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The Anatomy of a Smear



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Smearing good and decent conservatives as racists or accusing them of making racially inflammatory remarks is something of a cottage industry in certain sectors of the Left these days. Yesterday it happened to Stanford professor Michael McConnell, former judge of the Tenth Circuit Court of Appeals and the chief counsel for the Christian Legal Society in CLS v. Martinez.  Ironically enough, the smear was born out of an exchange in which Professor McConnell was explaining that universities could prohibit invidious racial discrimination. This is how a smear happens, step by step:

Step one: A conservative makes a completely innocuous and conventional constitutional statement. One of the most common arguments against the presence of Christian student groups on campus is that any relaxation of a university nondiscrimination code (such as, for example, granting Christian groups the right to reserve leadership for Christians) will be but the first step in a natural and inevitable process that will ultimately lead to battalions of Klansmen galloping through the quad. Or, to put it another way, “If we let the Christians in, won’t we have to let the racists in too?”

The response to this is pretty simple: The government can’t ban beliefs and can’t restrict groups from forming around shared beliefs — even if it views those beliefs as abhorrent  — but it can prohibit actual, invidious, status-based discrimination. Or, to put it in laymen’s terms, a college can constitutionally ban actual racial discrimination by student groups. Here is the key exchange between Justice Stevens and Professor McConnell:

 JUSTICE STEVENS: What if the belief is that African Americans are inferior?

MR. McCONNELL: Again, I think they can discriminate on the basis of belief, but not on the basis of status.

Step two: the mainstream media paraphrases the statement.  Reporting for NPR, Nina Totenberg described the exchange as follows: 

Justice Sonia Sotomayor asked: So what if a group “wanted to exclude all black people, all women, all handicapped persons?” Are you saying the school would have to “give it funds and otherwise lend it space?”

“Not at all,” McConnell responded. There is a difference between discrimination based on belief and discrimination based on status, he said. “We have only challenged the beliefs, not status.”

Justice John Paul Stevens followed up: “What if the belief is that African-Americans are inferior?”

If belief is the basis for exclusion, then that is permissible, said McConnell. But exclusion based on status is not.

Though I wish matters of such obvious delicacy would be quoted rather than paraphrased, I do think Ms. Totenberg’s summary is relatively fair. But it is a summary nonetheless.

Step three: the hard Left selectively quotes the mainstream media’s paraphrase.  Here is “Devilstower” in a Daily Kos post entitled “But if the Board of Education Believes Brown is Inferior . . .” 

CLS lawyer Michael McConnell opened by telling the court that Hastings’ all-comers policy is a “frontal assault on freedom of association” and “the right to form around shared beliefs.”

Justice Sonia Sotomayor asked: So what if a group “wanted to exclude all black people, all women, all handicapped persons?” Are you saying the school would have to “give it funds and otherwise lend it space?”

“Not at all,” McConnell responded. There is a difference between discrimination based on belief and discrimination based on status, he said. “We have only challenged the beliefs, not status.”

Justice John Paul Stevens followed up: “What if the belief is that African-Americans are inferior?”

If belief is the basis for exclusion, then that is permissible, said McConnell.

Notice the omission? “Devilstower” leaves off the rest of Totenberg’s paraphrase: “But exclusion based on status is not.” The Kos diarist (if that’s the right term) calls the exchange “astonishing,” but the only astonishing thing about it is his or her decision to leave out Professor McConnell’s definitive statement that there is no constitutional right to status-based discrimination.

And there you have it — how a conservative can go from defending race-based nondiscrimination policies to smeared as making “astonishing” racial statements in three easy steps.



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