PED's PROPOSED SOCIAL STUDIES CURRICULUM IS A CLEAR AND PRESENT DANGER

I begin with a compliment to the Sierra County Sun for reporting news, real news, and for publishing serious columns and editorials.  I specifically compliment Debora Nicoll’s “Understanding New Mexico’s proposed new social studies standards for K-12 students” (9 Dec), which is the text referred to in this blog.

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What impresses me is that both the proposed standards and some of the criticisms of them are equally grotesque.  I make this bold statement on the basis of my experience as a peripatetic high-school and college English teacher for 45 years in many states with many students differing in race, religion, gender, and socio-economic background; and as a civic activist (PTA) in public education  (My career, however, was as an independent consultant mainly in defense, energy, and the environment.)

The proposed social studies standards are conceptually and instructionally flawed.  For starters, a “performance standard” is not a standard at all; it is a task.  Asking someone to explain something is not unlike asking someone to water the lawn.  Nothing measures the performance, but without a measure, there is no standard.  The teacher’s subjective judgment will be all that matters, and almost anything will count as satisfying a “performance standard,” even just trying.  Students will be left to wonder “what is on the teacher’s mind?” or “have I sucked up enough.”

Four other quick criticisms of the performance standards.  One, they are nearly unintelligible because they are written in jargon.  PED’s use of jargon in a document intended for the public is worrisome.  Bureaucrats often use jargon to confuse or conceal something uninformed, wrong, or unworthy.  As a result, most parents, some school board members, and more than a few teachers do not understand them.

Two, the performance standards are so vague that they fail to define the education which teachers are supposed to teach, students are supposed to learn, and parents are supposed to understand.  PED does not define words like “explain” or “describe” so that teachers can apply “standards” consistently and fairly.  The standards do not indicate what teachers are supposed to know in order to teach or specify what students are supposed to learn.  Supervisors cannot know whether teachers are teaching social studies well or poorly.  The standards are so vague that the public, especially parents or guardians, cannot know the content of public education.

Three, many performance standards are simply unrealistic, especially at grade level.  Under “Ethnic, Cultural and Identity Performance Standards”; then under “Diversity and Identity”; then under “Kindergarten,” one such standard is, “Identify how their family does things both the same as and different from how other people do things.”  Do 6-year-olds know how other people do things?  Do they know whether these things are relevant to diversity and identity?  Or another standard: “Describe their family history, culture, and past to current contributions of people in their main identity groups.”  (A proficient writer would have hyphenated the compound adjective to avoid confusing the reader.)  Do 6-year-olds know so much about these things in relation to their “identity group”?  Since teachers obviously do not teach them about these other people and have not taught them about these groups, why are these and similar items in the curriculum; or do teachers assign them to go home and collect this information?

Four follows from “three”; some information relevant to some performance measures requires a disclosure of personal or family matters.  The younger the students, the easier it is for teachers to invade their privacy and not only their privacy, but also the privacy of their parents or guardians, or neighbors, who may never be aware of these disclosures or not become aware of them until afterwards.  PED has no right to design a curriculum which requires teachers to ask students for information about themselves, parents or guardians, or neighbors, or puts teachers on the spot if the disclosures reveal criminal conduct.  (Bill says Jeff’s father plays games in bed with his daughter.  Lila says Angelo’s mother gives herself shots in the arm.)  Since teacher-student communications have no legal protection to ensure privacy, those disclosures may become public accidentally or deliberately.  The effect of these proposed standards is to turn New Mexico schools and teachers into investigative agents of the state and students into little informants or spies.

This PED proposal for social studies standards is a travesty of education despite its appeals to purportedly enlightened principles.  It constitutes a clear and present danger to individual liberty and civil liberties.  It should be repudiated; its development, investigated; its PED perpetrators, dismissed.  No state curriculum should encourage or require the disclosure of private personal information.

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I am equally outraged by the comments of some of T&C’s school board members: Christine LaFont and Julianne Stroup, two white Christian women, who belong to one of the larger minorities in America and assume white and Christian privileges.  In different terms but for essentially the same reason, both oppose an education which includes lessons about historical events and trends, and social movements and developments, of other minorities.  They object to the proposal for the new social studies standards because of its emphasis on individual and group identities not white or Christian.  I am not going to reply with specific objections; they are too numerous and too pointed.

Ms. LaFont urges, “It’s better to address what’s similar with all Americans.  It’s not good to differentiate.”  Ms. Stroup adds, “Our country is not a racist country.  We have to teach to respect each other.  We have civil rights laws that protect everyone from discrimination.  We need to teach civics, love and respect.  We need to teach how to be color blind.”

