Tag Archives: court

FLIP-FLOP IN A PHRASE

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Appearing on Hardball, What’s the Matter With Kansas star Sam Bronwback (R-Kansas) just told us that Americans are angry at the courts because they keep “inserting themselves” in issues where we don’t believe they belong, like Roe, and “changing our understanding” of issues like property in cases like Kelo. What he avoided saying, lest he stray off the message discipline reservation, is that the decision in Kelo he decries as a change was a decision not to overturn the law. Senator Brownback’s problem with the court’s economic jurisprudence, in other words, is that it’s not activist enough.

The conservative establishment vision for the court is not that it leave controversial decisions to be settled directly by the people, but rather that it step back when majorities choose to legislate against civil liberties (especially those of others) , and then aggressively intercede to overturn even those economic regulations which are overwhelmingly popular. Conservatives like Sam Brownback are outraged when the court stops a heterosexual majority from writing homosexuals out of the city’s non-discrimination laws in Romer, but elated when it turns back Congress’ attempt to keep firearms out of our schools. Whereas my reactions, unsurprisingly, are the opposite. A couple days ago I set forth a couple of the reasons I think the Court is justified in blocking the imposition of majoritarian sexual morality in Griswold and unjustified in blocking the majority’s attempt to set common labor standards in Lochner (if you want to have sex without condoms and make at least $5 an hour at work – not at the same time that is – my using condoms doesn’t make a difference to you but my working for $1 does). And Brownback has his reasons for his position as well. But unlike, say, Nathan Newman, he can’t hope to credibly claim that he’s an opponent of “judicial activism” across the board (and unlike – maybe – Finnegan, he can’t claim to be a consistent fan of judicial intervention to limit government either).

As a couple Yalies just showed in a Times piece identifying Clarence Thomas to be the Court’s Activist-in-Chief, the question for most of us is when and to what extent such activism is just and appropriate, and the country would would be better served by a national debate on that question (personally, if the question were all the activism or none of it – which I’m glad it isn’t – I’d go with none so that the left would at least have recourse to the legislature, and a spur to organize).

WAL-MART VERSUS THE DISABLED

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It’s not just folks who care about workers’ rights, women’s rights, racial equality, environmental stewardship, fair trade, free speech, or responsible development who have issues with Wal-Mart. The world’s largest retailer is also bad news for those of us who believe in the Americans with Disabilities Act. As this Daily Kos diary reminds us, the company was ordered in Feburary to pay 7.5 million dollars in damages to Patrick Murphy for reassigning him based on his disability. Now the New York Law Journal reports that the judge has cut the damages by $4.7 million to reflect the $300,000 cap on punitive damages under federal law. Judge Orenstein observed that within the limits of the law, it’s impossible to charge Wal-Mart enough to actually have the deterrent effect that punitive damages are supposed to:

“The preceding ruling respects the law,” Orenstein wrote, “but it does not achieve a just result.”…”There is no meaningful sense in which such an award can be considered punishment,” Orenstein wrote, pointing out that Wal-Mart had $300,000 in sales every 37 seconds last year…Orenstein said that Wal-Mart would not be deterred by the amount of punitive damages. He found that in dealing with Brady, the company had not adhered to a consent decree it entered into with the Equal Employment Opportunity Commission in 2001 requiring it to train managers and change hiring practices. “The most generous conclusion I could draw … was that the Wal-Mart employees who testified are well-intentioned people whom the company willfully failed to provide with sufficient training to abide by the anti-discrimination law,” Orenstein wrote. “The result,” he concluded, “was that Brady was subjected to the kind of discrimination against the disabled that both the law and the prior consent decree was designed to prevent.” The $300,000 punitive cap, he held, “appears unlikely … to restrain Wal-Mart from inflicting similar abuses on those who may be doomed to follow in Brady’s footsteps.”

