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There is a value in the course – I think it is important for people to understand the inner workings of affirmative action in order to fully support or combat it.  You need to know what you’re up against.  But, there was a problem.  We all knew the professor’s stance on affirmative action.  You can bet that no one really disagreed with her when they were writing up their assignments or taking the final.  In fact, you probably didn’t take the course unless you already supported affirmative action.  Why give up the easy ‘A’ by challenging the system?

I’ll admit, I cringed when I read my responses – five years later – to the weekly questions the professor handed out as assignments.  I did the reading, but the reading was skewed.  I never truly and honestly looked at the counter arguments.  I was spoon-fed what I wanted to hear and thought that was truth.  Regardless of my stance on affirmative action now (which isn’t favorable), what really bothers me is how closed-minded I was when I was in college.

And now for your perusal:
(by the way, for those who are looking at this as a way to cheat on their own assignments: your professors and teachers can use Google too)

What is affirmative action?
To begin with, affirmative action is not what most people think it.  Many believe that affirmative action is a policy that “levels the playing field” for minorities or gives special treatment to those groups because they are minorities.  Affirmative action, as it is used today, is any program or policy designed to “resolve present effects of past or current societal conditions…because society believes a person is unfairly disadvantaged on the basis of status over which the individual has no control.”  This includes preventing discrimination against veterans, gender, disability, as well as race, since these factors are beyond the control of the individual or minority group.  Affirmative action is not just admissions or hiring practices, quotas, or “reverse discrimination,” but it also includes outreach programs that try to help or inspire underprivileged groups to get into college.

A funny thing is the fact that the “legacy” system of most Ivy League schools in the East can be defined as an affirmative action practice.  It guarantees the children of alumni admissions based on that family history, suspending merit.  This practice has become under fire lately, since many groups are excluded from having the same privileges.  Since many of the alumni were privileged, rich, white Americans, many minorities groups had to rely solely on their “merit” to get into the Ivy Leagues.

Affirmative action tries to make it so that all groups receive the same treatment and opportunities awarded to the privileged white Americans for centuries.

Women have been the major beneficiaries of affirmative action and no longer need it.
In 2001, the Los Angeles Times reported that women were actually experiencing the glass ceiling when it came to being promoted to management positions in major companies.  Even though affirmative action has given women the opportunity to enter the workforce and find jobs, women are still shut out from the “old boys club” of many companies because of the fact they are women.  Many studies show that women with the same qualifications make less money than their male counterparts and are underrepresented in top managerial positions and “non-traditional” careers, like engineering or mechanics.  However, on the flipside, women of color have experienced lower pay and fewer opportunities to move up in companies as compared to their white female counterparts.  In their case, their race and gender factor into their professional and social lives.

Affirmative action tries to remedy unfair business and hiring practices by leveling out the pay differences and the rate of promotion within racial minorities and women.  The Tómas Rivera Policy Institute studied California’s government employment from 1972 to 1992 and found that affirmative action raised the parity of minorities in the state’s workforce.  In other words, the representation of minority groups and women in that state government were compared to the overall representation of those groups in the civilian labor force and it was shown that the numbers rose between 1972 and 1992.  Affirmative action tries to create more opportunities for more people rather than taking away from one group to give to another.

Affirmative action may have been necessary in the past but today it’s disintegrated into “reverse discrimination.”  Moreover, the Constitution requires that we be color-blind.
When the Constitution was written and ratified by the colonies, the framers were very much aware of race and gender.  The document gave all the voting and governmental power to free white men.  Blacks and women were denied the right to vote and to legislate laws and public policy.  As a result, white men were given privileges that other groups did not have.  Enslaved blacks were not even counted as whole persons; instead they only were considered three-fifths of a person in the census.  It was only until the abolishment of slavery and suffrage granted to blacks and women that the Constitution was seem to have “color-blind” rhetoric.

“Reverse discrimination” would entail that whites, or namely white men, have lost their privilege in society and are being dominated by the minority groups.  In reality, this is not the case, since many white men still hold important positions in the government, in the universities, and in the formal economy.  Affirmative action is to grant some of that privilege to minority groups.  It is unfair to blame minorities to have their one share of the cake that white men, through history, has completely owned.

