Monthly Archives: January 2018

THE FAA OFFERS A CRASHABLE PROGRAM IN DIVERSITY

This week’s blog is taken from the newsletter of the Mountain States Legal Foundation, written by William Perry Pendley, attorney and president of MSLF.

“Weeks ago, it seemed common sense—and the Constitution—might prevail when Congress indicated it would veto a Federal Aviation Administration (FAA) plan to abandon its decades-old, race-neutral process of hiring the most motivated, best prepared, and most highly-skilled air traffic controllers (ATCs) to keep American travelers safe in the skies.

“No such luck.  Fearful of a presidential veto is it stopped the FAA’s race-based hiring scheme, Congress on July 13, 2016 cut a deal allowing the FAA to hire half of all new controllers based on race.  President Obama signed the legislation on July 15, 2016.

“Soon, the rest of us will find out how these rookie ATCs fare in guiding 87,000 flights a day carrying tens of millions of passengers across the U.S.

“I have battled Congress’s willingness to disperse funds, grant contracts, and award licenses on the basis of race for more than 25 years, and the struggle is ongoing.

“In 1995, a case I brought on behalf of a small Colorado business that was denied highway construction subcontracts because of a racial preference reached the U.S. Supreme Court; it resulted in a landmark ruling (Adarand Constructors, Inc. v. Pena) that the Constitution’s equal protection guarantee applies to Congress.

“The late Justice Antonin Scalia concurred in that decision, ‘In the eyes of government, we are just one race here.  It is American.’  With its ruling, the Court also overturned two of its earlier decisions holding that Congress could set aside public works funds for minority businesses (Fullilove v. Klutznick, 1980) and award radio and television broadcast licenses based on race (Metro Broadcasting, Inc. v. FCC, 1990).

“We’re not there now.  Racial preferences flooded back into almost every major legislative act in Barack Obama’s first term.

“Then, early in Obama’s second term, FAA Administrator Michael Huerta announced plans to ‘transform the [FAA] into a more diverse and inclusive workplace that reflects, understands, and relates to the diverse customers we serve.’

“First, the FAA killed a successful agency program that established accredited aviation degree curricula in 36 colleges and universities in 23 States and Puerto Rico to prepare future ATCs on a color-blind basis for training at the FAA Academy at the Mike Monroney Aeronautical Center in Oklahoma City.

“Following that sweeping measure, 2,000 to 3,500 ready-to-hire, highly qualified graduates of those programs got ‘Dear Applicant’ emails advising them that the FAA’s hiring process had changed and they must reapply.  An FAA official later reported that their names had been ‘purged’ from FAA job application files.

“Finally, the FAA announced it would hire via a General Public Announcement—commonly referred to as ‘off the street’—U.S. citizens with high school diplomas, who speak English, and pass a 62-question ‘Biographical Questionnaire’ (BQ), which includes such questions as, ‘The number of high school sports I participated in was?’  ‘How would you describe your ideal job?’  ‘What has been the major cause of your failures?’  ‘More classmates would remember me as humble or dominant?’

“Late last year, my legal foundation filed a class action lawsuit in Arizona federal district court on behalf of an Arizona State University double major graduate who scored 100 percent on the FAA’s long-standing, demanding, eight-hour computer-based Air Traffic Control Selection and Training exam.  His name had been purged from eligibility for hiring regardless.  Incidentally, he along with most of the other ready-to-hire graduates ‘failed’ the BQ test.

“Our lawsuit relies in its reasoning on my 1995 victory and on a 2009 Supreme Court decision that struck down New Haven, Connecticut’s decision to abandon the race-neutral hiring of firefighters to increase racial diversity.  Anticipating congressional action, the case was stayed in early June, to begin again this month.

“But the FAA had pressed forward with disastrous results.  Because the FAA slowed, froze, and then changed the hiring process, unfilled vacancies among air traffic controllers are at a 26-year high, and more could come quickly.  For example, every ATC in one Alaska international flight sector could retire tomorrow.

“Meantime, the FAA’s Oklahona City training center is laden with raw trainees unskilled in English, unable to obtain security clearances for DUIs among other reasons, and lacking the discipline for the arduous 17-week training syllabus—the dropout rate is wreaking havoc with class size and schedules.

