On search and seizure, sometimes

Did you know the Constitution gave you, once, freedom from unreasonable
search and seizures, the government was required to get a warrant signed by judge, based on probable cause, before it could execute a search.
Then if the government actor wanted to talk to you, by the same Fourth Amendment privilege, he had to tell you, in so many words, you have the right to remain silent? Today: Because of Berguis v. Thompson, the right to be silent must be said out loud? And, in today’s world of tattered Fourth Amendment, it’s also apparently relevant to ask are we talking custodial silence? Pre-Custodial? Interrogation? Post-arrest?

Exceptions to the warrant requirement abound.

Exigent (emergency) circumstances,


Landlord authority (but only for common space areas),

Motor vehicle exceptions to the warrant requirement are legion,

including the sort where the government can pull you over, take you downtown, impound your car, keep and do an “inventory search” to make sure, (the real reason, right?) that they don’t lose your stuff

There are border exceptions,

Open field exceptions,

Abandoned property exceptions.

You can’t expect the garbage goes to the dump.

I bore witness to a hearing about a warrantless search conducted in a home, that didn’t follow any any of those exceptions. But the search was valid anyway. The DA argued the cops thought the apartment was vacant, because the garbage hadn’t been taken out
In two weeks. And no one had seen her. Thus, police acted in good faith, and got the landlord to unlock the ‘vacant’ apartment and heigh-ho, everything goes, they got what they were after.

The Fourth Amendment is basically your tired, hungry, poor Amendment.

Next time you say about the Second, “But this right is found within the Constitution! Be sure the Fourth Amendment is grumbling to herself that she is too.

Wealth-based discrimination: there ought to be a law

I was part of the Housing Group at the Rochester Anti-Poverty Initiative’s planning session last year. We recommended support for a law protecting residents in the City of Rochester against unfairness in housing based on “source of income.” (So, advertisements that say, “No Section 8 NEED apply” would be prohibited. I was very glad to see Adam McFadden, a councilman, take up that cause. My recommendation on the Anti-Poverty Housing Team went even further.

I thought that people should be protected against ALL income-based discrimination.

Three examples:

EXAMPLE 1. When someone gets a traffic ticket in the City of Rochester, they go to the city traffic bureau, which has no district attorney assigned to it, and no plea bargain process… in the suburbs, if you get a traffic ticket you can negotiate with the Assistant District Attorney assigned to that court, or get a lawyer who does the same, and the points and fine are decreased. This disproportionately and negatively effects poor people who are more likely to reside and drive in the city where they live. It is income-based discrimination. Mayor Lovely Warren has pointed out the discrepancy and tried to change it (although I’m not sure why she didn’t just order a District Attorney assigned to the current court): http://www.democratandchronicle.com/…/mayor-lovel…/85250224/

EXAMPLE 2. When bail is required for people who are not a flight risk, more poor people stay in jail after arraignment than their wealthier counterparts, and lack of money for bail, and being in jail, makes it harder for them to build a case with their assigned counsel. It is income-based discrimination.


A judge in Houston struck down a bail system because it was “wealth based discrimination.” The opinion is apparently over 100 pages. That link is a summary, but I hope the Memo and Order are published soon and explain the crux of why something no one legally considers a protected class (lack of income) is unconstitutional and might be worthy of protective status after all: I think possibly it is because of outcomes of wealth based discrimination.

In outcomes, wealth-based discrimination is the dressed up exterior of structural racism.

I am defining structural racism as all those systems in place that disproportionately effect African Americans for whom future dreams (such as home ownership, quality education for their children, low victimization and avoidance of the criminal justice system) are hampered by systems and structures that have nothing to do with personal responsibility, and everything to do with those unequal systems in place. The structurally racist bail system puts poor people behind bars faster and more often than their wealthier counterparts–and poor people are also disproportionately African American.

EXAMPLE 3. State education funding formulas in New York State give too much money to rich districts and not enough money to poor ones. That’s true because property taxes pay for education, and so the rich can help themselves first and most of all. It’s also true because state funding that makes up the difference is doled out unfairly. Politicized, per pupil funding doesn’t work. When the City school needs a new boiler so the kids have heat and the Fairport school needs nothing after the property taxes come in, but they both get funded by the State, that is income-based discrimination. Both property tax funding and unfair state funding formulas account for an income-based discrimination that looks precisely like segregation in Monroe County schools, which is undeniable.