I don’t discriminate ‘cause I don’t see color.  There is only one race, the human race.
By ignoring race, you ignore and discredit the historical discrimination that different races have felt.  All non-white or non-whitened people were given less rights and freedoms, solely based on the color of their skin or their national origins.  For example, all Asians and South Asians (who considered themselves Caucasian) were denied naturalization based on their race.  Blacks were citizens but were victim to slave, Jim Crow laws, and extreme racism.  When making laws or public policy, historical constructions of race and ethnicity must be acknowledged, in order to “right the wrongs” of the past.

With the restriction of immigration, Homeland Security, and racial tensions between all racial groups, race is still important to many people.  Discrimination based on race, gender, ethnicity, and sexual orientation still exist.  The Civil Rights Movement and affirmative action programs were little steps toward a greater inclusion of all races, but “racial harmony” is still waiting to be achieved.

When a qualified white applicant does not gain admission into a selective school and a lesser qualified minority applies and gains admission, the institution’s policy of affirmative action unfairly discriminated against the white student.
Goodwin Liu calls this kind of thinking the causation fallacy—“the common yet mistaken notion that when white applicants … fail to gain admission ahead of minority applicants with equal or lesser qualifications, the likely cause is affirmative action.”  In other words, there may be a number of reasons why a person was rejected, but it is usually blamed on affirmative action if there is such a policy in place.

However, when applying to a selective school, like law or medical school, a person must realize that the probability of being rejected is high since so many people are applying to a limited number of seats.  And the criteria that admissions boards use is not limited to just high qualifications, like test scores and grade point averages, but extended to consider in how well the person interviewed, how the person may contribute to the diversity of the school, how well the person is predicted to do in their first year.

In the Bakke v. UC Davis Medical school case, Allan Bakke claimed he did not gain admission because 16 seats were earmarked for disadvantaged minorities.  If the school did not have this special admissions program, he argued he would have been accepted.  Liu points out that even if all 100 seats were open to Bakke, there was a 96.8% chance of being rejected, compared to the 97.3% rejection probability with the quota in place.  In spite of his “high qualifications” merit wise, the university stated that they still would have rejected Bakke on other factors than race.

So, the “post hoc, ergo propter hoc” (after, therefore because of it) argument of affirmative action being the cause of a white applicant’s rejection is invalid because it singles out race as the only factor when deciding on who to accept into the school.

Affirmative action works against really smart, hard working Asian Americans.
Actually, that is what a lot of opponents of affirmative action want you to believe.  Many conservatives try to use Asian Americans as an “example” of how a minority can climb the socioeconomic ladder by themselves without help from affirmative action.  It is true that some Asian Americans have succeeded, but it does not mean that there is no discrimination against this community.

The arguments against affirmative action usually include how qualified whites and Asian Americans are passed up for admissions and jobs because a lesser-qualified minority was chosen.  However, arguments ignore how “merit-based” policies of admissions and jobs work against Asian Americans.  Many call this the “rice paper” or “glass” ceiling for Asian Americans.  Even though Asian Americans are qualified, sometimes more so than their white counterparts, they are underrepresented in Ivy League schools and top positions in big companies.  Other schools use merit against Asian Americans, saying that those with high grades and test scores are not “well-rounded” and could not add diversity to the school’s environment.  Or there is a cap on the number of Asian Americans admitted to limit the population of the minority group on campus.

Affirmative action works against the very persons it seeks to help as the recipient labors under the stigma of not being qualified and thus, of having secured his/her contract, job, or entrance into college illegitimately.
William Bowen and Derek Bok, in “The Shape of the River,” found that over 60 percent of black students that graduated from selective universities, but had slightly lower SAT scores than the average, in 1976 and 1989 were satisfied with their college experience.  They concluded that the highly competitive academic environment did not stigmatize them as being unqualified or illegitimate (Bowen & Bok 200).  The stigma placed upon minorities will be there regardless of affirmative action because discrimination still exists and some people view that those groups are not qualified enough.

When a minority applicant is admitted into a university with the help of affirmative action, they still have to be qualified or able to compete with their peers in the school.  In other words, they may have received admissions based on their minority status but they have to go to lectures, take the exams, and graduate on their own merits.  Affirmative action is not designed to give “free rides” to minorities; rather, it tries to give the opportunities for minority groups to compete with their peers in school and in the workforce.

