The Harvey Weinstein Effect: Eliminate Sexual Harassment Law

Stephen Kershnar

The Weinstein Effect and Sexual Harassment Law

Dunkirk-Fredonia Observer

December 21, 2017

            The Weinstein effect involves famous or powerful people being publicly accused of sexual misconduct. It began when several women accused movie producer Harvey Weinstein of sexual harassment, sexual assault, and rape. This effect is a good opportunity to consider whether sexual harassment law should be repealed.

  

            The Weinstein effect took down a number of public figures. Senator Al Franken and Representative John Conyers resigned over such charges and Roy Moore was not elected over it. Entertainers Louis CK, Richard Dreyfuss, Dustin Hoffman, Ryan Seacrest, Steven Seagal, and Kevin Spacey have been disgraced, fired, or isolated in response to allegations of sexual misconduct. Journalists Tom Ashbrook, Garrison Keillor, Matt Lauer, Charlie Rose, and Tavis Smiley were similarly treated.

No such effect followed the reasonably well-evidenced rape and sexual battery allegations against Bill Clinton. Apparently, some rapists are too big to fail.         

Sex harassment law comes from the ban on sex discrimination found in the Title VII of the Civil Rights Act of 1964. “It shall be an unlawful employment practice for an employer … to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” The law applies to private businesses, federal, state, and local governments, public and private colleges, and unions.

There are two types of sex harassment: quid pro quo harassment and hostile work environment. Quid pro quo harassment involves a boss asking an employee to trade sex for a job-related benefit such as getting hired, promoted, or a raise. A hostile work environment involves a boss or co-worker creating a work environment that a reasonable person would find intimidating, hostile, or abusive. An employer can be held liable for failing to prevent such an environment. Such an environment might come about in part from sexual comments, photos, dating requests, and so on.

Sexual harassment law is unnecessary. Rape, sexual battery (unconsented touching), and sexual threats are already crimes. Such acts can and do lead to recovery under civil law. A quid pro quo offer is a type of prostitution and therefore already illegal. There is an interesting question as to whether prostitution should be illegal, but in any case, criminal law currently prohibits it.

  

This leaves only the hostile-work-environment line of sex harassment law. Workplaces vary with the degree to which employers and employees welcome sexual comments, jokes, photos, requests for dates, dating, and sexual hookups. There is no one answer as to which, if any, of these activities should be permitted in a workplace. Rather, it should depend on the employers’ and employees’ preferences. The former own the premises and pay the bills. In addition, employers are subject to market discipline. If they have too strict or lax standards, they will not get the best employees or have to pay the best more to come to their firm or stay there. This is a big incentive to be reasonable.

It would also allow employees to decide what sort of workplace in which they work. Many employees would prefer not to have stifling political correctness in the workplace. This is particularly true given that, as American Enterprise Institute’s Christina Hoff Sommers points out, the rate of sexual harassment is dropping (from 6.1% women in workplace harassed per year in 2002 to 3.6% in 2014 – still far too high) and women hold more than half of managerial, professional, and related positions.

Given the Weinstein-effect mess, there is reason to wonder whether employers subject to market discipline would do a better job of policing themselves than the government does of policing them. If the Weinstein mess is far reaching, and this is not clear, we should wonder whether government policing of workplace etiquette works well for anyone: employers, employees, or women.

Not only would allowing employers to set their own standards allow people to find workplaces that fit their tastes, it would also avoid the lying, sneaking, and privacy invasions that accompany a blanket ban on dating and sex. On one estimate, one in six marriages began at work. How many of these marriages would have prevented under today’s workplace rules? At Fredonia State, for example, faculty from many departments married former students or colleagues (consider, for example, education, English, foreign language, history, and music). Workplaces that ban such relationships turn workers into liars and sneaks.

The ban on a hostile workplace makes rudeness illegal. The government makes a mess out of everything it touches and, predictably, has made a mess of enforcing workplace etiquette. Also, if the role of government is limited to protecting people’s moral rights and, perhaps, funding public goods, then the government has no business enforcing workplace etiquette.

Also, plenty of jobs involve conditions that a reasonable person would find intolerable. Consider, for example, the demands made by medical residencies, SEAL team training, and Wall Street law firms. The government does not have a general moral license to eliminate intolerable workplace conditions. 

As a legal matter, the ban on hostile work environment chills, if not prohibits, speech that should be protected by the First Amendment. Prudent worker are scared to ask someone out on a date, discuss sex with a friend at work, or socialize after work, despite the fact that such activities are protected under current law. It also discourages male-female mentoring and informal discussion of workplace strategy, both of which are important. Even the legal justification for the federal law, workplace discrimination affecting interstate commerce depends on a misreading of the Constitution. 

An objector might claim that sexual harassment is inefficient because it discourages women from joining the work force and, as a result, should be stamped out. This mistakenly assumes that employers don’t have a strong incentive to make their workplace hospitable to employees. Also, it’s an odd complaint coming for those who want to fund the army of pricey attorneys, diversity officers, and government bureaucrats to micro-manage workplace etiquette. 

The DACA Sellout: The ruling class outdoes themselves

Stephen Kershnar

DACA Amnesty: Are you kidding me?

Dunkirk-Fredonia Observer

December 10, 2017

            The Democrats have made Deferred Action for Childhood Arrivals (DACA) amnesty their top priority in recent Congressional negotiation over the budget despite its being irrelevant to the budget. The Republican establishment also wants DACA. The political class states that DACA is merely temporary relief for educated-and-promising children and teens whose parents brought them here without their consent. It argues that DACA is compassionate because DACA children would do poorly if returned home and yet they are good for the American people. DACA is a disgrace and shocking display of the ruling class’ priorities.