Their desires for unity and homogeneity, and for mutual respect are a contradiction and an impossibility.  Aside from a shared citizenship, which implies acceptance of the Constitution, the rule of law, and equality under the law, little else defines Americans.  We are additionally defined by our race, religion, national origin, etc.  So mutual respect requires individuals to respect others different from themselves.  Disrespect desires blacks, Jews, or Palestinians to assimilate, or to suppress or conceal racial, religious, or national origin aspects of their identity.  The only people who want erasure of nonwhite, non-Christian, non-American origin aspects of identity are bigots.  Ms. LaFont and Ms. Stroud want standards which, by stressing similarities and eliding differences, desire the erasure of such aspects.  They want the schools to have a social studies curriculum which enables white, Christian, native-born children to grow up to be bigots and all others to be their victims.  They want the academic equivalent of ethnic cleansing.

PART 2: PRAISING MY ELEMENTARY SCHOOL TEACHERS

I get plenty of grief for being so “hard” on teachers, especially elementary school teachers.  I am.  My critics would object, if they knew, that I do not take account of the fact that Las Cruces at any time has never resembled Shaker Heights, Ohio, where I lived and went to school.  In my day, the 40s and 50s, Shaker was, so I am told, the wealthiest per-capita city in the country, and its public school system was nationally ranked in the top ten.  No longer, of course, but it still does reasonably well in view of demographic and socio-economic changes in this inner-ring eastern suburb of Cleveland, Ohio.

As a peripatetic teacher who, for 45 years, taught English to urban, suburban and rural students, variously, black, Latino, Vietnamese, and white.  I have taught in public and private, coed and single-sex secondary schools; in public and private universities; and in women’s courses and seniors’ programs.  I have taught in nine states and the District of Columbia.  As a result, I strongly believe that what a teacher knows and does in the classroom matters much more than what a school and community is or does.

My standard for judging elementary school teachers is shaped by my elementary school teachers; they define what is possible.  I regard them as my seven “mothers,” not because they were smothering, but because they knew who I was, provided the “extras” to encourage me, and taught, taught, taught.  Until I left for college, I would occasionally return to Malvern Elementary School to visit with them: Ms. Patterson, Ms. Adolph, Ms. Hardy, Ms. Miller, Ms. Duncan, Ms. Heindle, and Ms. Brooks.  I revere them still.

Because they knew me, my first teaching experience occurred when I was in the 5^th grade.  Ms. Hardy, my 2^nd grade teacher, was teaching a unit on science; one lesson was on birds.  I was a known “nature boy,” with a special interest in birds.  So Ms. Hardy asked Ms. Heindle to excuse me to teach her class on birds.  To this day, I remember what I taught: nothing with pictures of common yard birds—robins, blue jays, cardinals, English sparrows, etc.—but everything about birds’ adaptive morphology—the shapes of the body and its parts, and their distinctive functions.

When it came to teaching, they taught.  They did not rely on group projects or field trips; I remember no projects and only two field trips, though there may have been a few more.  They were not shy about lectures to explain new material or using drills and rote to reinforce instruction.  The most memorable of my learning experiences were the daily math exercises in Ms. Miller’s class.  Every day, we had fifty problems to do, emphasis equally divided between accuracy and speed.  David Clark and I used to compete with one another to be best at both.  Today, to the astonishment of check-out clerks, I compute my change faster than they can input their register.

What explains their excellence?  Three things: subject-matter competence, confidence in themselves as teachers, and commitment to educating students—emphasize educating.  In the post-war years, smart women had few choices of profession, teaching being one of them.  (An unintended effect of women’s liberation has been the replacement of the smart by the not-so-smart, with no one since developing a Plan B to restore the status quo ante.)  Except for Ms. Duncan, their unmarried (and, of course, back then, their childless) status, likely gave them more undistracted time to prepare lessons and grade papers.

They taught.  They wanted and needed help from no one—no reading specialists, no school counselors, no hangers-on; a school nurse bandaged schoolyard scrapes or called home if we ran fevers (measles, chicken pox, and mumps were commonplace).  No doubt to the astonishment of teachers today, parent-teacher conferences were almost unknown.  If parents came to Malvern, they came on a summons from the Principal, Ms. Gabriel.  Obviously, I did not want my parents involved in my education, and they were not.

Not after my first day.  My mother drove me to school, we walked up the outdoor steps to the kindergarten room, and she introduced me to Ms. Patterson.  After a quick hug, kiss, and “good-bye,” she left.  At first, I felt abandoned, but, within minutes, I was playing with classmates.  The rest is a history of academic success: academic awards and honors in high school and college; two degrees each at Cornell and Michigan, including a Ph.D., with majors in the humanities and secondary education; scholarly publications; and continued learning which enabled my career as a consultant mainly in defense, energy, and the environment.  I should add that, as an undergraduate, before I double-majored in philosophy and English, I had begun in engineering physics but transferred to arts and sciences because I did not want to build spaceships and nuclear weapons.

My educational history is unusual.  My elementary school teachers gave me an education which developed my abilities, supported my interests, and enabled me to choose the intellectual and professional life which I wanted for myself and my family.  Students with different abilities and interests will choose differently; my children did.  But all students should have a good education in the basics to support future learning for whatever careers or lifestyles they choose.  Otherwise, failing to provide it, teachers limit the choices of their students before they can choose for themselves.