My children are considered minorities but since we are middle-class and their grades are very good, I don’t think they need to be “given a break” like poorer minorities.
A lot of the focus on affirmative action has been about admissions into universities, since some minorities have been able to compete with white students.  Though, because of this focus on admissions, many disregard how affirmative action helps minorities in job opportunities.  Even though discriminating against race, gender, disability, etc. is illegal, many companies do not have parity when it comes to hiring minorities.  White men hold 97 percent of the top positions in Fortune 1000 and Fortune 500 companies, as stated by Jamin Raskin in his article about affirmative action.  This phenomenon is called the glass ceiling (or the rice paper ceiling for Asian Americans, the tortilla ceiling for Latino Americans).  The ceiling analogy is used to describe the experiences of many women and minorities that can never go past a certain position within companies and businesses.

Even though being middle-class and having good grades can help someone enter into college, there is no guarantee for a minority to get jobs or advance in the workforce because there are still mechanisms of discrimination.  Until there is parity in the business world—in other words, where the general population is reflected in all positions—people still have to worry about discrimination and need affirmative action to help them.

“All changes, even the most longed for, have their melancholy; for what we leave behind us is a part of ourselves; we must die to one life before we can enter another.” || Anatole France

There is a hint of melancholy that is accompanying this process of change, of letting go.  That kind of acceptance when you know where you need to go, but look back with bittersweet sadness at what you’re leaving behind.  That final look back as you step out the door.

I’ve been spring cleaning myself lately, making room for all the new experiences ahead of me.  Finally growing up, I guess.

Mind you, I’m scared of what’s to come because there is so much unknown in front of me.  The stability of school will no longer be there.  There is some doubt: will I succeed; will I make it; will I find a job; will I survive?  But I’m sure I’m not the first person to ask and I certainly won’t be the last.

With law school coming to an end, I guess I’m just taking stock of my life.  I’m taking the time to differentiate between the child-like/childish and mature, I Corinthians Chapter 13 style.  Go figure.

Shapiro argued that ZEP violated the Establishment Clause by failing the second prong of the Lemon test (“it does not have the primary effect of either advancing or inhibiting religion”).  Also, in a broader argument, use of Zinn’s “educational” materials is part of the religion of secular humanism and such use is government establishment of that religion.

Now, there is some disagreement to whether Secular Humanism is a religion for Establishment Clause purposes.  As Shapiro noted, Kalka v. Hawk held this as such, jumping on the fact that the Supreme Court’s footnote in Torcaso v. Watkins was dicta.  Peloza v. Capistrano Unified School District (1994) pretty much towed that line, as well.  In rejecting a teacher’s claim that evolutionism was a religious belief, the court said that the broader secular humanism was not a religion.  Other court cases dealing with this notion of secular humanism in the classroom rarely state the secular humanism is a religion; rather, they just assume for argument sake that it is, before going into the Lemon/Establishment Clause test.

Grove v. Mead School District and Smith v. Board of Commissioners of Mobile both deal with the school curriculum; the lawsuits were brought by parents of students, claiming that the reading material was advancing the beliefs of secular humanism.  Both cases held against the argument.  From my cursory reading about the cases, the holdings seem to be based on the notion that it did not have the effect of advancing secular humanism (prong 2).

Rather, the message conveyed is one of a governmental attempt to instill in Alabama public school children such values as independent thought, tolerance of diverse views, self-respect, maturity, self-reliance and logical decision-making. This is an entirely appropriate secular effect. … It is true that the textbooks contain ideas that are consistent with secular humanism; the textbooks also contain ideas consistent with theistic religion. However, as discussed above, mere consistency with religious tenets is insufficient to constitute unconstitutional advancement of religion. Smith v. Commissioners

Here is why I think an Establishment Clause challenge to secular humanism in school curriculum will always lose: the Lemon test misses the point of the Establishment Clause.  Think about it – the Lemon test asks in two prongs whether it is “secular” (in purpose and effect); secular humanism “espouses reason, ethics, and justice, and specifically rejects supernatural and religious dogma as the basis of morality and decision-making” (yeah, yeah, I’m quoting Wiki there; sue me).  Sound familiar?  Hint, it’s in bold and above.

