Tag Archives: Guest contributors

Law School Deans Ask for Mandated Anti-Racism Training

University of Virginia law school dean Risa Goluboff

by Hans Bader

As lawyers like Barack Obama have noted, law school is already a year too long, with lots of nonessential classes. As a result, law students often graduate with over $150,000 in student-loan debt. Yet law students may soon be required to take more unnecessary classes.

One hundred and fifty law school deans have asked the American Bar Association to require that “every law school provide training and education around bias, cultural competence, and anti-racism.” These include the deans at the University of Virginia, the University of Richmond, and the College of William & Mary.

In their letter, the deans argue that “preparing law students to be lawyers requires that they should be educated with respect to bias, cultural awareness, and anti-racism. Such skills are essential parts of professional competence, legal practice, and being a lawyer. … We are in a unique moment in our history to confront racism that is deeply embedded in our institutions, including in the legal profession.” Continue reading

Everyone Has the Capacity to Be Great

The following post republishes an excerpt from B.K. Fulton’s new book, “The Tale of the Tee: Be Kind and Just Believe.” Fulton, an African-American Christian,  entrepreneur and philanthropist, co-wrote the book with Jonathan Blank, who is Jewish, a lawyer and an activist. The two men did not know each other prior to June 14, 2020. A single act of kindness began an e-mail thread that provides the basis of this book. — JAB

by B.K. Fulton

What can we learn from [the] people who change the world for the better in spite of the obstacles? What their work tells me is that the real genius in the world is in recognizing the genius in others. My hypothesis is that we all have the capacity to be great. God distributes talent generously throughout our species and all of us get to have the life we are willing to work for. It is in our naked self-interest to invest in everyone – every girl and every boy on the planet – because we have no idea where the cure for ALS is coming from. We have no idea where the cure for cancer is coming from. We have no idea where the cure for Alzheimer’s is coming from. What we do know for sure is that the cures that will help your family and mine are randomly distributed somewhere out there in the world. What we do know for sure is that the cure we need right now might just be [reading this message]. What we do know for sure is that the antidote for all that ails us is YOU. I challenge you to decide to be GREAT. Because if a person on the margins can achieve at the highest levels, what is our excuse for dabbling in mediocrity? Continue reading

No Equal Justice for Landlords

The Virginia State Supreme Court extended yesterday the judicial moratorium on eviction proceedings for another 28 days. The split decision prompted a blistering rebuke from D. Arthur Kelsey, which L. Steven Emmert summarized yesterday in the post below, republished here from his blog, Virginia Appellate News & Analysis. — JAB

Today the court responds to the Governor’s request for reimposition of the judicial moratorium on eviction proceedings. A bare majority of the court grants that relief, suspending the issuance of writs of eviction from August 10 (that’s next Monday) through September 7, a period of 28 days. The moratorium only applies to writs sought for nonpayment of rent; a landlord can still evict a tenant who has breached a lease agreement in other ways.

With two exceptions, all previous judicial-emergency order have been unanimous. The exceptions are the first, issued March 16, where the chief justice acted before he could consult his colleagues; and the June 8 modification to the fifth order. That one cites “the agreement of a majority of the Justices of this Court,” and also suspended writs of eviction, among other landlord remedies. The order didn’t state which members of the court didn’t go along.

Today the court names names. Justice Mims signs the two-page order for his colleagues, Justices Goodwyn, Powell, and McCullough. This majority notes that the pandemic fits the definition of a disaster, since the Code defines that term to include a  “communicable disease of public health threat.” It goes on to note that that statute is triggered when the disaster substantially impedes the ability of citizens to avail themselves of the court system. The court accordingly does as the Governor had requested, in the terms that I mention above. Continue reading

Why Have Nursing Home Outbreaks Continued?

by Carol J. Bova

In a July 29 tele-press conference, Dr. Norman Oliver, Virginia’s Commissioner of Health, said, “We’ve made a concerted effort at testing in nursing homes and other congregate settings. … We’ve done 456 such point prevalence surveys [PPS] covering all of our skilled nursing facilities and correctional facilities.”

