Katherine Darmer is a is a Professor of Law at Chapman University and is also a Distinguished Senior Fellow in the Gender & Sexuality Law Program this fall.   She offers the following observations about on-going litigation challenging a California High School’s failure to protect LGBT students from homophobic threats and violence:

Earlier this year, the New York Times reported that California’s Corona del Mar High School in Orange County had become the latest to try to put a stop the high school production of RENT, which depicts both gay and straight characters in a sensitive light.

Under the direction of drama coach Ron Martin, who picked RENT precisely to sensitize the student body at a time when Martin was alarmed by an increasing climate of homophobia at the school, the show ultimately went forward at Cornoa del Mar and won numerous national awards and ongoing media coverage.  Before the production, several male athletes at the school targeted HAIL KETCHUM, who played a starring role in RENT, releasing a video on FACEBOOK depicting threats to rape and murder Ms Ketchum.  On the same video, the boys also made numerous homophobic comments.  The video was posted via the school’s Facebook “network” and viewed by hundreds of students, causing acute distress to Ketchum.  Following the video, Ms Ketchum’s parents’ complaints to the school went largely unheeded.  Indeed, the boys were given athletic awards in the wake of the video’s release.

The ACLU of Southern California ultimately brought suit against the school district and administrators for failing adequately to protect Ketchum from the young men’s threat of violence and for failing to adequately protect LGBT students at the schoool.  As the Facebook video illustrated, misogyny and homophobia are frequently linked.

The ACLU suit arose against the backdrop not only of the controversy surrounding RENT at the high school, but also in the wake of the Proposition 8 campaign, which emboldened some at the school to articulate homophobic views.

The suit was one of the first to bring attention to the “collateral damage” of Prop 8 and the heated Prop 8 campaign done to young students coming to terms with their sexuality.

This past Sunday’s New York Times magazine profiled LGBT students in middle schools, noting that homophobic language in schools is frequently tolerated by teachers in a way that racist speech never would be.  As the article pointed out, phrases such as “that’s so gay,” deployed in a derogatory, dismissive manner, are part of a common high school vocabularly despite the pain such statements cause to LGBT students.  This environment of insensitivity was in evidence at Corona del Mar High School in Orange County.

The suit in Orange County was recently concluded in a favorable settelement that required district officials to apologize to Ms Ketchum and further required that school administrators, teachers and students participate in mandtory training.  The training will deal not only with the harmful impact of discrimination based upon sex but also with the problem of discrimination based upon sexual orientation and gender identity.  Details of the settlement are contained in an ACLU press release, and were covered by the New York Times.

Ms Ketchum and her parents, who recently chose to be publicy identified, made clear that the suit was broght primarily to ensure that the overall school envirnoment would be improved for other students.  Ms Ketchum is now a freshman at Loyola Marymount University in California.

It is unfortunate that a lawsuit of this sort was needed as a “wake-up” call to a school district and its administrators charged with protecting all students.  But as the New York Times story on Sunday illustrated, the gains we have made in protecting LGBT rights leave us a long way from a school environment that is fully protective of sexual orientation minorities.

–Katherine Darmer
(Darmer is a board member and chair of the legal team of the Orange County Equality Coalition, which was a named plaintiff in the Orange County lawsuit.)

Iranian President Mahmoud Ahmadinejad is back in New York for the annual fall gathering of heads of state at the U.N. General Assembly meeting.  As expected, his remarks to the body on Wednesday provoked outrage, walkouts, and general condemnation by various states and the media.  If all you did was read the press reports about it, you’d think that in his speech he once again denied the fact of the holocaust and threatened to wipe Israel off the map.  In fact, if you watch the speech, or read it, it’s much less inflammatory than the media reported, and in some respects merely echoes the condemnation of Israel’s invasion of Gaza contained in the report issued by the UN Human Rights Council Fact Finding Mission on the Gaza Conflict, led by Justice Richard Goldstone.  It’s interesting how any criticism of Israel is read as anti-semetic in this setting.

I mention Ahmadinejad’s speech because it’s hard to believe it’s been two years since he came to Columbia University as part of our World Leaders Forum.  As you may recall, Columbia University President Lee Bollinger “introduced” President Ahmadinejad with an anticipatory condemnation of what the Iranian President might say, calling him “a petty and cruel dictator,” and closed with the charge that “I doubt that you will have the intellectual courage to answer these questions.”  The tone and content of the introduction drove some members of the University faculty to bring to the full arts and sciences faculty a motion criticizing Bollinger for violating core principles of academic freedom.  See more here.