The “effect” of secular humanism will always be deemed secular because assumptions accepted to be true: reason is scientific, science is not religion, and what is not religious is secular.  And this is why I think the Lemon test fails.  It shouldn’t be about what is religion and what is not religion.  It shouldn’t be about what is secular and what is not.  It’s about whether these students are being indoctrinated.

That is the fear, isn’t it?  You don’t want government to establish a religion because it says that one way of thinking is the only acceptable way of thinking.  If government establishes a religion, then the government can use its police power to enforce it.  If you think differently, if you don’t get indoctrinated with what the government establishes, you’re at risk.  You lose your liberty.

So, we ran away from already-established religions in government, in schools, in order to make sure that no one felt like they were being forced into “group-think”.  And somewhere along the line, it was decided that there was a certain way to be a good student, a good citizen, and a good person and religion had nothing to do with it.  Thus, if schools encourages this type of being “good”, then it’s not religious.

There is a phrase repeated often: “Teachers shouldn’t teach students what to think, only how.”  What happens when the line between what and how is blurred?  What happens if you’re taught a certain way to think that will result in the outcome they want you to come to?  Isn’t that just as dangerous?

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When researching into this, the obvious hurdle for showing secular humanism as a violation of the Establishment Clause is that it is secular by its very nature.  And because the basic tenets of secular humanism align so closely to the approved goals of teaching, it would be hard to distinguish one from the other.

But what if it wasn’t secular humanism?  What if it was another way of seeing things?  I am reminded about the many courses I took in college, but the best example would be feminist theory.  What if feminist theory was taught as a way of thinking?  Not just about feminism, but actually thinking like a post-modern/structuralist feminist.  [Assuming such way of thinking can be thought.]  How many people would go crazy over that?

What if teachers taught children to think like Communists?  Don’t think that could happen – look at North Korea.  I once saw a news special about children finally being able to read “The Diary of Anne Frank.”  The summary given by the children was crouched in Communist terms.  Race & religion had nothing to do with what happened; the proletariat was being exterminated by the bourgeoisie.  How do you like that kind of re-writing of history?

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Makes one wonder about their own education, really.

Edited to add: During my second year of law school, I got into a discussion of religion versus science in my First Amendment survey course.  The reason why I titled this post as “Challenges to Basic Assumptions Revisited” is due to my other post about my experience in these discussions.

In situations like these, you find yourself between a rock and a hard place – you don’t want to offend (and you certainly don’t want to get your ass kicked for pissing off the wrong person) but you can’t accurately describe someone without using racial or gendered modifiers.  You can’t tell that joke you that made you laugh because it’s not “PC”.*  You can’t speak your mind because you’re straight-jacketed by this social contract.

I dislike “political correctness” because it reaffirms the assumption that if it is racial then it is racist.  If it is gendered, it is sexist.  It doesn’t matter that someone is just using an adjective to describe a characteristic; the mere acknowledgment of the characteristic, the pointing out of “difference”, is racism/sexism/homophobia/whatever-ism.

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For certain crimes, there is an element called mens rea which looks into the state of mind of the actor.  Was the act intentional or negligent?  Was it planned and malicious or was it just an accident?  Mens rea is important as it can decide whether someone is convicted of first degree murder or involuntary manslaughter.

I mention mens rea because it provides the best analogy of how I approach racism.  It helps me distinguish between a fight worth fighting from one that is merely cosmetic.  I look at a situation and ask myself, essentially, “Is this something I should be concerned about?”

Take for example last month’s uproar about Senator Harry Reid’s comment that Obama has “no Negro dialect, unless he wanted to have one.” After reading a few articles about it, I brushed it off as negligent (well, actually stupid).  I did not see a malicious intent in Reid’s comment.  I didn’t read it as Reid purposely being racist against blacks or then-candidate Obama.  I realize there is an interpretation of the comment that leads to the conclusion that Reid implicitly believes that the “Negro dialect” is uncouth and would hinder a Presidential candidate from winning the Presidency.  But hey – I believe it’s true that not all manners of speech are treated equal.  I do not expect a candidate that only speaks in Hawaiian pidgin to win many votes.   But I digress.  I didn’t see a racial intent behind Reid’s words, I just saw him saying “Obama appeals to all audiences”, much like news anchors.

