Just when you think you’ve heard the last politically correct, holier-than-thou pronouncement coming out of our university campuses for a while, you open the morning’s newspaper and find more inanities. This morning’s two-minutes-outrage is a rant from campus professors, researchers and administrators criticizing Big Tobacco for giving – and universities for accepting – no-strings-attached grants for health-related research at Boston University, Harvard University, the Massachusetts Institute of technology, and the University of Massachusetts. 

“Taking money from the tobacco industry to conduct scientific research is like the DA taking money from the Mafia to conduct investigations of crime,” Gregory Connolly, a prof at Harvard School of Public Health, is quoted by the Boston Globe as saying. Connolly may be an expert in his field, but he clearly is ill-informed about how the government funds its anti-Mafia investigations. In fact, state and local prosecutors rely on mob and other criminal money, collected through the asset forfeiture programs enacted in many jurisdictions, to run those investigations and otherwise fund law enforcement offices. Private ill-gotten gains are thus redirected into the law enforcement coffer, then subsequently turned around and aimed back at the criminal syndicates.

Of course, Mafia kingpins aren’t being generous or philanthropic when they “fund” activities that are clearly against their own self-interests through this process. By contrast, the Globe article shows that Big Tobacco is actually voluntarily forking over big bucks for health-related research – especially into those diseases that the companies’ products help cause in the first place. There’s a certain justice to this, no? Besides, what would Professor Connolly prefer Philip Morris do with the money instead of donating it to universities – add to its tobacco advertising budget?

Dr. Michael Siegel of B.U.’s School of Public Health fears that the tobacco companies will be “using the good name” of the various academic institutions. Isn’t that what virtually all donors are trying to do – and does Dr. Siegel propose that our colleges and universities do morality checks before accepting money from donors, much less before naming classrooms or even whole buildings after them? One can barely imagine how lists of alumni and other donors would quickly shrink. And, besides, whose test of morality would apply – Dr. Siegel’s?

One of the rare voices of sanity to come through this morass of pious bleating is that of researcher Rami Tzafriri of MIT. He defends his use of tobacco money “that does not compromise my independence.” It’s no coincidence, perhaps, that such sanity and honesty emanate from MIT, an institution still devoted to rational thought rather than to the latest intellectual and pseudo-political fashions of the day. (That’s why speech is freer at MIT than at most other academic institutions plagued by speech codes, but that’s a column for another day.) Academics at MIT are secure enough in their own professional scruples to understand that the source of their funds will not (at least in the case of no-strings-attached grants) compromise the methodologies or outcomes of their research. What does it say about the integrity of other schools’ faculties when professors start wringing their hands self-consciously, worrying about interference with research?

This interscholastic debate parallels a similar contretemps which broke out in the 1990’s at the American Civil Liberties Union (ACLU). By that time the organization was experiencing severe tensions between, on the one hand, true-believer civil libertarians, and, on the other, those who wanted to turn the venerable organization into a “progressive” political group that would carry forward a political program rather than focus on free speech and other such liberty issues. (Such politicization would devastate the organization’s credibility as an honest broker for liberty. In fact, this battle continues today.) Then Executive Director Ira Glasser defended the group’s acceptance of no-strings-attached grants from Philip Morris and R.J. Reynolds. Morton Mintz strongly criticized Glasser in a series of reports and articles, including a Nieman Report (PDF) and an article in The Progressive. One did not have to be cynical to realize why Big Tobacco would support the ACLU – the companies were dependent on the nation’s tradition of allowing people to harm themselves if they really want do, as well as on the free speech arguments in favor of “commercial speech” (read: tobacco advertising). But as long as the ACLU was in control of how the money was spent, Glasser rightly refused to knuckle under to the PC crowd.

Hey – if the universities decide to do investigations of the good moral character of their donors as well as the ways in which they made their fortunes, I’d like to volunteer to be on that committee. I can probably get material for a few truly awesome columns, if not a screenplay or two.

                                                                    Harvey Silverglate

"If the rap song is bad enough to cause [teenaged rapper Christopher] Holder's arrest, why is it not bad enough to cause the arrest of the guy who made the recording? ... I say ... Book 'em, Dano. Book 'em all."

