What the UAW's New Leadership Means for Campus BDS

The United Auto Workers (UAW), fresh off their huge contract win with the "Big Three" automakers following their strike, have joined a petition calling for a ceasefire in Gaza (the petition also expressly calls for the immediate release of Israeli hostages). They are (I believe) the largest union to sign on to the statement as a full union (as opposed to via individual locals).

I think Spencer Ackerman might be a little ... optimistic (from his vantage) about what this augurs for the UAW going forward (h/t: LGM). Still, at one level, endorsing this petition is very much in line with the UAW's new, more aggressively progressive leadership. And at another level, I hardly expect the UAW to go full BDS or anything like that (as Ackerman notes, a pretty sizeable chunk of the UAW's workers are Trump-voting "economic nationalists", which may or may not put a brake on the union as a whole going too lefty on foreign policy or anything else). Ceasefire + return of the hostages is a far cry from the hyper-left politics many fantasize about the union vanguarding on Israel and Palestine.

But I'm just going to quickly flag a sideline here that's of interest to me. For obscure reasons, the UAW is the union that represents graduate students at the University of California (though strangely enough, people always gave me odd looks when I called myself "an autoworker"). My recollection from my time back at Berkeley is that the UAW national office intervened to put some brakes on BDS activity by the graduate student local when the latter got a little too frisky on the subject. But that was under the old regime. And again, while I don't expect the UAW as a whole to suddenly endorse BDS, it would not surprise me if the new leadership took a more laissez-faire attitude to what their locals did on the question -- including their grad student locals.

Just something to keep in mind.

UPDATE: For example, the Association for Legal Aid Attorneys (a union for public defenders), which is also under the UAW umbrella, just passed a resolution which not only call for an immediate ceasefire but also endorses full BDS and a Palestinian right of return while not mentioning the Israeli hostages at all (indeed, it only gives one very passing passive-voiced mention to "the violent tragedy on October 7, 2023").

Making the Grade Roundup

It's grading season at Lewis & Clark. I have the entire 1L day class this semester across two sections of Con Law I, so it's a bit of a bear. But I'm almost halfway done!

You get a roundup.

* * *

As a professor, I cannot fathom the hubris it takes to see one of your papers rejected from a journal -- the most normal possible experience for an academic -- and decide to parlay it into an entire New York Times column decrying "wokeness".

Florida is set to legalize kidnapping trans children from their families. But don't worry -- they'll only do it if the families love their kids and provide them with healthcare. Family courts in other states better start boning up on asylum law, because the phrase "well-founded fear of persecution" is going to become increasingly germane in cases where there's a possibility of the child being sent to Florida.

Local elections in the UK are seeing the Tories getting absolutely stomped. Over a thousand seats lost by the party, most of which are going to Labour and a healthy chunk of which are going to the LibDems and Greens. It's amazing what Labour can do when it isn't being led by a wildly unpopular antisemitic extremist!

Princeton under fire for hiring prominent BDS activist to a fellowship position. The twist? The activist is a member of the Israeli far-right. But the BDS thing is real -- he supported a divestment campaign against Ben Gurion University in retaliation for its allegedly "anti-Zionist" tilt.

The UAW has new leadership (I had half an eyeball on this, since I technically was a UAW member in my capacity as a UC-Berkeley graduate student instructor), and they're playing hardball against the Biden administration demanding compensation for how new electric vehicles may reduce the number of autoworker jobs.

The New Labour Zionism(?)

In the wake of devastating losses in the 2019 general election, Labour is looking for a new leader to replace Jeremy Corbyn. Four candidates are running: Sir Keir Starmer, Lisa Nandy, Rebecca Long-Bailey, and Emily Thornberry.

One major issue the party faces, of course, is how to deal with an antisemitism crisis in the party that precipitated a collapse in Jewish support and the departure of several prominent Jewish MPs (Louise Ellman and Luciana Berger) from the party.

Today the Jewish Labour Movement membership voted to endorse Nandy, an MP and former shadow energy secretary. The voting results demonstrate a pretty strong love-hate relationship among Jewish Labour figures: Nandy got 51% and Starmer got 45%, while Long-Bailey and Thornberry both were under 2%. This is not a reflection of front-runner bias: while Starmer is considered the odds-on favorite, Long-Bailey (the spiritual successor to Corbyn) is in second-place, with Nandy and especially Thornberry considered to be much longer shots. Rather, it is a divide between those candidates who are closely associated with Corbyn and perceived as continuations of his agenda (Long-Bailey, Thornberry) versus those who are perceived as offering a departure (Starmer, Nandy).