As of June 5th, the Department of Health had recorded 224 outbreaks with 5,230 cases in long term care facilities (LTCF) — nursing homes, assisted living and group homes — and 30 outbreaks in correctional facilities with 1,568 cases.

By August 5th there were 100 more outbreaks with 3,090 additional cases in nursing homes and similar facilities, and 18 more in correctional facilities with another 1330 cases.

That’s a total of 372 facility outbreaks, 11,218 cases, from the 456 facilities where PPS testing was carried out. There have been no recent statements on what impact the PPS testing had in reducing cases. Did the testing come too late in the pandemic, or did outbreaks occur in spite of the testing because of infection control failures? Continue reading

BE HEARD Act Could Cripple Virginia Small Businesses

How about a law banning government harassment and hostile business climates?

by Hans Bader

Small businesses in Virginia could face a very different business climate next year due to Joe Biden’s support for laws like the BE HEARD Act. It could easily become law if Democrats take control of Congress and the presidency (as most pollsters expect).

Under the BE HEARD Act, even the tiniest employers with only one or two employees will face unlimited liability in lawsuits, for things like discrimination, or harassment committed by an employee. It would also redefine sexual harassment in an overly broad and confusing way that could lead to small businesses being liable for trivial acts or comments by an employee. These small businesses would also be liable for attorneys fees that could dwarf what they end up paying workers who sue them.

Right now, small businesses in Virginia aren’t covered by most federal discrimination laws like Title VII, unless they have at least 15 employees. This doesn’t mean they can get away with being racist. If they intentionally discriminate based on race, they can be sued under a federal race discrimination law that covers even the smallest employers, 42 U.S.C. 1981. And if they fire someone for a non-race-based reason — such as their sex, age, or religion — they can be sued under Virginia state law, if they have more than five employees (although punitive damages in such lawsuits are limited to $350,000.) Continue reading

Revisionist History Is a Fool’s Errand

by Bill O’Keeffe

One of the actions growing from the Black Life Matters movement is an effort to eradicate the memory of anyone associated with the Confederacy. Here in Richmond, Virginia Commonwealth University has a process in place that could lead to removing commemoration even of individuals who served as a doctor or nurse. The City of Richmond is removing all statues of Confederate generals from Monument Avenue. Only the statue of Robert E. Lee remains because of legal action taken by residents of the historical district.

Advocates are being carried away by emotion without thinking through the long run consequences or whether they have any historic, objective or logical justification. No one argues in favor of slavery or denies that it was morally reprehensible. But that comes from today’s knowledge and understanding. Applying today’s standards to  past actions not only distorts history but is misleading and robs future generations of the opportunity to learn accurately.

What does history tell us about slavery, secession, and Robert E. Lee? Slavery far predates the Civil War. It goes back to biblical times and was accepted in Europe up through much of the 18th century. Should our condemnation go as far back as the days of the pharaohs? The Emancipation Proclamation began a process that has taken far too long to achieve but much of human progress is slow and painful. Continue reading

Let the Young Be Stupid. Focus on the Outbreaks

by Carol J. Bova

Governor Ralph Northam is cracking down on a surge in COVID-19 cases in Hampton Roads by limiting the serving of alcohol in the region. He’s attacking the wrong problem. You can’t fix stupid, and you can’t make young people listen to advice. Irresponsible youthful behavior will spread the COVID-19 virus, but it won’t overburden hospitals because most young people will weather the illness on their own at home without serious complications.

What do the numbers look like for all of Virginia for the past four weeks?

Yes, the Eastern District had twice the number of new cases the Northern District had, but the Northern District’s 5,000 wasn’t exactly a goose egg on the charts. Richmond, Henrico, Chesterfield threw in their share to the nearly 3,700 in the Central District, and the more outlying Southwestern and Northwestern Districts shared another 5,400 between them.

Take a look at the cases by age group. No surprise that older teens through 30-somethings had some high numbers. Continue reading

Why is VDH Stockpiling Cases as Unknown Race?

By Carol J. Bova

The Northam administration started expressing concern about the disparity of racial impacts of COVID-19 as early as March. But the number of confirmed cases with race/ethnicity listed as “Unknown” has grown to 20,886, or 24% of all cases. How is such a huge gap in the data even possible?

