Bobby: "How 'bout this one: I've been working out with weights. Every time someone says, 'Let's work out,' I say, 'Wait.'"

Hank: "Come on, focus. Does anybody remember why we're going to Branson?"
Bill: "Fiddle contest!"
Connie: "And to have fun!"
Hank: "Yes, yes, we're going to have fun. But you know what's not fun? Being ill-prepared."

A month or so ago, a story blipped across my radar screen and I never got around to blogging about it, and then it blipped back into the news, so here it is. The old news was that several students at the Virginia Military Institute, a public military college, dressed up for a Halloween party in their barracks in some ill-advised costumes. There was a Nazi, and a student in blackface, another with fairy wings portraying a homosexual, and another was in a sailor costume with a target on his rear (or stern). The pictures, inevitably, showed up on the internets. Hell, inevitably, broke loose. Here's the first story I saw on it, noting that an investigation was underway. Here is a press release from the school about the investigation. Here's a post from Law Dork Chris Geidner. Some commentators called the students junior-varsity Abu Ghraib guards, and others said kids do dumb stuff but shouldn't be damned for it.

I saw today that the outcome of all the investigating is punishment (more here):

[F]ive upperclassmen received a range of discipline from having to write 1,000-word papers about the detrimental impact their actions had on VMI, confinement to barracks for two weeks when not attending to academic or other official duties, and marching 25 penalty tours of 50 minutes each while carrying a rifle. The upperclassmen include a cadet who took the pictures and posted them on the Internet.

The article says that the maximum punishment here is not as bad as a cadet would get from sneaking off campus or drinking in the barracks, but is worse than the punishment for "obscene remarks." Several freshman ("rats" in the VMI vernacular) were punished too, but less severely, mainly because of the pressure on rats to follow orders and assimilate. Notably, all the cadets had to undergo "civility" training.

Naturally, I wondered about the legal implications here. But a little digression. VMI is different. While it is a military school, it is not a U.S. military academy like West Point. Its students often graduate into careers in the armed services, but only because they are in ROTC at VMI, like they could be at many other schools. Some students don't go for a military commission, and never enter the military. So they're not automatically soldiers, although many choose to be via ROTC. The social pressures to conform at VMI have been debated in the context of the school's meal prayer. A Fourth Circuit panel declared the prayer unconstitutionally coercive, in part because soldiers follow the norms and don't question authority. That decision led to a 6-6 vote on taking the case en banc, and since the rule requires a majority vote to rehear the case, the panel opinion stands. There were some strong dissents from the denial of en banc rehearing. The Supreme Court denied cert, and that decision led to opinions from Justice Stevens approving the cert denial and Justice Scalia dissenting.

There's no question that at any other public school, the administration wouldn't be able to force the entire student body to go to "civility training" on account of a few students' costume choices. And they wouldn't (or shouldn't) be able to punish the costume-wearers and picture-takers with confinement to their dorms and forced marches. But while the VMI press release notes that the students are private citizens with a right to express themselves (however poorly), is VMI sufficiently different to allow for such broad responses to this behavior?

One could argue yes. In the words of the Supreme Court,

VMI's distinctive mission is to produce "citizen-soldiers," men [and now women] prepared for leadership in civilian life and in military service. VMI pursues this mission through pervasive training of a kind not available anywhere else in Virginia. Assigning prime place to character development, VMI uses an "adversative method" modeled on English public schools and once characteristic of military instruction. VMI constantly endeavors to instill physical and mental discipline in its cadets and impart to them a strong moral code. The school's graduates leave VMI with heightened comprehension of their capacity to deal with duress and stress, and a large sense of accomplishment for completing the hazardous course.

VMI cadets know what they're signing up for, and agree to submit to a lot more authority than most college students do. They knowingly and voluntarily give up a lot of the rights other college students take for granted -- namely, not having to march around or be civilized or curtail their free speech rights. I haven't looked up whatever code of conduct VMI cadets adhere to, but my guess is it includes requirements that students refrain from what the military calls "conduct unbecoming" and punishment -- including group punishment -- for when they don't.

