IsThatLegal?

"Though he be a gentleman, remember, Eric Muller is also a lawyer."
-- Sparkey of "Sgt. Stryker's Daily Briefing"
"Relentlessly sensible and often important."
-- Michael Froomkin of "discourse.net"

The Chronicle of Higher Education is publishing its article on academic blogging, and it features a section on IsThatLegal's role in the Howard Coble controversy.

Of course, one scientist on the team insisted it is a horse. But that's all settled now.

Eugene Volokh yesterday opined that because of Florida's Religious Freedom Restoration Act, the Muslim woman in Florida who wants to wear her veil for her driver's licence I.D. card might have a winning claim. Well, maybe; I don't know doodle about Florida's Religious Freedom Restoration Act. But a friend did point out to me that women in Muslim countries don't get photographed for driver's licenses wearing their veils, except in Saudi Arabia.

(There, they don't get photographed for driver's licenses at all.)

"Sk8er Boi"--the pop song sung by Avril Lavigne--is going to be a movie.

We all know that a movie is never as good as the book on which it's based. Now we get to find out whether the same will be for true for a song.

Contest idea: name a song from which a good movie might be made. A few nominations: "Melody Motel" (Squeeze), "Veronica" (Elvis Costello), "Hooked on a Feeling" (Blue Suede). (OK, I was kidding about that last one.)

OK, this is my last post on Colonial Wiliamsburg. I promise.

I noted one other fascinating thing during my visit. When you enter through the Visitor’s Center, you are encouraged to see a twenty-minute film called “The Story of a Patriot” as an introduction to the Colonial Williamsburg experience. It is billed as “the longest-running film in American motion picture history.” It was made in 1956, and first shown in 1957. (That explains why Ed Cone remembers seeing it. And Ed is up enough on popular culture to point out that this film was the first starring role for the guy who ended up on Hawaii Five-O.)

The film has historical value in its own right—but not the historical value that Colonial Williamsburg ascribes to it.

Here’s a synopsis, from Colonial Williamsburg’s website:

The film’s story is told through the character of fictional planter John Fry, from 1769 to 1776. Fry struggles with the questions that faced all colonists in the years leading up to the revolution: Shall the colonies unite to oppose British punishment of Boston for its Tea Party? Meet Britain’s use of force with force? Declare independence? The choices made by the colonists were not easy ones, and, as the film depicts, family members and old friends were often at odds with one another over those choices. Through Fry, the audience is introduced to George Washington, Patrick Henry, Thomas Jefferson, and other patriots who conceived the “idea of America.”

What is remarkable about the film is not so much what it reveals about the period of transition from colonial rule to independence, but what it reveals about the America of the 1950s (and, by inference, the America of today). For all of its romanticizing of the dilemmas of liberty faced by Southern planters under British rule, the film does not even hint at any incompatibility between their notions of liberty for themselves and their ownership of slaves. Neither does the film offer even the tiniest glimpse into the lives of the many black slaves who are in the background of all of the scenes of home and plantation life. It's very much the sort of film one would expect to see in Virginia in the late 1950s, during its period of "massive resistance" to Brown v. Board of Education.

If Colonial Williamsburg were making an introductory film today, it would surely not look much like “Story of a Patriot.” It sort of makes you wonder why they’re hanging on to the film as their primary introductory experience for visitors. Yes, it’s cool that the film has been running without interruption since the 1950s. That’s a good reason for the film to be shown . . . in a film museum. Not at a historical park that purports to be interested in depicting history with accuracy and subtlety.

Some readers are missing my point about my Colonial Williamsburg experience.

I recognize the value--including, at times, the shock value--of historically accurate renditions. It would be fascinating and edifying (although probably a financial disaster) for a foundation to run parks that offered visitors historically accurate experiences. (The possibilities are simply endless: A park where white people can force Native Americans along the Trail of Tears; a park where whites dressed in western garb can mow down Chinese Americans dressed as railroad workers; maybe even a sort of Civil Rights Water World, where whites can dress up as police officers and spray blacks dressed up as civil rights marchers with powerful water cannons. All in the name of historical accuracy!)

Seriously, I do see the point of running a 1774 trial according to 1774 rules.

