The Campus “Free Speech Crisis” Is About Power, Not Speech

Until the early 1960s, American college campuses were among the last places that one could expect to find raging debates over controversial ideas or alleged administrative efforts to limit the “free expression” of students, faculty or invited guests. In fact, quite the opposite was true. Slightly less than ten percent of all Americans completed a bachelor’s degree at a four-year university in 1960. And that even takes into account the enrollment boom after World War II, when returning veterans used the newly enacted G.I. Bill to attend college. By 1947, World War II veterans made up roughly fifty percent of college students in the United States. That trend continued into the 1950s after Congress enacted additional legislation to support Korean War veterans who wanted to earn a college degree. Not surprisingly, men, by 1960, attended and completed college at roughly double the rate of women. Due to restrictive admissions policies and cultural norms, many women attended private women’s colleges rather than elite private universities reserved for men or the flagship public institutions of their state.  The college gender gap did not begin to close in a meaningful way until the early 2000s. By 2013, women attended and completed college at higher rates than men, regardless of race or ethnic origin, a trend that has remained consistent through 2017.

For African Americans in 1960, entering college and completing a bachelor’s degree were even more elusive goals. Somewhere between two and three percent of African American men and women were enrolled in four-year institutions in 1960, almost all of whom attended black colleges and universities. Although the Supreme Court had ruled well before Brown v. Board of Education (1954) that white public universities could not exclude African American students if “equal opportunities” were not available to them at black institutions within their state, most Jim Crow states of the South were dragged kicking and screaming to desegregate their ever-growing systems of higher education. Governor George Wallace’s petulant “last stand” against a federal court order to admit James Hood and Vivian Malone into the University of Alabama in June 1963 marked the formal end to segregated public higher education in the United States.

Most elite private universities in the South did not even begin taking their first steps towards desegregation until the mid-1960s. Many continue to struggle, some fifty-odd years later, in their efforts to recruit and enroll black students on their historically and still predominantly white campuses. But focusing on Southern universities’ long and ignoble history of deliberately excluding African Americans lets institutions outside the historic Jim Crow South off the hook. Public and private institutions outside the region that did not exclude black students by law often did so by custom. Those that did admit African American applicants did so under a strict quota system.

Put simply – and this is no exaggeration – college in 1960 was generally a place for white men, Christian by denomination, with the means to afford it. And the campus climate reflected that demographic dominance. Student activism as we understand it now was virtually nonexistent. The chill of the Cold War culture continued to shape the contours of campus life. Professors were often required to sign loyalty oaths to keep their jobs. University presidents were on the side of the established order, not those seeking to challenge it. Not even the Supreme Court, which had gradually expanded the scope of constitutional protection for unpopular religious and political viewpoints, was willing to intervene in campus politics.

But to hear current right-wing critics of American universities tell it, our campuses have always been playgrounds for the progressive politics of professors disconnected from “real America,” cocoons where socially maladjusted spoiled children recoil at the slightest offense to their organically-fed sensibilities. None of this criticism is either new nor terribly original. In the late 1980s, right-wing critics began attacking universities for abandoning what they believed were traditional standards of classical liberal education in favor of some sort of self-esteem reinforcing curriculum designed to make women, racial minorities and other previously marginalized groups now present on campus feel better about themselves. Helpless undergraduates were being led to intellectual slaughterhouses by “tenured radicals” determined to implement their vision of a socialist America to largely unqualified students who did not deserve to be in college in the first place.

If only that were so.

Right-wing commentators most often begin their indictment of American universities by returning to the scene of their favorite crime against all that was right and good with campus intellectual life – the Free Speech Movement that emerged at Berkeley during the Fall 1964 semester. Conventional wisdom often points to the drama at Berkeley as the first time that student activism emerged in full bloom on college campuses. That is true, as far as predominantly white campuses go. But this view fails to acknowledge where the first concerted student movement really began – on historically black college campuses in early 1960. On February 1st, students at North Carolina A&T in Greensboro, soon joined by other close-by black institutions and even white women’s colleges, launched the first sustained sit-in movement directed towards ending racial segregation in public accommodations. The sit-in movement quickly picked up steam around the South among black college students and succeeded in desegregating many public accommodations throughout the region.

