Faith-based & Unconstitutional

As a legal and as a policy matter, I have some serious reservations about faith-based initiatives.  My opposition is stronger on the legal side – I think that the entire program of funding religious organizations runs into some major Establishment Clause problems.  As a policy matter, I’m willing to at least consider the idea that it may be worth it to allow some outsourcing of governemnt functions to religious organizations – as long as proselytizing and discriminatory hiring are not permitted.  Overall, I think the charitable choice issue is a classic example of civil liberties being de-prioritized in the face of an empirically questionable greater good.  Anyway, I just wanted to recommend Susan Jacoby’s op-ed on the issue in the Times.

Lehman Sisters, again

Nicholas Kristof’s latest NYTimes Op-Ed reminds me of the Spar piece I blogged about a few weeks ago. He’s saying something similar – but he’s saying it a lot better:

It’s important to be skeptical of some of the research: often it seems to be conducted or studied by those who have strong views about gender. And it’s generally true that research conducted on matters pertaining to fairness or social justice rarely has the rigor of research conducted on, say, particle physics.

Yet the number of studies reaching similar conclusions from different directions is striking.

One of the shortcomings of any system of men sitting in front of screens making financial bets was reported last year in the journal Evolution and Human Behavior, in case you missed your copy. That study found that men are particularly likely to make high-risk bets when under financial pressure and surrounded by other males of similar status.

As for women, their risk-taking was unaffected by this kind of peer pressure.

The study’s authors point to an evolutionary hangover. Across cultures, women prefer high-status men, while a woman’s reproductive prospects depend much less on her social status. Thus, when men of similar status gather, they jockey for an edge and jostle for the alpha role — and try to get ahead with high-stakes gambles.

What I like about this column as opposed to Spar’s is that he looks carefully at a study, notes the interesting implications it might have, but also responsibly notes its limitations.  The best part is that his overall point is not that we should have more women in banking because women are more risk-adverse, but that we should have more women in banking because diversity is a good thing.  That’s an idea I can get behind.

I will admit, though, that my more favorable reception to Kristof’s column makes me rethink my reaction to Spar’s.  In both cases, they are looking at data that I don’t like – evidence that biological differences make men greater risk takers.  I don’t discount biological factors altogether and think it’s valuable to research their impact further, but I’m pretty committed to the idea that the lack of women at the top and the behavior or attitudes that may lead to that fact can primarily be attributed to societal norms and stereotypes.

I don’t want to suppress science by any means, but I do worry about what happens when we emphasize studies that suggest there are gender-based distribution differences.  I just don’t want business school teachers looking around the classroom and thinking, “well the men are going to be the risk-takers….”  These studies

Kristof and Spar aren’t disagreeing with me, they’re just focusing on a cause that seems to me less significant, while seeking to remedy the same effect.  But I still stand by what I said last time:

Because women have less testosterone and may or may not be less willing to gamble on their own performance is a far less compelling reason to place more women in the top spots than is that “lesser force” that Spar identified earlier in her article – the fact that we are perpetuating a “clubbiness” that prevents female advancement. Women need leaders as role models to become leaders themselves. Maybe then we will have enough confidence in our own performance to bet our pay on it.

In the news

• When you think about privacy in terms of information gathering in the digital age, is really spotlights why an originalist approach to the concept of a right to privacy is just not going to work.  Still, I think that Scalia’s skepticism about the practicality of asserting too broad a right to privacy is not entirely misplaced.  I’m thinking about those who sue Google Earth for showing their homes, etc.  One thing’s for sure – advances in technology are forcing us to re-examine our understanding of the right to privacy.  (Newsday)
• Ugh. (NY Times)
  
• Having not examined the actual case, I’m interested to know whether this issue would’ve come out differently if we recognized an equal protection right under the 14th Amendment to not be discriminated against on the basis of sexual orientation.  There’s a state action issue, I suppose.  Also the disclosure of students’ sexuality to their parents is an interesting question of the privacy rights of minors.  Still, it seems to me to not make much sense to claim that the private religious school is not a business.  What about Pierce v. Society of Sisters?  Also, it’s unclear to me from the article whether the schools made a free exercise claim or how exactly the religious intertwining came into play.  Maybe I’ll read the decision and do a post on it later.  (LA Times)

Child Pornography Laws and the First Amendment

It can be hard to stand up for the first amendment side of a child porn case because child pornographers are generally not the kind of people you want to support. That makes it all the more interesting when a case comes along that is far less morally reprehensible and can focus the free expression problems that child pornography laws come up against:

“Teens send nude pics to one other, face kiddie porn charges,” (Ars Technica)

Maybe this case will cause legislators to give another look at overbroad child porn laws. That said, letting young girls get away w/ sending nude pictures to their boyfriends is also not a politically popular position.