Next time you hear someone arguing that arbitrary caps on the freedom of juries to assign punitive damages will protect the little guy against hordes of greedy trial lawyers, remember Patrick Murphy. And remember whoever becomes the next victim after Wal-Mart concludes once more that in the long run, discrimination is cheaper than equal opportunity.

THE LOCHNER LITMUS TEST

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Finally made it into the Philadelphia Airport late last night, after several hours delayed in George Herbert Walker Bush Airport in Texas, a real monument to small government if ever there was one. It was long enough to read a good chunk of Ed Klein’s anti-Clinton screed, and yes, it’s as bad as they say, and certainly libelous – though I’m not convinced that should be illegal. And it was a chance to watch the same couple minute CNN piece on O’Connor’s resignation several times.

Not being a Democratic Senator, I have the freedom to go off message and say that O’Connor’s resignation is unfortunate not because she was the linchpin in some sort of divine cosmic balance on the court that’s best for the country, but simply because her replacement will almost certainly be even more conservative than her, and conservative jurisprudence is bad for our country. Of course, if she herself didn’t want that to happen, she shouldn’t have presided over the theft of the 2000 election.

As for who comes next, my sense is that the Alberto Gonzales trial balloon is a red herring. It wins Bush credit from some moderates and Latinos for having an ostensibly moderate Latino on the “short list,” and when he goes with a Janice Rogers Brown instead, he’ll win that much more credit from right-wing extremists for having “listened” to their concerns about Gonzales.

The good news is that there are still five votes on the Court for upholding Roe (Casey was 5-4, but since then Justice Ginsberg replaced Justice White, who was one of the four), though not Steinberg v. Carnhart, which the federal late-term abortion ban seems to have navigated around anyway. That said, support for the right to autonomy in intimate spaces and decisions long recognized by the court is absolutely a standard for just jurisprudence.

At least as important as support for Roe in the coming controversy, though, should be opposition to Lochner, the court’s atrocious 1905 decision overturning New York’s minimum wage statute on the grounds that the absolute right of contract including a “right to work” for poverty wages. Lochner was overturned in West Coast Hotel, which rightly upheld the power of the people, through the legislature, to foster justice in the face of collective action problems and asymetrical bargaining relationships by enforcing universal labor standards.

Since Justice Black’s dissent in Griswold, opponents of privacy rights have made the perversely labelled the cases protecting them as “Lochner”-like, ignoring the differences between legislation regulating the relationship between employers, employees, and consumers, one which is by definition public, and legislation which regulates the private choices of individuals. Much as Footnote IV in Carolene Products suggests that judicial review is more justified when exercised to protect the rights of “discrete and insular minorities” who face more obstacles in protecting themselves in the legislative process, legislation itself is that much more justified when it achieves collective ends a majority of individuals might prefer but be unable to enact individually due to collective action problems. The law wrongfully overturned in Lochner achieved majority support despite employer opposition because most workers preferred to work less than 60 hours a week but could not unilaterally refuse to work more without threatening their livelihood. It is far less credible to argue that the legislation barring contraceptive use rightfully overturned in Griswold solved a collective action problem shared by a majority of couples who did not want to use contraception themselves but were somehow unable to decide for themselves not to use them. This illustrates the distinction between private and public interaction, and why privacy rights, which protect the former from the kind of regulation appropriate for the latter, preserve personal freedom, while the absolute “right to work” suggested in Lochner diminishes it.

While Justice Black makes equivalence between Lochner’s invocation of substantive due process and that in Justice White’s concurrence, the relationship between the fourteenth amendment and absolute laissez-faire contract rights is far more tenuous than the relationship between the Bill of Rights and privacy. The laissez-faire hostility to so-called “class legislation” was also explicitly rejected as constitutional law by the people through the sixteenth amendment, which in imposing an income tax recognizes the right and responsibility of government to pursue economic justice and equal opportunity through law. The American people, whose prosperity has been fostered and protected by many of those laws, deserve a new Supreme Court Justice who recognizes that right and that responsibility as well.