It's not a lot different from colleges where students agree to be punished if they break the school's rules on, say, dress codes or dating. (Though query how knowingly most college students "agree" to their schools' codes of conduct in advance of matriculating.) The difference with those schools is that they're usually private. VMI is in this weird limbo where the students are considered mature enough to agree to the adversarial system but not mature enough to handle a dinner prayer or, apparently, the right to free speech. And the whole student body has to undergo sensitivity training because of the folly of a few. I think that in light of the school's mission, mandatory civilizing is ok even though VMI is a public institution. (And I should note that I haven't seen anyone challenging these punishments yet.) But I know that I would be mad if I had to listen to a civility lecture because some other jackasses didn't wear the right costumes.

The questions are in italics. The answers are in regular font. But you knew that already.

1. Who is someone you admire?

I could give a lot of answers for this, but someone I was thinking about recently whom I admire is Terry Sanford. He was an FBI agent and a WWII paratrooper in his early days. Sanford was governor of North Carolina in the early 1960s, and refused to support the "Southern Manifesto," and instead pushed for civil rights and the expansion of public school opportunities for all North Carolinians. He was one of the most influential governors of the twentieth century. After he left office, he became president of Duke University, and transformed it from a little regional liberal arts school to a world-class university. And unlike some university presidents who are either unknown or unloved by students, Sanford was beloved as "Uncle Terry" to Duke students. While he was at Duke, he sought the Democratic presidential nomination in 1972 and 1976, and I daresay he could have done better than either of the men the Democrats went with those years. He left Duke and was elected to the U.S. Senate in 1986 (where he was one of the leading opponents of the Bork nomination, by the way). In his later days, he returned to Duke to get its public policy program off the ground, and now the Terry Sanford Institute of Public Policy is one of the shining stars of Duke University. I had a couple of classes in that building, and one day I saw Sanford shuffling down the hall. I wanted to meet him and shake his hand, but he didn't hear me when I called out his name, and he disappeared before I could catch up to him. Shortly after that, he died. I went to the memorial service in a packed Duke Chapel, and heard how important Uncle Terry had been to Duke, and North Carolina, and the South. I think very highly of him and admore his career of public service.

2. What is your biggest beef with Hollywood?

That really awful, stupid movies keep getting green-lighted (green-lit?) It's one thing for some schlock-fest like Pearl Harbor to get the go-ahead; even though it's an awful movie, it wasn't outside the bounds of reality to suggest that it would be decent and find an audience. But there is no excuse on God's green earth for hearing a pitch for Kangaroo Jack and saying, "Here's several million dollars to make that movie!"

3. Is it easier to go a week without sweet tea or a week without blogs/blogging?

Blogging, because I've done it. I get an itch to write, and a week without doing it makes me antsy. But sometimes nothing comes out, and while I don't like it, I can live with it. As for blogs, I feel seriously out of touch if I don't check certain blogs several times a day, certain others at least once a day, and most of the ones I read every other day or so. A week without blogs feels pretty empty to me, because I've gotten so used to getting so much information and entertainment from them. I keep looking for the "comment" pop-up button on the remote control. As for sweet tea, I hate doing without that, and in fact I can't remember the last week I didn't have any -- probably a vacation somewhere outside of sweet tea land. As long as I have Coca-Cola, I can survive, but sweet tea would ceratinly be harder for me to give up for a week than blogs or blogging.

4. Tell us about a particularly bad gift you've received.

The early front-runner was the time an ex-girlfriend (not Angie, whom I've mentioned here a few times) gave me a sweater for my birthday, and then broke up with me. I'm sure I'm forgetting something craptacular, but my family has never been really big on gift-giving. We give them sometimes, but we don't make a huge deal out of it. I think I have to go with a very nice crystal decanter, which, given how little I drink wine or liquor, is about as useful as tits on a boar. It's a lovely item; I just never use it. Maybe I could put sweet tea in it.