See http://www.democratandchronicle.com/…/new-york-st…/89306728/

“Wealth-based” or “lack of income-based” discrimination goes much, much further than current discussions of “source of income” local legislation advocated by Adam McFadden and others. Instead of saying to landlords, “you can’t write No Section 8 in your advertisements for housing” legislation in the city AND the County forbidding “Lack of income” discrimination could give all of us the framework required to, frankly, deplete ALL the current mechanisms by which structural racism (in housing, criminal justice, education) currently hides and thrives.


You get to the picture of the baby, hurting.  He’s inconsolable, he’s existing straight through the worst of it the way kiddos do.

But you aren’t one, so you start to walk into the horror: A baby, skin burning from the inside out–napalm

you run away from the horror, retreating to safety and soft pretty syllables (Love Is.  Peace:  the only answer. NeverWar.

And then you hear his cry in your head so you trembling walk to the image of a baby, skin burning from the inside out—napalm– his arms shivering wildly, while

And again it is too goddamned difficult, you can’t breathe right, you run away with anger and you post about the only thing to do is go to war! And your indignation and

righteousness replace, thank God, the piercing image of a baby, skin burning from the inside out—napalm– his arms shivering wildly, while someone rubs a

 white counter-acting chemical on his arms and legs and chest. This is how you traumatically learn many, many times

the vision you could not bear to live to know, that one first time. You don’t have the gift of presence like a child, who does not have your gift,

to retreat, find safety, deny, trust universe, speak peace, know love, learn again, become indignant, become righteous,

(write poems) escape (O anguish, Never?) the moment of burning and the long slow heal– or the death

as that may be, of the baby.


Free speech and democracy


 This is a Brief of Whitney v. California, a 1925 case about the Free Speech of a Communist, Charlotte Whitney.  In later cases before the Supreme Court, the right of free speech would be strengthened more than the “imminent lawless action” test used on Charlotte Whitney Here, the mere idea that Charlotte Whitney’s speech advocated a clear and present danger, and that under the state Syndicates law by which she was convicted, her speech had a bad tendency to create an imminent lawless action, was found to be quite enough to uphold her conviction.  Free speech was valuable but Syndicacy was upheld, even though it outlawed mere advocacy of violence.  Nothing clear or present was required of the danger complained of in the law.

The Court would later require intent, imminence, and the likelihood the speech presented a clear and present danger, to overcome a guarantee of free speech. That, in fact, is the test we use today to determine if the speech ought to be protected.  

Justice Hugo Black would explain that stronger test in the Brandenburg v. Ohio case 395 U.S. 444 (1969).  The Whitney case of the 1920s, whose “bad tendency to create an imminent lawless action” free speech test was shored up in the 1960s, is interesting for three reasons, even though it hs been overruled  since 1969:

  1. The high-minded idealism described by Brandeis explains how free speech supports democracy
  2. The story of a Communist Labor Party leader who went to prison for politics in America is tragic and should not be forgotten
  3. The seeds of judicial activism evident here..it is an example of high minded ideals outlined that aren’t actually in the “black letters on parchment” and therefore Constitutionalists hate to see the Court use those ideals).

The issue was whether the communist, Charlotte Whitney, could be vindicated under the 14th Amendment substantive due process right of free speech, or was she criminally liable under the California Syndicalism statute?

The rule: the Fourteenth Amendment allowed the federal government to protect free speech unless the speech showed a “bad tendency to create an imminent lawless action.”

The explanation for the rule

The Court relied on what our forefathers intentions were in drafting the Constitution coupled with the values (the Founders held) themselves.  These noble ideals gave the Court their authority to uphold the value of free speech in a federal court.

Brandeis, in a concurring opinion of the Court, explained  those noble terms…..that is, why free speech was valuable to democracy:
“Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end, and as a means. They believed liberty to be the secret of happiness, and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government. [n2] They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.” Justice Brandeis concurring opinion in Whitney v. California, 274 U.S. 357, available at https://www.law.cornell.edu/supremecourt/text/274/357


Applying the rule:

The Court explained, that in the case of the Fourteenth Amendment exception (the clear and present danger test),

“Whenever the fundamental rights of free speech and assembly are alleged to have been invaded, it must remain open to a defendant to present the issue whether there actually did exist at the time a clear danger; whether the danger, if any, was imminent, and whether the evil apprehended was one so substantial as to justify the stringent restriction interposed by the legislature.”