            DACA began as Barack Obama’s proposal to allow some people who came illegally as minors to stay here for two years with the chance for renewed permission after that. The policy forgave people who were younger than 31 years old on June 15, 2012.  In 2014, Obama expanded and implemented the plan via executive action. It currently amnesties roughly 800,000 people and another 500,000 are eligible. More than half the states then sued. In September, Donald Trump canceled the policy, but delayed acting on the cancellation for six months to give Congress time to act. Had Trump not canceled the policy, the courts would done so because Obama’s executive action was clearly unconstitutional.

             DACA is a disgrace in part because it rests on a bed of lies. First, the amnesty for DACA would be massive and not given to just DACA children and teens. The Department of Homeland security found that while the average immigrant brought in (sponsored) three family members, the average Mexican immigrant sponsored six family members. Forbes reports that 78% of the DACA beneficiaries are Mexican. Assuming that, on average, an immigrant brings in six family members, then, the amnesty would bring in 4.8 million people.

Some context is helpful here. DACA is above and beyond the more than one million immigrants a year the U.S. admits. It is also above and beyond the 84 million immigrants and their U.S. born children (27%) of the population who are already here (Migration Policy Institute). The ruling class has been flooding the country with people from the third world. DACA is just a part of this.   

            Far too many DACA immigrants are neither children nor teens and many are shockingly uneducated. Writing for The Daily Signal, Hans Von Spakovsky notes that the majority of DACA beneficiaries are adults. He further notes that fewer than half of DACA beneficiaries have a high school education despite the fact that the majority are adults. The Center for Immigration Studies’ Steven Camarota found that, perhaps, 24% are functionally illiterate and another 46% have only basic English ability. Similarly, the Migration Policy Institute found that in 2014 only 5% of the DACA beneficiaries had a college degree.

            The DACA beneficiaries will not meet many of the advertised eligibility requirements. For example, von Spakovsky reports, the Obama administration regularly waived the DACA education requirement. If the future is anything like the past, the government will waive and eventually drop many of the eligibility requirements for DACA-based amnesty.

   

             The presidential sleaziness surrounding DACA is a wonder to behold. Obama’s executive amnesty was blatantly illegal. A president cannot unilaterally change immigration law. Obama attempted to do by claiming that the executive branch has prosecutorial discretion. Like so many of Obama’s legal claims, this is childish. No one thinks that president Trump could in effect eliminate the capital gains tax by using prosecutorial discretion to make it clear that people who don’t pay the tax get off scot-free. Trump’s voters took seriously his promise to return DACA invaders. If he goes back on his promise, he is just another lying politician. His voters will notice.  

Also, Trump and his voters know well that every successive amnesty encourages millions more to sneak in.    

            The people sneaking in and their family members will be costly to taxpayers. Writing for the Heritage Foundation, Robert Rector and Jason Richwine note that the U.S. government gives a lot of money to poor people. Using 2010 numbers, they note that on average, households headed by people without a high school diploma receive $35,000 more in benefits each year than they pay in taxes. They further note that half of illegal-alien households are headed by someone without a high school degree and 25% have only a high school degree.  

The Democrats’ prioritizing DACA is incredible. Surely, Democratic politicians can find a priority that focuses on U.S. citizens. The might, for example, focus on overpriced and disastrous public schools, the sea of incarcerated Americans, or shoring up unsustainable entitlement programs such as Medicare and Social Security. Why do Democratic voters let themselves be such a low priority?   

American voters oppose amnesty. They rose up in outrage over the attempt to sneak amnesty in through the back door during the Bush II administration and elected Trump in large part to prevent further amnesties. They don’t think the country’s problems can be fixed by flooding the U.S. with tens of millions of poor-and-uneducated third world immigrants, especially from Central America. Why is it so hard for the American people to get what they want, especially given that they are in the right?

Also, why does the country have to draft so many low quality immigrants when other countries (for example Canada) select high quality ones by drafting for skill, education, or money? As Ann Coulter points out, the New England Patriots drafts the best players it can get. Cornell University admits the best students it can get. The U.S. should pick new citizens similar to how the Patriots and Cornell choose. The country loses out when the country admits DACA beneficiaries rather than the best and brightest immigrants China, India, and Turkey have to offer. 

  

The DACA amnesty is based on lies. It rewards Obama’s law-breaking and Trump’s promise-breaking. It harms American people and they don’t want it. The ruling class really outdid themselves on this one.

Organ Transplantation: Should criminals and welfare recipients go to the back of the line?

Stephen Kershnar

Organ Transplantation: Who should go to the end of the line?

Dunkirk-Fredonia Observer

November 27, 2017

            The shortage of organs for transplantation results in some people having to be at the end of the line. For some organs, this will result in their dying for lack of an organ. In response, some people have discussed whether people who have destroyed their organs or have unhealthy lifestyles should get lower priority. They might have destroyed their organs via the use of alcohol, drugs, or cigarettes.

            Among the organs that are successfully transplanted are heart, intestine, kidney, liver, lungs, pancreas, and thymus. There are also transplanted tissues such as bones, corneas, heart valves, nerves, skin, tendons, and veins. A single donor can save eight lives, for example, by giving a heart, liver, pancreas, etc. The donors can be living or dead. On some accounts, they are alive if the donor is merely brain dead.  