5. Recommend a magazine subscription.

I read a lot of magazines, and the usefulness of a recommendation would really depend on what genre you're interested in. But I'll offer two recommendations: The New Yorker and The Atlantic Monthly. I don't read every word in the New Yorker -- I'm not really interested in what's going on in the city's clubs and museums and such. And I don't read much of the fiction. But there's a lot of good stuff in there every week. Yes, much of it comes from that NYC-centric perspective that can be so insufferable at times (more to red-staters than bluers, I imagine). Example: The New York Times is just "the Times" to the magazine, as if it's the only newspaper called Times, which, if you're in New York, I guess it is. That's a tiny quibble, and I don't mind it too much. But be advised. The Atlantic I usually find chock-full of good stuff. I think it's the best overall magazine out there, especially William Langewiesche's stuff. I don't swoon over James Fallows or buy every argument he makes, but he's a good writer too. So, on a per-issue basis, I think I get more out of the Atlantic, but on a monthly basis, I get four New Yorkers, which makes it about even. Bottom line, though, is that I always enjoy getting these two.

More of Peggy's "musings":

You know it's autumn when the leaves are leaving and the pine needles are sticking around.
I'm tired of reading negative stories about today's youth. You might say I'm on an all pro-teen diet.
The people who say you can't make an omelette without cracking eggs are always pretty hard-boiled.
They say time flies, but with the way the airlines are going these days, maybe time should take the bus.
They say an apple a day keeps the doctor away, but if you don't go to the doctor for regular checkups, you're bananas.
Both people and rivers make deposits in banks. Maybe that's why people squander money like it's water.
How are you supposed to look up a word in a dictionary when you don't know how to spell it to begin with?

From the episode where Luanne tries boxing:

Bill: "Women boxing, huh? If they wear gloves, how do they scratch each other?"

Buck Strickland, Luanne's "manager": "Gettin' rich off a pretty lady's even better than sleepin' with one. Well...neck and neck."

Luanne, praying before a fight: "Dear Lord, one of your creatures may be hurt tonight. Please let it be the other creature. Amen."

1. Hello short list. Congrats to Leah Sears for her election as Chief Justice of the Georgia Supreme Court. For those who pay attention to such things (like a future Democratic president, for example), Sears is a 49-year-old black woman.

2. I saw last week that San Francisco officials are considering installing a suicide barrier on the Golden Gate Bridge. A filmmaker recently set up a camera and captured several suicides on film, and the outrage over that event seems to have played a big part in the decision. If you're interested in the subject, I highly recommend this absolutely fascinating New Yorker article about the "fatal grandeur" of the bridge, which discusses the history of suicide on the Golden Gate and explores why a barrier hasn't been built before now.

3. Sorry it's a subscription-only link, but here's an item that caught my eye when I glanced at the contents page for the March Atlantic. It's an excerpt from a new book by Ross Douthat, a recent Harvard grad. I've just skimmed it so far, but he describes it as I Am Charlotte Simmons with less sex; it's basically a memoir/essay of what elite college life is like these days. I'll have more to say about college soon, but I have to agree with the overall premise that it's very easy to slide by at an elite college without doing much heavy intellectual lifting.

4. You've probably seen this by now, but it looks like the Madrid train bombing suspects had sketches of New York City's Grand Central Station. Bloomberg says he knew about it early on and beefed up security. Recall that the anniversary of the Madrid bombing is coming up next week. Also, I had a mordant chuckle at this paragraph in the Times version of the story: "Peter Kalikow, chairman of the Metropolitan Transportation Authority, said at the time that the chance of a transit attack in New York was 'diminished, but possible.' He added that if an emergency occurred, '100 guys would show up right away.' He refused to disclose exact numbers." My question: Isn't 100 an exact number?