Nativity Scenes in NY Schools

My opinion on the merit of the effort to allow nativity scenes in NY public schools is pretty settled – I don’t think they should be allowed – but what I think should or should not happen is not what I want to discuss.

There are two legal issues here that I think are interesting – first, is it discriminatory or a violation of the 1st A to not allow nativity scenes while menorahs and other arguably religious symbols are allowed? And second, would it be a violation of the 1st A of the city did allow nativity scenes?

As the NYTimes notes, the 2nd Circuit has answered no to the first question and has explicitly left the second question open (See Skoros v. City of New York). I don’t think the answer to this latter question would be easy and a lot of it might depend on how the campaign were handled. If the city changed its policy and made its clear that the purpose was to achieve equality and diversity, it might pass the Lemon test (assuming that would even be applied in this confusing era of religious liberty jurisprudence).

I am interested by the argument that a nativity scene is particularly problematic b/c it is “an object of devotion, an object of worship.” In Allegheny v. ACLU, the court found a nativity scene to be a violation of the Establishment Clause – but the facts of that case were a lot more damning (there was some super-religious text in the scene, if I remember correctly). There’s a 3rd Circuit case, ACLU v. Lander, 168 F.3d 92, where a holiday display included a nativity scene alongside Kwanzaa symbols, a menorah, Frosty the Snowman, etc., and was NOT held to be a violation of the Establishment Clause, distinguishing Allegheny as based more on the fact of endorsement. The nativity scene was viewed as more akin to that upheld in Lynch v. Donnelly.  As interesting as this ‘object of worship’ distinction is, an argument based on that seems foreclosed by precedent.  I think this is one of those cases where the constitution does not compel one decision or another; instead we need to look at what’s the best policy choice.

Superman replaces Wonder Woman on Ms. Magazine Cover

I don’t really know how to react to this Ms. Magazine cover.  I do think, however, that this Daily Beast column expresses some understandable outrage.  It might’ve been better for the magazine to mark the milestones that women themselves have actually achieved as a result of this election – there are a lot of women headed for top-level positions that I might’ve preferred to see on the magazine’s cover.

Women and Leadership: Would Estrogen Solve the Financial Crisis?

I don’t like the central thesis of this article, and I’ll get to that in a moment, but first I’d like to note that this op-ed was doomed to disappoint me from the beginning. The author, before making her pseudo-feminist argument, disclaims for readers that she is not a man-hating lesbian (as, of course, people would assume she was?):

Let me begin with the caveats: I like men. My husband is one, as are my two sons. I have spent most of my career surrounded by men, and I have no major complaints.

But she further disappoints me when she explains why she thinks there need to be more women leaders. The reason, she seems to think, is because woman are more risk-averse and we need them to tame the aggressive, risk-taking tendencies of men:

Clearly, some greater force is at work here, something more than the traditional clubbiness of Wall Street or the obstacles that still confront women juggling work and family. It may be that women perceive and act on risk in subtly different ways; that they don’t, as a general rule, embrace the kind of massively aggressive behavior that brought us a Dow of 14,000 and then, seemingly overnight, a crash of epic proportions. Whether it be from a protectiveness born of biology or a reticence imposed by social norms, women may be less inclined than men to place the kind of bets that can get them in real trouble.

She does use a lot of hesitant language (a lot of “may be”). And I think that sort of hesitance is warranted. Her hypothesis is backed up by giving three examples of women in three separate instances who spotted the danger signs of trouble. I’m sure someone could dig up an example of three men who engaged in similar behavior.

She also cites two studies,pointing to different explanations, exploring the behavioral differences between men and women in the workplace

We don’t yet know why women respond differently to danger signals — and earlier, it appears — than men. We don’t know why women either shy away, or are effectively banned, from businesses that thrive on risk. One possibility, explored in a fascinating study published last year by John Coates and Joe Herbert of Cambridge University, is that women simply don’t have the testosterone for it; on the trading floor, they deduced, higher profits literally correlate with higher levels of the male hormone. Another, examined in laboratory experiments conducted by Muriel Niederle and Lise Vesterlund at the University of Pittsburgh, is that women are far less inclined than men to bet their pay on performance, even if they have evidence to suggest that they are superior performers.

Regardless of the value of these studies, it’s not the basis on which we should be arguing for more woman leaders. Because women have less testosterone and may or may not be less willing to gamble on their own performance is a far less compelling reason to place more women in the top spots than is that “lesser force” that Spar identified earlier in her article – the fact that we are perpetuating a “clubbiness” that prevents female advancement. Women need leaders as role models to become leaders themselves. Maybe then we will have enough confidence in our own performance to bet our pay on it.

I get that Spar is saying that feminine timidity would be a GOOD thing considering where that aggressive American leadership style has gotten us. But I think there are both men and women who favor either style of leadership that Spar describes and this sort of essentialist pseudo-feminism is not helping anyone.

