Thursday Tidbits 12/16/21 (remember that date)

Brevity is the soul of opacity

Although the parties’ briefs, the record on appeal, our caselaw, and even IDEA itself contain an alphabet soup of administrative acronyms, we will spell things out for the sake of clarity. E.g., 20 U.S.C. § 1414(d)(1)(A)(i) (referring to an “individualized education program” as an “IEP”); Appellants’ Br. (using no fewer than twenty-two unique initialisms); Appellee’s Br. (similar). Given their frequency and intelligibility, we nonetheless will continue to abbreviate IDEA and RISD.

For those who prefer acronymic efficiency, however, our holding is roughly as follows: RISD did not violate IDEA with respect to K.S. because, as the SEHOs correctly found at the DPHs: (1) the ARDC’s IEPs for K.S., which included PLAAFP statements, TEKS goals for K.S.’s grade level, various accommodations, and a transition plan, were appropriately individualized in light of K.S.’s SLD; and (2) no actionable violation resulted from wrongly excluding K.S. from the Sept. MDR, which reviewed K.S.’s prior FIEs, FBA consultations, his IIE, Ms. H.’s reports of K.S.’s ADHD (an OHI), TBI, and mood disorders, and concluded that K.S.’s SLD did not cause him to commit the assault for which he was assigned to DAEP. And, in sum, the D. Ct. did not err in holding that K.S. received a FAPE in the LRE in compliance with IDEA.

Footnote 2, Leigh v. Riesel Independent School District, 5th U.S. Circuit Court of Appeals, November 22, 2021. H/T Advisory Opinions podcast

Cloning S.B. 8

California Governor Gavin Newsom may need to wash some egg off his face after his preening announcement that he’s going to imitate Texas S.B. 8 but in the context of chilling gun sales:

In oral arguments last month, Justice Brett Kavanaugh asked Texas’ solicitor general if allowing S.B. 8 to stand would incentivize states to pass similar laws infringing upon other protected liberties. “It could be free speech rights, it could be free exercise of religion rights, it could be Second Amendment rights,” he said. “If this position is accepted here, the theory of the amicus brief is that it can be easily replicated in other states that disfavor other constitutional rights.”

That’s the theory that Newsom is now hoping to put to the test in California, but constitutional scholars warn that his proposed gun control legislation may not be analogous to what Texas did with abortion.

“I think the Court would treat similar legislation dealing with guns or free exercise or what have you the same way. … So there’s nothing about this unique to abortion,” said Will Baude, faculty director of the Constitutional Law Institute at the University of Chicago Law School. “That said, I don’t think Gavin Newsom … fully understands what S.B. 8 is and how it works. For it to work—at a minimum, for instance—he would have to eliminate the ability of the state to prosecute people for those assault weapons or ghost weapons and things like that. I don’t know that he really means that. My guess is nobody will actually try to replicate this law’s particulars because it’s pretty complicated how it works.”

“To replicate this law and its effects in other contexts, you’ve got to pretty much do almost everything the law does,” added Jonathan Adler, professor at Case Western Reserve University School of Law. “It’s not merely private enforcement, and it’s not merely retroactivity. You have to, for example, divest state officials of any authority to enforce the same law. There are a whole bunch of other things you’ve got to do. Is California willing to do all of those things with regard to guns or with regard to assault weapons or whatever? Maybe, maybe not.”

‌The Morning Dispatch: Newsom Vows to Model Gun Legislation on Texas Abortion law

The dumbest audience in America

Sean Hannity, radio host and off-the-books Donald Trump adviser, demands to know. After all, Hannity points out, there have been scores of riots, some of them deadly, over the past couple of years. Why fixate on that one?

Sean Hannity apparently believes that he has the dumbest audience in America.

The sacking of the Capitol on January 6 by a gang of enraged Trump acolytes acting on the president’s complaint that the election had been stolen from him is different from other riots because of its particular political character. Stealing Nikes is one thing, and stealing the presidency is another. Hannity knows this. Most of you know this.

But, apparently, some people need to have it explained to them.