My “mothers’” legacy to me is my love of learning.  Besides fiction, I read economics, history, philosophy, religion, and (the history of) science.  In words used by educators in my day, I have lived “life-long learning” as the result of a “well-rounded education.”  It began with seven competent, confident, committed teachers.  That kind of formative, 7-year elementary education does not exist in Las Cruces, not because it is not rich like Shaker Heights, but because it does not value a good education and does not seek teachers who can stand and deliver one, whether for love or money.

PART 1: BLAMING OUR ELEMENTARY SCHOOL TEACHERS

Teachers and their unions accuse anyone criticizing public education, public schools, public school teachers, or teachers’ unions of playing the “blame game.”  That rhyming phrase is supposed to protect them from any criticism by dismissing it as nothing more serious than a game.  The proper response to their responses is short but not sweet: if you presume to be professionals, you should at least pretend to act like them—which means taking criticism seriously and addressing it responsibly.

The dreadful condition of public education in Las Cruces and New Mexico reflects many factors; dominant among them are squalid politics, and self-serving teachers and their unions.  For months, the LCPS School Board and the local unit of the National Education Association (NEA-LC) negotiated an increase in teacher compensation.  By negotiating behind closed doors before the election, they prevented the issues, even in general terms, from being part of any election contests, especially those involving incumbents who are current or former teachers.  For example, my district candidate, Ray Jaramillo faced a credible challenger but did not have to disclose his position.  (The LCPS website hides the School Board, called “Board of Education,” under LCPS “Departments.”)

Yet a few days after the election, the NEA-LC declared that it wanted a sizable salary increase, and, a few weeks after the election, the School Board announced a 3.5% salary increase and an $1800 so-called “planning stipend.”  Both appear to be the Board’s payback to teachers for supporting the (re-)election of current or former teachers.

Of course, teachers need a living wage and cost adjustments because of inflation.  But the district has needs as well.  These were not addressed.  They never are because the School Board serves teachers, not students.  Accordingly, no campaigning incumbents, despite touting their experience, addressed any problems, including the two paramount ones: student academic performance and teacher effectiveness.  Consider:

• A fact about student academic performance: A majority of the student body cannot achieve 50% proficiency in reading and mathematics in grades 4 and 8.
• A fair inference about teacher effectiveness: In a state ranked nearly last or last in public education in the nation, LCPS teachers, many home-grown and NMSU-educated, surely rank among the worst.

As a union leader, Ms. Denise Sheehan, NEA-LC president, had to say something, and she did: “We have extraordinary educators in Las Cruces who have gone the extra mile for the last 21 months.”  Her blatant boosterism or dubious English proficiency is embarrassing.  By definition, “extraordinary” means a few (the “extra”) of many; it does not mean most or all (the ordinary).  By definition, “educators” (unmerited honorific) they are not, not with over half of their students not making the grade, so to speak.  Either way, she overcompensates for her lack of confidence that the public thinks highly of teachers and her lack of trust that it would have voted “right” if honestly informed.

The problems which the School Board avoids raise doubts about the competency of elementary school teachers, who are responsible for foundation instruction in the four basic academic subjects: English (reading, writing), mathematics (adding, subtracting, multiplying, dividing), history, and science.  At NMSU, about 90 percent of prospective elementary school teachers concentrate in English.  What they know about mathematics, history, and science is what they learned in K-12 grades—that is, not much.

What they do not know about English hints ominously at how much less they know about the other three subjects.  When I interviewed former superintendents Stan Rounds and Karen Trujillo, I asked whether elementary school teachers can teach the state-stipulated curriculum in English, particularly grammar.  Both said that none of them knows grammar.  Neither my questions nor their answers caused them discomfort.  The reason: no one on the School Board or in the LCPS leadership expects elementary school teachers to know what they are supposed to teach.  And no one is going to ensure that they learn what they are supposed to teach.  This indifference at the highest levels of the LCPS District to its teachers’ subject-matter ignorance and instructional incompetence is a prominent feature of public education in Las Cruces.

Who cares?  Parents do not; they want winning sports teams and students babysat during working hours.  Teachers do not; they want good compensation and job security.  Administrators do not; they want to avoid or minimize problems.  School Boards do not; they want administrators to conceal or contain them.  The LCPS does not get what no one cares to get: effective teachers and educated students.

One consequence of this pervasive and perpetual indifference is the certain failure of Early Childhood Education (ECE) made possible by ignorant and incompetent elementary school teachers.  It is an add-on to, not a fix of, a broken system; it leaves elementary school teachers as they always have been and students no better off.  Even if it imparted anything of educational value to pre-K students, little or nothing would survive years of mediocrity of elementary school teachers.  Proof is the failure of Headstart since it began over 55 years ago: no statistically significant academic difference between Headstart and non-Headstart high-school graduates.

