Ordinances Banning Public Sleeping Are Unconstitutional Cruel And Unusual Punishment? Seriously? (Forbes.com) August 17, 2015

At first I didn’t even read the story about whether laws against the homeless sleeping in public places violated the 8th Amendment prohibition against cruel and unusual punishment. I figured it was just one more crazy story to filter out in the effort to retain my sanity when reading our local paper, the San Francisco Chronicle. Boy was I wrong. This wasn’t just another “only in San Francisco” story—this was the Obama administration’s Department of Justice (DOJ) telling the Federal District Court in Idaho that Boise’s ban on public sleeping as applied to the homeless was cruel and unusual punishment. And it’s getting the attention of cities everywhere.

You really have to appreciate all those lawyers back in Washington acknowledging that homelessness is a huge problem, pointing out that on any given night in America half a million people are homeless, with 42% sleeping in public locations. And then going on to tell the nation’s cities and mayors, “Sorry, but the way you are dealing with it, banning public camping and sleeping, is unconstitutional. Oh, and by the way, good luck with figuring out a different solution to this huge social problem. We’ve got your back—with a sharp legal filing sticking in it.”

Let’s agree that homelessness is a huge and complicated issue, compounded in recent years by the recession, tight housing markets, and less money for mental health, public housing and other social services. While cities, churches and nonprofits try to establish shelters and services, local governments also seek to keep the problem away from public parks and spaces, with laws against camping or sleeping in public or in vehicles. The latter is admittedly a bit of a defensive holding position while trying to build up the resources to tackle homelessness in more productive ways.

So into that delicate policy balance steps a team of federal lawyers from Washington, D.C.—“I’m from the government and I’m here to help,” Ronald Reagan liked to joke. And with the crudest of instruments, a legal filing, they seek to change hundreds of local policies with a creative interpretation of the constitution and a word processor. Historically, there is judicial precedent for the notion that one should not be punished for one’s condition (for example, addiction), but obviously what cities are seeking to ban is certain conduct. Now the argument becomes more complicated when you weigh whether the homeless, in certain cities at particular times, have a choice in where to sleep. But this feels more like a dilemma to be managed than a law seeking a ban. We await the court’s decision on this, but already many cities are nervous about the DOJ’s opinion.

This is but the latest example of a growing problem—lawyers and courts as engines of social change. As Chief Justice Roberts recently wrote in the his dissenting opinion in the gay marriage case: “Federal courts are blunt instruments when it comes to creating rights. . .[T]hey do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right.” This is far too complicated a matter to resolve with a quick and relatively easy constitutional ban.

Let’s face it, these DOJ lawyers are, as our son used to say about his big sister, throwing their weight around. Courts have gone from being “beyond comparison the weakest of the three departments of power,” as Alexander Hamilton put it in Federalist 78, to the strongest. As recently as 1989, legal scholar Bruce Ackerman described courts as sitting in the last car of the train and deciding whether to throw on the brakes—now they’ve moved to the engine, powering social policy and deciding which track to take. Courts are now the quick and easy route to change, but representative government, with its ability to study matters, engage in debate and experimentation, is the better way to tackle social problems.

To read story at Forbes site:  http://www.forbes.com/sites/daviddavenport/2015/08/17/ordinances-banning-public-sleeping-are-unconstitutional-cruel-and-unusual-punishment-seriously/

Apparently 90% of Harvard Faculty Can Agree On Something: Giving To Democrats (Forbes.com) May 7, 2015

I guess we now know why William F. Buckley famously said:  “I’d rather entrust the government of the United States to the first 400 people listed in the Boston telephone directory than to the faculty of Harvard University.”  According to a recent study by the Harvard student newspaper, 84% of Harvard faculty giving to political campaigns goes to Democrats.  In the College of Liberal Arts and the Law School it was a stunning 96% and 98% respectively, and 86% at the fair and balanced Kennedy School of Government.  Even in one typical campus bastion of conservatism, the business school, 62% of political giving went to Democrats.

In one sense, this is hardly news, except for the near unanimity of any action on the part of presumably thoughtful, independent people.   An old saw says that faculty can’t agree on anything except to hang the dean, and even then they can’t agree on when and where.  So having hundreds of smart, notoriously independent people all decide to give their money to one political party over another surely makes a powerful statement.  Even the Dean of the Harvard College of Arts and Sciences, Michael D. Smith, admitted to being “amazed at how high that number is.”

Lest you jump to the conclusion that the Harvard Crimson must have cooked up some crazy statistical anomaly, previous studies tend to support these results.  In 2012, Campus Reform studied giving by faculty and staff at the 8 Ivy League colleges and found that $1,211,267 was given to President Obama and only $114,166 to Mitt Romney.  Brown University led the pack with 96% of faculty and staff donations going to Obama, with Dartmouth (where an occasional conservative voice is at least heard) and the University of Pennsylvania bringing up the rear with 94% donating to the Obama campaign.