            The Department of Health and Human Services reports that in 2016, 116,000 people were on the waiting list for an organ and the list is getting longer. Each year, 7,300 people die waiting for an organ (roughly 20 a day).

            The group that oversees organ distribution, United Network for Organ Sharing (UNOS), recommends that organ transplants be distributed based on who most needs the organ, who would most benefit from it, and who has been waiting the longest to receive it.  

            UNOS’ criteria are mistaken. First, by not allowing the donor or his family to sell or otherwise determine who gets the organ, the recommendation tramples on people’s property rights. The National Organ Transplant Act of 1984 made it illegal to for dying people or their families to sell human organs and bone marrow. Unsurprisingly, the act did not make it illegal for doctors to sell transplant-related services. Perhaps the congressional delegation that passed the act was brain dead.

   

            Second, by not solely focusing on who would benefit the most from receiving an organ, the criteria fail to be efficient. Such a focus would put people in the line based on the number and quality of years they would get from a new organ. Instead, the system favors fairness over people’s rights and doing the most good.   

            Philosophers John Harris and Benjamin Smart separately discuss whether those with unhealthy lifestyles should go to the end of the line. The fairness argument is that people who destroyed their organs have reduced the number of organs available to the public. As a result, they should go to the back of the line. In other words, because the unhealthy have lessened the public’s supply of organs, they should get lower priority when it comes to tapping into the supply.

One problem with this is that organs are not communal goods. It is not as if organs are like coal on government land that the government owns and may distribute as it sees fit. If the concern is about depletion of resources, then it is unclear why the penalty for depletion of resources should be limited to those who have depleted the supply of organs. Criminals and welfare recipients deplete people’s resources. It is unclear why they shouldn’t go to the end of the line because they depleted the pool of medical and other resources just as the unhealthy depleted the pool of organs. More than one in five Americans (and one in three New Yorkers) is on medical welfare (Medicaid and CHIP). The welfare recipients likely don’t pay their fair share of their children’s education costs or the cost of fire, military, and police protection, the cost of the roads, and so on. If people who deplete resources should go to the end of the line, then criminals and welfare recipients should join them.  

            A second problem with sending the unhealthy to the end of line is that harm is imposed by individuals, not groups. If we are going to put unhealthy individuals at the end of the line, we should allow them to buy their way out of it, perhaps by purchasing organs from the third world or, perhaps, merely paying for people’s transplant surgeries.   

If we are going to put groups, rather than individuals, at the end of the line for depleting the supply of transplant organs, we should also do so for groups who don’t give their fair share to the organ pool. In the U.S., Blacks are 29% of the transplant-organ waiting list, but donate only 16% of the organs (by deceased donors). Asians are 8% of the waiting list, but donate only 3% of organs. If we’re prioritizing people by how their group depletes resources, blacks and Asians should join the unhealthy, criminals, and welfare recipients at the back of the line.

Also, as philosopher Stephen Wilkinson points out, some people with unhealthy lifestyles sometimes benefit others by increasing the supply of transplant organs or increasing the overall amount of all medical resources. The former might include people who engage in dangerous sports (for example, motor sports) and whose organs are donated after an accident. The latter might include smokers. As a group, they save the government money by dying before they require expensive medical treatment that accompanies old age.

             If the pool of organs were increased by allowing people to sell them, there would be less of a need to prioritize people. The best way to do this is to create a market in organs. This would ensure that many more people would donate organs, especially families of people who died or who are brain-dead. This would also be more respectful because people own their organs and thus have a right to sell them just as people who own cars have a right to sell them.  

            Putting the unhealthy at the end of the line depends on there being a communal pool of organs. There’s no such pool. If there were, criminals, welfare recipients, and some minorities should join the unhealthy at the back of the line.

The Ruling Class Lacks Standing: The War Against Trump

Stephen Kershnar

The Ruling Class versus Trump

Dunkirk-Fredonia Observer

November 12, 2017   

            The ruling class has gone to war against Donald Trump. The Bush presidents, Hillary Clinton, Barack Obama, establishment media, Wall Street, deep state, and leading Hollywood lights have denounced him in hysterical terms. He’s driven members of the Republican establishment (consider, for example, retiring senators Jeff Flake and Bob Corker) onto the fainting couch. While the drama queens make for entertaining TV, it is clear that Trump, for all of his many flaws, is an adult trying to correct the ruling class’ childish policies and corruption.

            Exhibit A is the ruling class’ endless wars. The Bush interventionists and their Democratic co-conspirators have us mired in unnecessary wars in Iraq and Afghanistan. This stupidity is interspersed with Obama’s and Clinton’s unconstitutional wars in Libya, Serbia, and Syria. None of these wars generated as much outrage as does Trump. Congress ran and hid when it became clear that the second Iraq war was based on a mistake, if not a lie. Incredibly, the ruling class learned nothing from the Vietnam War.

Jeb Bush, Hillary Clinton, and other establishment candidates made it clear that if elected, they’d get us into still more wars. Yet we hear the rich and connected lecturing us on how these were the candidates we should have chosen. These wars cost more than a trillion dollars, thousands of lives, and tens of thousands of casualties. They’ve resulted in Iran’s tightening control of the Middle East, ISIS’s rise, and the Taliban’s widening control in Afghanistan. Trump hasn’t ended our involvement in these messes, but at least he hasn’t started new wars.

    

            Exhibit B is immigration. No one seriously thinks that it was good for this country to flood it with tens of millions of unskilled and uneducated illegal aliens and their anchor-baby children. Studies indicate that unskilled immigrants are more likely to receive welfare, use more welfare (per household), have more children out of wedlock (at least Hispanic immigrants do), and likely have lower IQs than Americans who were already here. Even fewer think that the flood was good for the poorest Americans.  