But ECE benefits teachers and their unions because it increases their numbers and political power in the Democratic Party; this constituency is its “base.”  Democrats risk losing its support by advocating better curriculums and higher standards.  Case in point: Bill Soules, the union’s man in Santa Fe, relies on its support to sustain his political career; he cannot advocate these improvements because teachers would resent and rebel against changes to enhance their professional performance.

Those who care about students and their future, whether in Las Cruces or elsewhere, want them to have a better than mediocre education not only for careers, but also for citizenship, families, and personal, life-time growth.  But they do not want to have to support a political party to get necessary changes.  They know that, if they first have to get involved in party politics to advance student interests, they will not get past opposition from elementary school teachers, fellow teachers, and their union.

CORRECTION AND NEW CRITICISM: "AWAKE TO THE DANGER OF WOKE IN EDUCATION"

As a responsible blogger, I make public corrections when the truth requires them.  In this case, I make both one correction and new criticism.

In “Awake to the Dangers of Woke in Education” (12 Dec), I wrote that a Woke school board was closing racial gaps in enrollments in advanced courses by eliminating those courses.  I misunderstood my source, who clarified that the courses are being eliminated, not in my high school, but in elementary and middle schools.  The purpose is to prevent “tracking” since white students in earlier grades benefit from their strong socio-economic backgrounds; it takes blacks from weak socio-economic backgrounds longer to catch up.  My source opined that, as a result, enrollments of black and white students in the advanced courses in high school would be smaller.  I suggest that fewer students, black and white, will attain previous levels of academic achievement in those classes.

Nonetheless, my criticisms of eliminating the courses in high school applies equally to eliminating them in elementary and middle schools.  And the consequences are worse.  An apt analogy is nutrition.  Malnourished children will be smaller and weaker than those not malnourished; too little calcium as a child leads to weaker bones as an adult.  The adage says, as the twig is bent, so grows the tree.  Not meeting children’s education needs when those needs exist stunts their learning at the time and in the future.

Of course, eliminating what has educational value has no educational value, only ideological value for doctrinaire zealots of equality, not equity.  For fairness would demand enrolling students in courses suited to their needs, not Woke dogma.

The remedies for racial disparities in student academic performance and enrollment in advanced courses are a commitment of resources to students proportionate to their needs to compensate for weak socio-economic backgrounds.  Resources include smaller classes, supplemental classes, student tutoring, etc.  Effort should include intensive training of teachers for these students and determined outreach to parents or guardians for their support.  Detailed records of these resources and efforts should be used to assess them and, if necessary, to explain and address continued disparities.

In all fairness, although schools cannot require parents or guardians to participate, their response to outreach should be a matter of record.  My ex-step-son, an exemplary high-school teacher in Chicago, reports that some parents who are unable or refuse to support efforts to assist their children nevertheless complain when their children do poorly.  Even so, the schools should assume the responsibility as fully as possible for educating all students, with or without parental support.

Last words: Wokism purposes to punish white students, even if black students become collateral damage.  Its proposals must be vigorously opposed, but only if the proposals are, in fact, Wokist, that is, likely to down the ups, not up the downs.  The antithesis of Wokist proposals are proposals to help students overcome socio-economic disadvantages.  My concern is that Wokers’ counterparts will use inflamed opposition to Wokism (or CRT) to justify efforts to keep the ups up and the downs down.  If so, they embrace Wokism in reverse and must also be vigorously opposed.

AWAKE TO THE DANGERS OF WOKE IN EDUCATION

Are you up to speed on current discussions of race and racism?  If not, read Robin DiAngelo’s White Fragility, Ibram X. Kendi’s How to Be an Antiracist, and John McWhorter’s Woke Racism.  Since McWhorter frequently refers to DiAngelo and Kendi, we need to start with the word “Woke” and its cognates, some my neologisms.

“Woke” has become a pretentiously honorific term.  Although its lexical definition is simply an awareness of injustice, especially racial injustice, “Wokers” suggest that their opinions reflect righteous perceptions of or positions on racial injustice, or that their proposals offer righteous prescriptions for it.  They imply that the “unWoke,” more than unaware of racial injustice, are insensitive or indifferent to, and thereby complicit in it.  They imply that those who are aware of racial injustice but do not agree with their perceptions, positions, or prescriptions enable racism.

All three books are disappointing.  Their authors write for concurring readers, not for readers curious, uncertain, questing, or concerned about race.  Accordingly, all three, variably anti-intellectual, exhort and deprecate more than reason.  DiAngelo’s book is a self-serving polemic, with undertows of personal racism awash in rip tides of aggression against other whites.  Kendi’s book, though burdened with biographical stories, addresses most domains in which racism operates but reveals his ignorance of education.  McWhorter’s book, polemical, poorly focused, and hastily written, is right to criticize their “Wokism” but wrong not to expose their basic strategy—to exploit most whites’ ignorance of race and racism, and their fear of being called racist.