But, the Supreme Court distinguished between the law and the application of the law.  They found a way to be distressed about the liberty interest– the guarantee of free speech– without actually freeing the Communist in the case.



Charlotte Whitney was later pardoned because of Brandeis’s concurring opinion (so don’t call it dicta!). The law against Syndicalism was not struck down.  Democracy continued to slump along.  The right to free speech is the thing that got stronger than Charlotte Whitney saw the blessing in….:  for, now, to foreclose an Americans right to free speech, that speech most be proven to be intended to present a clear and present danger that is imminent and likely to occur.


Post script

The devil’s in the details…

Whitney’s communism was maybe why it took the Court so long to get serious about the test they used to judge when to set down the First Amendment right, and when to keep it as a free pass.  The Brandenberg Test that overruled Whitney v California in the 1960s, (which finally required intent, imminence, and likelihood to present a clear and present danger) offered so much more protection to people who want to speak their mind and their political speech is perhaps frightening and distasteful for most.

Brandenberg v. Ohio was written in the context of a member of the KKK, Clarence Brandenberg, who had been convicted for Syndicalism, the same crime Charlotte Whitney went to prison for. Brandenburg v. Ohio 395 U.S. 444 (1969), but this time, in the context of speech opposing Blacks and Jews.

Interestingly, and maybe it is just the kind of sin that the world gives a man a chance to atone for later, Justice Black, the civil libertarian and absolutist First Amendment Justice who wrote the Brandenberg opinion that gave such broad new protection to First Amendment speech, had briefly been a member of the KKK. (see http://www.pulitzer.org/prize-winners-by-year/1938 for a list of Pulitzer Prize winners, one of whom was Ray Spriegle for his series about Hugo Black in the Ku Klux Klan. Maybe Justice Black was sympathetic and free speech was along for the ride…or maybe he saw his chance for redemption.


Trump and the Death of Democracy

I have focused on the sexism, racism, homophobia, and xenophobia that is deeply and expressly embedded in Trump’s rhetoric, and the bias he tuned into, in many supporters, to become elected. This morning I have read the wise words of Michael Lerner, a rabbi, who I’ll paraphrase this way: The Trump supporters really are disgusted, fed up, angry. . . they keyed into THAT part of Trump’s message, rather than where he pointed the finger. They are fueled by the pain of believing we live in a meritocracy. (see <a href="http://“>THIS ARTICLE in the NY Times)

Trump supporters who belive in meritocracy mythology believe if one works hard and is smart, one is rewarded accordingly, if only the government would stop getting in the way of that ideal. So, they play by the (extensive) rules– they always did–and they have seen, in response, their income is less, their debt is high, and politicians have sold them out. They are losing bigly in this country. Trump may be sexist, racist, homophobic, and xenophobic, but at least he seemed to understand WHY that message of hate was halfway palatable to some of them. What fueled the howling anger at the liberal elitist DC politics as usual was not hatred of the Other. It was a dream of a fair shot denied, and if the “Other” (the vulnerable and weak) were taking the brunt of the blame, that was unfair. But at least someone was pissed alongside them.

My solidarity with my shaken friends prompts my own fury in the days after the election. But I understand already that my tormented rage does not do me, personally, any favors. I have alienated my friends, family, and co-workers. I am risking my reputation for respectful debate. Yet I am being as moral as I can.

To that end, and by means I can live with, today I begin a journey of understanding democracy better.

The rhetoric Trump used that runs counter to democratic values.

On the First Amendment right to free press: Twitter statement to The Wall Street Journal: ‘They better be careful or I will unleash big time on them’

On the First Amendment right to freedom of religion:
Trump told Fox News that the U.S. government should close mosques where “some bad things are happening.” He said, “Nobody wants to say this and nobody wants to shut down religious institutions or anything, but you know, you understand it. A lot of people understand it. We’re going to have no choice. Some really bad things are happening.”