By Easter Weekend, roughly 125 students from mostly black colleges throughout the South met at Shaw University in Raleigh, N.C., at the suggestion of the legendary civil rights activist Ella Baker to chart a path forward. Out of that weekend the Student Nonviolent Coordinating Committee (SNCC) was born, an organization that would soon take its place on the front lines of the Southern civil rights movement. Outside the region, Northern students, black and white, began to picket stores and engage in other forms of non-violent protest off-campus, as college campuses were not accommodating of student protests on campus. In fact, it was quite common, and this included black colleges as well, for students to face discipline and even expulsion for participating in civil rights protests.

Certainly, the Berkeley movement, inspired by black student activists, encouraged students on other predominantly white campuses to speak up and take action. While there has been no shortage of attention paid to the decidedly left-wing movements that took root at universities like Michigan, Columbia and, of course, ant-Vietnam protests that culminated in the killing of four Kent State University students by Ohio National Guardsmen in May 1970, most campuses were not laboratories for the coming student-led revolution. Popular and academic accounts of student turmoil in the 1960s and 70s often neglect to mention that, even by 1980, college campuses were still institutions of asymmetrical privilege, with less than twenty percent of Americans holding a bachelor’s degree. Non-white students and women still lagged far behind white men by a significant degree. And the reason for that is self-evident: most universities, and especially the historically white public institutions of the South, were still struggling with racial integration. Some of those same universities that had only under legal mandate begun to admit African American students in the late 1950s and well into the 1960s did not even begin to admit women until almost a decade later.

Racial segregation and gender-exclusive admissions policies in American higher education had a secondary effect that is often overlooked in past and current discussions of campus climate – they had a huge and systemic effect on the curriculum and the culture of campus life. Racial and gender discrimination did not just affect where people went to college; it determined what they learned once they got there, just as it had in their primary and secondary education. Students in once exclusively or predominantly white, male-dominated institutions could earn a bachelor’s degree and learn almost nothing about the contributions of African Americans and women to their respective fields. This deliberate exclusion has had profound consequences for the campus climate over time.

Universities now are very different places than they were just ten years ago. Demographic changes have brought cultural changes as well. Our curriculum is more diverse, more open and represents far more voices than it once did. Racial minorities and women occupy far more positions of power at the administrative level and hold faculty appointments at once exclusively and still predominantly white, male institutions. It is this transition of power that has fueled the conservative backlash against American universities.

What sets this new right-wing crusade apart from previous efforts to brush back the changes that more open and inclusive admissions and hiring policies have brought to campus is the instrument of choice to push this new narrative of conservative victimization – that liberals are taking their once treasured commitment to free speech and subordinating it to diversity and inclusion policies designed to pacify their liberal students. Aided by some of the nation’s wealthiest and most powerful right-wing foundations, student organizations such as the Young America’s Foundation and Students for Free Expression have begun to populate campuses nationwide, pushing the message that unless drastic action is soon taken civilization as we know it will be over.

This is absolute nonsense. First, most right-wing commentators lamenting the decline of American universities are not professional academics. If they were – or were on campus more often than just to pick up a generous honorarium after telling us what terrible things we are doing to our students – they would know the ratio of deplorable incidents to the normal routine of campus life is about the same as plane crashes are to safe take-offs and landings. The inappropriate, sometimes boorish treatment accorded to speakers invited to campus recently under conservative sponsorship has somehow become the norm in the right-wing echo chamber. In 2017, almost twenty-one million students were enrolled in approximately 7,500 two and four-year post-secondary institutions in the United States. A handful of incidents do not define campus culture in the United States; and there are mechanisms in place to discipline students whose bad behavior deserves it.

Second, how far do we take the “we need all sides represented” argument? Since there are self-styled academics who believe the Holocaust is a hoax, should we hire them or bring them to campus so our students can get “both sides” of this issue? Serious academics know that, in most cases, there is more than one side to any argument in any field. But sometimes there are not – the Holocaust and slavery, for example. And those views do not necessarily deserve a platform on college campuses.

Third, and finally, the boundaries of free speech for faculty, staff and students are more fluid than ever before. Ten years ago, much less twenty or thirty, universities did not contend with Facebook, Twitter and other social media that give people a forum to say whatever is on their mind. Can a university staff member be terminated for tweeting participation in a Klan rally? Does the right to free speech mean that anyone affiliated with a university can say anything they want for any reason at any time, regardless of when and where this “speech” takes place? If so, that is a right that few, if any professionals have in any other field in any other context.