“Congress bemoaned the gap in hiring but did little else aside from the partial killing of the preposterous BQ ‘test.’  And then, somewhere in the back rooms, it caved in.

“When the bill finally emerged it contained a typical legislative-style compromise.  It said that, after giving preferential consideration to veterans with air traffic control experience, half of all new air traffic controllers must come from the college degree program, which Congress sensibly and legislatively reinstated.  But the other half will be hired ‘off the street,’ apparently to satisfy the FAA’s pursuit of racial diversity.

“This scheme fails for several reasons.  First, it reaches only half of those ‘purged’ from job application lists.  It is not a remedy for those adversely affected—they remain at the back of the line, uncertain as to how to ‘reapply.’

“It also does not prevent the FAA from doing the same thing again, and, worse yet, it give congressional approval to a 50 per cent racial quota—after the Supreme Court in 1995 sharply criticized what was, at worse, a 15 per cent preference.

“One other result:  Congress’s belated splitting of the difference came too late to save three of the ATC schools that were set up to train everyone, regardless of race, color, or creed.  One of the three schools that failed to survive was the most racially diverse of all, the Inter American University of Puerto Rico.

“Fasten your safety belts as we see what happens next.”

In the meantime, let’s hope and pray the old qualified ATCs are in the tower.

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OPIOIDS…A NEW CRISIS

The lead story in the last few months is the White House saying the opioid crisis is going to cost the nation $500 billion a year.  Think about that; $500 billion a year.

In 2016, 64,000 Americans were killed by opioids, that’s heroin and all the pain killers.  And many believe that’s underreported; that there are many more people who die, because if you take these hard drugs, they have a deleterious effect on all other parts of your body.  It’s like alcohol.

An estimated 2.0 million people in the USA are addicted to heroin and other opioids.  And the White House says it’s a public health emergency.  But the White House and Congress have no blankin’ clue what to do about it.

Drug addiction has been with us forever.  There was a war fought over opium, the Boxer Rebellion.  Actually, Steve McQueen made a movie about it.  In China, a quarter of the population was addicted to opium when Mao Zedong took over in 1949 and the nation became communist.  A quarter of the Chinese population was addicted to opium.

What did Mao do?  He shot them.  If you were involved with opium, you were lined up and shot.  All of a sudden, the epidemic stopped.

Now, in the United States in the early part of the 20th century, cocaine was legal, you could use it, there was no problem using it.  Then, as the 1920s rolled in, drugs became more prevalent and they started to outlaw heroin, opium, cocaine and they formed the Bureau of Narcotics and Dangerous Drugs.  That was the first federal agency to try to keep this under control.

In the 19th century, nobody did anything.  You could do what you wanted.  Then the Depression hit and in the Depression nobody had any money, so the drug industry in the United States collapsed.  Then World War II happened.  And again, most of the young mail pool were gone and there wasn’t a big demand.

Then after World War II, drug addiction started to rise but wasn’t at the crisis level until the 60s.  Sex, drugs and rock n’ roll came in, Vietnam War came in.  Lots of GIs in Vietnam sampled the very cheap heroin over there and brought their habits home.  Social acceptability of drugs, even though hard drugs were not as acceptable as marijuana.   The drug culture rose.  And from I would say 1969 onward, drugs have been a major problem in the United States.

It got worse with the advent of the Internet, because you can buy any drug you want through the Internet.  If you go to Tijuana, Mexico, there are more pharmacies in Tijuana than in all the rest of Mexico combined I think, if you take out Mexico City.

What are they doing?  They’re mailing opiates to anybody who wants them.  Anybody with a credit card right through the mail.  So you don’t have to get down to your local pusher, you can get it right through the mail.  Now in the 90s, there was a crack epidemic that hit the ghetto, the bad neighborhoods in the inner cities were hit very hard.  And it made it almost impossible for people to live there with so much violence on the streets.

In New York City, there were close to 4,000 murders a year.  Now there’s 300.  So the Feds came in and they gave the crack dealers mandatory harsh sentences, which have now become a source of controversy.  But they did that so poor people in the ghettos can have some protection.  And the crack epidemic, after those mandatory sentences came in, waned.  It’s still there, but it’s not nearly what it was in the 90s.