But something even more interesting, to me at least, happened at a candidate forum JLM hosted the other day. All four candidates were asked if they are Zionist. And all four answered "yes" -- either they were, or they support Zionism. Specifically:

• Thornberry: "I believe in the state of Israel and therefore I'm a Zionist."
• Starmer: "I don’t describe myself as a Zionist but I understand, sympathise and support Zionism."
• Nandy: "I believe that Jewish people have the right to national self-determination. That makes me a Zionist.

Even Long-Bailey, who is the most explicitly Corbynist of the candidates, said "I also agree with a secure Israel alongside a viable Palestinian state... I suppose that makes me a Zionist because I agree with Israel’s right to exist and right to self determine." A little begrudging, perhaps, but far better than one expects out of a candidate who rated Corbyn "10 out of 10" as a party leader!

One might have expected that the term "Zionist" would be too toxic for prospective Labour leaders to touch. The fact that they were willing to line up behind it -- a decision which, incidentally, does not and should not preclude critical attitudes towards Israeli policy -- is quite striking.

Of course, things are never all roses. Anti-Zionist-not-antisemitic Labour Twitter was decidedly not pleased with these philo-Zionist responses:

This is what fucks me off. We live in the UK not fucking Israel. I’m heartily sick of a minority of less than 0.5% of the U.K. population dominating our political agenda and @UKLabour MPs allowing it. Look after the working classes and leave Israel to sort it’s self out #fuming

— Tom Joad. (Google it) 👍 🌹 (@jtw_25_51) February 14, 2020

"A minority of less than 0.5% of the U.K. population dominating our political agenda...." I have an inkling of who is being referred to here -- but maybe I just don't understand British irony?

UPDATE: Another fascinating wrinkle: Nandy was also the chair of Labour Friends of Palestine and the Middle East.

UPDATE 2X: This is a good account of the JLM event, and the palpable sense among attendees that things really may have turned a corner. It also notes that the JLM crowd was especially warm to Nandy when she noted her chairwomanship of Labour Friends of Palestine.

Teaching is a Job, in Grad School and Out

The NLRB is gearing up to implement a new rule which would establish that graduate students, even when acting as teaching assistants, are not "employees" of the university and therefore are not entitled to labor law protections (such as the right to unionize). This is the latest swing in an ongoing battle over that issue at the NLRB, which has largely tracked partisan politics: grad students first won the right to unionize under a Clinton-appointee controlled board in 2000, lost it under the Bush administration in 2004, gained it back under Obama in 2016, and are poised to lose it again under Trump in 2019.

The logic of the argument that grad students are not employees is that we are primarily students, and our teaching roles are extensions of our role as students. I'm somewhat uniquely positioned to address this, as I became a graduate student after serving as a (non-permanent) faculty member at two universities, and thus was able to compare whether and to what degree serving as a graduate student instructor (Berkeley's term for a teaching assistant) differed from teaching as a faculty member.

Here's my answer: there's virtually no difference.

There are many things I've done at UC-Berkeley as a "student". Most obviously, I enrolled in classes for credit. I wrote a master's thesis, and will write a dissertation. In these roles, my relationship to the departmental faculty is pedagogical -- they are there to teach and mentor me, and I interact with them in effectively the same way as I did to my teachers as an undergraduate or a secondary school student.

But as far as Berkeley is concerned, I do not teach classes to be taught how to teach. I teach classes because Berkeley needs people to teach classes, and they've decided I'm qualified to do it. As a GSI, both my day-to-day and semester-long routines are effectively the same as when I was a faculty member. I build my own lesson plans, hold office hours, give lectures, grade papers, write letters of recommendation, and often times create assignments. Nothing in how GSI work is structured remotely resembles any pedagogical practice akin to the professor/student relation that exists when I, say, submit a dissertation draft. As a GSI, I receive effectively no mentoring or even oversight by faculty members (indeed, in three of the four classes I've taught as GSI, the lead instructor was another graduate student). The only substantial difference between being a lecturer at the law school and a GSI in the political science department is that in the latter case I do not have control of my class's overall syllabus -- but all this means is that I'm a worker underneath a boss. To the extent that Berkeley has taken an interest in teaching me how to teach, it's done so through a class in pedagogy. It is an accident of structure that my GSI responsibilities come attached to my studies as a PhD student -- they are scarcely different in form than what I would be doing if I was an adjunct instructor.

This ruling will not directly affect me (it only applies to private universities). And I say all of this as someone who has had a sometimes adversarial relationship with my own graduate student union. But that doesn't change the obvious fact that when I teach, I'm engaging in work, not study, and the law should therefore treat me as a worker, not a student. The determination that graduate students serving as teaching assistants are not acting as "employees" but as "students" is patently absurd to anyone who has ever worked as TA.