Even if one did think the flood was good for the country, no one seriously thinks it would have been better than taking in skilled, educated, and wealthy immigrants as do other nations. For example, no one can seriously argue that, on average, this country would be better off with an illegal alien from Mexico who is illiterate in Spanish rather than a Japanese neurosurgeon, Irish physicist, or Turkish engineer. The flood of immigration (roughly 1.4 million in 2015) has resulted in 43 million immigrants being here. This doesn’t count their American-born children. On one controversial estimate, one quarter of Mexico is here.

Did anyone beside Trump ask Americans whether they wanted to drastically change the country by flooding it with tens of millions of immigrants and want to continue to do so? Judging from the overwhelming opposition that arose when the ruling class tried to slide amnesty through, the American people want this to stop. Yet, the ruling class of both parties cry out in pain when Trump suggests that Americans should decide who gets to be a citizen rather than it being decided by who sneaks in the dark of night. 

The diversity immigration lottery is a monument to how vapid the ruling class is. It manages to admit immigrants who lack skills, money, and family connections. Instead, they come from countries that normally do not send a lot of immigrants. This policy is so divorced from American interests that it is a testament to the need for adult supervision over the ruling class.  

Exhibit C is rampant corruption. It is uncontroversial that Barack Obama’s administration had no respect for the law and no one was held accountable. The administration broke the law by ignoring Obamacare rules, giving unauthorized bailouts to insurance companies, performing illegal mass surveillance using captured internet data and then lying about it to Congress, amnestying thousands of DACA children without Congressional authorization, and on and on. The ruling class gave a pass to the attorney general (Eric Holder) when he was clearly in contempt of Congress and the IRS when it targeted conservative groups in the run up to the election. To this day, the IRS’s Lois Lerner has not been convicted of a crime and has retired with a government pension.

Similarly, no adult seriously believes that Hillary Clinton and her aides did not violate the law when she was grossly negligent in handling of classified emails and when her aides destroyed evidence covered by a subpoena. The fact that the FBI cut sweetheart deals with her and her aides and then rewrote the statute to give her a pass shows how deep the corruption runs. In the IRS and Clinton-email cases, many of the central players pled the Fifth. No one wonders why.

It stinks to high hell that Russian interests gave the Clintons and their foundation millions in the Uranium One deal. The recent revelation that the Democratic Party was in the tank for Hillary Clinton just adds to the stench.

Moral corruption was front and center when career politicians like John McCain stabbed his voters in the back when it came time to act on Obamacare and building a wall, matters that were at the heart of their campaigns.  

There has also been no progress, and I mean none, on the debt, which is now larger than the economy. The same is true for the ungodly tax code, exploding entitlement programs, and the gutting of the Constitution.  

None of these outrages bothered the Bushes, Clintons, John Kerry, John McCain, National Public Radio, The New York Times, retired military leaders, Wall Street, etc. etc. Decades of pushing disastrous wars and foolish immigration policies and tolerating rampant corruption is fine if done by the right people. Call people out on twitter, however, and we need fainting couches. The ruling class has earned our contempt.

Sex Discrimination and the Attempt to Change the Gender Distribution in Philosophy

Stephen Kershnar

The Case for Sex Discrimination in Academia

Dunkirk-Fredonia Observer

October 30, 2017

The academic world is very busy trying to hire women and minorities. A good illustration of this is what is going on in philosophy.

Philosophers are putting an enormous amount of resources into increasing the number of women in the profession. Women are favored in hiring in philosophy. There are philosophy summer programs open to women and minorities, but not white males, that help them prepare for graduate school. There are quotas for keynote speakers, women-only scholarships, and close attention paid to the percentage of women in the profession. Much of this is also true in other fields such as those in science, technology, engineering, and math (STEM).

Whatever justifies the state paying for universities also justifies merit-based hiring. This is because more of the good things that universities bring about (for example, education or research) will come about if universities hire the best person for the job. The case for producing more of these good things is especially compelling at state universities given that the state makes taxpayers pay professors’ salaries and overhead.  

In philosophy, merit-based hiring favors discrimination in favor of men. Male philosophers produce more research than do female philosophers. This is true in general and in the top journals in the field. This is probably not the result of discrimination by the reviewers (the field’s gatekeepers) because the greater the degree of anonymous review, the greater the disparity. The publication difference is consistent with the clear majority of the most influential philosophers being men.  

The case for discrimination rests in part on the failure of studies to show that women are better researchers in other ways or better teachers. Male professors get better teaching evaluations, although some researchers do not think this is due to their being better in the classroom. Women do more service (for example, committee work), but, generally, universities do not think service is as important as research and teaching.

The result fits into a general pattern. For example, while female medical professors acquire federal funding at similar rate to male professors, they publish less and their publications have less impact. In science, generally, women publish less.  

This case for discrimination should not be surprising. There are a number of cases when gender or race discrimination for limited state positions is appealing. Currently, there is a shortage of physicians. 25% of female physicians in the U.S. do not work full-time. Discounting female applications by the likelihood they leave the field would decrease this shortage. Another instance of this is discounting minority applications to medical school. The cost of medical error is high and there is good reason to believe that black and Hispanic doctors, specifically those who strongly benefit from affirmative action, commit more errors and more serious errors.