Here’s the chronology:

March 11: The administration formed the Health Equity Workgroup (HEWG). “The HEWG was built into the initial forming of the COVID-19 Unified Command structure as directed by Dr. Norman Oliver, the Virginia Commissioner of Health. states the website.

April 8: Governor Ralph Northam said that race was unknown for 54% of COVID-19 cases. Health Commissioner Norman Oliver said that some private laboratories and private medical providers were not reporting the data. Said Northam: “We’re exploring ways to make sure that they do.”

April 20: The Virginia Department of Health (VDH) did not report race or ethnicity for 3,130 or 34% of all reported COVID-19 cases. Continue reading

GMU Race-Based Discrimination Is Unconstitutional

Gregory Washington, president of George Mason University

by Hans Bader

As part of a new “anti-racism” push, George Mason University plans to discriminate based on race in favor of faculty of color. On July 23, Dr. Gregory Washington, the president of GMU, announced that “We will develop specific mechanisms in the promotion and tenure process that recognize the invisible and uncredited emotional labor that people of color expend to learn, teach, discover, and work on campus.”

Dr. Washington announced these proposals in the context of the “national conversation” about race following “the murder of George Floyd.” His goal is “establishing George Mason University as a national exemplar of anti-racism,” with a “metric-driven,” mandatory “vision” of “anti-racism” to be pursued by each “college and school,” incorporated into the “university’s planning and budgeting process.”

That includes a “Task Force on Anti-Racism,” “systems and standards of anti-racism,” “required diversity, inclusion, and well-being coursework,” and the mandatory inclusion of an “anti-racism statement on all syllabi.” An initial $5 million is pledged for campus initiatives promoting anti-racism and diversity.

But legally speaking, the changes he proposes to the promotion and tenure process are themselves racially discriminatory. Continue reading

“Anti-Racism” Is Racism in Disguise

Anti-racism demonstrators in Charlottesville.

by Hans Bader

America’s colleges, media, and cultural institutions are being swept by the ideology of “anti-racism.” It openly advocates racial discrimination against white people, and promotes bigoted, lower expectations for black people.

“Rationality” and “hard work” are vestiges of racism, declared the “anti-racism” web site of the Smithsonian’s National Museum of African American History and Culture in Washington, D.C. It claimed that virtues like “hard work,” “self-reliance,” being “polite,” and being on time are all a product of the “white dominant culture.” So, too, are normal grammar, the scientific method, and its emphasis on “objective, rational linear thinking,” according to a chart the Smithsonian posted.

“The ‘anti-racism’ sweeping institutions still ends up rendering black people as somehow different, other, unable to meet even basic standards,” notes Thomas Chatterton Williams, a black writer for the New York Times magazine and Harpers. He points to a recent set of “anti-racist” directives from the English Department at Rutgers University, which deemphasize grammar rules that conflict with black slang.

Being an “anti-racist” means advocating discrimination to transform society. The bible of “anti-racism” is “How to Be an Antiracist,” by Boston University’s Ibram X. Kendi. The “key concept” from How to Be an Antiracist is that to remedy the underrepresentation of minority groups, you need to engage in discrimination in the opposite direction — i.e., discriminate against whites. Continue reading

New Regions Won’t Fix Ignoring the Obvious

by Carol J. Bova

Governor Ralph Northam opened his July 14 press conference with statements on the increase in cases of the COVID-19 virus in Virginia. “We have not seen the spikes that some other states are now seeing, but we’re seeing some troubling numbers and an increase in cases largely out of the Hampton Roads area.”

He talked about the statewide positivity rate for COVID-19 testing, using graphs for five regional Health Districts and reviewed the seven-day average for each: Northern region, 6.7%, Southwest region 4.8%, Northwest region 5.9%, and Central region 6.6%. He then called out the Eastern region for a rate of 10.1%.

There are at least two serious problems with his presentation.

The regions cover too wide a geographical area to address as a single community, and each varies in population, density, culture, and composition. Continue reading

Uncertain Times, Uncertain Leadership

by Shaun Kenney

You have to give Governor Ralph Northam the tiniest bit of credit. Not only did he survive wearing blackface or wearing a Ku Klux Klan hood (we still don’t know which) but he has done just about everything possible to present himself as the only governor who is also a doctor of medicine.