The problem with political correctness is that it treats this kind of negligent statement the same as fire-hosing Civil Rights protesters.  The former makes me face-palm at the inanity, the latter makes me want to actually do something to change it.  Doling out the death penalty for a two-buck crime just takes away from actual progress.  Keep your cosmetic hang-ups to yourself, I rather work towards a real solution, kthxbai.

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What really gets to me about political correctness is the hypocrisy of it all.  You don’t want people to be racist?  Stop being racist yourself.  Do not hide behind your “protected” status when you say seriously say “nigger” every third word.  Do not tell me how you assume every white guy that dates an Asian girl has an “Asian fetish” and then proceed to hiss and boo at them, loud enough for them to hear your displeasure.**

I make politically incorrect jokes at the expense of my race and sex.  I am fully aware that I am allowed to make these types of jokes because of my race and my sex; I am given a free pass.  But why am I given this free pass?  I have never felt that I, personally, was denied something because of my race or sex.  Why is it not questioned more by the politically correct as to the existence of this double standard?

“An individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for the law.”
~ Martin Luther King, Jr.

I make politically incorrect jokes ironically, to point out this hypocrisy that I see in it all.***  I don’t make jokes (or say anything) with the purpose to belittle someone.  I don’t judge someone based on their skin color, but based on their merits, the “content of their character” as it were.  I admit that I hold certain stereotypes in my head, especially those concerning Asian mothers, because there is some truth to it.  But I know it’s not applicable to every individual and I don’t write off everyone I meet based on stereotypes.  This is where the mens rea requirement for racism comes in for me, and I believe it’s an important distinction when looking at racism.

I used to be one of those people who saw racism and sexism in everything.  Someone calls me “exotic”, they’re racist.  “Dragon lady” Asian female character in a movie – racist.  A commercial that has two women saying a tray of grapes was “lunch” – sexist writer.  Requirement to check one box for what race you are, with righteous indignation I’d check “Other.”   “Race and gender are social constructs, dognamit! Hear me roar!” I was trained to see the world through a hypersensitive-lens.  Hell, I was an Asian American Studies major with a minor in Women’s studies.  Everything was stacked against me because of who I am and that’s how it always was unless I get pissed off and nit-pick everything.

But even in this stage in my life, something felt off … felt wrong even.  I praise the work of many of my fellow students.  They actively tried to fix things for their communities.  But there was an uneasy feeling when I was involved with this activist Asian American community.  It was hard for me to see things as just an Asian American issue or any kind of minority issue.  That was not my vision of the world.  I grew up believing that everyone was equal.  As such, I knew there was an inherent unfairness if one group of people got something denied to another.  I didn’t want to fight just for the Asian Americans in the United States, I wanted to fight for Americans.

Part of the reason why I decided to go to law school was for the cliche of wanting to help people.  I wanted to get in the “inside” and change the system.  I wanted to give everyone the same opportunities.  I didn’t distinguish between one community to another, instead I went the Miss America route of “world peace.”

This fundamental belief in true equal protection hasn’t changed all that much, although my political views may have changed.  And I certainly don’t see racism lurking behind every corner.  I see individuals as the ones who are free, the ones that should be given the same opportunities as others, not groups.  I figure once we get there, then political correctness would fall to the wayside.  Until then, I’ll keep making my jokes and actually work towards equality, actually fight the fight worth fighting.

** A classmate of a former roommate told me she did this. In fact, she went further to say that she disliked Asian guys dating white girls because it narrowed down her dating pool.  I asked if she would hiss if she saw my parents together, and she said “That’s different.” Yeah, I don’t get it either.

*** My ironic jokes do not compare to some discussions about political correctness I have witnessed.  Believe me, the jokes are tame in comparison.  Though I, myself, would not use such tactics, I can appreciate the point being made.

But after five years of talking politics with people much smarter than me, I am curious as to why the stakes are so high. Why was it assumed that relationships would be better off not discussing certain topics? Is it because we knew it would only end in a fight?