No one has taught whites what they need to know about race.  Since the mid-20th-century Civil Rights Movement, schools have addressed racism by teaching multi-culturalism, a jumble of superficial, stereotypical tidbits.  Recent events have prompted schools to enlarge students’ understanding of the black experience through history and literature.  Having omitted much about race, schools are now having trouble achieving balance because of resistance by those who prefer their understanding of America to be sanitized, bland, and homogenized as white and Christian.  Educational reform to achieve a pluralistic balance is necessary, but Wokers' proposals are the wrong ones.

Before Wokism had a name, it evolved in and trickled down from college English departments to public schools.  Its forerunner was not Critical Race Theory (CRT), but New Historicism, which interprets literature, not as expressions of experience, but as transcripts of power transactions involving race, gender, class, and colonization.  Wokism focuses on race and the relative power of whites and blacks.  Too often New Historians and Wokers strain to make their case, often by taking a single fact as indicative or determinative of an entire historical period or literary work.

Ever the teacher/scholar, I would love to support this claim from my academic experience, but few readers would relish a detailed account of racial politics in scholarly seminars and publications.  Let me just say that, from the one fact that Othello is black, New Historical and Woke interpretations of Othello insist that Venice is a racist society and that race explains Othello’s jealousy and his murder of his wife.  Ironically, they adduce racial stereotypes for support.  They vilify those with contrary interpretations.  Because mine offers a race-free explanation of Othello’s behavior, they treat me and my ideas as racist; their thinking is that to deny racism in any case is to “whitewash” it.

Bad as Woke influence on academic publications and in academe is, its influence on school boards is worse.  Wokers claim that disparities in academic performance—better by whites than by blacks—result from racism, white privilege, or white advantage.  They claim that the disparities result from instruction in white-only, not black-also-, oriented curriculums in traditional subjects.  They claim that, to avoid perpetuating these evils, schools must treat, teach, test, and judge blacks differently from whites.  They must teach Black (not Standard) English, history, math, and science; cease insisting on one right answer; and abandon the same standardized, subject-matter tests for all students.

This Wokers’ position assumes that academic subjects—language, mathematics, history, science—are internally divided by race and that the different divisions must be taught and tested differently.  Based on this assumption, a proposal for race-based curriculums and instruction, if adopted, would re-establish separate but not equal education for blacks.  If—really, since—this assumption is wrong, Wokers propose changes implying that black students are innately incapable of mastering traditional subjects as traditionally defined and taught.  How racist is that!

Wokers also claim that disparities in course enrollments—more whites than blacks—result from racism, white privilege, or white advantage.  They propose to eliminate these disparities by eliminating gifted and talented programs, and advanced placement and enriched or accelerated courses.  Example: a school board of Woke blacks and liberal whites is ending the gap in racial enrollment in advanced academic courses in my “elite” high school by eliminating them.  Consider this: a Woke school board is depriving white students who have demonstrated high academic achievement, of courses suited to their academic abilities.  It is enough to drive Tucker Carlson back to Hungary.  Then consider this: a Woke school board is depriving black students who have demonstrated high academic achievement, of courses suited to their academic abilities.  Yet it is not enough to prompt Al Sharpton to hold a press conference.  For the gap is gone.

 Not gone are the disparities in academic abilities between these high achieving black and white students, and all other black and white students.  In the name of equality, this Woke school board is hurting black as well as white students.  It is harming the chances of talented black as well as white students to succeed in a world in which both races will live together in schools, careers, neighborhoods, and relationships.  By shifting emphasis from education to an ersatz equality, its policy discourages all students from striving for academic achievement.  It promotes curriculums emphasizing politically approved causes, not the content of traditional academic subjects.  Wokism degrades education.

To be consistent, Wokers should seek to eliminate disparities in enrollments in special education courses—more blacks than whites—, especially since racists might think that these disparities reflect black academic inferiority.  Wokers do not.  Their inconsistency and anti-intellectualism show an unsavory racial—is it (also) a middle-class?—bias in removing strengths in education while not reforming weaknesses—thereby offering nothing constructive to improve education for students, black and white, by matching it to their abilities to meet their needs.

McWhorter offers a useful insight into Woke thinking, feeling, and acting which cause personal harm and social damage.  Wokism is a religion of the self-righteous, dogmatic, close-minded, intolerant, and coercive—in education, harmful to students black as well as white.  They are zealots garbed with seemingly good intentions; skilled in exploiting ignorance, guilt, and fear; determined to defeat rational opposition—i.e., heretics—to their holy cause; and indifferent to the consequences of their crusade to achieve racial equality in education—i.e., educational uniformity regardless of student ability.

The challenge for the conscientious is to find and use ways to deal with Wokism and Wokers.  One way: avoid any concession to anti-intellectualism; cling to fact, logic, and reason.  Another: criticize the inadequacies or dangers of their proposals yet continue to seek social justice.  Yet another: condemn any racism in their antiracist proposals and encourage equity.  Finally, do not think that they offer the path to redemption from racist sin.  We may be sinners, but our sin is not original, and it can be absolved by intelligent, informed, and persistent effort.