On the Fourth Amendment right to freedom from unreasonable search and seizure and the Fourteenth Amendment due process guarantee (against, for example, racial profiling by police)
“Our local police — they know who a lot of these people are. They are afraid to do anything about it because they don’t want to be accused of profiling,” Trump said on Fox News on Monday. Trump pointed to how Israel used profiling and “done an unbelievable job.”

On the Free Exercise and Establishment Clauses of the First Amendment, and the Fourteenth Amendment’s Equal Protection Clause, which forbids states from treating individuals differently based on unalterable characteristics, such as race, nationality, and gender. The Supreme Court has imposed the same obligation on the federal government through the Fifth Amendment:
Trump promises ‘A total and complete shutdown of Muslims entering the United States’ .

On the Eighth Amendment prohibition against cruel and unusual punishment and The Geneva Convention global illegality of torture:
“We’re fighting a very politically correct war,” he said “and the other thing is with the terrorists: You have to take out their families.”).

‘I’d bring back a hell of a lot worse than waterboarding’

On free elections (accepting election result) “I would like to promise and pledge to all of my voters and supporters and to all of the people of the United States that I will totally accept the results of this great and historic presidential election,” Trump said, adding, “If I win.”

Trump’s rhetoric runs counter to democracy because it showcases a total disregard for the Constitution…not merely those parts of it rendered possible through a “living document” judicial activism ideology, but even those parts of the Bill of Rights that Originalists also claim as literal to the document. The democratic ideals enshrined there are at stake in the next four years. Trump’s ascendancy was like finding out your country has a terrible illness. It is a time to learn, to study the underpinnings of democracy, and to use everything learned in the fight against the death of democracy.

1. FN1

2. FN2

4. FN4


6. FN6
7. FN7

8. FN8

Judges in Monroe County, New York (7th Judicial District)


If you click on the picture, you should be able to enlarge it and scroll through the data collected.

The table shows when judges in the 7th judicial department are up for re-election (Monroe County and surrounding area, Rochester NY proper included). I made a note of relevant information about each. At the top of the table, you can see the three people running this year; the Republican candidate has a website, but the other two (Democrat and Working Party), well; crickets.

Every candidate in red is Republican.

People who are not chosen by their Party, cannot get on the ticket for election. Some people find that unfair. But the Supreme Court unanimously held in 2008 in Board of Elections v Lopez Torres that people running do not have the right to a “fair shot” at doing so.

See https://www.law.cornell.edu/supct/html/06-766.ZS.html at (c)

So, while this table showcases that when a party supports a candidate, they then have a chance to win the election; it more clearly showcases that in Monroe County, running as anything other than Republican is a waste of time.

Still, I persist in pretending that there exists here a democracy nurtured by an informed public in the political process. The media has decided to focus on a freak show contest between grotesque choices; one clearly worse than the other, but both terrible. In the meantime, I present to you your local judicial information.

This is a starting point; you are likely young and better at the internet than me. Get to it.

The secret of liberty

Children are safeguarding my ability to write this.  They went to jail for me, for you, for Blacks in particular but for all Americans generally.  “Black Lives Matter” was what they conveyed. It wasn’t just a slogan.  It was an action.  Their presence in the street, disrupting business as usual and changing the conversation, spoke symbolically for them: BLACK LIVES MATTER.

Their pure speech (sitting down in the street, blocking traffic, symbolically saying “Black Lives Matter”) was shut down by the system which took it sensitively to heart as if the criminal justice system were a tender orchid.  This happened on July 8, 2016 in Rochester New York.

William Brandeis wrote of the founding fathers, “They believed liberty to be the secret of happiness and courage to be the secret of liberty.” Whitney v. California, 274 U. S. 357 (1927).

The protesters in the Black Lives Matter movement know about courage.  Courage is when you take to the streets, are faced with an occupying police force in riot gear and carrying all the weapons, and you cheer each other with hugs and song and chants and refuse any internal flight-or-fight instinct to break shit in response.  None of the protesters destroyed anything.  They lobbed… political speech… at East Ave and Alexander:  Black Lives Matter!

How dare they, right?  Blue lives, all lives, that whole thing.  Everyone matters!