But (a) that's not what Colonial Williamsburg did. It ran a 1774 trial according to some--but not all--of the 1774 rules. Papists couldn't have served as a 1774 Williamsburg justice, but they could last Saturday. And more importantly, (b) that's not what Colonial Williamsburg does in any other part of the park, and it does not notify visitors that the trial will enforce the 1774 rules of exclusion.

So (my above sarcasm aside) if a historical park wants to offer visitors a realistic experience of oppression, that's fine. (It may not be legal, but it's still, I think, a good idea in principle.) But that's not what Colonial Williamsburg is doing, and it's not what Colonial Williamsburg advertises itself as doing, and therein lies the stupidity of springing 1774-style oppression on an unsuspecting crowd of tourists.

Well, when I said earlier that Colonial Williamsburg wouldn't put black tourists on the slave auction block, I was wrong. A friend pointed me to this story about earlier experimentation at Colonial Williamsburg with visitor experiences of discrimination.

I spent the weekend with my family in Colonial Williamsburg, and had a troubling experience I thought I’d mention. (I’ll confess right up front that my own sensitivity probably plays a role in what was troubling. But I don’t think that entirely explains what was troubling.)

For those of you who don’t know, Colonial Williamsburg is a large section of the town of Williamsburg, Virginia, which a foundation has developed so that it looks as it did just before the American Revolution. Historical “interpreters” in period costumes wander around and engage with visitors (maybe this picture will give you a sense of the place), and many of the buildings are open so that visitors can see people engaged in the ordinary activities of the time—making shoes, casting pewter utensils, and that sort of thing.

They also run simulated trials at the courthouse, based on actual cases litigated in colonial courts.

Here’s what happened. The trials are very popular events, and the courthouse doesn’t accommodate a lot of people at once, so long lines form outside the courthouse well in advance of each “session.” My family and I were waiting for the 2:00 p.m. court session. At about five minutes before the hour a gentleman in period costume (he would turn out to be the courtroom bailiff) stepped in front of us to explain what we would be seeing. He explained that they would need some volunteers to serve as justices, and that these volunteers would be given the opportunity to participate (if they wished), both by asking questions and by voting on the outcomes (although he made clear that the cases were deliberately quite one-sided so that the outcomes would not really be in question). Good law professor that I am, I thought, “gee, this would be fun,” and I prepared to volunteer. Then the bailiff explained that the members of the panel of justices would have to meet the requirements of the period—they would have to be white, male, Protestant, over a certain age (I don’t remember what it was), and land owners. Then he said, “the law at the time would have required you to swear an anti-papist oath too, but”—and here he broke into a broad smile—“we’re not going to push it that far.” Many in the crowd laughed.

Then he asked for volunteers. He must have noticed the enthusiasm in my face, because he specifically pointed to me and asked if I wanted to participate. I was confused—had all of that stuff about the requirements for serving been a joke? He said nothing that indicated he wasn’t serious. And he’d even said that there was an eighteenth-century requirement that they weren’t enforcing—the anti-papist oath—so that led me to think that maybe they were serious about the other ones. Anyway, I answered him that I didn’t meet the requirements. (I’m Jewish.) “Thanks for being honest,” he said, and then turned to get other volunteers. (This too tended to suggest to me that they were serious about this.) When he was through, all of the volunteers up on the bench were white men. (Naturally I can’t say that they were all Protestant.)

I have not taken the time to think through whether a private foundation violates federal or state antidiscrimination statutes by making certain of its activities available only to those who meet some (but not all) of the discriminatory requirements of the historical era it is depicting. It’s hard for me to believe that this sort of discrimination would be legal. If I have time, maybe I’ll try to think it through and write something more about it here.

But here’s what I do know: legal or not, this is an extremely stupid thing for Colonial Williamsburg to be doing. In no other part of the park do they make any effort to have visitors personally experience (as opposed to simply hearing and learning about) the various race, gender, and religious discriminations of eighteenth-century Virginia. I was totally unprepared for the discrimination, and very insulted by it.

Surely Colonial Williamsburg would not put African American visitors up on an auction block, or corporally punish misbehaving children, in the name of providing a historically accurate visitor experience. And even in the situation I experienced, Colonial Williamsburg flinched in an interesting way: not wanting (I guess) excessively to piss off Catholics, it did not require the anti-papist oath.