SCOTUS TO ABORT ROE V. WADE

I have written blogs about the abortion issue in many of its aspects since 2009.  Anti-abortionism as an idolatry elevating the unborn to a status and endowments—innocent, safeguarded, provisioned, without qualification or limitation—not enjoyed by the born.  The political principles and strategies of both sides of the abortion issue.  Blackmun’s Roe v. Wade decision.  Why?  Because I am passionate about a woman’s right to make decisions about her life, body, and pregnancy without federal or state government interference or limitation.  A government with legal sanction to control a woman’s body can acquire legal sanction to control anyone’s body—take that, you oxymoronic small-government, anti-abortion types.

Prospects for a constitutionally recognized and honestly realizable right to abortion are dim for two reasons.  One, incessant opposition by about one-fourth of Americans.  Two, rigidity of righteousness by its advocates.  For years, the Supreme Court has made decisions nibbling away at the actual exercise of the right—fair warnings about future decisions.  While fighting a rear-guard action to defend Plan A, Roe v. Wade, advocates should have developed Plan B, a contingency.  Instead, they have preferred to protest in denial of the increasingly likely gutting or killing of that constitutional right—SCOTUS wouldn’t, shouldn’t—, and indulge grief and anger in the event.  So here they are.

Blackmun’s opinion in the Roe v. Wade decision gave advocates of a constitutional abortion right which they wanted.  Smug with a SCOTUS win, they did not read, or read carefully, the decision in light of the widespread opinion that it is poorly reasoned and was wrongly decided.  I have yet to meet someone who has read it.  At the time and for years after, I did not; I was busy starting and maintaining a family and career.  But when I turned to the subject after I retired, I read Blackmun’s opinion and was stunned by its utter illogic, which advocates should have known would raise serious issues.

Blackmun launches his substantive discussion with a long survey of culturally and historically diverse moral, philosophical, and religious beliefs about abortion, especially those on the beginning of life.  Noting that moralists, philosophers, and theologians having failed to define the beginning of life, he says that the Court is neither qualified nor asked to do so.  Fine: however, having surveyed such beliefs, he should have first noted that the definition of when life begins is a religious belief; he should have then inferred that it and its associated practices are protected by the First Amendment—free exercise of religion and freedom from the establishment of religion.  Only his inability to see, much less connect, the dots makes possible his pivot from religion to science.

Having dismissed religion as the paramount consideration, Blackmun turns to science for an answer.  The perversity of this move is incomprehensible unless he thought that science could resolve the issue.  If so, he was an ignoramus and a fool.  First, few expect science to decide moral, philosophical, or religious issues; fewer would accept its results as decisive.  Science can stipulate a definition of life or its beginning for its purposes but cannot do so for purposes in other fields.  Second, given scientific advances, no one can expect science-based decisions to ensure long-term legal stability.  For example, between 1929 and 1967, independent viability changed from the 28^th to the 24^th week of gestation, respectively.  Whatever the earliest limit of viability, any earlier limit would be  arbitrary.  Third, and most important, any stipulation, viability or not, would favor some religious beliefs and practices over others—in itself, an establishment of religion.

Blackmun has company when it comes missing or forgetting these points about the centrality of religion in this issue and the irrelevance of science to it.  I believe that most advocates of an abortion right give little thought to religion and know little about science.  When I talked with Linda Greenhouse, Yale Law School professor and New York Times columnist, about my position some years ago, she recollected that Justice John Paul Stevens had made a similar argument, ignored by his fellow justices, at the time.

Advocates might see value in attending more to religion and science.  With a SCOTUS majority making many decisions favorable to religion, advocates of an abortion right should adopt a new approach.  Strategically sensible would be playing to the Court’s bias by arguing on religious grounds that the First Amendment protects abortion as an exercise of religion free from federal or state government interference.  Rhetorically sensible would be implying that advocates of an abortion right are as religious as those opposed to it and, moreover, unwilling to sully religion by putting it in thrall to science.  So, take that, you Christian fundamentalist adulterators of religion with science.

A word on a peripheral but inflamed topic, stare decisis, with controversy confused on both sides.  The Left regards this judicial principle as immutable; the Right invokes instances of major reversals of precedents to imply that the Left is hypocritical.  In those cases, it says, the Left got its way and did not complain; it complains only now, when the Right looks to get its way.  In this controversy, the Left is dumb, but the Right is dumber.