I had a dream my daughter got killed by a crane.  It was parked in the middle of the street, and she was confused, and stayed in the street just a little too long.  In the dream, the crane picked her up and smashed her against the ground.  I woke crying.  I wondered if that’s what it’s like to have a Black child, to want to protect him from the system, but knowing the system, cold, powerful, not even mean!… not necessarily mean, but maybe just is what it is, a machine that picks things up and smashes them, and knowing my black child would have to be fucking nimble to avoid getting smashed by this system, right in the street.   So when I hear people say, Blue Lives Matter, I think, they are saying, essentially, “Crane Drivers Matter!”  Well, yes.  Everyone matters.  People matter one and all.  We were created equally. But you know, cranes themselves?  The system?  It does not matter, to me, the way people do.  It is liable to non-human, systemically-intentional error.  And system drivers are sometimes, at some point or other, complicit.  They do not, I reiterate, need to be cruel, or terrible, in order to be complicit.  They can be kind, helpful, alert, vigilant, guardians who come to help when no one else will.   They are nice people!  Complicit nice people.

They are not, however, tender orchids in the hothouse of the world.  They can take complaints.  Their shoulders are broader than the tender orchid battalion would have you believe.

They should be able to see that BLACK LIVES MATTER is not oppositional to blue lives or white lives or all lives.  The opposite statement is: black lives don’t matter.

Today I represented a protester, because I believe in free speech, not only abstractly, but specifically.  But abstractly too, for real; it requires people pushing the boundary. Do you really only want the freedom to talk on the sidewalk without a permit?  Tell me more of piecemeal democracy parceled out that you accept submissively, is it nice there?  Never mind, let’s get back to America.

Free speech is a protected civil liberty by the First Amendment to the U.S. Constitution.

Symbolic speech is protected, too.  “Pure speech” was upheld in a case called Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).  That case was about children upholding our liberty as well: John F. Tinker (15 years old), his siblings Mary Beth Tinker (13 years old), Hope Tinker (11 years old), and Paul Tinker (8 years old), along with their friend Christopher Eckhardt (16 years old) decided to wear black armbands to their schools in protest of the Vietnam War and supporting the Christmas Truce called for by Senator Robert F. Kennedy.  The armbands were not “words” nor chants nor slogans.  They were symbols of political speech.   The pure speech, even though it was seen as radical and volatile at that time, was upheld by the Supreme Court.
The protesters who sat, speaking their political speech: BLACK LIVES MATTER; were arrested or given appearance tickets, 74 people in all, many of them, most it seemed, under twenty-five.

The children were dumped into the system, and it spit out many of them fairly quickly.  They were given Adjournments in Contemplation of Dismissal, most of them, and turnstile treatment gave them little chance to complain at what had happened, or to speak up for what they felt was grossly unfair.  Neither did the legal system give them creative outlet for their message.  ACDs are not a bad outcome; generally, it is nearly always an excellent idea to get a client out of the criminal justice system as quickly as humanly possible. Because the judge, the DA, the clerks, the court stenographer, the courtroom officers, the police, the bailiff, ALL of them, are all part of the crane.  This is what Black people and their accomplice/allies are told to turn to for justice; to the very thing they are complaining about.

Such complaining takes courage.  Courage, the secret of liberty, belongs to the Black Lives Matter movement.  I am curious and hopeful to learn what they do next.

No one cares how gross Trumpillary is

One will be President

One will choose all the wrong Supreme Court justices

One will go to war

One will build a wall

One will imprison the poor

Both will embolden the rich

Both will pave the Earth

in blacktop–waves of heat slither up– meanwhile tap

the veins of oil like junkies

left to squeeze the last of good veins

from your neck– tie off with a belt–

no more tidy junkie lines along the calf muscle

of the Planet in a neat row– hidden

under Her nurse’s scrubs

Both will hurt you good–and you will listen rather

to the shrill Rilly Big Shew–

baby sister, you will buy the subscription– ReadThisBlog!–

and it doesn’t matter more than a cd skip

You?–peaceful, minding your business, you care intensely

shatteringly close to the soul

for your neighbor– and it doesn’t make you

free– Why would you or I be spared?