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So it turns out to be a compromise on judges after all. Hard to know just how to read it, given that with freedom for Democrats to filibuster under “extraordinary circumstances” and for Republicans to nuke if “continuing commitments made in this agreement” are abridged, all it resolves for good is that Janice Rogers Brown, William Pryer, and Priscilla Owen will soon be Circuit Court Judges and William Myers and Henry Saad won’t be. But given that the Democrats’ position on this has, for better or worse (you can guess where I come down on that one), all along been one of extreme willingness to compromise (“We gave you the judge who thinks men should dominate their wives, but do you really need the one who thinks God has veto power over the constitution”), almost any compromise would have been a political victory for the Democrats. Not as big a victory as the one I suspect we could have had tomorrow (in part because I trust John McCain’s political instincts more than, say, Joe Lieberman’s). As compromises go, the word a few days ago was that the major sticking point was GOP resistance to language like this:

We believe that, under Article II, Section 2, of the United States Constitution, the word “Advice” speaks to consultation between the Senate and the President with regard to the use of the President’s power to make nominations. We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration.

So the Dems at least got something out of the negotiations. Today we saw a few Republican Senators buck the Senate leadership and the Senate buck the unilateral impulses of the White House. That counts for something. And the reason it happened is because public opinion has turned rather sharply against the Bush team and their exercise of their ostensible mandate. That’s a trend which should have implications which last much longer than this agreement. But only if the Democrats capitalize on it with a robust and aggressive vision. I’d say cutting this deal was a poor move, but those saying that the party had been taking a firm and principled stand which it undercut tonight forget that when it comes to steadfast refusal to let through extremist unqualified judges, the ship had sailed on that one – and driving it were Randians, theocrats, and Randian-theocrats who have now safely arrived in a court near you. The Democrats’ repreated invocation of outrageous nominees they’d let though, rather than making them seem eminently reasonable, just made them look sort of silly.

Speaking of the future, anyone who still thinks John McCain – in whose office the compromise was apparently signed – isn’t running for President has another think coming. Same goes for anyone arguing that he does whatever’s right regardless of politics. As for Bill Frist, I’m sure he’ll do well on the lecture circuit. Or at least, he has a better shot at it than at a serious run for the GOP nomination. Good news for him: washed up right-wing speakers, unlike sitting Senators, aren’t expected to go into inner cities where they have to worry about being stabbed to death by children of color with pencils. Now, back to spanish conjugations for me.

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Tuesday night several groups at Yale sponsored an excellent debate between the Reverends Barry Lynn (of Americans United for Separation of Church and State) and Jim Wallis (of Sojourners Magazine) on the role of faith in public life. They’re both thoughtful and articulate speakers with a stake in a more progressive turn for this country.

Wallis is frustratingly off-base in his support for President Bush’s Faith-Based Initiatives as an opportunity to be seized by a religious left. The issue, as I’ve said before and as Lynn argued, is not whether religiously-identified groups are eligible for government support when they provide social services but whether they will be subject to the same regulations as everyone else when they are. Lynn quoted troubling comments from Wallis conflating denying funding to groups because they hold a certain faith with denying funding to those groups because they discriminate in hiring against those who don’t. And Lynn rightfully questioned Wallis’ attempt in writing to dichotomize racial and religious discrimination, pointing out that for some of the groups in question one identitiy is mapped onto the other – and that right-wing churches led by the likes of Pat Robertson haven’t been rejected for “preaching hate” like the Nation of Islam has. Wallis, to his credit, expressed unspecified concerns with the implementation of the initiatives, but declined the engage the issue of discrimination and instead expressed hope that the Supreme Court would sort it out.

