It’s about 3:43 into this Louis Black segment. I think my expression is … appropriate.

Perhaps you remember the case of Ricci v. DiStefano, so much discussed during Sonia Sotomayor’s confirmation process? To recap briefly: The city of New Haven had used a written test to determine which of its local firefighters would be considered for promotions. When the tests came back, it turned out that the high scorers were overwhelmingly Caucasian, and so the city—fearing a lawsuit from black and Latino firefighters who hadn’t made the cut—scrapped the results. Not, mind you, because the test was in any way discriminatory on its face, but because federal law frowns on any test that has a “disparate impact” on minority groups unless it can be shown to be both closely related to the requirements of the job and less uneven in its effects than comparable alternatives. A number of the white firefighters then sued, claiming that it was discriminatory to discard the test after the fact just because the high scorers were too pale. Bracket the question of how Sotomayor, as a circuit court judge, should have ruled. Clearly as a policy question, most conservatives seemed disposed to side with the firefighters, and in general conservatives have been highly skeptical of “disparate impact” standards. If the standards are facially neutral, and were not chosen with any pernicious intent (the argument runs), we should let the chips fall where they may. Sounds fairly compelling to me.

So it’s a little odd to see folks like Weekly Standard editor Bill Kristol casually talk about Elena Kagan’s “discrimination against the military” during her tenure as dean of Harvard Law School. All Kagan did, after all, was enforce Harvard’s preexisting rule requiring firms wishing to recruit through the school’s Office of Career Services to certify that they did not discriminate by sexual orientation. (This is not the same, incidentally, as “banning recruiters from campus”—the military did continue to recruit on campus via a student group.) It was a neutral rule that applied to any company that wished to avail itself of the Office of Career Service’s assistance, from which the military would have required a special exemption. Kristol clearly didn’t think much of the logic of “disparate impact” in the Ricci case, so why is he so quick to adopt it here? There are many good reasons to be worried about Kagan, not least her apparent fondness for an expansive conception of executive power, but a commitment to even-handed application of the rules is not among them.

Last month Cato On Campus announced a student essay contest for free tickets to the Friedman Prize for Advancing Liberty dinner, which will honor Iranian journalist Akbar Ganji this week.

In 500 words or less, responders answered the question, “In light of the selection of Akbar Ganji for the receipt of the 2010 Friedman Prize for Advancing Liberty, who would you nominate for a second prize this year and why?”

Students from around the world sent replies. Topics ranged from Russian labor camp dissidents to U.S. politician Ron Paul; from economics professors to space exploration; from free markets in charity to an individualist psychiatrist. A common thread that ran throughout all of the entries was entrepreneurial spirit and a unwavering value of individual liberty.

Cato on Campus chose three winners. Congratulations to:

Yasmin Green, an International Studies M.A. student at St. John Fisher College, who wrote about George Ayittey, an advocate of liberty through social entrepreneurship in Africa. “A man who believes that ‘Africa is poor because she is not free,’ Ayittey has worked to promote ideas and institutions that are consistent with the achievement of liberty, and individual rights,” wrote Green.

Joseph Hammond, a Middle East History M.A. student from California State University — Long Beach, who the Iranian protesters after the 2009 election. Hammond advocated that the many Iranians who demonstrated their dedication to becoming politcally recognized would be a “perfect compliment to Akbar Ganji.”

Liya Palagashvili, an Economics B.A. student at George Mason University, who identified economist Peter Boettke as an economist serving in the tradition of Milton Friedman. “In the classroom, Dr. Boettke advances his students in the ideas of liberty,” she wrote. “Outside of the classroom, Dr. Boettke inspires liberty through his writing,” which “is influential in providing a thorough understanding of liberty and the consequences of a nation that violates liberty.”

Congratulations to all the winners. If you’re a student and want to get more involved, check out Cato On Campus.

Editors Note: Christopher Preble has just returned from a 9‑day trip through Abu Dhabi, Dubai and Riyadh. Catch up on his trip here.