In an earlier day, a few studies of professorial voting registrations were collected.  In one study of 15-20 California institutions, nearly all had 80%+ faculty registered as Democrats, with only two institutions, both of which had reputations for being quite conservative, having close to 50/50 voter registrations.  Obviously just being balanced politically looks wildly conservative in the Alice in Wonderland world of higher education.  An article, “Why are Professors Liberal?” by sociologists Neil Gross and Ethan Fosse summarizes some of these studies, noting that the liberal tendency of the professoriate has “grown over time.”

So what, one might say.  At least that’s what Harvard officials said, more or less.  Harvard Business School professor Jay W. Lorsch, who gave approximately $65,000 to Democratic causes from 2011-14, said:  “I think most faculty here are pretty careful about not imposing their political views on students.”   Even if that is true—and having been on college campuses myself for over 40 years I do not believe it—UCLA Professor Alexander Astin has long pointed out that students learn more from the “implicit curriculum” of a University than what is actually taught.  The implicit message is clear:  it’s only ok, or intellectually responsible, to be a Democrat.  Academic debates are framed within a narrower spectrum.  Courses are accepted in the curriculum and new faculty are hired—or not—from that fundamental premise.

The fact is that American higher education has come to represent a diversity of everything but ideas.  We seek ethnic diversity, gender diversity, sociological diversity, geographic diversity—but not a diversity of ideas or points of view.  And, after all, isn’t that supposed to be the fundamental business of education, the pursuit of ideas?

On the seal of my alma mater are the words “the wind of freedom blows.”  In real life, sometimes those winds blow left, sometimes right, often center.  But not in the artificial and dangerous world of higher education, and certainly not at Harvard.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2015/05/07/apparently-90-of-harvard-faculty-can-agree-on-something-giving-to-democrats/

Bringing A Little Sanity To Indiana’s March (Religious) Madness (Forbes.com) March 30, 2015

You would think the sky is falling in Indiana.  Hundreds of protestors carried signs at the state capitol Saturday:  “hate costs the state” and “liberty for all Hoosiers.”  The mayors of San Francisco and Seattle rushed to announce that city employees could not travel to Indiana on government money anymore.  The new wise men of public policy—basketball analysts Charles Barkley and Reggie Miller and the Silicon Valley CEOs of Apple, Salesforce and Yelp—all decried hate and discrimination in Indiana.

But wait.  What really happened in Indiana?  The state enacted a Religious Freedom Restoration Act.  The U.S. Senate voted 97-3 for such a federal law in 1993 and President Clinton signed it.  Forty percent (19) of states have such laws, and others are considering them.  These laws—including Indiana’s version—essentially do one thing:  they set a legal standard in lawsuits where a defendant feels his or her religious freedom is being harmed by the application of a law or regulation.  More specifically, these religious freedom laws require a showing that the government has a “compelling interest” in whatever regulation is in question and that it is meeting that interest in the “least restrictive way” to the individual’s religious practice.

The words “gay” or “gay marriage” do not appear anywhere in the law.  A classic case under the federal law was whether members of a New Mexico church might imbibe psychotropic tea as part of their religious ceremonies in the face of a law against such substances.  The Supreme Court said that the state did not have a compelling interest in preventing that kind of private religious practice.  Or in Minnesota where a court said that a law requiring vehicles including Amish buggies to use bright fluorescent lighting should have used an alternative less restrictive to Amish religious practice such as reflective tape or kerosene lanterns.

But, of course, the knee-jerk reaction is that this law was passed to allow Christians to discriminate against gays and gay marriage and it is therefore hateful, discriminatory and unacceptable.  So far, however, no such bill has actually trumped local nondiscrimination laws, such as exist in Indianapolis and a dozen other Hoosier cities.  And in both the states of Washington (where a florist refused to serve a gay wedding) and Colorado (a baker did the same), courts have held that religious rights do not trump anti-discrimination laws against gays.  Admittedly neither of these states had a religious freedom restoration law, but again that only provides a legal standard or balancing test, not necessarily implying any different outcome.  How they are actually applied by courts vis-à-vis gay marriage is yet to be seen.

If the law on this is different than the protests suggest, so is the politics.  The federal law was sponsored by then-Congressman Chuck Schumer, apparently in line to lead the Democrats in the U.S. Senate.  And it was signed by Democrat Bill Clinton.  Then state senator Barack Obama voted for Illinois’ version of the bill.  Of course this was before his views “evolved” but it at least suggests that historically these bills have not been about hate and discrimination.

In the current white-hot debates over gay marriage, I submit that what the Indiana and other bills actually do is help manage an important policy dilemma.  As a society, do we value gay rights?  Increasingly the answer is yes.  Do we value religious freedom and practice?  Historically the answer is yes.  We value both, but they do not always live easily together.  What this bill does is help courts manage the dilemma—while protecting against discrimination, also protecting religious rights where the state has no compelling interest in violating them or where alternative policies less restrictive to religious rights should be pursued.

In a sense, there’s nothing to complain about in such a bill which sets up an appropriate constitutional balancing test.  The proof of the test will be in its application in the courts, not in its enactment.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2015/03/30/bringing-a-little-clarity-to-indianas-march-religious-madness/