Feminism & the Economic Stimulus: Where Women Want to Work

It’s interesting to compare the Howell column I posted about below with this op-ed from Linda Hirshman. I read Hirshman’s Get to Work several years ago and while i didn’t agree with everything in it, I thought something about the radical call she was making was appealing. For a good review of that book, see Megan O’Rourke’s write-up in Slate (“I would never write this book,” says O’Rourke, “but I’m glad someone did.”).

Anyway, Hirshman is here to lament the lack of jobs for women in Obama’s New Deal. Like Howell, she identifies, based on empirical truths, a certain area that women are drawn to more than men, and suggests that we need to increase the opportunities available for women in that area.

Mr. Obama compared his infrastructure plan to the Eisenhower-era construction of the Interstate System of highways. It brings back the Eisenhower era in a less appealing way as well: there are almost no women on this road to recovery.

Back before the feminist revolution brought women into the workplace in unprecedented numbers, this would have been more understandable. But today, women constitute about 46 percent of the labor force. And as the current downturn has worsened, their traditionally lower unemployment rate has actually risen just as fast as men’s. A just economic stimulus plan must include jobs in fields like social work and teaching, where large numbers of women work.

Hirshman is aware, though (and I’m not saying that I think Howell ISN’T aware), of the fact that the underlying problem is something greater, but she explicitly notes that she is catering to a more practical approach.

Maybe it would be a better world if more women became engineers and construction workers, but programs encouraging women to pursue engineering have existed for decades without having much success. At the moment, teachers and child care workers still need to support themselves. Many are their families’ sole support.

I think more women working is always a good thing and while I wish that more women were becoming engineers (if not construction workers, so much), I think economic independence for women is the first battle we need to fight anyway.

Still, my overall theme, I guess, is to see these two columns as examples of something that people are beginning to forget – that there is a greater gender divide and that we also need to be working against that. Hirshman talks much more about this in her book. One of my favorite feminist quotes of all time comes from Anna Quindlen and I think sums up my point well:

It’s important to remember that feminism is no longer a group of organizations or leaders. It’s the expectations that parents have for their daughters, and their sons, too. It’s the way we talk about and treat one another. It’s who makes the money and who makes the compromises and who makes the dinner. It’s a state of mind. It’s the way we live now.

Feminism & Media: What Women Want to Read

Deborah Howell, the Washington Post ombudsman, writes:

Opportunities abound, especially on Page 1, to draw in women with stories about families, relationships and parenting. The Post in print has precious little coverage of those topics outside of Style advice columnists. Washingtonpost.com has a blog, On Parenting, and women gravitate to the Web site’s Smart Living page. Women also care about consumer issues, which can get short shrift.

Howell’s suggestion comes after her lamentation that women are neither frequent readers nor subjects of the news. Now normally, I detest the kind of essentialism that suggests what women want to read is family and relationships columns.
But I recognize that Howell is speaking form an empirical basis – more women really do read this sort of stuff, as she points out by citing a Pew study:

For years, studies by the Pew Research Center for the People & the Press have shown that while men and women have equal interest in the news, women almost always score lower than men on basic current-events questions, no matter what their education, age and work status. But women are just as knowledgeable as men on issues that are of particular interest to them, such as education and health care. (Men can name the secretary of state, and women the local school superintendent.)

But even looking past what it is that women readers are drawn to, I don’t know that I agree with her claim that a newspaper should foreground these “women’s issues” so as to eschew an “institutional point of view.” If Howell thinks that local news and consumer issues need to be covered more in general, then that is fine – but the content of a front page of a newspaper should not be considerations such as this. It would be a different matter altogether if Howell was saying that we should draw more female readers in for financial reasons, but that doesn’t seem to be what she’s saying. I think the problem here is not that women can’t find out who the local superintendent is on the front page of the Post. I think the problem is that women can’t name the Secretary of State. We should be thinking of ways to address THAT.

I will add that I agree with pretty much everything else Howell says – that we need more women writing opinions pieces, more women being used as sources, and more women at the top of editorial staffs. But maybe at some point we need to stop trying to make things better for women and start trying to make women better for the roles we want them to have. I know that’s a controversial claim, but I don’t think it’s our Y chromosome that makes us want to read an article about great deals at the mall – I think it’s the expectations thrust upon us from the beginning. The changes need to be made outside the newsroom and in classrooms, homes, etc. But if newspapers start lowering their expectations of women, too – well that’s just not a good place to start.

Some interesting things…

• Wiretapping & telecom amnesty - it’ll be interesting to see what happens here.
• This cyberbulling MySpace case.  I think this case is particularly interesting because it’s one of those instances where we have to recognize that there is sometimes a necessary gap between what is legally condemned and what is morally condemned.
• There are a lot of interesting ad law things coming out of the impending end of the Bush era.  Among those are the midnight rules and this thing about shifting political positions to career positions.