On the one hand, right-wing critics lament the decline in serious standards at universities; on the other, we are told that unless we provide a platform for charlatans, neo-Nazis and buffoons we are more concerned with protecting “snowflakes” from unpleasant thoughts than forging an open path to the truth. An important part of any serious education is learning how to reason. If we cannot distinguish the difference between a campus-sponsored debate over whether a bakery owner should be able to refuse service to a gay couple based on his religious beliefs and having a speaker to give a lecture on why homosexuality is a mental illness, then we have a bigger problem than conservatives want to recognize.

There is now more room than ever before for serious academic debate about serious and important topics; what there is less room now for is allowing universities to become conduits for discredited ideas and racist, sexist, homophobic and other “speech” that is intended to do nothing more than to provoke. In my nearly thirty years of college teaching, the most important shift in university life has been the demographics of our faculty, staff and students. Far from turning inward, universities offer more robust, open and wide-ranging debate in and out of the classroom than ever before. For those used to having control over curriculum, scholarship and the norms of campus life, this has been a shocking and disturbing shift in power. Having to listen to ideas and viewpoints that, in a different time, were ignored or treated disrespectfully by professors and students can be difficult for people who always had the advantage. That is the real issue here. Power. Not speech.

Gregg Ivers is Professor of Government at American University. He is currently working on a book, “Swingin’ at Jim Crow: How Jazz Became a Civil Rights Movement” and will begin directing this summer an oral history project on civil rights activist Julian Bond.

All LGBT Eyes Still On SCOTUS: The non-cake related LGBT controversies on the docket

by Art Leonard*, Robert F. Wagner Professor of Labor and Employment Law, New York Law School and Eric Lesh, Executive Director, LGBT Bar Association of Greater New York.The United States Supreme Court ruled on June 4 that overt hostility to religion had tainted the decision process in the Colorado Civil Rights Commission when it ruled that baker Jack Phillips and his Masterpiece Cakeshop had unlawfully discriminated against Charlie Craig and Dave Mullins in 2012 by refusing to make them a wedding cake.

Even though the Cakeshop ruling devoured the headlines, there were a number of other LGBT cert petition pending before the highest court. Here are some of non-cake related LGBT controversies on that Supreme Court docket this Term.

 

Open Access to All in Public Accommodations

On June 4, the Supreme Court listed for conference the cert petition in State of Washington v. Arlene’s Flowers. Arlene’s Flowers refused to provide floral arrangements for a same-sex wedding, and was found by the state civil rights agency and the Washington state courts to be in violation of the public accommodations statute. If the Court denies the petition, that would reinforce the view that the Masterpiece ruling is narrowly focused. However, a remand to the Washington court could implicitly direct that court to examine the adjudication record for any signs of hostility to religion at any stage in that proceeding.

 

Workplace Fairness

At the end of May the Supreme Court had received two new petitions asking it to address the question whether the ban on employment discrimination “because of sex” under Title VII of the Civil Rights Act of 1964 can be interpreted to apply to claims of discrimination because of sexual orientation.

Zarda v. Altitude Express - Altitude Express, the former employer of the late Donald Zarda, a skydiving instructor who claimed he was dismissed because of his sexual orientation in violation of Title VII, has asked the Supreme Court to reverse a February 26 ruling by the U.S. Court of Appeals for the 2nd Circuit. The en banc 2nd Circuit ruled, that the district court erred in dismissing Zarda’s Title VII claim as not covered under the statute, and sent the case back to the U.S. District Court, holding that sexual orientation discrimination is a “subset” of sex discrimination.

Bostock v. Clayton County Board of Commissioners - Gerald Lynn Bostock, a gay man who claims he was fired from his job as the Child Welfare Services Coordinator for the Clayton County, Georgia, Juvenile Court System because of his sexual orientation, is asking the Court to overturn a ruling by the 11th Circuit Court of Appeals, which reiterated in his case its recent ruling in Evans v. Georgia Regional Hospital, that an old precedent requires three-judge panels within the 11th Circuit to dismiss sexual orientation claims under Title VII. As in the Evans case, the 11th Circuit refused Bostock’s request to consider the question en banc.