My sympathies were more divided between the Reverends on the other issue which consumed much of the debate: What is the place of religious rhetoric in political discourse? I share Rev. Lynn’s concern that the halls of Congress not be overtaken with arguments over the details of scriptural interpretation. He’s right to argue that in a pluralistic, democratic society votes should be cast, and should be explained, based on popular rather than divine authority, and on the basis of shared rather than sectarian values. He’s right to observe that while religious rhetoric infused the Civil Rights Movement through and through, when members of Congress cast their votes in 1964, they explained them through appeal in large part to the values of equal protection set forth in our common law. And he’s right to reject Wallis’ tenedency to reduce “values” to religion and to reduce the political spectrum to religious right versus religious left.

That said, I think few of us disagree with Rev. Wallis’ contention that it’s long past time that the religious left disrupted what he calls the monologue of the religious right. And I’m not persuaded by the bright lines Lynn seeks to draw between the discourse in the halls of Congress, in the church, on opinion pages, at rallies, and on Meet the Press. Certainly, an advocate assumes a different voice than a representative, speaking on different grounds and to a different audience. But Wallis is right that there should be a place for our elected representatives to speak to their personal faith convictions as well as to our shared democratic ideals. He’s right that for Lynn to bristle categorically at any instance of biblical references by elected politicians does little to further the cause of religious freedom.

One audience member asked Rev. Lynn why he was comfortable with Senators quoting from “anything else in Bartlett’s Quotations,” but not the Bible, and in response Lynn made an illuminating distinction between a quote to persuade – invoked because the quote itself makes a persuasive argument for whatever is being advocated – and a quote on the basis of authority, which is invoked to bring down the authority of whoever said the quote in the first place as an argument in and of itself for what’s being advocated. Lynn’s belief is that Bible quotes are always brought in not to share creative persuasive arguments but to shut down argument by virtue of biblical authority. I’m not so sure. It may be complicated to distinguish between appeals to a biblical argument and invocation of biblical authority, but I think it’s critical that we do. I think it’s similarly critical that we distinguish between those who invoke their particularistic faith values as ends unto themselves, and those who offer them as a personal path to our shared faith in community, in individual freedom, and in social justice.

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No real surprises in tonight’s press conference. That Bush saw the need to have it at all demonstrates what must be a growing sense that public opinion is only further solidifying against this administration on each of its major domestic policy initiatives. Still not much of a social security plan. Un-conservative as means testing may sound, ultimately it’s an approach to fray the social contract by transforming social security in the public mind from a universal compact into a payoff to the poor. The next step, a generation from now, is capitalizing on that image to further assault the program. Meanwhile, makes sense that Bush set himself up as the good cop on the “filibuster against people of faith” line, although he can’t really distance himself from that nasty line without actually, well, distancing himself from it. Interesting to see him say that his energy bill won’t help for a decade.

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Shorter Bush Press Conference:

Question: How can Russia become more democratic?

Bush: Putin should have supported the war in Iraq. Also, the WTO.

Question: What does Rumsfeld have to do to rebuild trust?

Bush: Nothing.

Question: What did you learn from Bernard Kerik’s failed nomination as Secretary of Homeland Security?

Bush: He would have been an awesome Secretary of Homeland Security.

Question: Why are Americans so anxious about your plans in Iraq:

Bush: It’s those Iraqi troops’ fault for running off the battlefield whenever things get tough. Also, the media for some reason seems to think that bombings are more newsworthy than small businesses.

Question: Some people are worried that your social security plan will force millions of Americans to retire into poverty. What’s the deal?

Bush: Keep in mind, I also wannt to strip your right to sue big business and shut down more schools for getting low test scores. As for social security, don’t bother trying to trick me into telling you what my plan is. For now, I’m just focusing on whipping the public into unsubstantiated panic. And keep in mind, FDR is dead.

Question: How many more Christmases are American troops going to have to spend in Iraq?

Bush: I’m too clever to set policy goals that’ll you’ll just turn around and criticize me for when I abjectly fail to meet them. Also, I know how to use the expression “in toto.”

Question: What are you going to do about Iran and North Korea?

Bush: Saddam Hussein, he was a bad guy. He violated a lot of UN resolutions.