What I have learned that it is possible to get into these high stakes discussions without fighting, even end in a way where both parties have higher respect for their “adversaries”.  Mind you, I have had my fair share of heated discussions, but nothing to the point where I wanted to end the friendship (or acquaintanceship if that was the case).  Of course, to be truly honest, some of those discussions have resulted in me losing some respect; not because I disagreed with the other person but because of the manner in which the discussion took place.

I am a glutton for intellectual stimulation. I like learning new things and seeing if it fits into the vision of how I see the world. I like seeing things from both sides (or all sides because nothing is that black and white). I like to be confronted with facts and logical arguments. I like seeing things from different perspectives because it just one more way of figuring out this big puzzle that I call life.  But most of all, I just like being able to discuss issues without it getting personal.

What I don’t like or appreciate is the feeling of being attacked for what I believe. Or the feeling that the other person thinks I’m just a lost soul wandering around without a clue as to what is going on. Or the feeling like they are trying to convert me to the “right” (or “left”) way of thinking. Most of all, I absolutely abhor being talked down to or being disrespected.

Much of my frustration is based upon the lack of respect I feel that people have for one another when getting into political discussions.  I see it constantly on the “news” channels; political commentators bash the other side by going attacking the person and not the issue.  People call this “no holding back punches”; I call it stifling genuine discussion.  Maybe this is why the unspoken rule of “no race, religion or politics” was instituted.  Not because my friends wanted to not talk about the issues, but because they didn’t want to deal with the additional baggage – namely these “debate” tactics.

Long ago, a friend once said to me, “You are better than no one and no one is better than you.”  This became one of the few life mantras I hold.  It’s closely related to the Golden Rule. When I am dealing with others, I try to be respectful because I expect the same treatment.  I may not agree with them, but that gives me no right to treat them as if they are less than I.  I am not perfect, of course.  Sometimes I get short, sometimes I get snobby and holier-than-thou. But if I catch myself, I apologize for my behavior and continue on.  If this makes me weak, so be it.  But I have found that if I give respect, I get a lot more discussion out of a person.  People don’t like to talk to you if you put them in a defensive position.  (You get more flies with sugar than vinegar kind of thing.)

This lack of respect, in my opinion, is the reason why we don’t get very far along in fixing whatever people think is the problem.  Instead of asking the relevant questions to further discussion and actually answering them, people latch on to the smallest thing and run with it.  This kind of “debate” leaves everyone worse off.

Recently, Bill Maher said, “…while we were off, Sarah Palin agreed to do commentary at Fox News.  Which is actually very similar to her day job – talking to a baby with Down Syndrome.” I don’t watch Fox News, but I know people who do. And I know the target audience of those who do watch. Comparing the those who tune into Fox News to a baby with Down Syndrome is idiotic.  Yes, Mr. Maher, I understand that you disagree with the conservative/Republican base on many issues.  But instead of talking about those issues, making your case as to why you are correct, you insult those who disagree with you.  In my opinion, such actions undermines the credibility of a person’s points.  The person could be completely correct in their assertions of political issues, I may even agree with them, but I would be less willing to continue in a discussion with them if they employ such disrespectful tactics.

What it all comes down is this: all I’m asking for is a little respect.  Respect, to me, is not something to be “earned” but a starting point.  You respect me, I’ll respect you.  If you don’t respect me, then I won’t waste my time.

As more and more time goes on, the more and more I seclude myself from those around me.  I have ignored the complaints that I never go out, ignored the little jabs at my preferred method of interaction. I give the responses that I feel are true: I don’t like bars, I don’t like strangers, I like small dinners and conversations with close friends.  Maybe the explanations are true, or maybe just a pattern that I fell into as a defense mechanism.

I never learned how to keep friends.  I guess there never really was a need to before now.  The constant geographic relocating throughout my life allowed me to make friends fast, but never lasting.  I only keep in touch with a handful of people that have known me for more than a decade; even then, I only see them sporadically.  This is all not to say that length of relationship is directly correlated to the closeness of a relationship.  But, if you grow up knowing that friendships are temporary, you never really learn how to open yourself up.

So, what does this all have to do with the beginning part of this psyche deconstruction?