What garnered the greatest attention from President Ahmadinejad’s talk, however, were his remarks in response to a question about the mis-treatment of women and homosexuals in Iran.  He declared: “women in Iran enjoy the highest levels of freedom,” and then asserted that “In Iran we don’t have homosexuals like you do in your country.  We do not have this phenomenon. I don’t know who’s told you that we have it.”  The media frenzy in response included a New Yorker Magazine cover tying the Iranian President to Larry Craig.

Lesbian and gay human rights organizations the world over immediately condemned these remarks as ignorant and hateful.  “Of course there are gay people in Iran – we are everywhere!” they proclaimed.   But Ahmadinejad’s remarks and the responses they received demand much more complex thinking about the role of lesbian and gay human rights in global politics.  For this reason I’ve written a short paper trying to offer one such thicker reading of what happened when President Ahmadinejad came to Columbia.   I’m giving it as part of our Feminist Theory Workshop series next Tuesday, and you can read the draft here.  But it concludes:

Once we recognize that the normative homosexuality that undergirds human rights discourse is not merely a “fact” in the world, but more of complex value, it becomes easier to see how the state’s embrace of the sexual citizenship of these new human rights holders risks rendering more vulnerable a range of identities and policies that have refused to conform to state endorsed normative homo- or hetero- sexuality.  This is true both for queers whose desires refuse to orient themselves ineluctably toward marriage, or Muslims with sexual norms and practices of polyamory, homosociality, and modesty.  Under this scenario, newly patriotized gay subjects find themselves implicated, whether they want to or not, in the construction and identification of the “enemies of the state.”   Witness the ingenious strategy of StandWithUs and the Israeli Foreign Ministry to appeal to gay rights supporters in their efforts to shore up Israel’s foreign policy with respect to Palestine and Iran.

So does this discussion leave us helpless in the face of a critique that eschews both the epistemic violence of securing human rights for global gay subjects on the one hand, and state politics as cynical, manipulative, instrumental and tragic on the other?  To be sure, this is where some find themselves.  But we can do better than that.  Critical awareness of the state’s role as now-fundamental partner in the recognition and protection of a form of sexual rights should push us to regard these “victories” as necessarily ethically compromised.

The moral atrophy that has kept us from recognizing the tragedy of these strategies and outcomes is where more critical, and indeed discomfiting, work needs to be done.  By theorists and activists alike.  This means rethinking the horizon of success in this work.  “Victory” in the sense of gaining the state as a partner, rather than an adversary, in the struggle to recognize and defend LGBT rights ought to set off a trip wire that ignites a new set of strategies and politics.  This must necessarily include a deliberate effort to counteract, if not sabotage, the pull of the state to muster rights-based movements into its larger governance projects, accompanied by an affirmative resistence to conceptions of citizenship that figure nationality by and through the creation of a constitutive other who resides in the state’s and human right’s outside.

Last Friday night, the Syracuse men’s basketball team was routed by Oklahoma, losing 84-71 – in no small measure because of the shooting collapse of Syracuse’s star guard Eric Devendorf, who finished the game with only 8 points.

Why should readers of a Gender and Sexuality Law blog care about the Syracuse men’s basketball team?  Well, the Syracuse team got as far as they did because Devendorf escaped any meaningful punishment from the University after he punched Kimberly Smith, an SU junior, in the face last November.  In fact, almost the entire men’s basketball team was involved in this attack – they surrounded her car, kicked and dented the car, yelled at her, and when she got out Devendorf punched her.  She asked the Syracuse Police to initiate criminal proceedings against him but they preferred to refer the case over to  SU’s  Office of Judicial Affairs – a student-run group that weighs minor cases on campus.  At the hearing on the incident, 6′ 4″ Devendorf claimed that he had been defending himself when he hit Smith.

The Office of Judical Affairs recommended that in light of the fact that Devendorf was already on probation for hitting another student the previous spring, Devendorf be suspended for the remainder of the year - meaning that he couldn’t play, go to classes or set foot on campus for the remainder of the academic year.  This might have been the end of his NCAA and professional basketball career.  Devendorf appealed the ruling, and the punishment was reduced to 40 hours of community service, and he would be allowed to return to school in the spring ‘09 semester.   He did all this, missed 2 games and all was forgiven.  Syracuse was ranked third in the Southern regional conference when the bracket was announced and they did well until they ran into the Sooners last Friday night.  While the Orangemen were winning TV commentators highlighted Devendorf’s athletic ability and coolness under pressure – he was a team leader and a charismatic player.