Anyone who has seen On the Basis of Sex saw Ruth Bader Ginsberg’s final argument urging the appellate court to overturn precedent.  What matters in cases challenging precedent is the legal reasoning for reaffirming or overruling it.  In all of the reversals cited by the Right, the legal reasoning, partly in response to changed circumstances, partly in response to redefined terminology (e.g., “separate” cannot be “equal”), is an expansion of the rights of the people in accordance with fundamental American values, like equality under the law.  All of these decisions have pared away restrictions on “unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

In this historical context, a SCOTUS reversal or disempowering of Roe v. Wade would be astonishing and appalling.  First, but least of all, oral questions from the conservative justices demonstrated the lack of cogency of any rationale to reverse or disempower that decision.  Second, a Roberts court decision would undo what previous courts defined and maintained as a constitutional right.  No SCOTUS has ever arrogated such authority or attempted such a decision.  Third, it would not expand, but contract, the scope of those “unalienable Rights,” which, among others, in association with the right to one’s life, surely includes the right to control one’s own body.  All in all, if a precedent defining a constitutional right can be reversed on flimsy grounds to diminish individual rights, no law is safe, none is settled, and the court can comply with an autocrat’s command.

LAWBREAKERS AND LIARS IN THE LAS CRUCES LAW OFFICE

I gave thanks Thursday for the Las Cruces police force and legal community.  They are a blogger's delight, a gift which just keeps on giving.  It has ranged from an Animal Control Officer citing me for five fictitious (my mantra: “fact-free, false, and fabricated”) code violations to the City Attorney claiming on 24 June 2021 that “The events as they occurred actually occurred.  They were properly documented.”  Wow!  Over 16 months later, she contradicted IA’s 5 February 2020 report that “Mr. Hays’ warning notice had several violations marked to which there was no physical evidence or proof an actual violation had occurred."  She did not respond to my request to see the documents.

I also gave thanks for readers who have been decent enough to wonder why I have invested so heavily in this case.  I know that the fictitious violations are small; I also know that the responses of Las Cruces officialdom—Mayor, Councilors, City Managers, City Attorneys, Police Chiefs and IA Officers—are large.  Their strategy and tactics used against me—delays, obstruction, concealment, nonsense, lies, misrepresentations, slander, libel—can be used against against you, especially if your case is more important or police misconduct far worse.  Far from being chastened by the publicity which I have given their misconduct, they may relish my public exposure as advertising their warning to citizens not to confront them with complaints.  You will be treated disrespectfully, denied due process, and unable to find local lawyers brave enough even to advise you about your case involving the political and police powers of city and state.  You may think that it will not happen to you (until it does), ignore my warning, and tolerate police misconduct, which once again, I document in one significant matter: antisemitism.

In the spring of 2020, I made an Inspection of Public Records Act (IPRA) request for all records related to my complaint about five fictitious violations.  Mr. Robert Cabello, Senior Assistant City Attorney, with the knowledge and approval of Ms. Jennifer Vega-Brown, City Attorney, only partly complied.  He justified redacting two and withholding two records by citing IPRA exemption NMSA 14-2.1(C) Matters of Opinion, “letters or memorandums which are matters of opinion in personnel files….” concerning ACO Juan Valles.  Mr. Cabello states in a 26 March 2020 email that “the redactions…are directly related to the employee’s relationship with the City.”  His justification impressed neither me nor Mr. John Kreienkamp, NM Assistant Attorney General, whose opinion concluded, in effect, that the Law Office should get smart and start over.  The weight of his opinion and the threat of legal action prompted the Law Office to come clean (perhaps).

One redacted section concerned antisemitism.  Background: I neither alleged nor suggested antisemitism in my 5 August 2019 formal complaint to IA about the citations.  In an email later that day to four officials—Councilor Kasandra Gandara, Interim City Manager William Studer, Chief of Police Patrick Gallagher, IA Officer Carmen Lazarin—, I suggested antisemitism as a possible motive for ACO Valles’s citations.  I did not know that any suggestion of bias-based policing requires an investigation.

Even so, the LCPD was reluctant to act.  It did nothing for 6 weeks.  IA Officer Lazarin seems not to have informed other IA officers of this suggestion; or, if she had, neither she nor they took it seriously.  Nor did Chief Gallagher.  A month later, on 3 September, IA Sgt. Sean Mullens notified Valles’s superior that my complaint “was determined to be a non-serious matter.”  IA inaction prompted me to write a 21 September blog suggesting that antisemitism went beyond ACO Valles to others in the LCPD.  IA rushed to add bias-based policing to my complaint without my knowledge or permission.  I protested, demanded that it be detached from my complaint, and explained that criminalizing bias is contrary to my moral and religious principles.

Over 3 months later, on 14 January 2020, IA acted; IA Sgt. Mullen interviewed ACO Valles.  (His memorandum dates the interview 14 January 2019, before the incident!)  I have numbered the sentences in the unredacted passage for ready reference:

[1] Mr. Hays doesn’t like the fact a warning notice left on his gate.  [2] He challenges the complaints [sic] validity since the caller chose to remain anonymous.  [3] He protested the facts in emails, blogs, phone calls and meetings.  [4] The notice was left by ACO to have the property owner call in and the Animal Control Officer educate them on the reason for the visit to their home and the city ordinances required by [sic] every pet owner.  [5] In an email and blog authored by Mr. Hays, he suggested antisemitism within LCPD, specifically in this instance with ACO Valles.  [6] He noted a large Star of David which hangs about the garage as motivation for ACO Valles’ [sic] actions.  [7] Mr. Hays told Lieutenant Kinney and Chief Gallagher during a meeting on January 7, 2020 with City Staff that he wasn’t complaining of biased [sic] based policing.  [8] LCPD is obligated to look into any suggestion of biased [sic] based policing whether or not the citizen files an official complaint.