5. Via Jonah in The Corner, I am led to this Opinion Journal item relating last night's episode of "The Daily Show." Clinton-era U.S. Ambassador to the U.N. Nancy Soderberg was the guest. I didn't see it, and sometimes words come across differently in print than they do in person, and I think one could reasonably interpret these statements in various ways, but with those disclaimers out of the way, here's a couple of things Soderberg said about U.S. efforts in the Middle East, vis-a-vis how success there translated into success for Republicans here:

Soderberg: [A]s a Democrat, you don't want anything nice to happen to the Republicans, and you don't want them to have progress. But as an American, you hope good things would happen.
[snip]
It's scary for Democrats, I have to say.
Host John Stewart: [Bush]'s gonna be a great -- pretty soon, Republicans are gonna be like, "Reagan was nothing compared to this guy." Like, my kid's gonna go to a high school named after him, I just know it.
Soderberg: Well, there's still Iran and North Korea, don't forget. There's hope for the rest of us.
[snip]
Stewart: But I gotta say, I haven't seen results like this ever in that region.
Soderberg: Well wait. It hasn't actually gotten very far. I mean, we've had --
Stewart: Oh, I'm shallow! I'm very shallow!
Soderberg: There's always hope that this might not work.

I wouldn't go as far as the Journal's James Taranto did in saying, "She also admitted repeatedly that Democrats are hoping for American failure in the Middle East." I don't want to start a fight over this. I do think it's fair to say that you disagree with the means even if the ends are fortunately good. I think it's fair to think that having a certain President is a net negative despite whatever successes or good ideas he has. I think that might even be more true when one thinks that the successes are elsewhere and the negatives are here in America. I'm not saying I think this way, only that I don't think it's crazy or un-American (or even un-Iraqi) to say something along the lines of "It's great that Iraqis are voting, but I still wish we had elected Kerry." But I think it is wrong to say "There's always hope that this might not work." I would ask you to trust me when I say that reasonable liberals don't think that way, but I'm starting to worry that there aren't that many left.

A few of Peggy's "musings":

Lots of cookies will make you fat.
Thank goodness for plexiglass.
Sunburn, too much of a good thing.
Nothing is dirt cheap, because dirt is free.
Give a donkey the chance and he will bite you in the ass.
Let's face it, Angie Dickinson has lost her looks.
Mix pineapple juice with club soda, you've got yourself a big bucket of crap.

Via How Appealing, I see that U.S. District Judge Joan Humphrey Lefkow of Illinois returned home tonight to find the bodies of her husband and mother. Although it's way too early to start pointing fingers, Judge Lefkow was the target of a murder plot from white supremacist Matthew Hale, who is about to be sentenced for the plan. But whether this was part of an orchestrated plot, or a more random crime, it's a terrible tragedy for Judge Lefkow.

It got me thinking about the federal judges who have been killed on account of their official roles. The most famous was probably the 1979 murder of Judge "Maximum John" Wood of Texas, because his killer was the father of actor Woody Harrelson. Wood was presiding over the trial of a drug kingpin who hired the elder Harrelson. In 1989, Eleventh Circuit Judge Robert Vance was killed by a mail bomb as part of a string of bombings and bomb threats from a racist upset with the court's rulings (he also killed an NAACP lawyer and threatened a slew of judges). This article mentions District Judge Richard J. Daronco of New Jersey, who was shot outside his home in 1988 allegedly because of a case he dismissed. That article also mentions state judges who were shot at, and I'm sure those attacks are sadly common, both because there are so many state court judges and because they don't have the U.S. Marshals looking out for them. And the familial angle here reminds me of the case of Fourth Circuit Judge Michael Luttig's father, who was killed, and mother, who was seriously injured, in a car-jacking not related to Luttig's judgeship. Oh, and Chief Justice Earl Warren's father was killed by a burglar (scroll way down).

I can't go into it, but there was a security "issue" at the courthouse of my old job, and I try really hard not to take the Marshals ans Court Security Officers for granted. In good times, they do a lot of standing around, but they're ready at a moment's notice if trouble strikes. And of course the judges have to be vigilant and take security seriously, as the Lefkow case indicates. They might have panic buttons and bulletproof benches, but a dedicated murderer would have plenty of opportunities. (If you're interested in court security issues, go here to download the GSA's 400-plus-page U.S. Courts Design Guide -- coincidentally dedicated to Judge Vance. Go to Chapter 14, which discusses court security.)