Perhaps female philosophers are less productive because they are more likely than men to work part-time rather than full-time in philosophy. While there is no data in support of this, it is true in other fields (for example, physicians and veterinarians). In the absence of evidence that fewer female philosophers work full-time or that when they do work full-time they work fewer hours, this is not a reason to discriminate against them.

            One objector might claim that research, even at elite universities, is not important and, hence, universities should not discriminate on the basis of research. If this were true, then the way in which professors are hired, promoted, and paid is largely mistaken. This objection succeeds, then, only by throwing out what faculty currently look at when hiring and promoting philosophers.

            A second objector might focus on the cost of sex discrimination. She might argue that women in philosophy are particularly valuable because they provide role models, reduce stereotypes, improve group decision-making, make the workplace less homogenous, and provide other benefits (for example, more investment into women’s education). Even if this were true, though, it is unclear that these benefits outweigh the cost in research productivity. In the absence of knowledge of the balance of these benefits and costs, discriminating against women is reasonable. The same is true for not discriminating.   

A third objection is that women’s lesser productivity in philosophy is due to injustice. Perhaps unequal and unfair demands on mothers or workplace hostility explains the difference. The problem with this objection is that, if true, it might justify changing the workplace. It is less clear that it justifies giving women positions for which they are, on average, less meritorious. If one NFL running back is better than a second, most people (including the owner, coaches, players, and fans) think the first should be hired over the second even if injustice caused the second to be worse. It is unclear why it is more important to choose the best running back than the best philosopher.

A fourth objection is that merit-based hiring should be done on an application-by-application basis. The objector argues that an employer should not favor someone merely because he is a man. This objection does not succeed if a person’s sex helps us predict how well someone will perform. Based on what we know about research production in philosophy, medicine, and STEM and what we know about career choices and performance elsewhere, it is reasonable to believe that sex adds to what we know about an applicant’s likely performance in the future.

Universities regularly use other rough predictive information such as how elite the school was from which an applicant graduated, how well she does when interviewed, and number and quality of publications. There should not be a much higher bar for sex-based predictive factors than other predictive factors. Also, this objection will not work for affirmative-action proponents because they support taking sex and race into account.

In philosophy and likely much of the academic world, state universities should either not discriminate or, if they must discriminate, they should favor men. 

Masterpiece Cakeshop: Freedom of Speech versus Anti-Discrimination Laws

Stephen Kershnar

Masterpiece Cakeshop: Freedom vs. Anti-Discrimination Laws

Dunkirk-Fredonia Observer

October 15, 2017

            The Supreme Court will soon decide a case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, that addresses whether the state can force a baker to make custom cakes for gay marriages. The case shows the degree to which the government (here, Colorado) will trample on liberty in pursuit of cultural reeducation.

            In the case, a gay couple (Charlie Craig and David Mullin) approached a baker, Jack Phillips, and asked him to design and create a wedding cake to celebrate their wedding. Phillips declined because of his religious beliefs, but said he “would be happy to make and sell them any other baked goods.” Craig and Mullin easily found a rainbow cake from another bakery and then filed a discrimination complaint. Phillips believes that decorating cake is an art and that he honors God through his artistic creation. Phillips objects to the state compelling him use his skill to design and create art that contradicts his traditional Christian beliefs. The state concedes that Phillips’ work involves considerable skill and artistry.

            The Supreme Court should find this case easy. First, the state is requiring Phillips, in order to be a commercial baker, to affirm ideas that he rejects. This violates black letter law. In West Virginia State Board of Education v. Barnette (1943), Justice Robert Jackson famously said, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religious, or other matters of opinion or force citizens to confess by work or act their faith therein.” This is true regardless of whether Phillips is required to provide a specific message or a work of art. It is this, Phillips argues, that protects Jackson Pollock’s painting, Arnold Schoenberg’s music, and Lewis Carroll’s writing.

Law professors Larry Alexander, Randy Barnett, and others argue that this principle prohibits the state from being able to make a gay florist provide flowers to an event opposing gay marriage or a black baker make a “Black Lives Don’t Matter” cake for the KKK. Even Colorado found that when three bakers refused to create cakes disapproving of gay marriage, they didn’t violate Colorado’s anti-discrimination law.

            Even if Colorado were not coercing Phillips into publicly endorsing gay marriage, the state’s requiring Phillips to make such a cake would be unconstitutional anyway because it favors one viewpoint (same-sex marriage is good and right) over another other views (same-sex marriage is bad and wrong).

            More important than the legal issue is the moral one. Colorado is trampling on Phillips’ moral right to expression by forcing him to endorse an idea he rejects. People’s moral rights rest on their rights to body and property. These rights justify other rights. Among the rights they justify are rights covering association, expression, religion, and sex. These rights allow people to pursue their own projects so long as they do so in a way that doesn’t highjack others’ bodies or property. In this case, the state is taking Phillips’ labor and property and using them to promote a message he rejects. The fact that he rejects it because of his religion just makes it worse.

            Colorado might provide a few arguments for its action. First, it might argue that Phillips is harming the gay couple because his refusal to make a cake for them offends them or insults their dignity. The problem is that people have neither a moral nor legal right not to be offended. If Phillips had a bumper sticker that that said, “Christianity disapproves of homosexuality. See 1 Corinthians 6:9-10 and Romans 1:24-32,” this might offend the gay couple, but it wouldn’t infringe their rights. It is unlikely there is a right to have one’s dignity respected because it is mysterious what this would amount to other than a claim to have one’s rights respected.      