More Fun With Anti-Discrimination Rules!

Some Jewish women were kicked out of an Uber after their Palestinian driver found out they were coming from an Israel Independence Day celebration. Uber has since terminated the driver and insisted they don't tolerate "any form of discrimination."

I doubt this will become anyone's cause celebre. That's mostly because taxis (or their replacements) are an arena where norms about serving as a common carrier -- which include broad non-discrimination requirements, far beyond what we think of normally by "non-discrimination" -- are at their strongest. There are excellent reasons why we have pretty sweeping requirements on airlines, taxis, buses, and so on that they can't pick and choose the customers they serve.

But one can certainly imagine how the case for the driver would go. The "speech" argument is already pretty familiar -- after all, he didn't object to "Jews", he objected to "people leaving an Israel Independence day celebration", which is not the same thing. Resurrect some gilded-age 19th century principles about free labor -- where the cab driver and the customer are just free contractors, both responsible for their own affairs and capable of entering into or cancelling a relationship at will --  and suddenly it sounds downright illiberal to "force" the Uber driver to transport customers when his conscience demands otherwise.

And remember: we have a judiciary that is probably more sympathetic to that outlook than at any point in the last century or so. These arguments are not as outlandish as one might think. The "New Lochnerism" already uses free speech as a wedge against huge swaths of the regulatory structure. And much of contemporary labor law -- discrimination or otherwise -- in particular involves not viewing employment as simply the atomistic interaction of free contractors who are at equal liberty to do or not do as they please. Pull that thread, and more might unravel than one intends.

Jackie Walker Expelled from Labour

In one of the highest-profile disciplinary actions pending before the party, former Momentum leader Jackie Walker has been expelled from Labour after a multitude of antisemitism allegations.

Walker's defense was a standard-Livingstone -- "I'm just criticizing Israel" -- so let's review what the core offenses were:

• Saying Jews were "chief financiers" of the slave trade;
• Complaining that Holocaust Memorial Day is biased towards Jews because it doesn't commemorate other genocides (it does, actually);
• Questioning the need for heightened security at Jewish schools and institutions because Jewish concerns about potential targeting were exaggerated or embellished.

You might note that none of these actually have anything to do with "criticizing Israel". Indeed, that's a characteristic she shares with the original Livingstone case, where the antisemitism charge also had nothing to do with Israel at all.

Walker had been a major standard-bearer for "Labour Against the Witchhunt", which insists that the bulk of the controversy over antisemitism in the party is falsified or made up, the plot of Zionists or even the Israeli government to damage the prospects of Jeremy Corbyn.

Unthinkable Thoughts, Part II: What if the Democratic Party Corbynifies?

Today, seven British MPs -- including Luciana Berger and Chuka Umunna -- announced they were leaving the UK Labour Party and would sit in Parliament as independents. It is, as I understand it, the biggest breakaway of sitting MPs from Labour in recent history (the last comparable action was in 1981, when four senior Labour officials -- two of whom were MPs -- left to form their own party).

There were quite a few issues that prompted these MPs to decamp, including perhaps most prominently the almost complete failure of Labour to commit to fighting against Theresa May's Brexit catastrophe. But of course, looming large on the horizon was the ongoing problem of antisemitism -- a disease ripping through Labour at both the grassroots and at the most senior levels.

The Democratic Party in the United States is not like UK Labour. People who try to argue otherwise are acting in transparent bad faith -- and not just because three-quarters of Jews voted Democratic in the last election, while Corbyn's Labour party polls below 20% in the Jewish community. It is insulting to the American Jewish community to suggest that we can't see antisemitism before our eyes; if the Democratic Party was a toxic place to be a Jew, we -- by which I mean Jewish Democrats, the Jewish majority, not whatever ZOA hack is tweeting their 304th comment of the week at Ilhan Omar -- would be saying so. In reality, Jews remain well entrenched in the Democratic community. Antisemitic incidents remain quite rare, and when they do occur they're handled with considerably more grace and decisiveness than comparable acts across the aisle.

However, as I stressed in my last post, this is not a series about what is, or even what is likely. Unthinkable Thoughts is about what could be, what is now within the realm of possibility. The question, then, is what happens if the Democratic Party becomes "Corbynified"?

Last week, referring to the great Ilhan Omar "AIPAC!" controversy, Anshel Pfeffer declared that Jewish Democrats had just experienced their first "Corbyn moment". The main feature of that moment was not what Omar said, exactly, or in how it was responded to by the Democratic Party as an institution. Indeed, along those metrics, this scandal was a rather minor affair: she did trade upon antisemitic tropes, but she quickly apologized and the party as a whole disavowed them. Can't ask for a better result.