I have many friends. Friends who I’ve let see the best and worst sides of me. Friends that have made me a better person, day by day.  I wouldn’t trade them for anything.  But, most of them are just names on the computer screen, voices on the other end of the phone.  I don’t see them everyday.

And my fear is that I somehow trapped myself into a life pattern of secluding myself from the world literally past my doorstep for one, though more vast and fulfilling, that for the majority of the time is intangible.   Because the truth is, I spend the majority of my time on my computer, alone in my room.  I rarely go out because I rather stay in.  I don’t invite people over.  Some call it a rut, I call it my life.  It’s been like this since I was 14.

This is more than just not having time in my life to do the fun things because I am in law school.  Yes, law school does require sacrifice.  But for some reason, I am beginning to think that I sacrificed too much.  Rather than life happening to me, I just let it not happen.

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These thoughts may just be fleeting, resulting from a ghost of a previous psyche.  It may just be stress, or the uncertainty I’m facing after I’m finished with my plans.  It should be easy to shrug this off, to just keep in mind that I don’t know what’s going to happen in six months time.  Maybe life will just happen to me and I just can’t see what’s coming.

But I had to admit that I am afraid.  Mostly to myself.  I spent a lifetime building up walls around me to keep the pain out.  I just hope that those walls aren’t also designed to keep me in.

http://twitter.com/Camerus/status/8208540360
From a legal standpoint, interracial marriage is completely different from gay marriage.  There is something called strict scrutiny applied to constitutional issues of laws that discriminate or treat differently by race.  The government has to have a compelling reason for the law and the law must be narrowly tailored.  It’s a high bar to meet.  However, issues of discrimination against sexual orientation are given the rational basis test; if the government has a rational basis for the law and the law is designed to support that, then usually the law passes constitutional muster. It’s the lowest bar to meet.  This is the same test given to bigamy, and we all know how that turned out.  The first hurdle that the lawyers in the Prop 8 federal trial are going to have to do is either (1) say there is NO rational basis or (2) say that a higher scrutiny should govern discrimination against sexual orientation.  IMO, either is a tough sell.

[BTW, a line from Lawerence v. Texas which invalidate criminal laws against sodomy: "That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage."  So, in essence, the Court is implying that protecting the institution of marriage IS a rational basis.  ]

Also, I understand that a lot of people quote to Loving v. Virginia, the Supreme Court decision that banned prohibition against interracial marriages.  Yes, there are many instances in that case where you can just substitute in a gay couple.  BUT, the history going into that case is also important to keep in mind.  By the time Loving was decided, only 16 states had laws like this, and most of those laws were dormant.  That means that the majority of the states had already decided that the prohibition was asinine.  Currently, only FIVE states recognize gay marriage and less than 20 have civil unions/domestic partnerships.  This is definitely not the track record you want to confront the Supreme Court with, IMO.

http://twitter.com/Camerus/status/8213622086
I completely agree that the state should get out of the marriage business and only enforce what are, essentially, contracts between people.  BUT, that’s not going to happen any time soon.  If people are having this many issues just letting go of the word “marriage”, I don’t think they’re going to give it up completely.

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My thoughts on the current Prop 8 trial is that it’s going to fail in the end run.  The California federal court and probably the Ninth Circuit court of appeals will say that it unconstitutional to ban gay marriage.  But, the Supreme Court is known for overruling the 9th Circuit AND it doesn’t like being backed into a corner like this.  Heck, the federal government didn’t want to touch the issue back in the day (remember the time Clinton signed the Defense of Marriage Act?).

I understand what the proponents are trying to do, but I think they’re trying for too much too soon.  I would rather see them go state by state and get equal rights and obligations. Call it whatever but just not marriage; get most of the states on board to actually treating same-sex couples the same. THEN start going for the word “marriage” or, maybe by that time, the word doesn’t mean anything. [I don't get why people want to buy into an institution that discriminates against you, why not just get another institution established? I have a far more eloquent explanation of that, but I just woke up from a nap.]