But heroin because of Mexico, it’s cheap, has risen.  And prescription drugs, as you know, has also risen.  And the two are almost the same.  So that’s what’s fueling our drug epidemic now.

The final thing is Barack Obama made a terrible mistake by putting forth that selling heroin and other hard narcotics, including crack, is not a violent crime.  That you know…Obama didn’t say it was okay.  He just said, “Well it’s not that bad and we shouldn’t be putting people away who are selling poison.”  Not using, selling.  Ehh…you know, let them go to rehab.  Bad, because, again, the social acceptability of it.

When I was a kid growing up in the suburbs of NYC, if you were on heroin you were a pariah.  Not only using, but selling.  I mean, the dope dealers were the worst, the lowest, the lowest.  Now in some places they’re celebrated.  They’re celebrated.  Superfly!

So we are in a society now that doesn’t know how to handle this opioid crisis, doesn’t know what to do.  Some places like Singapore have said if you use hard drugs and we catch you, you go to mandatory drug rehab.  In Singapore, it was 22 months you’re gone.  So they took the market away, there’s no drug problem in Singapore.  Red China, I already explained how Mao dealt with it.

Here, it’s all “Well, we need money for rehab.”  Oh, all right.  But a lot of people who use narcotics don’t want to be rehabilitated.  They like the world for whatever reason.  And that world is growing and more and more people are dying.  So that’s the thing.

Five hundred billion a year medical costs, people on the job can’t work.  Of course, they apply for government assistance.   Child abuse, 70 percent of all child abuse and neglect is by parents who are addicted to narcotics.  Horrible!  But we don’t have a strategy yet—just the recognition that we have a crisis.

According to Dr. Thomas Strousp, medical director of the UCLA Neuropsychiatric Hospital, said, “A recent study found that opioid deaths went down by about 25 percent over time in states after marijuana legalization passed.  We can’t say for sure, but it could be that people were substituting marijuana for the purpose of getting pain relief or taking lower doses of opioids, or perhaps using recreational marijuana instead of recreational opioids—likely a much safer activity.

What we do know is that an opioid overdose can cause people to stop breathing and die; it’s often said that nobody ever died of a cannabis overdose, and that’s probably a true statement in the sense that cannabis does not depress respiration the way opioid can.

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BITCOIN:  BUYER BEWARE

Here is our attempt to try to uncover the mystery of this crypto currency.  What is it?  Where did it come from?  Where is it going?  Is it all a fantasy?  Who accepts it as payment?

As the last decade’s financial crisis worsened consumers began to wonder if their bank account balances were safe and if the slips of printed cotton in their wallets still held value, Satoshi Nakamoto was busy devising a currency regime that totally bypasses governments and banks.

What started as an experiment among a few computer geeks has become an international sensation, drawing in everyday consumers.  As more people get involved, the price of Bitcoin climbed higher, which pulls in more people, perpetuating the cycle.

As recently as December, one Bitcoin cost $18,000, up from less than one cent in 2009.  This week, the value is about $14,500.

It’s easy to find people who forecast Bitcoin to rise past $20,000, $100,000 and even $1 million.  Their message is simple.  Get in now before the price goes higher, and enjoy the thrill of making money for nothing.

Many, however, don’t agree.  They see Bitcoin as a great idea on paper, but nothing more than a glorified Ponzi scheme in practice.  While the cryptocurrency will probably survive for many years, it’s more likely that the price moves closer to zero than $100,000.

Caveat Emptor, or buyer beware, should be the call of the day.

Bitcoin’s Arrival

Imagine holding your wealth in a currency that the government could never devalue, a currency that was never checked at the border.  As long as you have access to the internet and remember your passwords, you could access your currency anywhere in the world.

And as long as vendors accepted it (big question), you could immediately purchase anything, anywhere, with no conversion or exchange required.  You could also send money to anyone, anywhere, with a few keystrokes.

No more Western Union.  No need for bank wires.  No government-issued IDs required.  No stating the purpose of the transfer.  Nothing, just send what you want, where you want, when you want, with zero interferences from anyone.