Well, it sure is nice to be home. I was fortunate to have traveled with an exceptional group of American academics. I learned a lot, but it was also nice to get to know them, and to share stories about how our respective institutions deal with different subjects. We were well-received by a number of senior Saudi government officials, a credit to the organizers of this trip. And as for the “people on the street” with whom I came into contact, the hotel staff and random merchants and restaurateurs were very friendly, and, almost without exception, spoke some English. (They also love American — that is to say Detroit — cars. I saw more Chevrolets, GMCs, and Fords on the road in Riyadh than I see every day in Northern Virginia.)

Having said all that, I can’t imagine any American ever really being comfortable in the Kingdom. For starters, we gave up on kings a long time ago, and with good reason. Americans might sometimes like the idea of royalty — they make such great copy for the tabloids, don’t you know — but we’d be genuinely horrified if a person’s right to rule over others were dictated solely by heredity.

Then there is the issue of women. One need not be an avowed feminist to be put off by the inequities in Saudi society. Perhaps I’d grow accustomed to seeing 50 percent of the population covered from head to toe in black, but I sincerely doubt it. Meanwhile, dress codes are merely the tip of the iceberg when it comes to women’s rights. Many years ago, the U.S. Supreme Court helped us to understand that “separate but equal” is inherently unequal. And the Saudis don’t even aspire to “separate but equal”. The “family” section of the Starbucks next door to our hotel received less attention from the wait staff than the main dining area (women patrons essentially came in through a back door, and were served through the kitchen). The “women only” lines at the food court at the nearby mall were longer than the “men only” ones. Our hotel in Riyadh had a nice workout room…for men only. My female traveling companions were reduced to calisthenics and stretching exercises in their respective (small) hotel rooms.

We heard a number of people trying to explain the rationales for keeping men and women separate. None were convincing.

The best educated there, including especially those who attended schools in the U.S. or U.K., understand that their country cannot progress if the percentage of women in the labor force remains at its current low level (about 15 percent). But public policy isn’t made by the best educated. Meanwhile, there are strong economic incentives at an individual or family level to allow women greater freedom, but these alone will not force a change in policy.

Over dinner one night with several Saudi academics, an IR professor explained how change actually occurs in the Kingdom. There is a lot of debate about different social conventions, especially about the rights of women, he said. The most conservative within the religious hierarchy oppose extending certain rights — say, for example, to obtain an education — and then one day the king will say “Women shall be educated.” End of debate. The clerics and imams, after all, derive a paycheck from the government (as does about 80 percent of the total Saudi workforce). This professor predicted that that is how women in the Kingdom will someday be allowed to drive: by decree.

The actual process behind the scenes is a little more complicated, as the king rules by consensus and must bring along enough of the other senior leaders and the religious conservatives. When the government feels very strong, they are inclined to give in less, but when they are weak they are more constrained.

A far-sighted leader might push his society to embrace some aspect of modernity against its will — in other words, actually lead — but he is not immortal. He will inevitably be replaced by a son or brother, perhaps one who would choose simply to undo these reforms, especially if the prior ruler’s policies have never been embraced by the public at large. In short, the 18th century liberals were onto something when they railed against the divine right of kings.

Our forefathers also had the right idea when they articulated other liberties that we now take for granted, from freedom of speech and worship, to the right to own firearms. Others came along after the founding generation extending rights to women, and to religious and ethnic minorities. Today, most Americans take for granted that these rights cannot be denied to anyone on the basis of gender, race, religion, or sexual orientation.

Other countries do not presuppose that their citizens have such rights; rights are something parceled out by the government, or not at all. As a libertarian, I can’t imagine ever wanting to live in any such place, but I’m doubtful that talented, entrepreneurial non-libertarian women, for example, will ever want to invest or work in Saudi Arabia. I’m equally skeptical that large numbers of Western men — the fathers of women and husbands of women — will want to do so, either. Some Westerners do live and work in the Kingdom. They are insulated from many of these regulations when at home, but subject to them when they venture out of their compounds. That means they can drink a glass of Chardonnay with dinner in their kitchen, but not at a restaurant.