Richmond will point towards Virginia’s rather decent numbers fighting COVID-19 in comparison to the rest of the South. Geographers will point at the great American megalopolis that stretches from Boston to Hampton Roads. Nothing novel has come from Virginia since William Faulkner — and cancel culture will come for him in due course, I’m sure.

So points for self-preservation.

What we should be talking about is that Virginia — unique among her neighbors — seems to have the worst of both worlds.

Despite our current flirtation with Phase 3 restrictions, businesses are in limbo as to whether or not Northam will continue to allow retail and restaurants to function even at half-mast. Continue reading

The Shocking Number of Hispanic COVID-19 Deaths for Ages 35 to 64

by Carol J. Bova

The Centers for Disease Control (CDC) death certificate reports are the one reliable indicator of the impact of Covid-19 on the various population groups in Virginia. The CDC racial/ethnic breakdown from 2/1/20 to 7/4/20 of all deaths from COVID-19 alone, together with COVID-19 and pneumonia, shows Virginia Hispanics accounted for 12.6% of all COVID-19 deaths. That does not appear to be far out of line with a 10% Hispanic population in the Commonwealth in 2018, especially when allowing for an unknown number of undocumented Hispanic persons plus Hispanic population increases since then.

What is shockingly out of line is the CDC Virginia death certificate numbers show 42.7% of Hispanic COVID-19 deaths within the 35- to 64-year-old age bracket, as shown in the chart above.

Why has this happened? Are comorbidities like diabetes, auto-immune conditions or obesity responsible? Continue reading

Inequity Accounting for Hispanic COVID-19 Cases

by Carol J. Bova

Last week Del. Jennifer Carroll Foy, D-Prince William, wrote a letter to Governor Ralph Northam decrying the high rate of COVID-19 infection in Virginia’s Hispanic population. She blamed “longstanding and systemic factors, such as disparate access to information, testing, and treatment.” Jim Bacon responded that Virginia Department of Health (VDH) data did not support Foy’s assertion. But even Bacon took the VDH numbers as an accurate reflection of reality. In truth, VDH “confirmed cases” numbers, which suggest that Hispanics account for 43% of all COVID-19 cases in which race/ethnicity have been identified, are not reliable.

Originally, VDH number crunchers broke down confirmed cases as Black, White, Other, and Unknown. In mid-June they created Latino as a new demographic category, describing it as “Individuals of any race who identify as ‘Hispanic or Latino.’” To create the Latino category, VDH moved 11.3 percentage points from the White cases and 23.6 percentage points from Other and Unknown Race cases. The result: Hispanics accounted for 33.9% of all cases.

Ignoring 16,500 cases in the Unknown category increases the apparent proportion of Black and Latino cases and provides talking points for Del. Foy and the Governor that Latinos have 43% of all cases whose ethnicity was identified.

Continue reading

Virginia Supremes Uphold SCC, Rule Against Wal-Mart

by L. Steve Emmert

Yesterday the Supreme Court of Virginia issued a ruling in Wal-Mart Stores East, LP v. SCC. The question here is whether Wal-Mart can shed the shackles of buying electricity from the dominant utility, a regulated monopoly that you know as VEPCO or APCO, depending on where in Virginia you are.

Some time ago, the 140 Troublemakers created a framework for some semblance of competition in electric utilities. Nonresidential customers whose demand exceeds five megawatts have the right to buy electricity from a competitor to VEPCO and APCO. Any customer, including a plain-old homeowner, has the same right if they want 100% renewable energy and their “host” utility doesn’t offer a choice.

There’s a third category for nonresidential customers. If separately they demand less than five MW but can aggregate different locations to exceed that threshold, they may ask the State Corporation Commission to permit them to bolt and get their electricity elsewhere. The commission has the discretion to approve the request if there are no adverse effects to other customers and the request is consistent with the public interest.

Wal-Mart, as you know well, operates a lot of stores in Virginia. The individual locations don’t use five MW, but when you add up all of them, they greatly exceed that figure. Wal-Mart accordingly filed an application seeking to enter the wholesale energy market, to save a few dollars. Continue reading