Rather, the scary portion of the incident was in the metadebate -- the discourse about the incident that coursed through sectors of the internet in the hours and days following. It was here where things went well beyond (fair) critiques that Omar's words are the subject of a multi-day media frenzy whilst GOP antisemitism of comparable gravity are given a pass. Instead, we saw the development of a narrative where Omar did nothing wrong, and the contention otherwise is yet another case of Jews smearing good patriots with illegitimate "antisemitism" charges, acting as Israeli stooges, being the face of American racism, and just in general sabotaging the left. Along side this condemnatory narrative was a celebratory one -- that Omar was speaking forbidden truths, that she was telling it like it is, and -- most importantly -- the fact that it made Jews uncomfortable is a point in her favor. In this corner of the internet, Omar scored points because of, not in spite of, how she upset the Jewish community.

This, for me, is the heart of what I mean by "Corbynifying" (at least along the axis of antisemitism). It denotes a state of affairs where Jewish terror and misery is part of the point -- it's an active desideratum, it signals that one's orientation towards the Jewish community is on track. With a few exceptions (exceptions who are both quick to be trotted out but whose loyalty to the cause is always kept under close watch), in a Corbynified party Jews are viewed as part of the enemy camp, and so complaints from Jews about antisemitism are viewed much the same way as complaints of racism are heard by the GOP -- presumptively in bad faith, and if anything a signal that the party is getting things right.

This is, as I've written before, the antisemitism that keeps me up at night. And we're at the point where this future is, if not yet "likely", than certainly "thinkable".

It's worth noting that a "Corbynified" Democratic Party does not necessarily mean a friendly Republican Party. More likely, it'd mean a Democratic Party and Republican Party that are deeply hostile to Jewish values. I've remarked before that trying to imagine what I'd do as a Jewish voter in the UK is the one thought-experiment that generated sympathy for the predicament of "Never Trump" Republicans, and that sentiment carries over.

And it must be stressed: right now the Democratic Party as an institution is not "Corbynified", or anything close to it. It's just not, and the people insisting otherwise are almost exclusively those for whom Corbynification is clearly their desired political future.

Yes, there is a loud cadre of self-described leftists on the internet that is ecstatic about any seeming break-up between Jews and Democrats. Then again, there's also a loud cadre on the internet that is screaming "Barbara Lee is a sellout!" because she endorsed Kamala Harris instead of Bernie Sanders. I feel pretty confident the latter will be very disappointed by the outcome of the 2020 primary. Loudness on the internet is not a reliable proxy for actual popular support.

But still. It's easy to forget that when Corbyn first entered the race to head up Labour, he was considered a fringe joke (a mistake that was also made about our current President). It turned out there was a very large swell of latent progressive energy waiting to be activated, and -- worse yet -- one of the things that activated and mobilized them was the antisemitism. Again -- this is central to Corbyn's appeal in the same way that Trump's racism was central to his appeal. Part of what Corbyn's voters like about him is that they view him as putting the Jews in their place. And so the question is whether there is a similar latent energy in a sector of the American people that burns with a similar desire.

It is a feature of Jewish history that these things can seemingly turn on a dime (I just read an account of how Jews reacted to emergent antisemitism in late 19th century Germany that felt alarmingly topical -- one of the main themes was how the community went from "we're basically fine, outside a few cranks anti-Jewish sentiment is a thing of the past" to having a 5-alarm fire raging around them). Yes, right now Jews are well entrenched in the Democratic Party. But can I imagine a world where Jewish Democrats are systematically targeted for primary challenges -- always somehow being viewed as "too conservative", "too accommodationist", "too establishment", "too Clinton-esque"? I can. I don't think it's likely, and I don't think they'd necessarily succeed. But yes, I can imagine it.

More importantly, we need to reflect seriously on how antisemitism can generate votes and energize coalitions. Too often it is taken as an article of faith that "antisemitism hurts our movement" -- that an antisemitic party is weaker than the one which is successfully fighting antisemitism. I don't think this can be taken for granted. Antisemitism is one of the most powerful mobilizing forces the world has ever seen. It seems wholly within the realm of possibility that a political movement which successfully harnesses antisemitism will be more successful than one that does not. The effectiveness of the "Soros" line of attack is demonstrative of this -- antisemitism, right now, is aiding conservative political movements in America. The Republican Party at least seems to believe that deploying these antisemitic tropes makes it stronger than it would otherwise be.

Indeed, the ties that bind antisemites together often cross normative partisan lines, and that creates significant opportunities for political growth. Antisemitism links together a range of vaguely "anti-establishment" and "anti-elitist" perspectives that, paradoxically enough, mean antisemitism is likely a great entry point for a host of new Democratic voters (consider the left-right convergence around the French "yellow vest" movement).