            Second, Colorado might argue that Phillips’ cake-making is conduct and not speech and, thus, not part of his moral right to expression. However, it is hard to see how an artist’s work is not expression. The work of Pollack, Schoenberg, and Carroll is expression even if it lacks a particular message. This is true, even if these artists sell their work to the public.

In addition, Colorado required Phillips to make a particularized message as it ordered him to create the same custom-made cakes for homosexual couples that he would make for heterosexual couples. Thus, he might be required to produce a beautiful-and-unique cake that says, “God blesses this marriage.” The state concedes that he may refrain from making a “God condemns this marriage” cake. Clearly, the state is mandating a particular message. One wonders whether it would require a Christian painter to make a “God digs lesbianism” oil painting.

            Third, Colorado might argue that if the moral right to expression exempts businesses from anti-discrimination law, this would invalidate much, if not all, anti-discrimination law. There is a sharp conflict between the rights people have to their body and property and state laws requiring them not to discriminate on the basis of race, sex, religion, and so on. Just as women have a right to discriminate in terms of who they let in their body and homeowners have a right to discriminate in terms of who they let into their house, business owners should have a right to discriminate in terms of who they let in their business. This is true whether the people who want to be let in are customers or employees.

Even if one thought that anti-discrimination laws are just, most businesses are not directly involved in expression, whether specific ideas or artistic visions. As a result, the moral and legal rights to expression likely do not apply to them.

            In short, Colorado should not compel bakers, florists, photographers, etc. to service gay marriages. Such compulsion violates the Constitution and tramples on people’s rights.

NFL Protests: Good and Bad Reasons to Allow Them

Stephen Kershnar

NFL Protests: Good Reasons and Bad Reasons

Dunkirk-Fredonia Observer

October 2, 2017

            There are good and bad reasons for allowing kneeling during the national anthem. The NFL players gave bad ones and are embarrassing themselves.

            In 2009, the NFL required players to be on the field for the anthem. The justification for playing it and requiring players to be on the field is two-fold. First, it honors the United States. Second, the anthem honors veterans, especially combat veterans and veterans killed in action.  

            Last year, 49ers quarterback Colin Kaepernick and other kneeled during the anthem. Kaepernick felt that the U.S. oppresses black people and allows police to disproportionately kill unarmed black men. Last month, Donald Trump suggested that NFL owners should fire players who kneel during the national anthem because they disrespect U.S. heritage. Two weeks ago, in response to his comments, over 200 mostly black players in the NFL sat or kneeled during the national anthem. Other players linked arms with their teammates or raised fists. Three teams stayed in the locker room. The players gave three reasons for doing so. They wanted to (1) support freedom of speech, (2) express their disapproval of Trump’s criticism of the black players who had been protesting, and (3) oppose Trump’s intimidation.  

The free-speech concern is mistaken. The NFL is not a state actor. As a result, it may, and often does, interfere with players’ and teams’ speech. The concern for Trump’s criticism of Kaepernick et al. begs the question because it assumes that the original protests were plausible and respectful. This is precisely what Trump denies. Criticism of Trump for intimidation is also off base because he didn’t threaten anyone.   

The concern over police killing unarmed black men is mistaken. Consider data from The Washington Post’s Wesley Lowery, while blacks commit roughly half of all murders, assaults, and robberies, they were only 24% of those killed by police. Philosopher Philippe Lemoine points out that the likelihood of unarmed black men being killed by the police (16 in 2016) is roughly the rate of their being struck by lightning. Similarly, a widely cited 2016 study by Harvard economist Roland Fryer found that blacks were not more likely to be shot by police. They were more likely to be subject to police violence (for example, touched, handcuffed, pushed to the ground, or pepper-sprayed) even after controlling for where, when and how they encounter the police, but that’s a different issue.

The reason the NFL, leagues, and schools should allow the kneeling, sitting, and raised fists during the anthem is that we want people’s expression of patriotism or support for veterans to be voluntary. Requiring people to salute the flag in order to play football is about as voluntary as making workers pay union dues as a condition of employment.  

The notion that people at sports events should stand for the flag to celebrate veterans is yet another error. First, veterans have not contributed more to America than have other groups such as farmers and intellectuals. As a result, they should not be singled out for special recognition or gratitude. Without farmers, most Americans would have starved long ago. It is simply not true that the well-being of U.S. citizens depends more on veterans than farmers. Without intellectuals, the U.S. would not have existed. Nor would it have been free or had the technology to effectively fight wars, cure and treat disease, or grow large amounts of food.

Rare is the individual veteran who made a big difference in the war effort. Those who did, for example, General Patton or Admiral Nimitz, were few and far between and contributed as leaders rather than as soldiers or sailors.  

Being in the military is more dangerous than most jobs, although it is likely safer than being a logger or fisherman. In any case, focusing on the danger of a profession misses the point of why we shouldn’t be more grateful to veterans than to other workers who keep us alive, free, well-fed, and educated. A job carries with it a package of costs and benefits. Different packages are attractive to different people. Members of the military do not deserve special recognition or gratitude if they picked a job package they most preferred.

Being in the military has some significant costs. These include the chance of being killed or severely injured and lengthy time away from one’s family. It also includes the chance of being morally compromised by being asked to fight in useless wars (consider, for example, World War I) or in unconstitutional ones that require soldiers violate their enlistment oath (consider, for example, Clinton’s war on Serbia and Obama’s war on Libya). The benefit includes being part of a band of brothers, valuable training, opportunity for leadership, high pay (consider early retirement), travel, adventure, getting in shape, and so on. Whether it is better to be a soldier or factory worker depends on an individual’s preference. If some people opt for the military package over the factory package because they prefer it, this is not something for which we should be grateful.