It sounds like Gibson supports the underlying law that got Holder in trouble (and would be used against other rappers in his professed ideal universe), though he doesn't explain why. Maybe it's simple syllogistic logic: Gibson thinks the speech was offensive, and offensive speech should be banned. But some people evidently find John Gibson offensive, as when he mocked actor Heath Ledger's death with homophobic jokes on the air. Under Gibson's framework, shouldn't Dano book him, too?

         “Ducking for cover,” roared the headline on page 3 of the May 1st Boston Herald.  It would have been an appropriate headline for a story on the state of daily life in Baghdad, where a slew of recent bombings claimed the lives of more than 1,600 Iraqi civilians. Instead, the headline refers to the dozens of disgraced D.C. lawmakers, administrators, power-brokers, and perhaps even ordinary bureaucrats who might be forced to resign now that previously convicted madam Jeanne Palfrey, apparently as part of her defense to federal prostitution charges, has turned her client list over to ABC News.

         Millions of viewers are expected to tune into ABC on Friday to watch Palfrey name her clients in a much-hyped “Dateline” interview. One is reminded of those ancient orgies of public shaming when crowds would gather at the public square to watch a caning, whipping, or hanging for some offense against public decency and morals. Ignore for a moment the inherent national embarrassment in the fact that what is essentially a non-story (is anyone surprised that some Capital Hill denizens engage in occasional extramarital peccadilloes?) has eclipsed the growing international instability and the death toll in Iraq as the top news story in the country. Even more troublesome is the fact that the “DC Madam” scandal may lead to the forced resignations of some of the country’s more capable business and political leaders.

The affair has already prompted its first resignation: Ambassador Randall L. Tobias, who reported to Secretary of State Condoleezza Rice as Director of U.S. Foreign Assistance, who insists that he only used the agency for an occasional massage – no sex involved. Tobias is married, making his situation particularly damning in the holier-than-thou Bush administration.

By most accounts, Tobias was more than just a cut above the usual Bush Administration hack. He earned considerable respect as a corporate leader, helping turn around AT&T International in the 1990s before becoming a top executive at Eli Lilly and Co. during a time of unprecedented innovation and growth. He has won numerous humanitarian awards and honorary degrees for his second career as a central figure in AIDS awareness circles. His nonprofit, The Randall L. Tobias Foundation at Indiana University, has distributed over $10 million in grants and charitable gifts to education-related organizations and institutions since 1994. Given the dearth of real talent in the Bush Administration, one should not be filled with glee at the fall of one of the better ones.

I am reminded of an earlier reprise of the age-old conflict between America’s Puritan heritage and the biological realities of real life. When I was a college student in the 1960s during the Cold War, some sex scandal would periodically break out somewhere in the Foreign Service. One year it was a series of American ambassadors and other diplomats serving abroad in Iron Curtain nations who were discovered to be involved in sexual liaisons with Eastern Bloc women suspected of working for one or another Communist intelligence service; they were all recalled and fired. The following year an American embassy official was found in a liaison with a local male suspected of being an agent; this official, too, was dismissed from the Foreign Service.

At this point, James Wechsler, the legendary editorial-page editor of The New York Post, at the time a journalistic bastion of traditional liberalism owned by the family of Dorothy Schiff (1903-1989), wrote a commentary that claimed that the State Department’s foreign service was in a crisis. The year before, the department fired a slew of heterosexual ambassadors. The following year, he noted, they began going after the homosexuals. Pretty soon, Wechsler concluded, the State Department will run out of enough eunuchs to fill all of our ambassadorial posts.

Sex endures, while history does indeed repeat itself.

By Wendy Kaminer

“A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”1939 ruling

These are among the most disputed words in the U.S. Constitution. People who support gun control, or prohibition, generally argue that the Second Amendment conditions the right to bear arms on service in a state militia, merely establishing a “collective” right.  They focus on the prefatory phrase:  “A well-regulated militia being necessary to the preservation of a free state…” Opponents of gun control, or prohibition, argue that the Second Amendment, like other provisions in the Bill of Rights, guarantees an individual right – the right to bear arms independent of service in a militia.  They argue that the prefatory reference to state militias offers a reason for securing the right to bear arms, not a condition for exercising it.   (I’ve addressed this debate at some length here and here.