Scalia is not [not a racist D-Bag] The null hypothesis investigation of the transcript of Fisher v. University of Texas at Austin

  1. The media and the politicians are calling out Justice Scalia on his racism.  See, for example, http://www.cbsnews.com/news/top-democrats-bash-scalias-affirmative-action-comments-as-racist/ or http://www.latimes.com/local/education/la-na-black-ut-students-20151213-story.html.
  2. I tried the null hypothesis on this one.  My hypothethical was:  “Justice Scalia is NOT a racist d-bag” and read the transcript of the oral arguments of Fisher v University of Texas at Austin, a case about affirmative action.  Most of the media and some politicians decried Scalia’s comments as blatantly racist.
  3. At first, I was troubled to realize that contrary to the media attacks, the population discussed in the transcript is NOT all black students, and it is NOT EVEN ALL students (black and white) drawn from the top ten percent of their high school classes.  Here is the description:

PETITIONER said, “There is a significant portion of the admissions pool, all out-of-state students, all students from Texas high schools that don’t rank, some of the best high schools in the State, and all students just below the top 10 percent who are nevertheless great students who aren’t eligible for admission under the top 10 percent at all. And the Fifth Circuit found that without the consideration of race in the mix for those students, admissions would approach an all-white enterprise.” (At page 39 of the transcript. See http://www.supremecourt.gov/oral_arguments/argument_transcripts/14-981_p8k0.pdf)

  1. Scalia doesn’t say the thing the media was up in arms about until page 66. Yet it is possible to construe the context of his comments as being about that portion of attendees who did not graduate in the top ten percent of their class in high school.  If he’s only talking about the lower scoring kids, isn’t Justice Scalia a little less racist than the media has portrayed?    Is it racist to say lower scoring kids will do better at lower ranked schools?
  2. What was the exact context of what Scalia had to say?
    1. The Respondent was re-capping what would happen if the affirmative action program was dismantled. The affirmative action program at the University of Texas is a two-part deal:  it allows the top ten percent of graduating seniors an automatic spot at University of Texas, AND it also uses a holistic program that considers race among many factors, in order to achieve a critical mass of diversity at the school.  Without the “PLUS holistic review,” it is unquestionable that black student enrollment goes way down. Respondent explained to the Justices,
    2. What — what I’d like to say too is, if this Court rules that University of Texas can’t consider race, or if it rules that universities that consider race have to die a death of a thousand cuts for doing so, we know exactly what’s going to happen. Experience tells us that. ..this happened at the University of Texas after the Hopwood case:  Diversity plummeted, especially among African-Americans. Diversity plummeted at selective institutions in California, Berkeley, and UCLA, after Prop 209.  And that is exactly what’s taking place today at the University of Michigan. Now is not the time, and this is certainly not the case–
      1. Then JUSTICE SCALIA began to say the thing the media (and many of you) have protested was racist,
      2. “There are –there are those who contend that it does not benefit African-Americans to –to get them into the University of Texas where they do not do well, as opposed to having  them go to a less-advanced school, a less –a slower-track school where they do well. ..”   
        1. In his defense, Scalia says “African Americans” but the Respondent had JUST said, “Diversity plummeted, especially along African Americans”… It is still possible here that the hypothesis, [Scalia is not a racist d-bag] holds up. That’s because he was responding to a comment specifying African Americans, not bringing them up out of nowhere.  And the larger context, admittedly 30 pages back in the transcript, was that this conversation was not about ALL African Americans and not even about ALL African Americans admitted to University of Texas, but ONLY about African Americans admitted to U Texas SUPPLEMENTING the process of admits from the top ten percent of a high school graduating class (At the Texas school, the Top 10 percent automatically get in, race-blind, whether they are black or white or something else.). The comment could have been concerning ONLY the kids who may have graduated near, but not quite IN, the top ten percent of their high school classes, and who were also black.  This may be a stretch, but I am agreeing with a friend who said the liberal Shrill Mill went too far and took Scalia’s words out of context. Scalia is either [not a racist d-bag] if he meant this select lower-scoring group of African Americans or he is not [not a racist d-bag] if he meant every African American, everywhere.
      3. More clues are needed to resolve this.
        1. Scalia continued,
        2. “One of –one of the briefs pointed out that –that most of the–most of the black scientists in this country don’t come from schools like the University of Texas.
        3. Blech.  What a gross sentence.  When I replaced it with “female” to better understand how it must feel to read if it was about my “group” I felt the pain of the Texas kids a tiny little bit.
        4. “Maybe,” I mumbled to myself, “He means, ‘Schools like the University of Texas’ are profoundly white, not very diverse…? Maybe he means “really white schools like this” are not intellectually nurturing for most black scientists?’”
        5. JUSTICE SCALIA: They come from lesser 21 schools where they do not feel that they’re– that they’re being pushed ahead in–in classes that are too– too fast for them.
        6. Ah.  He meant “better.” He meant schools that are too tough for the holistic review kids who did not graduate in the top ten percent of their high school.  You know that moment in the Indiana Jones movie when the cavern pillars start to crumble?https://www.youtube.com/watch?v=Pr-8AP0To4k&feature=youtu.be&t=37
        7. That’s the sound of my null hypothesis.
      4. Scalia continues to show that the null hypothesis is disproved.…
        1. JUSTICE SCALIA: I’m just not impressed by the fact that– that the University of Texas may have fewer.  Maybe it ought to have fewer.  And maybe some – you know, when you take more, the number of blacks, really competent blacks admitted to lesser schools, turns out to be less.  And — and I –I don’t think it –it — it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible.  I just don’t think-