The notion that people should stand not for veterans or combat veterans, but only for those who were killed, is at odds with much that is said and done during the national anthem. In any case, we shouldn’t be grateful to veterans who were injured or killed. To see why this is mistaken, consider people who win a lottery. The lottery is fair if it was reasonable to both parties when the ticket was purchased. If it was reasonable to both, then neither party need be grateful to the other. Next consider a reverse lottery. Here players get a good sum of money in return for taking a small risk of death or severe injury. Again, if reasonable, no gratitude is owed. Military service is like a reverse lottery.

             A defender of standing during the anthem might argue that the above discussion misses the point because many young men were made to fight via the draft and hence we should be grateful to them. This is different from being grateful to veterans who were killed. In any case, let’s assume that draftees were made to fight against their will. If this is correct, then we should not be grateful to them any more than we should be grateful to slaves. We should be sorry for what we did to them and both compensate and apologize to them, but we should not be grateful. In any case, few people who put forth this view denounce Presidents Wilson, Roosevelt, and Johnson for enslaving young men. This suggests that this is not what justifies standing at the anthem.  

            The reason the NFL should allow people to kneel, sit, or raise their fist during the national anthem is that we want expressions of support for the military and patriotism to be voluntary rather than just another job requirement.

Following Charlottesville, an undue focus on racism

Stephen Kershnar

Racism and America

Dunkirk-Fredonia Observer

September 15, 2017

            Following the Charlottesville debacle, there has been a constant discussion of racism as a major cause of the problems of the black community. It is worth considering whether this is so.  

            Princeton University sociologists Devah Pager and Hana Shepherd report that Blacks (and Hispanics) see racism as handicapping them. A 2001 survey found that more than a third of blacks report they had been passed over a job or promotion because of their race. A dated poll (1997) found that roughly half of blacks reported having been discriminated against in the past month. 

            The argument against racism being the main explanation of the black-white gaps in money and well-being is that the gaps correlate with population differences in behavior and, likely, attitudes that cause the different behavior. These behavioral differences likely cause some of the differences in money and well-being. To the extent that individuals are morally responsible for such behaviors and the attitudes that cause them, the gaps result from factors for which individuals are morally responsible.

            Consider poverty. The Brookings Institution’s Ron Haskins argues that statistically if American adults do four things they have a 75% chance of joining the middle class and only a 2% chance of being poor. The four things are: graduate from high school, do not have children until you are married, wait until 21 to get married, and have a full-time job. If people are morally responsible for their actions, this is not too much to ask. Yet more than seven out of ten black children are born out of wedlock. This is also true for one out of two Hispanic children.

Haskin further points out that children in female-headed families are four or more times likely as children from married-couple families to live in poverty. Poverty is associated with a number of problematic outcomes including criminality, divorce, dropping out of school, health problems, longevity, out-of-wedlock births, poor grades, substance abuse, being a victim of violence, and, importantly, happiness.  

            Consider next saving and investment. Using 2013 numbers, a Federal Reserve study found that the average white family has twelve times the wealth of the average black family ($134,008 versus $11,184).  While Whites have roughly a third of their assets invested in financial and business assets (median ranking), blacks have less than one in ten. The gap in financial health is noticeable even if we compare white and black families who are middle aged and have advanced degrees. The same is true even if we control for age or education. The fewer assets and lesser investment suggest a behavioral difference rather than discrimination.

            One objection is that racism and individual responsibility are compatible. In the same way that the tax code can shape behavior and religion can shape attitudes without undermining responsibility, racism can shape behavior and attitudes without undermining the responsibility. As a philosophical matter, this is unclear. To the extent that external forces explain why people think and act in certain ways, it is plausible to think that they crowd out responsibility. By analogy, consider genetics. If genetics makes men disposed to be more aggressive than women, this makes them less blameworthy for aggressive behavior than women, even if it does not eliminate responsibility altogether. Childhood environmental influences are sometimes on par with genetic conditioning in that they are, at least in part, outside of people’s control.

            Pager and Shepherd argue that discrimination affects blacks’ opportunities and that it has a cumulative effect on their social and economic condition. If racism affects minorities, it does so unevenly. For example, according to the Pew Research Center, more than four-in-ten Jews and three-in-ten Hindus live in households with household incomes of more than $100,000. Jews also cash in at the high end. They are one in four of the 400 wealthiest Americans (2011 number). Asian American men are the highest earning racial group. They earn 17% more than their white counterparts. Still, this is consistent with the possibility of discrimination being blunted by social, economic, or genetic capital.

            Even if Pager and Shepherd are correct, it does not follow that the discrimination is wrong, bad, or that society should focus on it. The reason it might not be wrong or bad is that it might be rational. If certain groups have worse values or behave in a more destructive manner, there is good reason to avoid them. One study using federal government numbers found that controlling for population size, a black person was far more likely to attack a white person than vice versa. In 2013, for example, a black person was fourteen times more likely to kill a non-black person than vice versa. The concern about inner city behavior (for example, violence, downplaying school, and loud music) is frequently articulated even in the black community. It is unclear whether it is reasonable to demand people ignore purported differences even if racism caused the differences. The greater out-of-wedlock birth rate and criminality of Hispanics when compared to Asians might solely be due to racism and discrimination, but this is consistent with preferring, other things being equal, to have the latter as neighbors.  

