignore the administration's ethical failures, but Congress shouldn't. And the broader American electorate will send the GOP a message in 2018 if things don't change.

The Pseudo-Science of Microaggressions

The last campus fad of finding "microaggressions" targets not just conservatives but also liberal and progressive faculty and administration who commit unconscious acts against a myriad of identity groups, of race, gender, disability, LGBTQ, religion, and every other category of “social justice.” In this essay, CEO research fellow Althea Nagai looks at racial microaggressions, where the microaggressions concept and theory originated, and the ways in which the research behind it falls far below traditionally accepted social science standards. 

This piece originally appeared in the special section “Wrong Turns, Dead Ends, and the Way Back,” in the Spring 2017 Academic Questions(volume 30, number 1).


How the Trump Justice Department is Defending Free Speech

Attorney General Jeff Sessions wants college campuses to become what many of them once were—places of “robust debate.” That is a worthy project, and I wrote about it this week in The Weekly Standard. By the way, I recently joined the Center for Equal Opportunity as a senior fellow.

“The American university was once the center of academic freedom,” said Attorney General Jeff Sessions in his speech at the Georgetown Law Center this week. It was “a place of robust debate, a forum for the competition of ideas.” But over the years it has become “an echo chamber of political correctness and homogeneous thought, a shelter for fragile egos.

Sessions called for “a national recommitment to free speech on campus.” Administrators and faculty would defend free expression “boldly and unequivocally,” he said, and the Justice Department would do its part by enforcing federal law, defending free speech, and protecting “students’ free expression”—of all points of view.

As a demonstration of its intentions, the Justice Department has filed a “Statement of Interest” in a campus free speech case from Georgia Gwinnett College that is almost unpronounceable: Uzuegbunam v. Preczewski. At issue is the constitutionality of a school policy that limits student expressive activity to two very small “free-speech zones. Sessions said there would be more such filings, and a department officer confirmed that there would be a second next week.

Federal law provides for the not widely known Statement of Interest. It says that the attorney general may send any officer of the department to any state or federal district to attend to the interests of the United States in a suit pending in a federal or state court.
The Obama Justice Department used statements of interest in what the New York Times in 2015 called “a novel legal campaign that began early in the administration and has expanded.” Where such statements typically were filed in cases involving national security or diplomacy, now they were being filed in private cases involving civil rights. According to the Times, the cases concerned legal aid, transgender students, juvenile prisoners in solitary detention, and people who take videos of police officers. And while the filings didn’t say which party should win, “they [gave] clear support to plaintiffs and put the federal government in cases ... at the forefront of civil rights law.”

“By using such court filings in civil rights cases,’ said the Times, “the Obama administration is saying it has an interest in preserving constitutional rights in the same way it has an interest in foreign policy. ... Neither career Justice Department officials nor longtime advocates can recall such a concerted effort to insert the federal government into local civil rights cases.”

Sessions’ speech raises the question of whether the Trump Justice Department will indeed make a similarly concerted effort to insert the government into local free speech cases arising from colleges and universities. The government’s involvement could help. After all, as Sessions said in his speech, “[A]ction to ensure First Amendment rights [on campus is long] overdue.”

Justice Scalia on what it means to be an American

In writing this piece for The Weekly Standard, I was reminded of Scalia’s eloquent concurrence in the 1995 Adarand case, which concerned the constitutionality of race preferences in government contracting: “To pursue the concept of racial entitlement -- even for the most admirable and benign of purposes -- is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.”
Published last week, Scalia Speaks is a collection of the justice’s speeches edited by his son Christopher and the lawyer Ed Whelan. The book has six parts, the first of which is “On the American People and Ethnicity.”

I was surprised that the book begins with speeches on those topics, instead of something on the law. But on second thought, I saw the logic: Scalia was an American of Italian heritage before he was anything else, and he gave a lot of thought to what it means to be an American. His essential point is this:

“What makes an American . . . is not the name or the blood or even the place of birth but the belief in the principles of freedom and equality that this country stands for.” A belief, no less. This is not exactly how peoples have been “made” over time, with blood and place of birth the usual criteria for determining who is what.

Scalia tells an audience of Italian heritage that they can be proud of it—“as the Irish can of theirs and the Jews of theirs—without feeling any less than 100 percent American because of that.”