If I were running a tourist destination like Colonial Williamsburg, I would not run it this way.

The service I use to track hits to this site has announced that it is terminating its free accounts at the end of the week. Can anyone suggest a good service that I might replace it with?

I testified on Wednesday at a hearing convened by Rep. Mike Honda (D.-Calif.) on the subject of internment and civil liberties. It was a suprisingly well-attended event: there were easily one hundred people in attendance. Four House members heard the testimony: Honda, Hilda Solis (D.-Calif.), David Wu (D.-Or., and chairman of the Congressional Asian Pacific American Caucus), and Raul Grijalva (D.-Ariz.).

The most notable thing, in my estimation, was the emotion that wells up in those who were victimized by the government's WWII internment policies, all these 60 years later. Honda himself choked up--for real (there were no cameras rolling)--in responding to the testimony of a Japanese American who was bounced out of the US Army at the time of Pearl Harbor and then volunteered back into the service from inside an internment camp in 1943 in order to prove his patriotism.

Another witness was a man by the name of Gunther Graber, whose German immigrant family was incarcerated for a couple of years between 1942 and 1945 and then shipped to war-torn Germany in a trade for American prisoners. His story is summarized here. Quite moving.

Howard Coble's name did not come up--at least not directly. But I alluded to his recent defense of the internment of Japanese Americans in my testimony, and I know from private conversations that many in the House are still seething over what he said.

For those of you who have momentarily lost track of the progress of Yard Man in his 5,000-plus mile trip across the country on a lawnmower, you'll want to know that I just passed him and his entourage heading north out of Chapel Hill on Route 86. He is doing fine.

Here he is with The Godfather of Soul,







and here he is in his exciting low-speed chase across the State of Mississippi:

Many thanks to Justin Daoust for tidying up and improving this page's template!

The recent reemergence of the story about Rep. Howard Coble's comments back in February about the Japanese American internment brought to mind an uncomfortable historical parallel. You'll recall Mr. Coble's words: “We were at war. They (Japanese-Americans) were an endangered species,” Coble said. “For many of these Japanese-Americans, it wasn’t safe for them to be on the street.”

Consider this, from the New York Times, Thursday, November 10, 1938: "Beginning systematically in the early morning hours in almost every town and city in the country, the wrecking, looting and burning continued all day. Huge, but mostly silent, crowds looked on and the police confined themselves to regulating traffic and making wholesale arrests of Jews 'for their own protection."

The roundup of Japanese Americans in the spring of 1942 was, of course, no Kristallnacht. But neither program was about protecting the victims.

I mentioned the other day that the California Assembly had voted -- unanimously -- to call for Rep. Howard Coble's resignation as chair of the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security. I also said that "all" of the Assembly's 32 Republicans supported the measure.

I learned yesterday, while up in Washington, that this was not quite right. It is true that the vote was unanimous. But it was not true that all 32 of the Republicans voted for the measure. Ten Republicans did not vote at all.

I hereby suggest that Blogger be renamed Clogger, at least for today. I have never seen performance as slow and sticky and unresponsive as it is today.

Eugene Volokh calls attention to a meeting in a public high school for black students, from which white students were (or at least may have been) excluded. Eugene says that the case presents an interesting legal issue "much like one that ... John Rosenberg [and I] had been discussing a week or two ago."

Eugene is referring to my post (and John Rosenberg's response) about my daughters' elementary school's practice of assigning minority students to classrooms within grade levels in order to prevent their racial isolation.

I don't think the story Eugene links to really bears a whole lot of similarity to the one I blogged. Crucial to my conclusion that my kids' school's policy was legal was the fact that there was no harm at all, to anyone. Nobody was being excluded from anything; nobody was being given a benefit or opportunity that any other student was not receiving. Obviously, if a school has a meeting and says that only kids of one race can come, that's quite different.

Tomorrow afternoon at 2:00, in Room 2253 of the Rayburn Office Building, Rep. Mike Honda (D-Calif.) will host a hearing: "Past and Present: Safeguarding American Civil Liberties" featuring Americans who suffered internment or exclusion during World War II, and representatives of the Japanese American, German American and Italian American communities. According to Honda's office, panelists will relate the lessons learned from our history to the challenges we face today, in order to gain a better understanding of the experiences of various communities in America--especially in light of the Sept. 11th attacks and our ongoing war against terror.