Kevin D. Williamson

The Morning Dispatch is favorably impressed by both Williamson and Michael Brendan Dougherty:

There are a pair of pieces up at National Review about the recent January 6 Select Committee disclosures. First, Kevin Williamson makes the case that comparing January’s Capitol riot with the riots that subsumed American cities in the summer of 2020 is a false equivalence. “There were 21,570 homicides in the United States in 2020. If one of the victims had been the president of the United States, we would have made a pretty big deal about it,” he writes. “What has been clear to some of us for a long time—and what is becoming more difficult to deny every day—is that the events of January 6 were part of an attempted coup d’état. … A riot that is part of a coup d’état is not very much like a riot that is part of a coup de Target.” Second, Michael Brendan Dougherty looks at how right-wing narratives about that day have shifted over the past year. “In the months after January 6, the politically correct move for Trump’s cable-news apologists has been to ignore the fact that the people who set about ‘investigating’ the supposed vote fraud have turned up nothing of consequence or merit,” he writes. “But the riot at the Capitol happened because President Donald Trump simply lied, and lied, and lied. … Treating Trump like a baby whose feelings had to be coddled at the end resulted in Ashli Babbitt’s getting shot as she tried to break into Congress against a lawful order to desist. He could no more Stop the Steal than make Mexico pay for the wall. But, pay for his actions? Some people did.”

And Jonah Goldberg, recently resigned from Fox, lays it on:

A "law and order" conservatism that says, "As long as liberals fail to condemn thuggish violence for their side, we feel no obligation to condemn thuggish violence on our side," cares neither about law and order nor conservatism.

Desperate times call for desperate nonsense

The left’s argument this week is that adoption is so traumatic for a child, who bonds in utero with the mother, that abortion is a mercy. The idea that the fetus can bond with the mother in utero seems to make the implicit case against legal abortion but no matter. Last week, a New York Times piece written by an adoptee argued this: “Babies bond with their mothers in utero and become familiar with their behaviors. When their first caretaker is not the biological mother, they register the difference and the stress of it has lasting effects.” Interracial adoption is apparently especially problematic: smells of white colonization.

The other issue is that good progressives are having a hard time talking about abortion as a women’s rights issue, since men can and do become pregnant (remember, the phrase now is “pregnant people”). …

Nellie Bowles, ‌Abortion, Guns, and Other Polite Topics of Conversation

Bowles also mentions:

This week, Lia Thomas, who competed for years on the men’s swimming team before joining the women’s team, has broken several women’s swimming records and finished one race a full 38 seconds before her nearest rival.

The Turn(s)

[A]fter 225 long and fruitful years of this terminology, “right” and “left” are now empty categories, meaning little more than “the blue team” and “the green team” in your summer camp’s color war. You don’t get to be “against the rich” if the richest people in the country fund your party in order to preserve their government-sponsored monopolies. You are not “a supporter of free speech” if you oppose free speech for people who disagree with you. You are not “for the people” if you pit most of them against each other based on the color of their skin, or force them out of their jobs because of personal choices related to their bodies. You are not “serious about economic inequality” when you happily order from Amazon without caring much for the devastating impact your purchases have on the small businesses that increasingly are either subjugated by Jeff Bezos’ behemoth or crushed by it altogether. You are not “for science” if you refuse to consider hypotheses that don’t conform to your political convictions and then try to ban critical thought and inquiry from the internet. You are not an “anti-racist” if you label—and sort!—people by race. You are not “against conformism” when you scare people out of voicing dissenting opinions.

When “the left” becomes the party of wealthy elites and state security agencies who preach racial division, state censorship, contempt for ordinary citizens and for the U.S. Constitution, and telling people what to do and think at every turn, then that’s the side you are on, if you are “on the left”—those are the policies and beliefs you stand for and have to defend.

So look at the list of things supported by the left and ask yourself: Is that me? If the answer is yes, great. You’ve found a home. If the answer is no, don’t let yourself be defined by an empty word. Get out. And once you’re out, don’t let anyone else define you, either. Not being a left-wing racist or police state fan doesn’t make you a white supremacist or a Trump worshipper, either. Only small children, machines, and religious fanatics think in binaries.

Liel Leibovitz, ‌The Turn

We need people to abandon the right as well for its betrayal of conservative principle, and the Trump era has produced a bumper crop of them.

Now we need to figure out how to build a home for the politically homeless from both ends of the political spectrum.

(For what it’s worth, I keep stumbling onto good stuff at Tablet magazine. I may feel honor-bound to contribute if this keeps up.)