I somewhat agree with the assertion that the First Amendment does limit the government’s ability to regulate free speech. However, a completely textual argument would suggest that government can only be limited when it “abridges” (deprive, diminish, reduce in scope – http://m-w.com/dictionary/abridge) rather than expands free speech.  If the net neutrality regulations are promulgated under the FCC authority in order to protect free speech/access to information, then I don’t think that the ISP companies would have much of a chance by challenging the constitutionality of it on 1st amendment grounds. There is precedent for this type of regulation.  Turner Broadcasting v. FCC.  I doubt that a regulation on how much ISP companies charge its customers will fall under strict scrutiny because the law isn’t directly regulating speech per say.

Essentially, it would come down to whether the net neutrality rules actually do have a chilling effect on free speech/access to information.  So, how do you measure the chilling effect other than less users of the internet?  Would net neutrality cause less users?  Also – the United States isn’t the only one using the Internet, so how will anyone be able to show less speech without doing a headcount (on the internet?!).

On the flip side, do we have the right to FAST Internet access or access?  I remember a time when I was suffering through 56k modems, when it took me 1 hour to download a 3MB song (even when it was legal).  Do we even have the right to access the Internet at all?  Not everyone has free internet. We pay for services provided by a company.  If IPS companies wanted to charge me more based on how much bandwidth I used, I wouldn’t have a 1st Amendment complaint against the cable company (since the 1st Amendment only applies against the government).

HOWEVER, I think it’s unfair how I have to pay the same amount of money for my use of the internet (mostly Twitter, Hulu, and various message boards) while my neighbor can download seasons upon seasons of television shows.  Maybe a tiered system would give me more control of how much bandwidth I use and I can end up spending less money in the long run.   BUT, I like having the choice of using more bandwidth if I want to. So, really, it’s all just trade-offs.

Of course, I wouldn’t mind regulations on charging me more money for Internet use regardless, mostly because ISPs/cable companies/phone companies have easements on my property and they probably didn’t have to pay much for it.  [And believe me, I doubt those companies were complaining when those easements were taken under some kind of statute.]

It’s hard to keep my head in the game when I want to be 7 months into the future.  Logically, I know, I have to get through these next 7 months, have to do all the things required of me, must do the work to get the reward – otherwise, I won’t graduate and the thing I’m looking forward to ain’t going to happen.

Frustrated. That’s the feeling I’ve been dealing with a lot. Frustrated that I can’t make it all go faster, or slow down enough so I can catch up.  Frustrated that I want to be the person I know I am becoming but can’t do so yet until I finish all of this stuff.  It’s not busy work, like high school; it’s work that is essential.  But still frustrated.

Scared. I can’t help feeling scared sometimes. Scared that I will mess up something and that dream at the tip of my fingers will just dissipate. Scared that a small mistake will end up with very big and very real consequences.  This is “real life” stuff I’m dealing with now.  This is the “what I want to be when I grow up” – the challenge is pretty daunting.

Curious. I know I do not have everything figured out for the course of my life.  I know that point B is graduating law school and passing the bar exam.  Point C may be becoming a lawyer for a time.  But after that – I’m curious to find out where my life will lead me. Where I will find myself in five years, in ten?  Will I still be passionate about all this stuff?  Will I be happy?  How many of my dreams would have come true by then?

Drowning. In all honesty, I feel like I’m barely keeping my head above water. Time has become more valuable, and yet, I still manage to leave things until the last minute.  Character flaw of mine, for sure.  Procrastination, thy name is tabin.  The workload is getting to me.   I get so intimidated by the amount of work that needs to be done that I immobilize myself.  My priorities keep shifting back and forth.  I feel like I’m juggling and about to drop it all.

Lonely. I miss my friends. My kindred.  So many of the sacrifices made have involved spending time with those who keep me laughing, those who keep me sane.  Though all of those friends understand that this is something I have to do, I feel drained of energy because there’s no way to ‘recharge’ through being around people.

Happy. It took awhile to get to happy … still haven’t reached the status quo ante aestas. But it’s easier to remember now that yes, I was happy.  Because I know that all this stuff that brings me down now are just temporary.  That one day, I won’t have to sacrifice time with my friends in order to study. That I will be able to leave work at work and rest at home.  That my passion for law will lead to some good times.  That I’ll get to where I’m going, on my own terms. Because hey, in 7 months, I’m graduating law school.  That’s going to be awesome.