            Even if much of discrimination were wrong or bad, it might not be the best place to focus efforts. No one seriously thinks that it is better to focus black high school girls on racism rather than making them aware of contraception (for example, the birth control shot at Planned Parenthood) or getting them up to speed in math. The left’s focus on white nationalists and discrimination and silence on broken inner city public schools, over-criminalization, mass incarceration, and single-parent families shows that it cares more about politics than improving black people’s lives.

               There is an undue focus on discrimination. It is unclear the degree to which it produces racial gaps, the extent to which it is wrong and bad, and whether it is worth the attention it receives. 

Adjunct Faculty: Sympathy and Social Justice

Stephen Kershnar

Sympathy for Adjunct Faculty

Dunkirk-Fredonia Observer

August 23, 2017

            Adjunct faculty are professors who do not have tenure and are not in line to get it. They can be full- or part-time. There is a powerful social-justice movement to sympathize with their plight and improve their lives by making more adjunct positions full-time.

            According to the U.S. Department of Education from 2013-2015, universities hired roughly equal numbers of adjunct and tenure-track faculty. Tenure-track faculty, however, get paid more and have greater job security. At Fredonia, for example, professors, associate professors, and assistant professors (assistants are tenure-track but not tenured) average $90,000, $68,000, and $59,000 respectively ($71,000 average for all tenure-track faculty). Full-time adjuncts average a mere $45,000 and part-time adjuncts earn $3,000-$4,000 a class. Many adjunct professors receive full medical insurance, so their total compensation package is higher.

At research universities, the difference is larger. For example, at SUNY-Buffalo, the three tenure-track ranks average $139,000, $95,000, and $83,000 respectively ($103,000 average for all tenure-track faculty). Full-time adjuncts average $64,000.

            Georgetown philosophy professor Jason Brennan caused a furor when he argued that in most cases, adjunct faculty are not owed sympathy. He gives two arguments for his conclusion. First, he argues, adjunct faculty are talented. They have lucrative alternatives to being an adjunct professor and, thus, are nothing like minimum wage workers. For example, they could go back to school and become accountants, lawyers, physicians, or teachers. Alternatively, they could go into the business world.

   

Second, Brennan argues that in most cases adjunct faculty know (and knew) that there is a glut of professors and, thus, the chance of landing a tenure-track job is not great. Sticking with being a professor after one fails to get a tenure-track job is a poor bet. Brennan draws an analogy between the average adjunct faculty and a formerly rich person who understands gambling statistics, but still bets the house in Vegas. People who pass up on good alternatives and do so knowing the odds, Brenan reasons, don’t deserve our sympathy. 

On a side note, if people getting a PhD didn’t know about the bleak market, they should have known about it. For example, the Fredonia State philosophy department received roughly 175 applications the last time it hired a tenure-track faculty, including many excellent candidates from top schools. This is not uncommon.

Brennan further argues that if the social justice program were implemented and more adjunct positions were converted into full-time positions with reasonable features, most current adjunct faculty would lose their jobs. A reasonable position might include a salary of at least $50,000, full benefits, a teaching load of three classes a semester, and no research requirement. This is because there were be less need for part-time adjuncts. On one estimate by George Mason historian Phil Magness and Brennan, two thirds of current adjuncts lose their jobs.  

Also, younger and better candidates for the tenure-track positions would likely get the lion’s share of these newly created positions squeezing out many adjuncts. This would be made worse if the higher pay were to induce higher quality candidates to enter the field or stay in it. This is similar to how gentrification changes a neighborhood’s composition. Brennan concludes that the plan to create full-time jobs with reasonable features would end up harming adjuncts because the harm from job loss would outweigh the benefit to those lucky enough to get the new positions.

One objection is that the system is unfair because current tenure-track faculty were not better than adjunct faculty, merely luckier. A related objection is that the former are not lucky, but instead favored because they come from fancier schools and benefitted from the privilege such schools bestow on their students. Even if one of these things is correct, becoming a professor is still a bad bet. The role of luck and class is hardly new and one can make himself less vulnerable to them if he chooses a field, such as accounting, medicine, or teaching that is less flooded. Also, the proposed remedy (more full-time jobs) would likely worsen the lives of current adjuncts for the reason mentioned above.  

Magness and Brennan estimate the cost of more full-time jobs at $15-$50 billion. Consider, for example, the Service Employee’s International Union’s call for adjuncts to be paid $15,000 per class (including benefits). It is not clear, they argue, that as a matter of justice the money is better spent on adjuncts rather than reducing tuition or providing scholarships to poor students. This is especially true if, as I suspect, many adjunct faculty do not come from the worse conditions than poor students.  

A second objection is that adjunct faculty really love their field and should be able to make a dignified living doing what they love, especially given that they do it well. However, merely because someone loves what he does and does it well does not result in anyone else having a duty to pay him to do it, let alone pay him a respectable wage. Plenty of actors love acting and are damn good at it. Yet, there simply are not enough customer dollars for many to make a living as an actor. Rather, actors often supplement their acting with other jobs (for example, waiter, taxi driver, and bartender) while trying to catch a break. This is neither unfair nor unjust. The same is true for adjuncts.   

A third objection is that the schools have had such an explosion in administration and staff that there is plenty of money to pay adjuncts more if only the schools didn’t have armies of associate directors, directors, associate deans, deans, vice presidents, and various staffers who suck up much of a university’s payroll (consider diversity officers, legislative liaisons, and the like). This objection might be an argument for cutting out layers of fat from the university, but it is hard to see why the money saved should go to adjuncts rather than to reducing skyrocketing costs of a university education or the spigot of money from taxpayers to universities.