Question: Why don’t you veto some of these spending bills?

Bush: Because I told Congress what to put in them.

Question: Whose benefits are secure?

Bush: Killing Social Security would be a lot easier if those old people didn’t keep getting so panicked. It’s not their checks I want to reneg on – just everybody else’s.

Question: How is it no one seems to agree with your immigration plan?

Bush: I know immigration. I was Governor of Texas.

Question: Where the hell is Osama bin Laden? And what’s with the violations of international law at Guantanamo Bay?

Bush: Well, we’ve killed a bunch of people other than Osama bin Laden. And clearly the world community isn’t paying enough attention to our Supreme Court decision.

Question: Why doesn’t Rumsfeld sign condolence letters to the families of troops he’s sending to get killed?

Bush: I know he seems gruff, but believe me he’s a real teddy bear inside.

Question: How did the war in Iraq affect prospects for the Israeli-Palestinian conflict?

Bush: Everybody’s got a lot of responsibilities. Also, Yasser Arafat and Colin Powell are both out of the picture now. Now, on to high school football…

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The Democrats’ challenge right now is to communicate that provisional ballots are not a legal technicality but an issue of civil rights. Keep in mind that the last election in which provisional ballots were consulted there, about 90% were counted. A good part of the past five days here has been about making sure low-income voters, who are disproportionately disenfranchised, understand and are ready to fight for their rights as voters. Under the Help America Vote Act, a citizen is a voter until proven otherwise. This is about equal protection.

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FAIR questions the factuality of John Stossel’s hatchet job against John Edwards on 20/20 last week, and the justice of giving him the space to fulminate from the right each week without any counter-balance from the right:

How much of the increase in C-sections is due to medical judgment, rather than fear of lawsuits? Stossel doesn’t address the question. Dr. Luis Sanchez-Ramos, an obstetrics professor at the University of Florida, noted in the British Medical Journal (2/12/94) that “in Brazil and Mexico, where malpractice is not a problem, the caesarean section rate is still high.” Sanchez-Ramos suggested that profit may be another motive driving C-sections, pointing out that rates are higher in for-profit hospitals and with patients who have good health insurance.

But Stossel focused on lawsuits as the core problem: “So are women today suffering more pain, even risking their lives on unnecessary surgery, partly because lawyers like John Edwards scared doctors?” It’s a complex question, depending among other issues on how much of the surgery is actually “unnecessary.” But Stossel’s answer just assumes that trial lawyers are the villains: “Well, maybe all Edwards’ cases were good ones, but the fearful atmosphere that lawsuits create has far-reaching consequences.” That we should see malpractice suits as making doctors “fearful” rather than “careful” is something that the ABC journalist asserts rather than explains.

Of course, political candidates are fair game for criticism. But given Stossel’s politics, it’s unlikely that he will be doing a similar attack on George W. Bush or Dick Cheney this campaign season– certainly not one that fits in with their opponents’ talking points so well. (When Edwards was picked by Kerry, the Republican National Committee’s website headlined its response, “Who Is John Edwards? A Disingenuous, Unaccomplished Liberal And Friend To Personal Injury Trial Lawyers.”) When ABC’s parent company Disney refused to allow its Miramax subsidiary to distribute Michael Moore’s film “Fahrenheit 9/11,” company CEO Michael Eisner offered this rationale (5/5/04): “We just didn’t want to be in the middle of a politically oriented film during an election year.” So why does ABC air one-sided political commentary during an election year?

When I watched part of Stossel’s commentary on TV, I thought to myself “Maybe we should let both sides bring medical experts to argue their case to the jury. Except – we already do.” Conservatives are always claiming that their opposition to judicial decisions which limit the power of their constituencies is based in an abiding faith in democracy and a distrust of unelected judges. But in the same breath they argue for tort reform in order to protect those same constituencies from regulation by juries. And they gleefully marshall technocratic arguments to suggest that a sampling of “the people” shouldn’t be trusted to decide such cases. They’re stuck making that argument because for all the talk about Americans hating lawyers and malpractice suits, it isn’t trial lawyers who decide cases and determine damages. It’s a (not fully representative) sampling of the American people. So conservatives’ concern isn’t about democracy. It’s about power.