It would not remotely surprise me if there is a decent-sized clutch of independent-to-right-leaning voters who are suspicious of big financial institutions and angry about what they see as corruption in Washington, who tend to associate Democrats with coastal elitism and "New York money", and for whom Jews represent at least a plausible avatar of what connects what they think is wrong with America and what they think is wrong with Democrats. If this is right, then the path to resolving the  "What's the Matter with Kansas" question is making a grand gesture that says "I reject coastal financial domination." We joke about how antisemitism is the "socialism of fools", but the reason it's earned that label is because the easiest way to signal "I'm standing up to the banks", "I'm standing up to the elites", and "I'm standing up to the unaccountably powerful" -- all in one go -- is to signal "I'm standing up to the Jews". Such a message, it's plausible to imagine, be very well received among that set. It offers a pathway to turning reddish-purple voters blue.

Finally, it has to be emphasized that this is not solely a home-grown problem of the left. The right -- and particular Bibi Netanyahu -- shares a sizable chunk of the blame. Indeed, it is actively and I think intentionally trying to accelerate these dynamics. Much of contemporary politics is organized around negative partisanship, and the brazen of alignment of Netanyahu with Trump and other forces of far-right reactionary politics has very predictable effects. We can have a thousand conversations about nuance and Israeli society not being a monolith, but the fact is low-information voters aren't going to know much more about Israel than what it's government is doing, and if the government of Israel is blasting "WE, THE JEWISH STATE, ARE JUST LIKE TRUMP, ORBAN AND BOLSONARO" at 160 decibels, it's going to leave a sour impression on those people for whom Trump, Orban, and Bolsonaro are not friendly faces.

But the fact that blame would be overdetermined is not much of a consolation for ensuing political homelessness. If the Democratic Party ceases to be a home for the Jews, it would signal more than just a realignment. It would almost certainly mean that the liberal politics that much of the Jewish community has rallied behind for the past half-century will have finally failed. And it's hard to imagine that any of the candidates that might emerge in its place -- from Corbynista socialism to Trumpian authoritarian populism -- will be particularly favorably disposed to the Jews.

Preemptive Strikes in Antidiscrimination Law (Or: Why You Need a Union!)

Last week, the Eighth Circuit Court of Appeals decided the case of Hales v. Casey's Marketing.

Lauren Hales was an eighteen year old employee working the graveyard shift at Casey's General Store. At 1:45 AM, a customer came in and starting making sexually suggestive comments towards her. In an attempt to avoid the man, Hales stepped outside to take a cigarette break. The man followed her, blocked the entrance to the store, and continued making sexual remarks.

Hales, who had previously been sexual assaulted, told the guy to "back off". The customer replied "what are you going to do about it?", at which point Hales extended her cigarette to ward him off. Instead, the customer stepped towards Hales, burning his arm on her cigarette in the process.

The next day, the customer complained to a Casey's manager that Hales had burned his arm. The next time Hales reported to work, a manager asked her if "anything out of the ordinary" happened on her previous shift. She forthrightly reported the cigarette incident, but said she had done it in self-defense.

Hales was then terminated.

She sued, alleging sexual harassment and retaliation -- and the Eighth Circuit just rejected both of those claims. The harassment claim failed because the customer's conduct wasn't "severe or pervasive" enough to constitute sexual harassment as a matter of law (the Eighth Circuit apparently hasn't decided whether a company can be held liable for harassment done by a customer, but it assumed for sake of argument that it could). The retaliation claim was rejected because it was filed too late, but apparently the district court had also indicated it should fail because Hales was not engaged in protected activity under Title VII.

Here's the thing: I'm not sure this decision is wrong as a matter of (current) law. The "severe and pervasive" threshold necessary to make out a harassment claim is extremely (I'd say ludicrously) high, and I know of no case law which addresses self-defense steps as a form of "opposing" harassment in the workplace.*

But even if the case "rightfully" lost, all that demonstrates is that antidiscrimination law -- even when "correctly" applied -- isn't sufficient to protect vulnerable workers (even from discrimination).

In fact, the structure of antidiscrimination law in many ways encourages employers like Casey's to act in precisely this fashion -- terminating employees who are the victims of sexual harassment (whether by customers or coworkers) as a "preemptive strike" before they're able to put together a legally cognizable claim of discrimination. Even if one doesn't think that antidiscrimination law should expand to create liability for a single case of customer harassment, there's surely something perverse about it allowing (or even encouraging!) a young woman to be fired because she refused to tolerate a customer harassing her.