Nakamoto (or they, we don’t know for sure who or how many are behind the pseudonym) developed a closed environment for creating a set amount of a new currency.

New Bitcoins are created by computer operators, called miners, who use their computers to verify Bitcoin transactions.  Every transaction is added to other transactions to form blocks, which are then linked to create the blockchain.

The blockchain contains every Bitcoin transaction that has ever taken place.  Miners reverify the entire blockchain, and then several miners must independently verify new transactions to form blocks.  Through this process, the full ledger of all transactions resides on many computers and can be downloaded and reviewed by anyone at any time.

If someone tries to add a fraudulent transaction, say moving Bitcoin from a fake account to a real account, then it would not be independently verified and the miners would reject it.  This methodology keeps bad sectors from counterfeiting new Bitcoin.

As miners verify transactions, they are awarded small amounts of Bitcoin, which is how new currency enters the system.  The original program will only allow 21 million Bitcoins to be created, and the goal is to create them in a steady stream for years.

Over time, Bitcoin has attracted many users.  Not all of them are striving for the libertarian goal of using currently untainted by government interventions.  Some simply want to operate outside of government control because they’re criminals.

Enterprising people set up exchanges like Coinbase where you can buy and sell Bitcoin.  And most of these exchanges also serve as online “wallets,” which allow you to store your Bitcoin so that you don’t have to go through a lot of hassle to do it yourself.

The online wallets and exchanges make using cryptocurrencies easier, no doubt, but they’re not free.  The going rate for an exchange is about 3%, which torpedoes another main reason to use a cryptocurrency.

Once you have some, you run into another problem—where to spend it.

Using Bitcoin

Recently, a Subway franchise in Pennsylvania started accepting Bitcoins, and so did a Maserati dealership in California.  But not many establishments accept it and the list isn’t rapidly expanding.

Most transactions involving Bitcoin are either people purchasing to hold it in the hopes it will go up, or purchasing it so they can use it to buy other online coins called tokens.  Precious few people use, or even want to use, Bitcoin for transactions involving everyday living.

As the price of Bitcoin appreciates, people hold them, which highlights one of the biggest issues with the cryptocurrency.  People aren’t treating it like a currency at all, they are treating it like an investment.

Bitcoins are not productive assets.  They don’t create anything.  If they are a currency, then they should  represent a medium of exchange that is divisible, accepted by the population, and be a storehouse of value.  But because people are bidding up the exchange rate, they are driving the perception that the price will go much higher.

Today’s Bitcoin buyers hope that tomorrow’s buyers will pay much, much more.  What if they don’t?

Bitcoin Today

While the government is not involved (yet!) and banks are sidelined, Bitcoin is expensive to buy and sell, almost always requires intermediaries unless you are a computer whiz, and, so far, it’s not treated like a currency.  Buyers don’t intend to pay their electric bill with it or use it to buy gas.  They only have one goal:  sell it to someone else at a much higher price.

Even though Bitcoin’s price has not gone up in a straight line, it has rocketed higher in the last several years.  What if the situation reverses?  What if buyers lost interest in holding the cryptocurrency?  What if the government gets involved?  At that point, most current owners would rush for the exits, driving the price even lower.

Given that Bitcoin has no natural market, it can go to zero, erasing all value for current holders.  The same can’t be said of government-issued currency.

The IRS is fairly certain that many people buying and selling Bitcoin on Coinbase aren’t reporting any of their transactions on their taxes.

Coinbase is fighting the warrant, but they’ll eventually lose.  The IRS has a compelling case.  When it eventually demands back taxes, penalties, and fees from Bitcoin buyers and sellers, it could send a chill through the markets.

Bitcoin’s Economic Bite

Let’s say I’m wrong.  Instead of meeting an ugly and untimely near-death, Bitcoin gains strength and eventually becomes the currency that Nakamoto envisioned.

The transition would shift money out of U.S. dollars, driving down the value of the buck.  On the flip side of that, higher-priced Bitcoin would aid those who own the cryptocurrency, but penalize those who still operate in dollars.