The Supreme Court has never clearly ruled on this collective vs. individual rights debate, but it may soon get the chance.  (The Court’s previous ruling, on the Second Amendment, U.S. v Miller, is about as open to interpretation as the Amendment itself.)  On March 9^th the U.S. Court of Appeals for the District of Columbia issued a ruling long sought by libertarians and other advocates of individual gun rights, and long feared by advocates of stringent gun control.  With one dissent, a three judge panel ruled that the Second Amendment does indeed confer an individual right to keep and bear arms, striking down the District of Columbia’s virtual ban on gun ownership, which extended even to guns kept in the home for self-defense.

 Writing for the majority, Judge Laurence Silberman reviewed the scholarly debate about the Founder’s intent and the meaning of the Second Amendment today. As Judge Silberman observed, if the right to bear arms was intentionally conditioned on militia service, if its sole purpose was insuring the survival of state militias as checks on federal power, then it is essentially “dead letter” today -- as opponents of gun rights like to believe. 

Indeed, for many years the Second Amendment was an effective anachronism; it may have been the favorite constitutional provision of right-leaning scholars and NRA members, but it was generally slighted by legal scholars and the courts, as well as most liberal civil libertarians.  The ACLU has long treated the Second Amendment as an irrelevancy, siding with proponents of strict gun control who insist that the Constitution establishes only a collective right to bear arms in a state militia.  (ACLU policy provides, in part, that “the individual’s right to bear arms applies only to the preservation or efficiency of a well-regulated militia.  Except for lawful police and military purposes, the weapons by individuals are not constitutionally protected.”)

This “collective rights” position lost some legitimacy in recent years, however, even among liberals.  In 1989, University of Texas law professor Sanford Levinson revitalized the gun rights debate with an influential law review article “The Embarrassing Second Amendment.”  Levinson, a liberal, “card-carrying” ACLU member, challenged the orthodox liberal view of the Second Amendment as a guarantee of effectively defunct, collective rights.  This was not “a wholly implausible reading,” Levinson observed; but “one might ask why the Framers did not simply say something like ‘Congress shall have no power to prohibit state-organized and directed militias.’” 

The most compelling argument in favor of individual gun rights is contextual:  The Bill of Rights protects individuals from abuses of government power, framing some freedoms as fundamental and inviolate: the right to assemble, the right to speak, the right to keep law enforcement from invading your home without a warrant, and fair trials rights, (among others) are all conferred upon individuals.  Or so the ACLU would argue – except when the right to own a gun is at issue.  Years ago I was unable to persuade the ACLU of Massachusetts merely to establish a committee to consider the nature of Second Amendment rights.

The opposition of liberal civil libertarians to individual gun rights may reflect some ideological inconsistency, but it’s not hard to understand culturally or politically.  Liberals tend to treat gun rights the way social issue conservatives treat the right to read pornography.   They tend not to empathize with the visceral sense of gun owners that the right to bear arms is an essential component of individual autonomy.  Instead, they regard gun rights as insuperable obstacles to gun control.

That is an arguably faulty assumption, reflecting the stereotypical view of gun owners as phallo-centric maniacs irrevocably opposed to gun regulations.  Some advocates of gun rights argue that acknowledging a basic, individual right to bear arms would actually ease opposition to measured gun control – which many gun owners now regard (not unreasonably) as incremental steps toward prohibition.   Given the sorry history of efforts to prohibit conduct in which millions of Americans indulge, advocates of regulating guns might consider the recognition of Second Amendment rights by the Court of Appeals less a setback than an opportunity.

         Harvey chides me for “glossing over” the “rights” of parents who sued the Lexington school district for exposing their elementary kids to sympathetic books about gay families. They lost their case in federal court, when Judge Wolf dismissed their federal constitutional claims and their claims under state law. As Harvey notes, the parents are free nonetheless to press their state law claims in state courts: these claims were dismissed without prejudice –- not because this is a hard case, as Harvey suggests -- but because state courts are the appropriate arbiters of novel state statutory claims. Judge Wolf also suggested that disagreements between individual parents and their communities over controversial public school curricula would be best resolved by the political process, (or mediation) not the courts.

         What are the statutory rights of parents in this case? As Judge Wolf observed, Massachusetts law provides an opt out for parents who do not want their kids exposed to sex ed in the public schools: They must be given prior notice and a chance to exempt their children from curriculum that “primarily involves human sexual education or human sexuality.” Harvey thinks that a book portraying a married, same-sex couple sympathetically might well fall into this category of “human sexual education.” I disagree, but it’s sweet that he still associates marriage with sex.