It takes a lot of courage to disgruntle that many people every day and keep doing the right thing. I wish Judge Lefkow courage and solace.

Hank: "Every time I turn around, he's there, hanging around, talking about things. It's like all of a sudden he wants to be my best friend."
Peggy: "Ah. There is a word in Enrique's culture that describes this exact type of behavior: Amigos."

I've been thinking about last week's Supreme Court decision in Johnson v. California, which held that state prisons can't segregate new inmates by race (ostensibly for the purpose of reducing gang violence) unless that classification satisfies the strict scrutiny test. (The Court remanded to the lower court for that analysis, but I have little doubt the state will lose under strict scrutiny.) Here's a nice summary from Lyle Denniston at SCOTUSBlog.

I'll admit that I have merely browsed the opinions, and haven't given them strict scrutiny myself. And it's been a long time since I did any serious thinking about equal protection analysis. But when I read them, especially Justice O'Connor's opinion for the majority, I had a question: What is the injury? I didn't see it clearly spelled out, and I had to ponder over it a while. The Court cited to Brown v. Board of Education for the notion that separation is inherently wrong, but in that case the injury was obvious. There, the segregation had the effect of sticking black kids in inferior schools. And even if the resources were exactly equal -- which of course they weren't -- the social interaction in a desegregated school was enough of a benefit that going without it was an injury. But in the California prisons, as far as I know, the cells were the same, and everyone is treated the same, except that people of different races and ethnic groups went through different doors. I don't think this is even as bad as having two identical water fountains right next to each other, one marked "white" and one marked "colored," even though the facilities aren't any different. This is more like having one water fountain, and telling the thirsty to line up in white/black/white/black order. So, because, from everything I can tell, every prisoner was treated the same, the injury had to be the mere fact of classification by race. After reading Prof. Balkin's take on it, I guess I could rephrase it to say that the injury is the loss of dignity and the stigmatization of being reduced to a check-a-box racial identity. (However, I didn't see anything to indicate that the state would rather use the race proxy if it had evidence of actual gang membership, if, say, two members of the same race were in opposing gangs -- surely the prison would separate them for that reason rather than rely merely on race and keep them together.)

But anyway, it's not as if the black or Hispanic prisoners were sent to inferior cells or given less access to certain benefits than white inmates. I don't mean to denigrate that dignitary harm -- which I'm sure could be bad in cases, even if it doesn't rise to the level of stigmatization black schoolchildren felt before Brown -- but I can see why Justice O'Connor might evade the issue. If the mere classification by race, in a prison system with lots of racial gangs, and when prisoners don't seem to suffer unduly because of it, is unconstitutional, then why wouldn't the same be true in the law school admissions setting? Justice O'Connor thought racial classifications were okay in Grutter, even when they had the effect of causing some kids not to be admitted to a college or graduate school they were otherwise qualified for -- which is certainly more of an injury than being housed in one cell versus another identical one. If someone who had never heard of these cases read them together, he or she might reasonably wonder what case in the interim overruled one of them. Tom Smith at The Right Coast puts it a little more cuttingly, but Justice O'Connor's opinion and "reasoning" are a joke.

For what it's worth, I think a more reasonable course is to subject benign classifications in prisons (that is, where there is absolutely no evidence of disparate treatment) to Turner's less-stringent review, which is more deferential to prison officials. I would have agreed with Justice Stevens, however, that this system fails even that test, simply because there's so little reason for it, and it could end up promoting gang violence as much as thwarting it. It is often said that strict scrutiny review is "strict in theory, fatal in fact." Turner review could accurately be called "deferential in theory, rubber-stamp in fact," but that's true of rational-basis review generally. But every once in a while some state action is found to be irrational. Yes, perhaps I am overlooking something in the opinion about the harm suffered by these classified inmates. But at least applying Turner saves one the embarrassment of trying to reconcile Johnson with Grutter. And it would have the added effect of giving Turner some teeth, which may be what Justice O'Conner (who wrote Turner) wanted to avoid in the first place.

UPDATE: I should have linked to posts I overlooked last week from Will Baude and Donald, who made the same point I did about Turner.