 

Trans Mexican Asylee Challenge to Indiana’s Citizenship Requirement for ID Changes

Doe v. Holcomb - The Supreme Court received a petition for certiorari seeking review of the 7th Circuit’s March 28 decision in Doe v. Holcomb, a dispute over the constitutionality of Indiana’s limitation of the right to obtain a legal change of name to U.S. citizens. The “John Doe” plaintiff is a transgender refugee from Mexico, who was brought to the U.S. as a child by his parents, where they have lived in Indiana. Doe was awarded asylum in the US. Identified as female at birth, Doe now lives consistently with his male gender identity, and has obtained many of the necessary documents, but he was advised by the Marion County Clerk’s office that it would be futile for him to file a name-change petition, because Indiana’s name-change law has an inflexible requirement of U.S. citizenship as a prerequisite, not subject to waiver. The case was filed in the U.S. District Court in Indianapolis, naming as defendants then-Governor Mike Pence, then-Attorney General Gregory Zoeller, and other officials. The district court granted the defendants’ motion to dismiss finding that Doe lacked standing to sue these officials. Doe appealed and a 7th Circuit panel affirmed, but on different grounds, finding that the 11th Amendment immunity stood in the way of suing the named state officials. The cert petition, makes a very practical argument about why Doe should be allowed to proceed in federal court on the merits of his constitutional claim. Indiana is the only state that requires citizenship by statute as a prerequisite for a legal change of name, and does not apparently give its courts any ability to waive that requirement in particular cases. The provision was adopted relatively recently, and is clearly part of the overall hostility toward non-citizens by the current Republican-dominated state government.

 

Anti-Gay Jury Discrimination in Death Penalty Verdict

Rhines v. South Dakota - On June 18th, the US Supreme Court denied cert in a case where jurors sentenced a man to death under the theory he would “enjoy” incarceration in an all-male prison. Charles Russel Rhines was convicted of premeditated murder and third-degree burglary by a jury that recommended imposition of the death penalty in January 1993. Rhines tried to get the district court in a habeas corpus proceeding to consider juror affidavits evidencing that the jury was biased against him because he is gay, and that this heavily factored into the jury’s decision to recommend the death penalty.

For a variety of complex reasons relating to federal procedure, U.S. District Judge Karen E. Schreier found in her May 25 ruling that she was without jurisdiction to consider the merits of his claim. Rhines has a petition for certiorari arguing that the Supreme Court’s 2017 decision in Pena-Rodriguez v. Colorado, provides a basis for reopening his case to consider this evidence. In Pena-Rodriguez, the Supreme Court held that the normal refusal of courts to inquire into the substance of jury deliberations must give way to evidence that the jurors relied on racial stereotypes or animus in their deliberations. Rhines’ evidence goes directly to the death penalty verdict, including sworn statements by some of the jurors that they were aware Rhines was gay and they did not want to send him to live in all-male general population prison setting where he would get lots of gay sex and sexually corrupt straight prisoners, so they recommended the death penalty.

*Leonard serves as Editor of LGBT Law Notes. Each month for the last 40 years, the LGBT Bar Association of New York publishes LGBT Law Notes, the most comprehensive monthly publication covering the latest legal and legislative developments affecting the LGBT community here and abroad.

Investigating the Investigators

The FBI Director Christopher Wray and Department of Justice Inspector General Michael Horowitz are on the hot seat. This week Senate and House panels plan to grill these officials about FBI’s decision-making in the probe into presidential candidate Hillary Clinton’s use of a private server.

I noted in a recent USA Today opinion that lawmakers conducting responsible oversight over Department of Justice should take care to avoid adding to the chaos and confusion created by the President’s ludicrous claim that he’s “totally exonerated” in the Russia probe by the IG report.The substantive allegations that Special Counsel Mueller is reviewing regarding collusion with Russia and obstruction of justice were not the subject of the IG report, and it is inappropriate to conflate these matters.

Here are three appropriate lines of oversight questions for the lawmakers to ask Wray and Horowitz:

The IG Report does not examine the Mueller inquiry.