S’il n’y a pas de solution, c’est qu’il n’y pas de problèm

Two choristers tested positive between Monday’s Lessons and Carols rehearsal and Wednesday’s. Rehearsal cancelled.

Sunday’s performances? Who knows. Brings to mind this oldy:

(If there’s no solution, there’s no problem.)

The decade of ideological fantasy

The years 1991 and 2001 are commonly treated as breakpoints, markers that inaugurate distinctive chapters of history, the first labeled “Post-Cold War,” the second “Post-9/11.” Yet there is a strong case to be made for amalgamating the two decades into a single period: call it the “era of ideological fantasy,” when U.S. self-regard and Washington’s confidence in its ability to remake the world in America’s image reached unprecedented heights.

Bacevich, Weyrich, Lind et al, The Essence of Conservatism

Not at all sure I agree (but then I wouldn’t be, would I?)

The characteristic feature of the loser is to bemoan, in general terms, mankind’s flaws, biases, contradictions, and irrationality-without exploiting them for fun and profit.

Nassim Nicholas Taleb, The Bed of Procrustes.

How would I monetize flaws, biases, contradictions, and irrationality? Rupert Murdoch already founded Fox, back around 1988 (I remember where I was when I heard, and scoffed, that he was starting a fourth network).


Second, Amar explains how the Chief Justice and Justice Sotomayor misread Marbury.

And what does Marbury v. Madison really mean? Marbury got invoked today by the United States Supreme Court. They don’t actually cite Marbury v. Madison in every single case. So they ratcheted up the stakes today, they meaning John Roberts and Sonia Sotomayor, and this is what I teach Marbury vs. Madison isn’t just ConLaw, it’s FedCourts, you know, 101, and this is what I was hired actually at the law school to teach so so I want to actually go through it with just a little bit of care here. Here’s what Marbury does not say, quote, "The Supreme Court is the ultimate interpret the Constitution" unquote. It doesn’t say that at all. Our audience will put the will put the case up on our website, so they can do a word search, they will not find that they will find if they go online, the Supreme Court at least half a dozen times in the 20th and 21st century, citing Marbury for that proposition, but never with a page cite. The Supreme Court, the ultimate interpreter of the Constitution. Marbury actually didn’t say that. It actually didn’t say much at all about the Supreme Court as such. It actually talked about courts in General, the judicial department which includes, at a minimum, all federal courts, maybe state courts as well, which which Ed invoked.

Amar is 100% correct. This mythical account of judicial supremacy comes from Cooper v. Aaron, and not from Marbury v. Madison. I explain this history in my article, The Irrepressible Myth of Cooper v. Aaron.

Josh Blackman (based on an Otter transcription of a podcast)

Misplaced sentimentality

Americans are a little sentimental about revolutions, because we had one of the very few good ones. But the revolutionary family tree gets pretty ugly pretty quickly: The American Revolution helps to inspire the French Revolution, with its purges and terror; the French Revolution provides a model for Lenin and his gang; the Russian Revolution informs the Iranian revolution. The line from the Boston Tea Party to the Iran hostage crisis is not a bold, straight one, but it can be seen, if you want to see it. Revolutions are dangerous, often in ways that are not obvious at the time and become understood only decades later.

Kevin D. Williamson, March of the New American Leninists

The January 6 insurrectionists vigilantes

The problem with treating every Republican more supportive of Trump than token GOP committee members Liz Cheney (Wyo.) and Adam Kinzinger (Ill.) as an existential threat to the republic is twofold. One, the reason the more serious legal efforts to overturn the election failed is because there were people with fidelity to the Constitution working for Trump. Sidney Powell wasn’t White House counsel. The second is that strengthening Capitol security — the riots were quashed the moment they were met with an appropriate level of response — is probably a better deterrent than trying to marginalize eccentric but widely held political views.

Republicans should take Jan. 6 more seriously, but they are also correct to resist treating ordinary members of their party as horn-wearing, violent extremists.

Damon Linker, The dangerous vigilantism that fueled Jan. 6

Rain Man

I thought Dustin Hoffman was brilliant in Rain Man, but then I’m a sucker for autism spectrum movies (Mozart & The Whale is another). Particularly effective was the bit about him memorizing the phone book — and then card-counting.

This came to mind as I overheard a 59-year-old Aspie of my close acquaintance recounting some trivial event that occurred when he was 7, on December 16, 1969 (see the post title, above).

The human mind is a marvel.

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