I will be speaking about the 1942 Executive Order 9066 and events leading to internment of Americans during WWII.

Here's the makeup of the two panels:

PANEL 1:
-Professor Eric Muller, University of North Carolina, Chapel Hill
-Gunther Graber (German American)
-Warren Minami (Japanese American)
-Jean Kariya (Japanese American)
-Joe Ichiuji (Japanese American)

PANEL 2:
-James Zogby, President and CEO, Arab American Institute
-Deepa Iyer, Vice Chair, South Asian American Leaders of Tomorrow
-Faiz Rehman, President, National Council of Pakistani Americans
-Manjit Singh, Exec. Director, Sikh Media Watch and Resource Task Force
-Judith Golub, Senior Director, Advocacy & Public Affairs, American Immigration Lawyers Association
-Cory Smith, Legislative Counsel, Lawyers Committee on Human Rights

Today the California Assembly voted unanimously to call upon Rep. Howard Coble to resign his position as chairman of the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security because of his comments of early February about the internment of Japanese Americans during World War II.

Even the 32 Republicans in the Assembly voted for the measure.

This morning's Denver Post has a pretty comprehensive article on the final rules for military tribunals. No suprises, really; we've seen most of this before. And certainly, the early concerns that these would be total kangaroo courts have been alleviated. I think the primary lingering concerns are (a) the ways in which the chargeable crimes appear to have been selected to facilitate prosecution under the facts as they actually developed on the battlefield, and (b) the continued absence of any form of review outside the executive branch.

Nora Ephron has a very funny piece in today's NY Times about her time as an intern in the JFK White House.

Can she be right, by the way? Did JFK really not mess around with any Jewish women? If so, here finally is something that distinguishes Bill Clinton from his idol!

I saw an absolutely engrossing documentary film this evening: The Stone Reader. It is the story of the filmmaker's obsession with a one-hit-wonder of a novel that the filmmaker bought in 1972, shortly after its publication, after he read a rave review in the NY Times. The film tells the story of the filmmaker's efforts to track down the author of the book and figure out why the author never published another book.

I found it riveting -- although I noticed that several people around me were dozing. It explores questions of why writers write, why readers read, what is so special about novels, what it is that obsesses us and why, what the creative process does to people, how the fates contribute to fortunes, and the like.

It's playing only in Washington, DC, New York, Dallas, Fort Worth, and Denver at the moment.

Well, the hotel where I'm staying has free high-speed internet access in its business center. And so, breathless IsThatLegal? readers, neither of you needs to wait until Monday for further missives.

North Carolina has a doozy of a political scandal brewing--with allegations of campaign illegalities swirling around our agriculture commissioner, who also happens to be the daughter and granddaughter of former North Carolina governors. Monkeytime has the story covered.

I'm off to Denver, internationally known as the home of Talkeft, for a board meeting. I'll be blogging again Monday, unless I can't resist the urge and end up blogging from a Kinko's somewhere, and paying for the privilege.

Given the predictable equivocation and defensiveness of the New York Times's coverage of the Jayson Blair story, I'd like to see the New York Times create the newspaper equivalent of an independent counsel--let's call him/her an "Independent Journalist." Hire a top investigative reporter from another leading paper--Bob Woodward, maybe--give him or her free access to absolutely everything and everyone at the Times, and promise him or her a certain number of pages to file a report or story in a special section of the Times--edited by the reporter's own home newspaper, but never touched, or even read, by anyone at the New York Times.

I know the Times claims it has done something like this internally. But that's just the problem: it's an internal solution, and it's therefore suspect.

Even an ombudsman--which the Times apparently doesn't have--would not be sufficiently removed from the paper to do a truly trustworthy job.

We know the Times believes that executive branch officials can't be trusted to investigate themselves. (And they're right about that.) Why should it be any different for the Times itself?

Did you know that Hooters has an airline?
Yes, Hooters. The restaurant. It has an airline. I kid you not.

I can't think of a restaurant chain whose airline I would feel less secure flying. WaffleHouseAir, maybe.

In any event, I have to assume that Hooters Air's frequent flier program (the "Mile High Club"), must be about the best in the business.