  • The IG Report reflects your investigation of FBI and DOJ conduct in the investigation of Hillary Clinton’s use of a private e-mail server. As part of this investigation, did you review in any way the methods or decisions of Special Counsel Robert Mueller?
  • Remarkably, the President says the findings show “no collusion” in the Russia matters and his lead outside attorney responded to report by calling for Mueller to suspend his inquiry. Does the IG Report make any findings that support the President’s claim?
  • To date, Mueller’s inquiry to date has resulted in 5 guilty pleas, the indictment of 18 additional individuals or entities, and 1 prison sentence. The individuals who have pled guilty to serious crimes include the President’s former deputy campaign manager and the President’s former top national security advisor. In light of the President’s attempt to conflate the Russia investigation with your recent separate review of the FBI investigation of Hillary Clinton’s e-mail server, please confirm for the record whether you have any reason to believe that any of your report findings call into question the serious criminal indictments to date by Special Counsel Mueller in the Russia inquiry.

The IG Report found that neither the prosecution declination decision in the Clinton e-mail server inquiry nor specific investigative decisions leading up to it were affected by political bias, and the Report does not substantiate the President’s broad assertions about DOJ and FBI corruption.

  • You concluded in the IG Report that the prosecutors’ declination decision in the e-mail server inquiry was based on facts and the law, and not political bias. Please explain why you reached this conclusion.
  • Do you stand by the Report’s conclusion that political bias did not affect the specific investigative decisions you reviewed that preceded the declination determination?
  • The IG Report also concluded that while FBI Director Comey violated department protocol in his handling of the Clinton email investigation, he was not motivated to do so by political bias. Please explain why you reached that conclusion.

The IG Report’s critique of Comey questioned his judgment but did not challenge his truthfulness.

  • During the investigation that your office conducted, did you ask former FBI Director Comey questions about the decisions he made and the reasoning behind them?
  •  Do you have any reason to believe that former FBI Director Comey was dishonest in his responses to your questions?
  •  Is there anything that former FBI Director Comey said during the course of your investigation that would cause you to question his credibility (as opposed to his judgment)?

And when both hearings are over, it is important to remember that the FBI conduct into the private server hurt presidential candidate Hillary Clinton and helped Trump.

The Attack on American Cities

Recently, the Tennessee legislature voted to punish the city of Memphis for removing two Confederate statues by striking a $250,000 state appropriation that was to be used for the city’s bicentennial celebration. The mayor and city council, representing the will of the majority-black city, had previously agreed to sell the two city parks in which the monuments stood to avoid a state law preventing the city itself from removing the statues. The new private owner was under no such restriction. Unhappy with Memphis’s legal end-run around state law, the Republican-dominated legislature expressed its displeasure by cutting off funds.

Legislative retaliation against progressive cities is an emerging theme across the United States. Donald Trump has threatened to cut-off federal aid to “sanctuary cities”—those cities that have refused to comply with federal immigration mandates or have resisted cooperating with federal immigration authorities. The Texas legislature has adopted similar legislation that bars local officials from adopting sanctuary policies on pain of criminal and civil penalties and potential removal from office. Other states have simply overridden progressive local laws, preventing cities from mandating local minimum wages, regulating paid sick days, adopting gun regulations, passing LGBT anti-discrimination ordinances, or operating municipal broadband networks. The last half-decade has witnessed an explosion of preemptive state legislation seeking to “rein-in” wayward (often progressive-leaning) cities.

There are three reasons why American cities are so politically vulnerable. The first is U.S.-style state-based federalism, which is institutionally biased against robust city autonomy. In a federal system, state governments tend to take up the policy space that would otherwise be occupied by local governments. Though states often grant broad powers to their local governments, state legislatures can normally override most local laws at will. And those overrides are often selective. Cities are generally responsible for the basic health, safety, and welfare needs of the populace, and the formal separation of functions between local, state, and federal governments means that state and federal officials can deflect responsibility for general conditions but take credit for narrow interventions.

The second reason for the weakness of American cities is political gerrymandering, which has exacerbated the political distance between city and non-city dwellers. Geographical sorting by political affiliation is increasing, with large numbers of progressive voters located in ever more compact urban areas while conservative voters are spread more evenly throughout suburban and rural districts. This makes it relatively easy for electoral maps to isolate Democratic districts, where Democrats “waste” significant votes. A consequence is that one of the two major political parties can almost entirely ignore a state’s urban constituents. At least when it comes to the House of Representatives and state legislatures, Republicans can govern comfortably without the cities, relying almost exclusively on non-city voters.