Devendorf’s lenient treatment from the Syracuse Police and the University’s disciplinary board is, of course, not unusual for a top collegiate athlete who gets into trouble.  Examples abound of charges of sexual misconduct or violence being swept under the rug when taking them seriously might jeopardize a college or university’s athletic program.

I was involved in an incident here at Columbia several years back when a female student accused several members of the Columbia Men’s Basketball team of sexual assault.  After a hearing before our internal disciplinary board the student/athletes were also given community service as a penalty.  And what service were they instructed to perform?  Educating the other members of the basketball team on the problem of sexual assault.  Can’t you just picture the guffaws and innuendo-laden jokes that surrounded these guys’ “presentation” to their teammates on Columbia’s policy against sexual assault and harassment?

“They probably think I’m an a-hole, man,” said Devendorf after he hit Kimberly Smith.  “I know they do. I know everybody thinks I’m an a-hole.”  Yep.  Everyone except the Syracuse Basketball coach Jim Boeheim, the Syracuse Athletic Department and the University Appeals Board.

Until our colleges and universities start taking their student disciplinary codes seriously – including parts of the codes dealing with violence and sexual assault – our campuses will continue to be unsafe spaces for female students, whose safety must take a back seat to the university administration’s drive to win basketball, football, and lacrosse titles.

- Katherine Franke

In 1995 Lani Guinier, Michelle Fine, Jane Balin, Ann Bartow & Deborah Lee Batchel published a study of the gender-based bias and stratification of the law school experience at Penn Law School.  Becoming Gentlemen: Women’s Experience at One Ivy League Law School, 143 U. Pa. L. Rev. 1 (1995).    I often mention this article in my teaching, urging students to reflect on the role of gender not only in the law but in their legal education.  When I referred this spring in my 1L class to the findings of Becoming Gentlemen, one of the students pushed back, saying that the insights of Guinier et al.’s work may no longer hold true, or at least doesn’t hold true at Columbia.  I asked her if she’d be willing to write something about why, and here it is – Katherine Franke

Unlike the accounts described in Becoming Gentlemen, my own experience as a woman in Law School has been positive, in the sense that I have never felt prejudice or experienced a barrier because of my gender. I have never been called a “lesbian” or “feminazi dyke” because I expressed my opinion in class. Nor  have I ever been berated by a professor. I have also never thought my chances for academic or workplace success were limited because of my gender (In fact, women at Columbia have earned some of the highest markers of academic excellence, such as Editor in Chief of the Law Review and finalists in the Stone Moot Court competition).

Gender is so far in the background, such a “non-issue,” that questions of gender are not really discussed or thought of amongst my peers. As one friend remarked, “When I discuss gender stereotypes, domestic violence, or rape, I feel like alot of people don’t get it and don’t really care to.” I am one of those people. Without the efforts of friends such as the one above, I would likely forget that my life could have a gendered dimension because it is not part of my daily experience.

While I had a hard time relating to the experiences of the surveyed women, what most confused me was the way minorities were simply “lumped in” with their respective gender and the nuances of their individual experiences were ignored. The piece initially left the impression that minority women were most readily singled out because of their gender. Meanwhile, it portrayed minority men as heavy participants in gender discrimination and equal beneficiaries of the “good old boy” network.

In my own experience, the opposite is true. There is far greater discrimination and informal barriers to success because of race than gender. For example, there are few (2, that I know of) Hispanic professors at Columbia and they do not teach 1Ls. There are no cases in Con Law which describe the significant contributions towards the development of Civil Rights law by Latinos. In Crim Law, Latino is the assumed race of drug dealers.

Latino 1Ls have informally agreed to support one another in the classroom. We have formed groups and blogs to educate ourselves about issues (such as Critical Race Theory, Immigration, famous Latino cases and important Latino legal organizations) which are mostly ignored by the curriculum and faculty. We acutely feel the pressure to “represent” our community in the classroom and (someday) in the courtroom. Most importantly, we all, male and female, have felt the need to come together as a support group in a (sometimes openly) hostile environment.