That would include the growing population of Social Security recipients, as well as anyone receiving transfer payments, such as Supplemental Nutrition Assistance Program (SNAP) credits.  Essentially, we put the elderly and the poorest among us at an economic disadvantage.

It’s easy to see how the government, in addition to compelling the use of greenbacks through taxes and government spending, could proactively limit the use of crypocurrencies so as to stop bad outcomes.  In one fell swoop the Feds can protect their turf and argue that they’re acting in the best interest of the most vulnerable members of society.

Frankly, it’s still a bit of a mystery.  Bitcoin has failed, or rather not even been tried, as a true currency.  To date, it simply appears to be a Ponzi scheme with zero assets, zero productivity.

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SEXUAL INTERACTION COMES IN DIFFERENT LAYERS

Not all contact between the sexes can or should be called harassment or subject to punishment.  Some of it can and should be dealt with assertively.

The layers of sexual contact I think fall at different times into one of the following behaviors:

Flirting – the exchange of eye contact and smiles which are generally innocent signs of attraction.  Often it leads to dating.

Advances – the opening to pursue the attraction:  get a cup of coffee, have a drink or have dinner to see if there is a connection.

Annoyance – non reciprocal pursuit of the above, constant sexual references and/or touching of body parts (non sexual).

Harassment – continuing innuendo, inducements nd/or threats, as well as exposing and touching of sexual body parts.

Assault – the physical overpowering of one person over another.  It’s called rape and it is a criminal offense.

With all the publicity and exposure of predators like Harvey Weinstein, Matt Lauer, Charley Rose, Kevin Spacey, Bill O’Reilly and dozens of others splashed across the media in the last few months, I think there has been a tendency to mistakenly lump a number of the behaviors above all together under the umbrella of “sexual harassment.”

It is important, even vital, that we and our offspring are helped to understand these differences and learn how to be assertive in dealing with each of these layers, particularly the first four, before they are classified as harassment.

There are two other aspects of sexual behavior that must be discussed:

The first is, does what women wear or not wear, contribute in any way to the harassment/assault problem?

“Women’s wardrobes have long been used as an excuse for sex crimes,” according to psychologist Sandra Shullman.  “However, when you look at the data on why people rape, that doesn’t hold up,” she says.  “One study showed that rapists stated clothing as the reason for their crimes but their victims were wearing a range of outfits from revealing to snowsuits.  These are arguments to transfer the responsibility of control and power from the perpetrator to the victim.”

When it comes to sex crimes, Shullman says, “clothing just doesn’t matter.”

That may be true as Dr. Shullman says in assault/sex crimes, but I believe it has a definitive affect on the fantasy lives of everyone and particularly of the annoying and harassment predators.

What we see women wear in movies, television, books, magazines and in every day encounters at work, at bars and dozens of leisure activities, I believe all play into our sexual fantasies.

There may well be other factors in the psych of the annoyers and harassers, but their actions are encouraged and stimulated by their fantasies.  To deny this contributing factor makes no sense at all.

When women, for example, dress with lots of skin showing and try to look seductive, the predators react to that, not necessarily with that individual as their victim, but it helps give them license to seek out their victim.

Consciously or not, we all register fantasies about movie stars—Robert Redford or Marilyn Monroe or Selma Hayak or James Franco—and every day encounters with attractive people.

Most people, I believe, put that all in their fantasy file.  The predators think it gives them strength to seek out their personal fantasy victim.

The second question appears more complicated.  Substantially more than 50% of predators and harassers we’ve previously named, the behavior they exhibited appears abhorrent.  How in any semblance of their right minds or their fantasies could they conceive that going naked, masturbating or taking a shower in front of their victims could in any way be sexually fulfilling or lead to a consensual sexual encounter.

It’s totally baffling.  Did they exchange notes?  How did they each individually conceive these abhorrent behaviors?

As one friend said to me, “It is demeaning to all men.”

According to the L.A. Times, “So far, the headlines have mostly been attached to the stories of women in the high-profile fields of entertainment, media, tech and politics who have alleged various forms of sexual misconduct by powerful and often well-known men.  Missing have been the stories of the hotel maids, farmworkers, restaurant servers and others whose economic need and relative powerlessness has often left them without resource.  Sixty percent of women say they’ve experienced sexual harassment, according to one poll, and their stories should be heard even if they are only calling out Joe the factory foreman and not Joe the studio chief.