This electoral isolation is exacerbated by a third reason for American cities’ relative powerlessness: the long-standing American ideology of anti-urbanism. Anti-city rhetoric was not invented by Donald Trump. At the turn of the twentieth century, the fear of ethnic masses animated anti-city sentiment, for it was in the city that the dangers of “immigration, Romanism, and socialism” were “enhanced and . . focalized”—as one 1885 polemicist put it. In the 1920s and 30s, agrarians and others who called themselves decentralists or distributists, emphasized the conflict between rural and urban America, and argued that large-scale industrialization was leading to the concentration of property and political power in fewer hands, the dispossession of the propertied middle class of shopkeepers and small manufacturers, and the destruction of rural independence. A new strain of that ideology is now being harnessed to challenge progressive policies that have become associated with cities, even if those policies would generate widely-shared benefits.

What can cities do? There are some legal defenses that can be mounted in response to the attack on American cities. But the central challenge for progressive city leaders is structural and a robust defense of city power must ultimately rest on state-level politics. Cities that have pursued progressive local policies—especially wage and hours policies—have done so with the assistance of national labor and anti-poverty interest groups. Cities succeed in heading-off preemptive laws when they have allies in the legislature or in the governor’s office.

In the middle of the twentieth century, when many old-line American cities seemed in irretrievable decline, the assumption was that progressive economic policymaking was impossible because of the immutable laws of capital flight. Social welfare spending, business regulation, and redistribution from rich-to-poor had to be undertaken by central governments, otherwise business and jobs would flee across the local border.

I have argued in my recent book, City Power, that this narrative was never accurate. And, indeed, now that many U.S. cities are experiencing an economic resurgence, that form of economic fatalism has given way to a more optimistic account of the city’s regulatory and redistributive capacities. What the last decade’s attack on American cities illustrates, however, is that city power is still limited by institutions. The American city is constrained, not because of its vulnerable position in the global marketplace, but because of the legal barriers erected by states and the federal government.

*Schragger is author of City Power: Urban Governance in a Global Age (Oxford Press 2016).

Why Anthony Bourdain Mattered

It might very well have been about the time that former Deputy Attorney General Sally Yates was speaking at the American Constitution Society's annual convention last Thursday night in Washington, DC that food critic and CNN commentator Anthony Bourdain was ending his life in a hotel room across the Atlantic in France.

The mind works in strange ways; I have been thinking about Bourdain's untimely passing, and perhaps it is just human nature to recall where you were when an event of some consequence occurs. And just maybe, there is some irony here.

Yates stood up against a President, refusing to defend a travel ban that would have restricted - if not downright blocked - the immigration of those who are at the core of what this nation is about: an amalgam of diversity and a blending of culture.

Of course, since Yates stood up to the President and lost her job for doing so, the rest of us – on almost a daily basis – have witnessed the erosion of the rule of law and grappled with how to make all Americans fully understand the depth of our national crisis.

Bourdain just may have been the guy who made some headway on that score; through his art form – food – he tackled a progressive agenda at the dinner table. He brought directly into the homes of average Americans the richness, dignity, and beauty of cultures across the globe. He did not take us to the establishments of the rich and famous; he took us to the cafes of the working class - indeed, the very people who might find themselves one day lining up for the approval of a US Customs official. He broke bread in Lebanon, Jerusalem, the West Bank, Gaza and Iran. He gave Mr. and Mrs. American reason to respect the cultures that their President was trashing.

Food was just the excuse - the catalyst, if you will - to share cultural differences and similarities and talk about controversial issues and of course deliver a progressive message.  He traveled to Oakland, California, shared a meal with Black Panther Party founder, Bobby Seale, and talked civil rights and Black Lives Matter. He went to Seattle, explored some lesser known restaurants, and took time to imbibe in and thus promote the legalization of marijuana.

Bourdain was not merely an incidental progressive; he championed LGTBQ rights and even signed on to an amicus brief opposing discrimination and urging the Supreme Court to enforce equality in Masterpiece Cake Shop v. Colorado Civil Rights Commission, which was recently decided by the Supreme Court.

Despite his fame – and undoubtedly fortune – he was a supporter of the little guy as noted in a May 19, 2018 tweet: “Yeah yeah yeah, I know. I’m a crank. But the word “royals” just …will never go down easy. Only person I ever felt comfortable referring to as “Prince” came from Minneapolis.”