When I read this case, it reminded me of one of the very first employment discrimination cases I read which got me hot under the collar -- Jordan v. Alternative Resources Corp. In that case, Jordan -- in accordance with company policy -- reported a coworker who, while watching news coverage that two Black criminals had been arrested, exclaimed "[t]hey should put those two black monkeys in a cage with a bunch of black apes and let the apes fuck them."  His supervisor took decisive action ... against Jordan: changing his work hours to less desirable times, making derogatory comments towards Jordan, and then -- within a month of the initial complaint -- firing Jordan. Jordan sued, claiming his termination was retaliation for filing his complaint.

Title VII only protects against retaliation if you're opposing an act covered under Title VII. In Jordan, the Fourth Circuit concluded that the single racist remark Jordan reported could not alone have sufficed to create legally actionable harassment (again, not being "severe or pervasive" enough to qualify), which means he was not "opposing" covered conduct, which means that his company was not retaliating against him as a matter of law (even though, again, company policy required that Jordan file his complaint).

Jordan argued that his complaint should have been protected because it covered action that, if left unabated, would have eventually ripened into unlawful harassment. The court refused to make the extension, and the result is an obvious Catch-22: Jordan has to report conduct that is not "yet" harassment in order to obey company policy (and preserve a potential future harassment claim), but he can be retaliated against for filing the reports.

But there's a deeper problem in the incentive structure this rule creates: As soon as an employer begins to observe incipient harassing conduct that has not (yet) risen to be legally actionable, it probably should terminate the victim before a sufficient record of wrongful conduct accumulates.** If the employee is reporting the bad conduct, then so much the worse for them -- they're showing themselves to be the sorts who stand up for themselves and so may be more likely to file a discrimination complaint.

Consider how this dynamic might have played out in Hales' case. Suppose the manager knew that one instance of customer harassment of this sort against Hales would likely not be enough to create any legal liability for Casey's. But if it happened again to Hales, or multiple times, then Casey's may well be on the hook. What are the options? Well, one is to take concrete steps to protect Hales from this predatory customer (e.g., banning him from the store) and harassment more generally. But that's difficult, and maybe expensive, and it alienates a customer! So option two is just to fire Hales. If you fire her now, the legal case is nipped in the bud. Problem solved.

And make no mistake: this set of perverse incentives will fall heaviest on the most vulnerable employees. It is entirely predictable that the employees most likely to be subjected to repeat instances of sexually aggressive, harassing conduct are young, those working overnight shifts, racial minorities, gender-nonconforming, and the like (Hales met at least the first two of these). Hence, it is these employees who are most likely to be -- and be perceived as -- potential "repeat victims". And that means they are the most likely to encounter "preemptive strike" discrimination -- a form of employment discrimination that does not just avoid legal accountability, but in many ways is the product of the (exceptions to) antidiscrimination law itself.

So the obvious reform is to make clear that Title VII retaliation protections extend to cases of opposition to sexual or racial misconduct even where the practices would not themselves (yet) rise to being independently legally actionable.

But it's also the more straightforward case that what Hales really needed here was a union. It is very difficult to craft legal rules which do not create some sets of bad incentives or which a clever employer cannot game to their advantage. Given who writes laws (political elites) and who interprets them (legal elites), these unanticipated consequences are unlikely to be randomly distributed -- they will track the usual lines of social power and advantage.

Hence, what Hales really needs is someone whose job it is to be in her corner, a body which can protect her from such arbitrary employer action in the particular case even when the general law couldn't shield her. In other words, she needs a union.

* Retaliation jurisprudence generally envisions "opposition" to mean something like reporting the conduct to company officials or public authority officials. Nonetheless, I'd be inclined to say that physically resisting harassment in the workplace should qualify as "opposing" that conduct. But there remains the separate problem illuminated by the Jordan case: where the conduct "opposed" does not alone suffice to create a "severe and pervasive" hostile work environment (as it almost never will in the first instance), then no action by the employee -- whether it's filing a report or physical resisting her harasser -- would be covered under anti-retaliation protections.

** A similar dynamic sometimes emerges in the labor law context, where employees are protected insofar as they engage in "concerted action". On face, this gives employers who see the potential for emergent concerted labor action an incentive to fire the source employee before any organization can begin. But unlike in the discrimination-retaliation context, both courts and the NLRB have concluded that such "preemptive strikes" also violate labor law, even where they come before any conduct that itself would qualify as "concerted action" and even where they successfully preclude any such action from later manifesting.

The (Ex-)CBS Executive Who's (Not) the Next Google Software Engineer!

After the horrifying massacre in Las Vegas this weekend, one CBS executive (business-side, not content-side) put up a Facebook post saying she was "not even sympathetic" to the victims because, as country music fans, they were probably Republicans and thus partially culpable for the epidemic of gun violence in this country.