           Wendy Kaminer too readily glosses over the rights of the parents who lost their case against the Lexington school authorities in early March when United States District Judge Mark L. Wolf dismissed their complaint seeking to exempt their elementary school children from a curriculum promoting tolerance of homosexuality in general and same-sex marriage in particular.

            Judge Wolf was correct in dismissing the lawsuit on the ground that the program did not interfere with the parents’ freedom, under the First Amendment’s religious liberty clause, to supervise their children’s religious education. It may be true, as Judge Wolf observed, that the parents’ religion contains an injunction against gay sex and same-sex marriage, but since tolerance of gay sex and marriage is the official policy of Massachusetts such education must be seen as the kind of civic education that has been the province of schools throughout the ages. Wolf, a judge more literate than most, quoted Ralph Waldo Emerson’s journal: “I pay the school master, but ‘tis the school boys that educate my son.”

            But there was another half of the case that Judge Wolf did not decide and that Kaminer ignores. He told the parents to take it to the state courts because it involved the interpretation of a state statute. That statute, while it does not give a parent a right to veto portions of the state-mandated curriculum promoting same-sex conduct and marriage or any other controversial social or civic topic, does take the step – even though not required to do so by the Constitution – of requiring that parents be given notice and an opportunity to exempt their children from any curriculum that “primarily involves human sexual education or human sexuality issues.”

That statute may very well have given the parents a right to keep their kids out of that particular class. In this case, however, the Lexington school authorities did not notify the parents, because they took the dubious position that giving young children books about gay family life (in one book, King and King, two royals of the same gender married, kissed in the accompanying illustration, and lived happily ever after). Judge Wolf decided that, while the First Amendment did not give the parents the right to keep their children out of that particular class, the state courts should decide whether the statute gave the parents the right to be notified in advance and to keep their kids home. The Lexington school authorities, remarkably, took the position that classes on gay family life do not involve “human sexual education or human sexuality issues” and that they therefore were not required to give parental notice and an opportunity to skip the class.

The school authorities’ disregard for the statute is, at the very least, a highly debatable proposition. Put the shoe on the other foot: If the Lexington School Committee were controlled by a “traditional family values” majority that insisted on a class very different from the “diversity education” currently taught in Lexington, wouldn’t pro-gay rights parents want advance notice and an opportunity either to keep their kids home or to explain to the kids that they were being exposed to attitudinal education (which some might call indoctrination or even thought reform) that conflicts with their upbringing?

It’s not quite the easy case that my friend Wendy Kaminer makes it seem. It we are truly interested in tolerance, we need to extend it even to those people we view as intolerant. That’s what life in a truly diverse society requires.

         Last month, the religious right lost a local skirmish in the culture war when federal district court Judge Mark Wolf ruled that Lexington school officials did not violate the Constitution by distributing two books about gay families in a Lexington elementary school.  Wolf dismissed a case brought by 4 parents who regard homosexuality as sinful and argued that the effort to teach tolerance and respect for gay people and families interfered with their First Amendment rights to raise their children according to their own religious beliefs.  

         The offended parents had common sense as well as legal precedent against them: it’s hard to imagine how the public schools might function if every parent had a constitutional right to preview every book distributed to their children.  Parents have other options, as Judge Wolf, observed: they can seek political, not judicial solutions, by lobbying or trying to elect sympathetic school committees; they can enroll their kids in private religious schools or home school them.  

         Taking your child out of the public school system is a constitutional right.  Requiring public schools to teach your sectarian religious beliefs is an unconstitutional power.  That’s the implicit and essential lesson of Parker v Hurley.  Advocates of official, public school prayer or the teaching of creationism or abstinence only sex ed, among other articles of faith, have cleverly used the language of religious rights to disguise their demands for religious power.   The prohibition on official school prayer, for example, has long been cast as a violation of the right to pray – as if it included the right to subject captive audiences to publicly broadcasted prayer.  Students have never lost the right to pray.  What they lack is the power to impose their prayers on others.  The Lexington parents have not lost the right to control the religious education of their children.   They simply haven’t gained the power to control the religious education of their community.