I'm pleased to hear that Mike Chertoff, nominated for the US Court of Appeals for the Third Circuit, is probably not going to fall prey to the partisanship that is gridlocking some judicial appointments. Chertoff has been the head of the Justice Department's Criminal Division for the last couple of years, and I thought perhaps he would serve as a target for some Senators wishing to triangulate off of Chertoff on civil liberties issues. It looks as though that's not happening, and that's a good thing. Chertoff is a law enforcement guy, and no liberal--even though he clerked for Justice Brennan. But I don't think he's an ideologue, he is scary smart, and I think he'll be very fair in the role of judge. (Disclosure: I used to work for him, back in my days at the US Attorney's Office in NJ.)

I'm puzzled to learn of Ohio University's recent announcement of a policy banning faculty photo sessions with nude or partially clothed student models.

It seems that the university is now being sued by a senior who posed topless for her professor's photo shoot, and who claims that the professor sexually harassed her. From the linked story, it certainly sounds like she's got a case.

Gary J. Kirksey, a professor at the school, explained the difficulty that the photography professors labor under: "Trying to get professional, experienced models in Athens," Kirksey said in the Chronicle of Higher Education, "is difficult."

Excuse me? Hard to find nude models in Athens?

How about her?












Or these women? They must be available.













Oh, wait. Oops. Wrong Athens.

I'm back from the Lake Eden Arts Festival. It was a blast. The Sim Redmond Band was, as expected, fantastic. So were the Red Clay Ramblers, as they always are. One other band caught my fancy: Inner Visions, a reggae band from St. John in the U.S. Virgin Islands. And one caught my wife's fancy: the Alison Brown Quartet.

EdCone.com turns one today! Drop by and wish him a happy birthblog!

I'm off for a weekend of camping and music at the Lake Eden Arts Festival (a/k/a "LEAF"). I'm especially looking forward to hearing local heroes The Red Clay Ramblers and a fantastic band called The Sim Redmond Band out of Ithaca, NY. I heard the Sim Redmond Band at last year's festival and was entranced. Give a listen to some of their .mp3's at their site.

There has been some discussion about the question I asked here the other day about my daughters’ elementary school’s practice of assigning minority students to classrooms within grade levels so as to avoid racial isolation. On the question of whether the practice is legal, Eugene Volokh was “pretty sure the answer is no,” but said nothing more. John Rosenberg, by contrast, was far more confident that the answer is no, and wrote at some length about why. Rosenberg did not actually argue that the actual practice of my daughters’ elementary school was illegal or bad policy, but instead pointed to a number of other potential (and potentially troubling) uses of race or religion or ethnicity that might grow from a program like the one actually used in my daughters’ elementary school. Rosenberg summarized his conclusion quotably: “Taking race into account, even for ‘benign’ reasons, leads to results that are far from benign. Perhaps the most insidious of those results is the undeserved legitimacy it bestows on taking race into account.”

I disagree with Rosenberg and Volokh on this one. Indeed, I think the only significant reason to condemn the program is strategic—to block race from establishing any sort of beachhead at all in public decisionmaking. But the program itself seems permissible, even in the Croson/Adarand world we live in.

Just to make sure there’s no confusion, let’s be clear about how a program like this might operate. Let’s say that there are three third-grade classrooms at a given elementary school, and 60 third graders. Let’s say that 9 of the 60 third graders are black. Let’s say that the principal either randomly picks names to achieve three groups of 20, or non-randomly (but without regard to race) picks names in order to achieve three groups of 20 that serve valid pedagogical goals (keeping a known bully away from a known victim, for example). But it turns out that seven of the black kids are in Class 1, one black kid is in Class 2, and one black kid is in Class 3. So the principal reassigns four black kids from Class 1 into Classes 2 and 3, and reassigns two non-black kids from each of Classes 2 and 3 into Class 1. The result is a group of three black children in each of the classes.

I confess that I cannot see a reason—other than maintaining fealty to a proposition about the categorical illegitimacy of using race for any purpose—to quibble with this program. This is utterly unlike a case in which a person gains or loses an advantage or opportunity on the basis of his or her race. Nobody is being fired. Nobody is being denied admission. Nobody is being compelled to assume any burden of any sort that he or she would not otherwise have to assume. The classes are all third-grade classes; all are in the same school; all are receiving the same everything. They just have different teachers. The “costs,” in the conventional sense of that word, are zero. So too are the risks that the program is evidence of some sort of illicit and submerged racial politics.