“The risk for women working alone in hotel rooms has driven labor unions to push to outfit housekeepers with ‘panic buttons’ that connect directly with the front desk.  This began in New York City after the former head of the International Monetary Fund, Dominque Strauss-Kahn, allegedly assaulted a hotel maid.  Panic buttons are just one example of a concrete response to sexual harassment.  Part of this next phase will require exploring new policies, procedures and laws to address the unique sexual harassment challenges in various industries.”

There will always be contact between sexes.  Without it, there would be no marriages and no families.

The boundaries of unwanted contact need more accepted standards and acceptance.  By the same token, some behavior should be dealt with assertively and need not be an emotional scar or a call-out as harassment.

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THE MOVIES I MOST ENJOYED IN 2017

I don’t know if these were the “best” movies last year.  They certainly weren’t the most popular.  Nevertheless, here are the Silver Screens I enjoyed the most last year.

In case you missed a few from 2016, here’s my list from last year.  You can probably still catch them on Netflix.

  • Hell or High Water
  • Yo Yo Ma and the Silk Road Ensemble
  • The Beatles: Eight Days a Week
  • Fences
  • Scully
  • Manchester by the Sea
  • Café Society
  • Hidden Figures

Now back to 2017.  Box office sales were down almost 5%.

Norman – The moderate rise and tragic fall of a New York fixer.  Richard Gere is outstanding in this somewhat quirky flick about a somewhat quirky guy who seems to suddenly start to work hard at trying to be helpful to everyone around him.

Three Billboards Outside Ebbing, Missouri – A somewhat dankly comic drama about a mother frustrated with the lack of progress in finding her daughter’s murderer.  Frances McDormand is outstanding with her controversial billboard message to Chief of Police Woody Harrelson and it all leads to some unexpected battles.

Darkest Hour – Early in WWII with France about to fall, Britain faces its darkest hour as the threat of invasion looms and allied armies are cornered on the beaches of Dunkirk, the fate of Western Europe hangs on the leadership of newly appointed British Prime Minister Winston Churchill (Gary Oldham in an Oscar performance has to maneuver his political rivals and confront the choice of negotiating with Hitler or rally the nation to hold fast.

Marshall – The interesting early trial in the career of future Supreme Court Justice Thurgood Marshall.  Muzzled by a biased court, Marshall partners with an inexperienced Jewish lawyer to defend a chauffeur accused of sexual assault.

Phantom Thread – About a fussy and dictatorial dress designer (Daniel Day Lewis) whose habit of consuming and discarding fashion models is reversed when he becomes involved with a woman (Vicky Krieps) who matches his drive, his talent, and perhaps his need for control.

Rebel in the Rye – An interesting story about the reclusive J.D. Salinger famed author of Catcher in the Rye, who suffered PTSD as an intelligence officer in the Army in WWII and now writes only for himself.

Stronger – Starring Jake Gyllenhaal is the inspiring real life story of Jeff Bauman, an ordinary guy who captured the hearts of the city and the world to become a symbol of hope after surviving the Boston Marathon terrorist bombing.

The Big Sick – The enduring idea of America as a melting pot is most welcome.  In this romantic comedy, a devout Muslim Pakistani immigrant who falls for a white woman.  Led by love into a no-man’s-land between two cultures.  Only love can get him out.

Molly’s Game – The true story of Molly Bloom (Jessica Chastain), a competitive skier felled by injury heads to Hollywood and ends up operating a high-stakes poker ring dominated by powerful Hollywood men.  Money, fame, power, alpha male ego, they create a minefield for Bloom, mapped smartly by Chastain and writer-director Aaron Sorkin.

NOT GREAT, BUT WORTH THE TIME:

Lady Bird – An outstanding replay of the classic mother/daughter conflict.  A keen portrayal of a teenage girl searching for self that drives parents crazy.  A great chic flick.

American Made —Tom Cruise is at his best—charming, naïve adventurer—in this entertaining story of an American rogue pilot who becomes a drug kingpin.

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