A close reading reveals, however, that minority men and women in the study expressed similar views and had similar experiences 20 years ago. In the footnotes, Black/Latino men and women both expressed similar desires to “help their community” and to “represent their people.”

There was not a single example given of a Latina or African-American woman who showed a strong identity with white women on the issue of gender in the school. Rather, their statements closely mirror those of the minority men. This correlation makes it difficult to say that the experience of law school was simply “gendered”. Rather, it appears that it was more of “white male” vs. everyone else.

What is disturbing to me, however, is that these problems of race were present 20 years ago and, unlike the issues facing white women, have not been sufficiently addressed. Surveys which exclusively focus on the “gendered” experience, at the expense of race, only add to this problem because they allow a false sense of “mission accomplished.” Under the rubric offered in Becoming Gentlemen, as long as white women’s experiences improve, then both minority men and women can be “left behind”; their needs and issues delegitmatized and unaddressed.

I understand that this may place a difficult standard on researchers who seek to focus only on one variable or who are most interested in the gendered experience. But the fact that things have changed so little for many minority students, including minority women, while they have changed so dramatically for white women is something that should not be accepted by researchers interested in gender. I hope these researches are aware of the way their observations on gender and race can influence policies and perceptions, and I challenge them to confront the nuances that race adds to the experience of gender.

Priscilla Orta

Title IX, the federal law that prohibits sex discrimination by recipients of federal funds has had, among other things, a tremendous effect in equalizing the funding and status of women’s collegiate sports.  The Women’s NBA would not exist were it not for Title IX creating a pipeline of excellent collegiate female basketball players.  Many people, myself included, feel that women’s college basketball is much more fun to watch than men’s because the women do old fashioned things like pass the ball and play like a team, whereas the men’s game is all about individual ball hogging, dunking and general show-offery.

So I was more than usually annoyed at the New York Times’ Sports section yesterday when it ran stories about the NCAA Basketball tournament draw – printing only the men’s bracket.  In past years they featured more prominently the men’s bracket, but covered the women’s bracket as well.  This year, they didn’t even bother to print the women’s draw.  Cost saving?  Probably.  Sexism?  Surely.

But this injury was horribly compounded when Rachel Maddow did the same thing last night with her (annoying, sorry) sidekick Kent Jones.  They finished off the hour with their usual fluffy banter, covering the men’s and not the women’s draw – each picking their favorites for the men’s final four.  Rachel Maddow too?  Oy – what has the world come to?  Should we amend Title IX to cover the media?  Seems we must.

So here it is and you can see it bigger here:

- Katherine Franke

On Friday, the Gender and Sexuality Law Program held its inaugural symposium, this year honoring  the work of Professor Martha Nussbaum.  Nine scholars submitted papers providing insights on  Professor Nussbaum’s scholarship, points of departure for her theories, and novel applications of her  theories to many different contexts.  Dean Schizer introduced Professor Nussbaum before her keynote  speech at the end of the day, and Professor Nussbaum gave a summary of her scholarship and ideas, and thoughtfully responded to each paper.

The diversity and creativity of scholarship and thought that came out of the symposium was really remarkable.  We covered everything from Nussbaum’s capabilities approach as applied to women’s movements (Amrita Basu), the possibility of a collective capabilities approach to women’s empowerment in Africa (Aili Tripp), and the relationship of the state to the capabilities approach (Tracy Higgins), to the application of Nussbaum’s work to the same-sex marriage debate, the LGBT community, and its relationship with science (Nancy Levit), and whether the state should be in the business of regulating marriage in the first place (Janet Jakobsen).  Nussbaum’s capabilities approach was applied to global economic systems (Saskia Sassen) and stretched from its universality to its flexibility in encouraging people of opposite viewpoints to sympathize with one another (Carlos Ball).  We learned of a historian’s perspective on Nussbaum’s reliance on the history of relationships to support her arguments about same-sex marriage (Alice Kessler-Harris), and tough questions were asked of how far the law should go in the forcing of certain types of relationships, and what emotions, aside from disgust and shame – and anger for that matter – might be appropriate for opponents of same-sex marriage (Mary Anne Case).  I fully admit, that’s not nearly the half of it; you can read all the papers in the Columbia Journal of Gender and Law’s forthcoming publication of them.