Some might argue that there is one “cost” associated with the program: the cost of stigma. That is, some might argue that this program of reassignment to avoid racial isolation is premised on a notion that minority children will either feel worse about themselves, do worse academically, or behave worse, if they are racially or ethnically isolated than if they are in a classroom with some of their racial or ethnic peers. This, though, is hardly a stigmatizing notion. The idea is not that minority kids are less smart, less well-behaved, less self-reliant, or any such thing. Instead, it’s that kids—all kids—are generally likely to feel and do better in an environment where they have other kids with whom they have something important, like race, in common. (I have always felt something like this to be true for myself, incidentally; I feel more constrained and self-conscious about certain things in situations in which I am the only Jewish person than in situations where there are a few other Jewish people around me.)

What, then, is gained by condemning a cost-free program like this? To be sure, an exceedingly rigorous and formalistic application of strict scrutiny might condemn the practice. But it would be a version of strict scrutiny that, I think, far exceeds the version of that test preferred by the center of the current Court. And it would be a version of strict scrutiny that was concerned not with gauging the actual circumstances of the program at issue, but with establishing a doctrine of absolute colorblindness entirely for its own abstract sake.

This is what I call a string of bad luck.

Each month my daughters' elementary school sends home a newsletter with updates about goings-on at the school and in the school district. This month I noticed a listing of "strategies" that the school is implementing in order to meet the goals of its School Improvement Plan for 2003-2006. One of the strategies is this: "Minority students will be clustered when assigned to classrooms to reduce sense of isolation."

Query: may a public school district not under any sort of desegregation order or decree take race into account in assigning students to classrooms in order to achieve the objective of "reducing a sense of isolation?"

Discuss. (45 minutes)

The New York Times has an interesting article today about a fraud prosecution in New York City against an elderly Chinese immigrant named either Havelock Woo (if you believe the defense) or Shi Tian Wu (if you believe the government). The government's theory is that Shi Tian Wu has stolen the identity of Havelock Woo (now dead), and obtained all sorts of benefits in the name of the dead Mr. Woo. The defendant says that he is, in fact, Havelock Woo (not at all dead), and that he got the various benefits lawfully.

Although the Times doesn't mention it, this is a case of life imitating art. To wit:

Dr. Wu (by Steely Dan, from the album Katy Lied (1975)):

Are you with me Doctor Wu
Are you really just a shadow
Of the man that I once knew
Are you crazy are you high
Or just an ordinary guy
Have you done all you can do
Are you with me Doctor

A guy is stopped and arrested for DWI in a pickup truck at around 11:00 on a Saturday night in a North Carolina state park near a lake.

Searching the truck's cab, police find a stolen wallet from Florida and some drug paraphernalia. They also find several expired driver's licenses from Maryland and two current ones, both in the driver's name, but from different states (one of which he says is his home state).

The kind of ordinary episode that wouldn't even make it onto COPS, right?

Wrong.

I forgot to tell you one little detail. The culprit's name is Mohammed Turk.

Now that's news, huh?

Noting that "lessons learned after Sept. 11, 2001 make them very suspicious," the Vance County cops are talking to the FBI about the case. Oh, and more importantly, to the news media.

The Senate Committee on Governmental Affairs has today released the "Executive Sessions of the Senate Permanent Subcommittee on Investigations of the Committee on Government Operations." That's Joe McCarthy's Subcommittee. Should make for fascinating, and depressing, reading.

Ed Cone is all over the North Carolina legislature's recent failure to amend our "crimes against nature" law to exempt acts by consenting adults.

All of this hoopla (NY Times link may require registration) over MSNBC's washed-up supermodel, uh, I mean superanchor Ashleigh Banfield







is reminding me that I cannot understand why everyone keeps comparing her to washed-up superhero Clark Kent







when the true comparison is to washed-up EuroChanteuse Nana Mouskouri.

It had been estimated before the Iraq war that there were as many as three doubles of Saddam Hussein.

That would make four of them, for those who are counting.