In a world of binary thinking – e.g. Democrat or Republican, liberal or conservative, plaintiff side or defense side – Bourdain was anything but binary. In a May 5, 2018 tweet he noted: “Never the left nor the right have an exclusive on bad governance, greed or corruption. We’ve seen plenty of oppressive regimes from both.”

And then there was the simplicity of his wit; bemused if not disgusted by Michael Cohen, the President’s counsel, Bourdain tweeted on April 27, 2017: “A lawyer with three clients and 16 cell phones sounds totally legit.”

Over the last year, as the news cycled droned on with reports on the Russia investigation, violations of the emoluments clause, and a host of parasites cashing in on the Trump Presidency, it seemed that many of us - from progressive stalwarts to political junkies and scholars - tuned in to Bourdain. He had an attraction that we could not exactly put our finger on.

He was the chef who served comfort food for the brain; he delivered a progressive message without dribbling cites to legal cases or speaking in the doctrinaire language of the academic world. Food was the medium for the message – and a highly effective one. Maybe he was a throwback to an era where artists like Bob Dylan and Pete Seeger used their medium to communicate messages. Today, it seems that artists forget their medium; too many are merely talking heads who satisfy only our curiosity about them but not their cause.

Through his medium of food, Anthony Bourdain’s message made sense to Americans. He brought us into the lives of working class people; he taught us to respect the richness of their culture; he gave us reasons to care about them. He taught us that we are different, and yet in many ways, the same - and that those differences should be treasured and embraced.

Curiously, the trajectory of Bourdain began with a 1999 New Yorker article about the underbelly of the restaurant world. He was known as the "bad boy" chef, but perhaps that was just because he was a whistleblower - indeed, following the progressive tradition of exposing widely accepted impropriety.

When the social history of this era is written, there will be some attention paid to Anthony Bourdain. He mattered as a model for how Americans should relish cultural diversity at a time when our leaders promoted cultural division. He mattered for his independent thought and he mattered for his mastery of using an artistic medium to deliver his messages.

And, particularly at a time when our President was rallying the domestic masses against those of different cultures and ethnicities, it was Bourdain who was demonstrating the humanity of those whom Mr. Trump might be inclined to denigrate, deport, or break apart.

It is not surprising that upon learning of his passing, President Obama issued the following tweet:

"’Low plastic stools, cheap but delicious noodles, cold Hanoi Beer.’ This is how I will remember Tony. He taught us about food - but more importantly, about its ability to bring us together. To make us less afraid of the unknown. We will miss him."

Voter Registration’s Disappointing Day at the Court

Yesterday, the Supreme Court decided that states can kick voters off the rolls without any reliable evidence that the voters in question might be ineligible. That’s a disappointing result, and the culmination of a series of disappointments along the way. But there is one significant reason for optimism among the gloom: unlike many other Court pronouncements, on voting rights and otherwise, most voters can fight back against the impact of this decision directly.

First, it’s disappointing that we’re having this discussion at all. The Ohio process at issue in the case assumed that voters who hadn’t voted in two years had probably moved, sent them all a postcard, and if that single piece of mail wasn’t returned and the voter didn’t vote for four more years, the voter was removed from the rolls.

This is not a new piece of voter suppression devised by current elections officials: Ohio put the process in place 24 years ago, and it has been implemented by both Rs and Ds. But even without the troubling historical provenance of over-inclusive purges, it’s disappointing that this process still has a starring role. The challenged purge is 24-year-old tech, developed the same year that Netscape was founded (ask your parents). In the last two and a half decades, administrators have developed far more effective methods of maintaining accurate lists, many of which Ohio has also put in place. The process at issue is the lingering clunky relic — the thing many states never bothered with at all, and the thing 21st century states are leaving behind. The Court said that Ohio uses two years of nonvoting as a “rough” way of finding voters who may have become ineligible based on a move. That’s a pretty “rough” understatement. Spamming every nonvoter because you think they might possibly be ineligible is neither accurate nor cost-effective.