On a personal note: law school does not all too often provide the opportunity to stop learning about the law per se and actually examine its parameters and characteristics.  That the emotions of shame and disgust might problematically inform how the law is shaped, or the notion that all human beings are entitled to a range of fundamental capabilities, are concepts that add a huge depth to legal study.  This conference was a great moment to pause and consider, and I hope everyone at the end of the day felt similarly enriched.

Jeannie Chung

Jeannie Chung is a second-year law student and research assistant for the Gender and Sexuality Law Program.

The U.S. Army and U.S. Air Force Judge Advocate General.

Hopefully this will be the last hiring season in which law schools are asked to bracket their objections to employers who explicitly discriminate on the basis of sexual orientation for the better financial benefit of the University (the Solomon Amendment threatens cutting off all federal funds to every unit of a university if one unit – in this case the law school – refuses to allow the military to recruit on campus).  President Obama has pledged to overrturn the “Don’t Ask, Don’t Tell” policy in favor a policy that does not condition service in the many branches of the military (including service by lawyers) on heterosexuality. It’s our job to keep the pressure on him to do so.

In the meantime, the Columbia Law School faculty has again issued it’s formal objection to the law school being forced to allow military recruiters on-campus access to our students.  For now, we meet discrimination with speech:

We, the undersigned members of the faculty of Columbia Law School, strongly oppose the federal law known as the Solomon Amendment.  Through punitive financial coercion, this law requires the Law School to allow representatives of the United States armed services to engage in discriminatory recruitment on our campus through the Law School’s Career Services office.  This recruitment directly violates the Law School’s longstanding non-discrimination policy, which forbids employers from recruiting on our campus if they discriminate based on, inter alia, sexual orientation.  Under the “don’t ask, don’t tell” law, which bars openly lesbian, gay and bisexual individuals from military service, military employers discriminate explicitly based on sexual orientation.

In March 2006, in Fair v. Rumsfeld, the United States Supreme Court upheld the Solomon Amendment against a challenge based on the First Amendment rights to speech and association.   The Court held that law schools could be required to permit military recruiters access to campus, notwithstanding the schools’ non-discrimination policies. However, Chief Justice Roberts, speaking for a unanimous Court, also made clear that “[s]tudents and faculty are free to associate to voice their disapproval of the military’s message.”

Accordingly, we reaffirm our commitment to an educational environment at the Law School that is free from discrimination based on sexual orientation, as well as discrimination based on race, color, religion, national origin, sex, age, and handicap or disability.

The faculty recognizes with regret the harms to which our lesbian, gay and bisexual students may be subject as a result of the military recruiters’ presence on campus in violation of our non-discrimination policy.

The faculty further regrets the harm to the United States and to the rule of law occasioned by a federal law that excludes highly qualified lawyers from serving in the United States armed forces.

MATTHEW ADLER (visiting)
JOSÉ ALVAREZ
MARK BARENBERG
GEORGE A. BERMANN
VIVIAN BERGER
BARBARA ARONSTEIN BLACK
VINCENT BLASI
CHRISTINA BURNETT
SARAH CLEVELAND
JOHN COFFEE
KIMBERLÉ CRENSHAW
LORI DAMROSCH
MICHAEL DOYLE
ARIELA DUBLER
HAROLD EDGAR
RANDALL EDWARDS
ELIZABETH F. EMENS
JEFFREY FAGAN
ROBERT A. FERGUSON
MERRITT B. FOX
KATHERINE FRANKE
RICHARD N. GARDNER
PHILIP GENTY
JANE GINSBURG
SUZANNE GOLDBERG
HARVEY GOLDSCHMID
KENT GREENAWALT
JACK GREENBERG
JAMAL GREENE
MICHAEL HELLER
LOUIS HENKIN
JIM HOOVER
CONRAD A. JOHNSON
OLATI JOHNSON
WILLIAM K. JONES
AVERY W. KATZ
GREG LASTOWKA (visiting)
BENJAMIN LIEBMAN
CAROL B. LIEBMAN
LANCE LIEBMAN
EDWARD LLOYD
LOUIS LOWENSTEIN
GILLIAN METZGER
CURTIS MILHAUPT
EBEN MOGLEN
TREVOR MORRISON
ARTHUR MURPHY
KATHARINA PISTOR
ANDRZEJ RAPACZYNSKI
ALEX RASKOLNIKOV
JOSEPH RAZ
DANIEL RICHMAN
PETER ROSENBLUM
CHARLES SABEL
CAROL SANGER
BARBARA A. SCHATZ
ELIZABETH SCOTT
ROBERT E. SCOTT
THEODORE SHAW
WILLIAM SIMON
MICHAEL I. SOVERN
JANE SPINAK
PETER L. STRAUSS
SUSAN STURM
KENDALL THOMAS
MATTHEW WAXMAN
PATRICIA WILLIAMS
JOHN WITT
TIM WU
MARY ZULACK