Scalia sees America as exceptional: “One of the strengths of this great country,” he tells an audience, “one of the reasons we really are a symbol of light and hope for the world, is the way in which people of different faiths, different races, different national origins, have come together and learned—not merely to tolerate one another, because I think that is too stingy a word for what we have achieved—but to respect and love one another.”

This is Scalia’s rendering of the “melting pot,” with people of different faiths and races included, and a bit of an almost Bushian preachment about loving one another added in. Scalia is less the realist in that sentence than a positive thinker.

The deeper thought that this part of the book occasions is that the American people are still conducting their unique experiment in constitutional self-government. It has survived so far.

Trump Tweets While Americans Suffer and Wait

Puerto Rico and the U.S. Virgin Islands drowned while President Donald Trump tweeted. It is hard to conclude otherwise. On Sept. 20, Hurricane Maria -- the second major hurricane in less than two weeks -- hit the islands, which together are home to some 3.5 million American citizens. Yet for a week following the devastation, the president found it somehow more important to focus his personal attention on tweeting about football players and the owners of their teams than he did on his job as commander in chief.

The only possible way to save lives and restore order on the islands was to order a massive deployment of U.S. troops to help their fellow Americans immediately after the hurricane hit, but it took almost a full week for that to happen. Army Brig. Gen. Rich Kim did not arrive until Sept. 27 to take control of some 5,000 active-duty forces operating on the ground and 2,500 National Guardsmen, but far more troops are needed. Some experts have suggested that 50,000 is a more realistic number.

The White House was proactive in both Texas and Florida when huge hurricanes headed their way, earning the president deserved credit for doing what he needed to help Americans whose lives were upended and property was destroyed. But American citizens who live in U.S. territory in the Caribbean seemed to be an afterthought in Trump world. When the president finally addressed the American people on the issue -- a week after Maria made landfall -- it was mostly to announce he would head to the Caribbean for a photo-op next week. And instead of reminding everyone that all Puerto Ricans are American citizens, he bragged about how many Puerto Ricans he knows as a native of New York City -- which was cringe-worthy, given his history as a landlord who declined to rent to Puerto Ricans (and blacks and Dominicans) in the 1970s until forced to do so by the U.S. Department of Justice.

This has been a bad week for the president and his White House -- and not just on the administration's slow response to Hurricane Maria. Trump personally managed to reignite a protest movement that had largely died down -- namely, some players kneeling rather than standing for the national anthem at football games -- by calling protesters SOBs and urging their employers to fire them. He failed to rally enough support among Republicans for the Senate to vote on yet another health care reform bill, killing reform for this year. And Trump's endorsement failed to sway voters in Alabama, as Trump's candidate lost to a former judge who twice defied his duty to enforce the U.S. Constitution in his courtroom.

On Wednesday, the president tried to refocus -- this time on tax reform, which has been a long time coming. But given his short attention span, he's unlikely to keep the focus there for long. I worked in President Ronald Reagan's White House as director of public liaison during the fight for tax reform that started in 1985. I know what razor focus looks like; President Reagan had it, as did every member of his team. It was every day, every week for months until the president signed the Tax Reform Act of 1986. It involved hundreds of speeches by the president and members of the administration and visits and calls between members of Congress and the president, his Cabinet and other officials. I coordinated bringing groups into the White House for briefings with administration officials -- friendly groups, as well as those who were skeptical and needed convincing. It was also a bipartisan effort. I remember flying with the president on Marine One into Rep. Dan Rostenkowski's Chicago district (the Democratic congressman was chairman of the House Ways and Means Committee and a sponsor of the tax reform bill) to marshal support. If President Trump wants tax reform, he will need that kind of effort and attention. Pardon me for wondering what the game plan is for this White House.

Americans deserve a president who can keep his mind focused on important things -- such as saving lives in natural disasters by ordering the number of personnel and material commensurate with the scope of the disaster, day one, not stoking culture wars, and working with Congress to pass legislation by getting on the phone, meeting, strategizing and compromising, if necessary, not figuring out whom to blame for failing. Will America ever get from Donald Trump the president it deserves? He's more than eight months into his term, and we haven't yet.