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Looks like Errol is (not surprisingly, given the number of debates the two of us have had previously over this issue) celebrating the NLRB decision stripping graduate student workers of legal recognition of their right to organize. Errol contends that this represents “Finally a common sense decision by the NLRB.” I’d say common sense explains the motivation behind this decision – as part of a broader Bush agenda of chipping away workers’ rights through court decisions, executive orders, and legislation, and as one with tremendous cache with certain University Presidents, including some with significant influence – but that that’s about the only relationship common sense and this decision have. There are a lot of points to be made in this argument; for now I’ll stick to responding to those Errol brings up directly.

It’s always been especially telling to me that the graduate student unions have all changed the name of what they do to being “graduate employees” in order to fight this battle. What does that say to me? Well it says that there is a PR game and that most people don’t actually see them as employees at all, so it’s necessary to confront them with the idea. “See I am an employee, because my wannabe union has the word employee in it.” That sort of thing.

This is a cheap and, I’d say, pretty misleading argument. The people subject to this decision are students at the Universities in question and employees of these universities. Sometimes they call themselves graduate employees because those two words communicate that they are both graduate students and employees. Hence GET-UP, Graduate Employees Together, U-Penn. Yale’s parallel union is called GESO, Graduate Employee Student Organization (Light and Truth alleged last year that the fact is was called GESO rather than GSEO showed its members were lazy students. I’ll like to hear them pronounce GSEO). I’m not sure what Errol means when he says that they “changed the name of what they do,” although he certainly makes it sound sinister. What they’ve done, rightfully, is come up with various phrases which allude to the multiple identities they take on simultaneously in the academy. I’d guess it’s the confluence of those identities, not their reflection in names, which Errol and others have a problem with:

That being said, it is obvious that graduate students do work, and probably much of it. Why doesn’t that make them employees of the university and not students? The only thing that separates the two is the possibility of the award of a professional degree. All the other people who recieve payment from the university who are employees are not being paid in their capacity as degree candidates, and it seems to me someone being paid in their capacity as a degree candidate should be considered a student. The payment that the university extends to it’s graduate students for their work is more akin to the financial aid of an undergraduate being paid in work study than it is to a teacher in secondary education.

To insist that GESO members are not “employees and not students” is to take down a straw man argument – GESO members have never contended not to be students. What they are is employees and students. The receipt of educational certification from an employer doesn’t make them as singular a phenomenon as Errol seems to suggest. Apprentices organized some of the first unions in this country so as to better secure the conditions and compensation they deserved for the significant work they were doing while training under their employers. Stipends and benefits for graduate student teaching assistants and researchers are not comparable (except in that both are too low…) to financial aids grants for undergraduates because, while the university’s award of financial aid is hopefully grounded in an understanding that education at the university is strengthened by the presence of a more diverse student body, undergraduates are not being compensated for the provision of a service to the school. Just ask the IRS, which recognizes the former, and not the latter, as salaries. Meanwhile, it’s Yale’s administration, not GESO, which has for the past months engaged in covert and strategic renaming, couching the teaching and research requirements for graduate employees in new language as academic requirements in anticipation of a new NRLB ruling. The fact of the matter is that graduate students are doing over 30% of the work of teaching at our august university, and that they are replacing paid faculty in doing so.

The [generalized] University’s obligation to all its students to provide an atmosphere conducive to learning is perhaps it’s highest one and that being said, it matters very much to that atmosphere if a graduate students’ family doesn’t have an affordable health care plan, or enough money to eat well balanced meals. The University should take care of these needs, and, if the best way to assure that it is in tune with the needs of its students is to recognize them as a group rather than a collection of individuals, I certainly believe that the University should do that. The University should also be perceptive to the outcries of its students that they want to be represented collectively because it’s in the best interest of both the students and families involved and the University to do so. However, that group, those families, that collectivity, are not, and shouldn’t ever be considered a union.