On Tuesday, the Supreme Court heard oral argument in Fitzgerald v. Barnstable School Committee – a case involving a girl in the kindergarten at Hyannis West Elementary School who claimed that every time she wore a skirt to school, an eight-year-old third grade boy on the school bus would force her to lift her skirt, pull down her underpants, or spread her legs, while other students laughed at her. She charged the school with sex discrimination in connection with their investigation of these allegations. Her complaint made two separate sex discrimination claims: one under the Equal Protection clause of the 14th Amendment and the other under Title IX of the 1972 Education Amendments – a law prohibiting sex discrimination in any educational program that receives federal funding.

The issue before the Supreme Court did not address the merits of her claim, rather it raised a technical, yet extremely important, issue of federal anti-discrimination law: when Congress enacted Title IX, did it intend it to be the only protection students would have against sex discrimination in education, thereby eliminating a claim under the 14th Amendment’s Equal Protection clause? (The technical formulation of the question is whether the implied right of action contained in Title IX precludes a §1983 Equal Protection cause of action?) The federal circuit courts have split on this question, and the Supreme Court took the case to resolve this split. A fuller summary of the case is available here.

Why is the case important? It is a huge deal that the Court could find that Title IX – a statute that Congress enacted to provide protections against sex discrimination in education in addition to those contained in the Constitution – would be read a generation later to eliminate the application of the Constitution in schools.

Unfortunately, the oral argument before the Supreme Court this week didn’t go so well. The transcript is available here. Justice Breyer asked if it would be possible to imagine a case in which an institution would be found not to have violated Title IX, but still could be held to have violated the Constitution. Kay Hodge, the lawyer representing the school district, said she could not imagine such a case. In this case, she added, there could not be claims under both Title IX and the Constitution because the parents’ claims under both were “virtually identical.”

But they aren’t virtually identical.

First, the plaintiff alleges that the school discriminated on the basis of sex both in the course of the investigation and in the proposed remedy. This theory may not state a Title IX violation because it may not establish that “the harassment deprived [respondent] of educational opportunities or benefits,” a requirement of a Title IX claim. There is, however, no such requirement for constitutional equal protection claims; investigations or remedies that are discriminatory may trigger a constitutional violation regardless of whether the student’s educational opportunities were disrupted.

Second, under an Equal Protection theory, plaintiff could have established that the school had a practice or policy of being more responsive to complaints of bullying lodged by male victims than to claims of harassment advanced by female victims, something much more difficult to make out under Title IX.

The Sixth, Eighth, and Tenth Circuits have held that Title IX does not preempt constitutional claims against schools. In contrast, the First, Second, Third, and Seventh Circuits have held that Title IX does foreclose constitutional claims arising from the same incident that prompted suit under Title IX. Only once before has the Supreme Court found that a statute like Title IX signaled Congress’ intent to preclude a Constitutional claim- in Smith v. Robinson. In that case Congress took little time to tell the Court that it had gotten the issue wrong, promptly passing a law clarifying that it did not intend to preclude Constitutional claims when it passed civil rights statutes expanding the rights of students to an education free from discrimination.

Accepting the school’s argument would mean that Congress, by enacting a statute that was intended to provide additional protections for victims of sex discrimination, meant to withdraw all other remedies for the vindication of existing constitutional rights even though the old and new remedies differ significantly in scope. It would also mean that Congress intended to preclude use of § 1983 to enforce the Constitution by enacting a statute that provides no express private rights at all, thus leaving it to the courts to decide the nature of the new substitute remedy. This means the Congress can do an end run around the Constitution by enacting a vague statute that sort of takes aim at discrimination, and then rather than having the Constitution dictate what protections one has against discrimination, give that power to the Supreme Court to decide. Of course, if I were able to write the Supreme Court’s opinions this wouldn’t be a problem! But John Roberts has got the job, and he made clear in the oral argument on Tuesday, and in earlier decisions, that he’s not at all interested in interpreting anti-discrimination laws felicitously, as we say in the law.