She was fired.

I don't have a particular problem with that. Her comments were obviously repulsive, and if CBS decided that they were beyond the pale, casting doubt on her ability to work empathetically and sensitively with others, then this remedy seems well-within bounds.

And it seems most people agree. Because we haven't heard her compared to the Google software engineer. Or the Mozilla CEO. Or, on the other side, NFL players kneeling during the National Anthem.

What to make of all this? I don't think that it's actually a lack of principles, precisely. Rather, I think this demonstrates that we need to make judgment calls, and that there's no substitute for nuanced, critical consideration. A pure "free speech" position can't work in the private sector, and few of us seem to desire it anyway. At the same time, a "if you don't like the political line the company forces you to espouse, you can get a new job" line doesn't seem to map onto our intuitions about free speech or political freedom either.

It requires thinking. And sometimes, it's the easy, unthinking cases -- the uncontroversial termination of an executive when her speech really does seem obviously beyond the pale -- that illuminates the thought that needs to go into the more difficult ones.

A Tribe's Sovereign Authority To Exploit Workers

One of my favorite cases to teach is Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). Martinez involved an ordinance by the Santa Clara Pueblo tribe which granted tribal membership to the children of men -- but not women -- who married out of the tribe. A suit challenging the ordinance was brought by a a Santa Clara Pueblo woman married to a Navajo man and their daughter, who would not be deemed a citizen of the Santa Clara Pueblo nation under the ordinance. It's fun to teach because it pits two deeply-held liberal commitments -- gender equality and political autonomy for indigenous communities -- against one another. Even Catherine MacKinnon wrote that she found the case "difficult" (adding "and I don't usually find cases difficult."). The law seems manifestly misogynist, but it is difficult to think of a more fundamental element of tribal sovereignty than the authority to determine who qualifies as a member of the tribe -- and in any event, respecting tribal autonomy means nothing if it doesn't include allowing them to do things you don't like. The case never fails to make my students squirm (the Court, for its part, held that the suit could not be maintained).

But Santa Clara Pueblo is nearing 40 years old. Maybe it's time for some fresh blood. And in today comes the Sixth Circuit in NLRB v. Little River Band of Ottawa Indians. The case involves a challenge to a tribal ordinance governing labor and employment rules, which primarily impact the tribe's multi-million dollar casino (most of whose employees and customers are non-tribal members, but whose revenue makes up the lion's share of the tribe's budget). From how it is described in the court opinion, the ordinance at issue would make Scott Walker blush:

[The ordinance] grants to the Band the authority to determine the terms and conditions under which collective bargaining may or may not occur; prohibits strikes, work stoppage, or slowdown by the Band’s employees and, specifically, by casino employees; prohibits the encouragement and support by labor organizations of employee strikes; prohibits any strike, picketing, boycott, or any other action by a labor organization to induce the Band to enter into an agreement; subjects labor organizations and employees to civil penalties for strike activity; subjects employees to suspension or termination for strike activity; subjects labor organizations to decertification for strike activity; subjects labor organizations to a ban on entry to tribal lands for strike activity; and requires labor organizations doing business within the jurisdiction of the Band to apply for and obtain a license. [It] also precludes collective bargaining over the Band’s decisions to hire, lay off, recall, or reorganize the duties of its employees; precludes collective bargaining over any subjects that conflict with the Band’s tribal laws; exempts the Band from the duty to bargain in good faith over the terms and conditions under which the Band’s employees may be tested for alcohol and drug use; limits the duration of collective bargaining agreements to three years or less; provides that decisions by the Band, through its Tribal Court, over disputes involving the duty to bargain in good faith or alleged conflicts between a collective-bargaining agreement and tribal laws shall be final and not subject to appeal; and limits the period of time during which employees may file a deauthorization petition. Further, [it] prohibits the requirement of membership in a labor organization as a condition of employment. It also prohibits the deduction of union dues, fees, or assessments from the wages of employees unless the employee has presented, and the Band has received, a signed authorization of such deduction. [It] prohibits Band employers, such as the casino, from giving testimony or producing documents in response to requests or subpoenas issued by non-tribal authorities engaged in investigations or proceedings on behalf of current or former employees, when such employees have failed to exhaust their remedies under the [tribal ordinance].

Yowzers. Labor groups complained, alleging the ordinance was unlawful under the federal National Labor Relations Act. And they're almost certainly right ... if the NLRA applies to the tribe -- a question that the statute is silent on. That was the question before the Sixth Circuit, and in a 2-1 decision the court agreed with the National Labor Relations Board that the statute did apply as against the tribe.