No organization (certainly not the Graduate Student Assembly) has acheived as much for Yale’s graduate students as GESO, whose organizing drive has won the concessions on stipend increases, childcare, international visa reform lobbying and a score of other issues which then become repackaged by Yale’s administration as further evidence of why Yale’s graduate students don’t need a union. That’s because no other type of body has demonstrated the same capacity to leverage pressure, represent constituents, and effect change. But we needn’t just look at Yale. Graduate student unions across and beyond this country have won landmark agreements with universities protecting the institutional support, resources, and freedoms whose procurement by graduate student employees, as Errol says, are vital to the health of the university for all its members. Why shouldn’t graduate employees pursue collective representation through unionization?

It doesn’t do justice to the struggles of everyday working people by calling it so, but most of all, it doesn’t represent the truth of the situation.

But it does represent the truth of the situation, which is that these unions’ members are workers with a right to organize protected by the Wagner Act and the Declaration of Universal Human Rights. They receive payment for the work they do for an employer, and unlike most undergraduates, the majority of them depend on the funds they receive from the university to support themselves and often dependants (this proportion rises as the benefits provided by the university rise, and as this proportion rises, so does the diversity of the graduate employees). The construction of a group called “everyday working people” as the proper constituents of a union, and of a distinction between that group and the workers in question – be they teachers, writers, waiters, nurses, or graduate employees – is not new, and neither is the struggle of every group of workers to demonstrate and defend their right to organize. These struggles absolutely have different contours, and different stakes. But they remain parallel struggles, and while a good number of Yale undergraduates believe that the question of whether Mary Reynolds, GESO Chair and American Studies Teaching Assistant, has the same right to a union that Bobby Proto, Local 35 President and pipefitter does, is a question of whether Mary’s is more or less oppressed than Bobby, my experience is that many fewer members of Local 35 and Local 34 (Yale’s service and maintenance and clerical and technical unions, respectively) see it that way. My experience is that many more members of Locals 34 and 35 see their stake in GESO’s right to organize as similar to Local 35’s stake in Local 34’s right to organize back in 1984, when conventional wisdom was that “pink collar unions” were a contradiction in terms which would destroy the collegiality and intellectual vigor of the university. What doesn’t do justice to their struggle for the right to organize is not GESO’s campaign for the same right, but rather Yale’s campaign, with the unfortunate assistance of the Bush administration and the NLRB, to deny it.

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In a shameful, if unsurprising, assault on the right of all workers to organize, the Bush National Labor Relations Board overturns the historic and unanimous NYU decision recognizing graduate students’ right to organize with a 3-2 decision buying into the Levin-Simmons-Bollinger-Rodin line that graduate students employees, whose low-wage work makes the university function, are not employees with workers’ rights.  This is of course, what they used to say about public employees, about teachers, and about all workers before that.  None of which stopped those workers from courageously organizing anymore than this decision will be able to halt the national movement for graduate student unionization.  As the dissenting judges wrote:

…the majority’s reasons, at bottom, amount to the claim that graduate student collective bargaining is simply incompatible with the nature and mission of the university. This revelation will surely come as a surprise on many campuses -not least at New York University, a first rate institution where graduate students now work under a collective bargaining agreement reached in the wake of the decision that is overruled here…Today’s decision is woefully out of touch with contemporary academic reality.

Shame on the Bush administration for another callous and backwards slap in the face of all workers, and shame on the Yale administration for its years of lobbying for this result.

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The Supreme Court, in declining to hear an appeal by the Boy Scouts, deals another blow to the Scouts’ demands that the state subsidize its bigotry. The lower court ruling, which rightly recognized Connecticut’s right to exclude discriminatory organizations from a charity drive, will stand.