Unfortunately, we don’t know exactly how inaccurate the process is: a disappointment with the litigation process. Many of the people who haven’t returned a lone government postcard and haven’t voted in a while are still living in exactly the same spot. Some have moved down the street, but are still eligible to vote without reregistering. Some — far fewer than the number who don’t vote — have moved out of the jurisdiction, and are no longer eligible there. We don’t know for sure how many are which in Ohio. This is an empirical question, but one that can be expensive and cumbersome for litigants to answer under a perceived time crunch. And it wasn’t answered here.

Technically, of course, none of the claims in the case turned on the impact of the provision: this was officially a matter of pure statutory interpretation, about whether the primary federal laws governing voter registration permitted or precluded Ohio’s process. But the relevant provisions of the federal statutes are — another disappointment — no model of clarity. (This may not have been entirely coincidence: different legislators may have agreed to particular language for very different reasons, each thinking it would accomplish something slightly different. Ambiguity can get baked into the process.) Based on nothing other than the text, the proper reading of the statute is admittedly a close call. In that environment, judges who assume that the Ohio process is accurate 90% of the time likely start their interpretive process with a very different mindset than judges who assume that the Ohio process is accurate 10% of the time.

To be clear, the fact that the provisions are convoluted does not make them impenetrable, and there are statutory constructions that better comport with the overall thrust of the statutory scheme than others. Congress said that it designed the federal statutes to make voter rolls more complete and more accurate: to provide more ways to get eligible voters on to the lists, and to ensure that voters who had become ineligible — but only voters who had become ineligible — were removed from the rolls. The statutes explicitly prohibit removing a voter from the rolls because they haven’t voted, but allow removal based on a change of residence that renders the voter ineligible in that jurisdiction. And reading those provisions together, the statutes can easily be interpreted to require some actual evidence of a move beyond the failure to vote, consistent with what Congress said it was trying to accomplish.

This was the interpretation of federal law offered by the Department of Justice at the 6th Circuit (full disclosure: I was at the DOJ at the time, and worked on the case). After the 2016 election, the Department of Justice changed its interpretation at the Supreme Court, backing away from 20 years of enforcement practice by career attorneys. That was a personal disappointment, and a far more important institutional one.

And then there’s the Supreme Court decision, its own bundle of disappointments. It’s a disappointing approach to have so little regard for what Congress was trying to achieve.  Congress set out to limit unwarranted purges of eligible voters, and it’s hard to believe they approved a process allowing voters to be kicked off of the rolls without any reliable evidence that they might in fact be ineligible.

It’s a disappointing triumph of empty formalism. Recall that the statute says that individuals can’t be removed because they haven’t voted. At one point, Justice Alito explains that Ohio does not purge people because they haven’t voted, because purging also turns on the failure to return a postcard. This is an astonishingly thin conception of causation, and a mechanical version of textualism that should by all rights fail the Turing test.

It’s a disappointing trivialization of the franchise. Magazine subscriptions lapse because of inactivity. But part of the whole reason for this portion of the federal code is the notion that access to fundamental rights doesn’t.

And it has disappointing consequences. Some eligible voters who have not recently participated and who miss a single mailing will be unaware that they are no longer registered, and in states without same-day registration, will discover the problem too late to cast a valid ballot. Joe Helle registered in Ohio in 2004, missed a few elections while serving in Iraq and Afghanistan, and arrived home to find himself purged from the rolls and shut out from the coming election, despite no change in his underlying eligibility. The process will likely have inequitable ramifications beyond servicemembers, as well: groups that tend to vote less often, the very citizens we should be making more efforts to engage, will naturally be more affected.

And yet — at the end of the day, this decision can be overcome. Unlike most Supreme Court decisions, we don’t need a constitutional amendment or a new piece of legislation to avoid the debilitating consequences of yesterday’s decision. Ohio’s process magnifies the impact of other barriers to the ballot, but imposes few new ones of its own: the only people affected are those kept from multiple elections in a row. And so Joe Helle aside, there’s a straightforward way for most eligible citizens to make sure that their state doesn’t misinterpret any inactivity: be as active as possible. Register. Vote. Not just for President, and not just in presidential election years: find someone or something to vote for (or against), in every single election you can. And then become the friend urging others to do the same.

*Justin Levitt is the Associate Dean for Research and Professor of Law at Loyola Law School in Los Angeles, as well as the Co-Faculty Advisor for the ACS Student Chapter at Loyola. Professor Levitt previously served as a Deputy Assistant Attorney General in the Civil Rights Division of the U.S. Department of Justice.