[9] During my interview ACO Valles advised he is not targeting Mr. Hays’ [sic] because of his beliefs, religion or any other reason.  [10] He just happened to be the officer who took this call for service.  [11] By the same measure where Mr. Hays said there is no evidence to support violation at his home; [sic] there is absolutely no evidence to suggest any bias or targeting of Mr. Hays by ACO Valles or LCPD.

I waste no one’s time or trouble to address the irrelevant, or rebut the false, misleading, contentious, or pejorative statements, in these two paragraphs.  Instead, I make a few brief observations about them.

First, over half the statements are irrelevant, having nothing to do with a suggestion of antisemitism.  Statements 1 through 4 are about me and the notice of violations.  Statements 7 and 8 address complaints about antisemitism, not antisemitism itself.

Second, of the remaining five statements, two (5 and 6) present my suggestion and my evidence for it; two (9 and 10) present ACO Valles’s counters: an unsupported denial of antisemitism and an everyone-would-do-as-I-did defense, namely, cite me for fictitious violations (and for the same motive?); one (11) is IA Sgt. Mullen’s flawed analogical argument in ACO’s Valles’s defense (IA Sgt. Mullen omits his conclusion cited just above in his memorandum in order to dismiss my possible evidence, the Star of David).

Third, missing are any investigative questions relevant to ascertaining ACO Valles’s motive.  IA Sgt. Mullen did not ask ACO Valles whether he had given out fictitious citations for code violations before?  If so, often?  If so, to whom and of what religion?  And if so to any of these questions, why?  If his conduct in my case is routine with him, Valles admits to routine bad policing.  If his answers seem trustworthy in making my case unique, then what explains giving them out in this instance?

Fourth, and most important, nothing, absolutely nothing, in this passage justifies an exemption because it contains no “Matters of Opinion” concerning ACO Juan Valles and nothing “directly related to the employee’s relationship with the City.”

So the question is, why did Mr. Cabello and Ms. Vega-Brown claim a bogus exemption and thereby break the law and lie to both me and an NM Assistant Attorney General.  One answer: they thought that they would not be discovered to be lawbreakers and liars.  Another: they thought that, if discovered, they would suffer no consequences.  They were discovered, and they have suffered no consequences.

City officials—Mayor, Councilors, City Manager, and Chief of Police—have condoned city lawyers’ lawbreaking and lying to citizens and state officials, and some have actively worked to silence me and disregard of my case.  Mayor Miyagishima, who publicly and privately promised that I would present my case to the police auditor; Councilor Bencomo, who has advocated police reform and attended a meeting in which the City Manager said that the citations should be retracted; and Councilor Gandara, who has repeatedly and vigorously defended the City Attorney to me—all deliberately voted to exclude my case from those to be reviewed by the police auditor.  Councilor Gandara, who did nothing more than back my requests to meet with two City Managers, is greatly committed to social services but little concerned for public safety.

What began as a suggestion of one ACO’s antisemitism leads, after my 2-years’ effort to have fictitious violations retracted and my police record expunged, to the suggestion of institutional antisemitism.  The refusal of these city officials and officers except the City Manager to admit mistakes and make amends reflects more than wagon-circling.  When antisemitism is a possibility, now approaching certainty, refusal reflects their tolerance of it and its taint.  Dodging transparency and accountability, ducking the facts supporting my complaint, and rigging the police auditor’s report are tell-tale signs of antisemitism in the leadership of The City of Three Crosses.  If not, let them answer.  Certainly, this redacted portion contains nothing cogent denying antisemitsim.

Compatible with this official behavior—and alarming—is sentence {3}: “He protested the facts in emails, blogs, phone calls and meetings.”  IA Sgt. Mullen disapproves of my protesting the fictitious violations (not his “facts,” all false).  Despite his oath to uphold the constitutions of the United States and New Mexico, he neither accepts nor respects a citizen’s First Amendment rights: free speech, free press, petition, and assembly.

I close with a specific warning: it cannot happen here—until it does.  If IA Sgt. Mullen represents the LCPD, it constitutes a potential threat to the civil rights, perhaps even the lives, of citizens who protest police misconduct or political actions.  The City Attorney and her Senior Assistant tried to conceal this redacted statement by lawbreaking and lying because it shows that they not only cannot rebut the suggestion of antisemitism, but also recognize and tolerate the threat of police action against Las Cruces citizens.

As of sundown (three stars appearing in the firmament), I wish you a Happy Hanukkah!