Yet just as we have found no weapons of mass destruction, we have found none of the four Saddam Husseins.

Could it be that there really were no Saddam Husseins in Iraq? Hmmm....

The new women's basketball coach at the University of Wyoming will be paid $200,000 per year for five years--more than two and a half times the amount that the average faculty member was paid at the University of Wyoming during the 2001-2002 academic year.

I don't even want to image the disparity between my salary here at UNC and Roy Williams's.

IsThatLegal readers will know that I have little patience for the constant cry of some critics that each and every post-9/11 law enforcement policy affecting people of Arab ancestry or Muslim faith is a repitition of the Japanese American internment. In my view, the internment stands as an important reminder of how racism can corrode our perception of national security risks, and of how quickly “a little bit” of racial profiling can spread to oppression of stunning proportions. That reminder is going to lose its impact if it is cheapened by overuse. For example, the government’s decision to seek interviews with 1/5 of the 55,000 or so Iraqi nationals in the United States at the start of the war with Iraq bore so little resemblance to the multi-year incarceration of 70,000 American citizens of Japanese ancestry during a war with Japan that the comparison just seemed silly.

But as little patience as I have for that overuse of the internment, I have considerably less for those who can’t bring themselves to say that the internment was a civil rights disaster. North Carolina congressman Howard Coble has, to this day, neither conceded that he was wrong when he said Japanese Americans were incarcerated for their own protection, nor stated that the internment program was a mistake at the time it was implemented.

And now along comes Daniel Pipes, director of the Middle East Forum and President Bush’s new nominee for the Institute of Peace. On April 21, Pipes was interviewed on the Pacifica Radio program “Democracy NOW!” about his views on a variety of subjects, including racial profiling. I transcribed the following excerpt from the online audio of the program:

Q. Should ordinary Muslims in this country be surveilled?

A. Be what?

Q. Be surveilled. Monitored.

A. We have a situation in which we are being repeatedly attacked, now for almost 25 years, by the supporters of militant Islam, starting in 1979 and going until the present. It makes little sense, as, for example, is the case at airline security, to look at nonagenarians, at infants, at former presidential candidates, at airline pilots, to see if they might be carrying weapons to hijack the plane. One has to focus in on the population that is most likely to engage in such criminal activities. And given the pattern of hostilities against Americans, the fact is that most of these attempts, these criminal activities, come from the supporters of militant Islam. Well, unfortunately, those supporters are limited, almost exclusively, to the Muslim community. It therefore makes sense to focus in on the likely suspects.

Q. Is it racist?

A. Of course it’s not racist; it has nothing to do with race whatsoever. It can be anyone of any race, of any gender, of any national origin, of any ethnicity. It has nothing to do with race. It has to do with support of a body of ideas, belief in a body of ideas that has to do with militant Islam, and aggression towards Americans.

Q. Do you support, do you now, looking back, the internment of Japanese Americans during World War II?

A. It’s not a subject I know enough to talk about.

Not a subject he knows enough to talk about?!?

Nevermind that Pipes holds both his B.A. and his Ph.D. in history from Harvard. Nevermind that moments before declining to talk about the Japanese American internment because he doesn’t know enough about it, he offered views about racial profiling, airport security, and terrorism prevention—matters that one would think a historian wouldn’t know a whole lot about either.

What, exactly, would Pipes need to know about the internment in order to condemn it?

Undoubtedly there are tricky questions for historians to debate about the inception of the internment policy, the extent to which racism infected the decision to initiate the policy, and so on. But come on, Dr. Pipes! Surely he knows, at a minimum, this: that the federal government jailed over a hundred thousand innocent people, two-thirds of them American citizens, for more than three years in desolate camps under armed guard, without even a hint of due process, on the basis of nothing more than their ancestry—and that it did nothing of the sort to identically situated white people of German and Italian ancestry.

Does he not know that? And if he knows it, what's not to condemn?

Pipes’s absurd equivocation has led some groups to protest his nomination to the Institute of Peace. And in order to serve on the Board of the Institute of Peace, Pipes will have to be confirmed by the Senate. I hope that Senators will press Pipes, and press him hard, on his views about the Japanese American internment. If, at that point, he says he still doesn’t have any, he should be rejected on that basis alone.