Having read the opinions though, I'm inclined to think that the dissent got the better of it. This law seems repulsive to me, and its enactment is enough to convince me that the NLRA should apply to tribes. But the statute is silent on that question, and the real question is what we should infer from that silence. The majority opinion draws the sweeping conclusion that, subject to a few exceptions, when Congress crafts a generally-applicable law we should assume that they intended to divest tribes of their sovereignty over that area. This is a 180 to how I understand tribal sovereignty, which is that we assume that tribes maintain most if not all of their sovereign powers unless Congress takes some specific step to demonstrate it intends to strip that sovereignty away. Here, there is no indication that Congress thought it was applying the NLRA to Indian tribes, and the extraordinarily belated attempt by the NLRB to assert such authority makes that inference even more dubious as a matter of congressional intent.

Incidentally, for all you folks who think all contested legal questions boil down to politics, the panel consisted of -- you guessed it -- two Republicans and one Democrat. What you might not have guessed is that it was the Republicans who split: George W. Bush appointee Julia Smith Gibbons wrote the opinion, joined by Carter appointee Gilbert Stroud Merritt. The dissent was authored by fellow GWB appointee David McKeague.

The case may feel like a good outcome, but I think it creates a bad rule. Respect for tribal sovereignty and autonomy means our default should be to preserve their sovereign authority unless Congress makes evident its intent to do the contrary. Ordinances like this certainly heighten the appeal of "the contrary" in the labor law context. But ultimately, that's a decision for Congress to make. Allowing Courts to make it for them, and in the process make tribal sovereignty the exception rather than the rule, would have devastating consequences for the autonomy and independence of Indian tribes and runs counter to the basic principle of Indian sovereignty.

Photo of the Day

Solidarity!

Hostage Scene

A group of Jewish students were forced to barricade themselves inside York University's Hillel in what the Jerusalem Post called a "hostage" situation.

Jewish students at York University in Toronto were forced to take refuge in the Hillel office last Wednesday night as anti-Israel protesters banged on the glass doors, chanting, "Die, bitch, go back to Israel," and "Die, Jew, get the hell off campus."
[...]
During the clash in the hallway, Jewish students were singled out and pursued by a mob of more than 100 students. Tepper and the 15-20 other Jewish students escaped upstairs to Hillel's offices, where the situation worsened.

While students sat in the shelter of the Hillel office, listening to the "pounding" from the York Federation of Students office below, demonstrators reached the Hillel office, banging on the glass doors and made it impossible for students to leave.

Campus security personnel arrived and advised the Jewish students to stay in the Hillel office.

The police arrived almost an hour after the incident had begun and tried to "remain neutral," Tepper wrote.

The students in the Hillel office were evacuated soon after by police escort, amid cries of "Get off our campus" and "Shame on Hillel."

"I have never in my life felt threatened and hated like I did that night," Tepper said.

Ferman, the Hillel president, who was called a "f*****g Jew" and a "dirty Jew" by the protesters, said, "We were basically being held hostage in our own space."

The incident was somewhat "ironic," Ferman said, because 45 minutes before the press conference, members of Hillel and the Hasbara student organization had met with members of Students Against Israeli Apartheid, in an attempt to "decrease tensions" between the groups.

Ultimately, the students had to leave Hillel under police protection. You can get an eye-witness account by one of the Jewish students here.

The event that precipitated the scenario actually had nothing to do with Israel at all, though the mob besieging the Jewish students nonetheless yelled "Zionism equals racism!", "Viva, viva Palestine" and one student declared "Zionism does not speak for Jews. Zionism is an embarrassment. Shame on the Zionists." Rather, the situation flowed out of a press conference Hillel students participated in support of impeaching the York University student government for its support of a TA strike which had crippled the university for months.

I know nothing about the specifics of the labor dispute, and thus take no position as to what position on the matter is correct. I do know that it is distressing that (a) Jewish political advocacy on a topic of general concern immediately manifested itself into hatred and threats towards Jews qua Jews and (b) those threats manifested themselves in the guise of anti-Zionist talk, even though Zionism had nothing to do with the putative controversy.

This piece from the National Post is reporting a lot of rumor, so take it with some salt, but one thing he mentions is the possibility that the York Federation of Students is trying to change the subject from its support of the strike to the question of Israel and the Gaza operation. That would help explain how a move by Hillel to support an end to the strike was transformed into an opportunity to threaten Jews, and would also explain why Israel was used (as usual) as the "hook" in order to do so. It would be the same thing we're seeing in Venezuela: drumming up rage against Jews to cement shaky political support.

Unfortunately, this event was not isolated. Police already had to be called after death threats were made against a Jewish student earlier in the week. In general, Jewish students have been alleging a rapid deterioration in the security of their environment at the school over the last several years.