”(Aside…Weird how in his most blatantly racist moment though, he starts using the word “black”, rather than the Formal White Person Word “African-American.”)

  1. Wait… hold the phone. “…The number of really competent blacks admitted to lesser schools turns out to be less…”? WE’RE TALKING ABOUT the BLACK kids that did NOT fall into the top ten percent of their class but were admitted holistically, including race as a factor…. So…here, “competence” is being measured holistically.  And Scalia STILL thinks there is a limited number of these kids to go around?  For fuck’s racist D-bag’s sake. 
  1. Let’s review:
    1. Scalia was probably speaking about blacks who did not do as well in high school when he said having “them” go to a less advanced school. (Not racist)
    2. He said “most black scientists don’t come from schools like this” and made it clear he meant tougher schools. (Could this fact, even if true, be somehow contextually meaningful without implying separate but equal and being racist? Saying “yes” requires a somersault I’m not flexible enough to do.  In other words, no, probably not.  Probably racist.)
    3. Scalia said “YOU KNOW, WHEN YOU TAKE MORE, THE NUMBER OF BLACKS, REALLY COMPETENT BLACKS ADMITTED TO LESSER SCHOOLS, TURNS OUT TO BE LESS.” Recall he was probably speaking about black students who did not do “top ten percent” well in high school. His measure of “competence” is therefore a holistic measuring stick, not a score, yet he still thinks that there is a small, limited number of holistically measured black high school students to go around, and University of Texas, by increasing diversity, is hogging them all.  (Racist.  Really racist.)
    4. Conclusion: Scalia is not [not a racist d-bag.]



check engine light romance

Gray mascara on the sky

over Monroe Avenue, the artery of this town.

When I pull up to the drive-thru at McDonalds

I switch Tom Waits for 98PXY. A lot of advertisements happen. It’s Huuuuge.

Hey, Anthony, I text, Meet me at the train

Past Scio. Sigh-oh. I whisper. I look like a mark in this coat.

Rochester is pretty yet so

common like a starling (Kodak photo fixer,

years dead, pooled in the river)  and I know it’s only fifteen minutes big.

Who doesn’t have a fine from the stoplight cameras,

a Lucky7 scratch-off dollar win (the smudgy pink and green one)?

Who else is kneeling with a temp-work prayer? They’re deep, the prayers.

They lead to a blessed life. Kiss the knuckle

of your hand when you say it; cross the air.

But it’s what they call a service-rich place

to end up down inside. HomelessKelly tells me “Sky for free.”

Also, copper’s at a premium, and social workers

paid to help even at the library downtown.   I stress the engine light;

it blinks twice a week, neither of us

frozen into (arsenic) acceptance, the gentle killer kind.

I tap the steering wheel, gently, say Claudia, c’mon now

Baby, shhh.  Next to a garage on Richland in the South Wedge,

She hangs her clothes in the birch trees.