Wine with dinner isn’t a big deal. The other stuff is: The knock on the door in the middle of the night. The visits to journalists who get a little too interested in particular stories. The intrusive police state and draconian punishments for relatively minor crimes. “Due process” in the Kingdom has a meaning all its own.

I predict that countries (not just Saudi Arabia) that do not afford full legal rights to all citizens will inevitably bump up against a glass ceiling. Unable to attract the best and brightest, and unwilling to allow their own people to advance to the full extent of their ability, the society will stagnate. And when the oil money dries up, they will be left with what they had before oil: namely, not much.

Many of the Saudis with whom we met seemed genuinely interested in improving the lives of Saudi citizens, and in moving beyond an economy based on oil extraction. I hope, for the sake of the people of Saudi Arabia, that they succeed. In the coming years, I’ll be watching the statistics about Saudi competitiveness (28th according to the World Economic Forum, pdf). I’ll check the World Bank’s annual “ease of doing business” reports (SA ranked 13th in 2009). And, as always, I’ll read the indices of economic liberty (The latest Heritage-Wall Street Journal index ranked the Kingdom 65th). Notably, the Economic Freedom of the World Index doesn’t include Saudi Arabia given the lack of reliable statistics that can be easily compared with other countries.

But even reliable data can only tell so much. Another indicator of whether Saudi Arabia has truly changed will be the percentage of American students wishing to study in Saudi Arabia, and of Americans who want to work there. Today, those numbers are very small, while the number of Saudis wishing to come here is very large. I think that says a lot.

In his post this morning, “Kagan on Military Recruitment,” Cato adjunct scholar Mark Moller touches on Cato’s 2005 amicus brief in Rumsfeld v. FAIR, which he co-authored when he was with us as editor-and-chief of the Cato Supreme Court Review – a duty he performed splendidly before moving off to the legal academy. In mentioning the brief, however, Mark says that he recalls that the position it took was controversial within Cato, that it might still be, and that Cato’s legal shop might take a different view were the case presented today.

I don’t recall that the position we took was controversial within Cato, but then it was five years ago, memories fade, and much has happened in the meantime, including the filing of a brief just three months ago that nicely complements the earlier position we took. In Rumsfeld v. Fair we argued that the government could not condition a private university’s eligibility for federal grants, as the Solomon Amendment did, on the university’s giving up one of its rights, namely, its right to freedom of association. The law school plaintiffs, citing the military’s “Don’t ask, don’t tell” policy, sought to exclude military recruiters from campus. Pursuant to their nondiscrimination policies, that is, the law schools sought to discriminate against those they thought to be wrongly discriminating. In our brief we took no position on the policy Congress had set for the military (that question was not before the Court), nor on the rights of public universities in this matter – nor did we address the question whether Congress, under its raise-and-support-armies power, could directly order schools to admit recruiters, as the Court ultimately held.

Well we now have the public school version of that issue before us, and the Court, in Christian Legal Society v. Martinez. And our brief in this case, written by Cato adjunct scholar Richard Epstein, argues that a public law school – Hastings, in this case – cannot condition the receipt of benefits it extends to all other student groups on CLS’s giving up its right to freedom of association. CLS, a private student group, excludes nonbelievers from its membership, which is its right. As a public institution, we argue, Hastings must treat all equally.

Thus, the principle in the two cases is the same. Private parties, pursuant to their right to freedom of association, may discriminate, whether we agree with their grounds for doing so or not. Public institutions, which belong to all of us, may not discriminate except on grounds narrowly tailored to their functions. Unfortunately, in numerous respects, that’s not our current law. For more, see here.

Ho-hum. Another administration, another “comprehensive plan to combat drug abuse, putting the focus on prevention and treatment strategies.” This one “calls for a 15 percent reduction in youth drug use, a 10 percent decrease in drugged driving, and a 15 percent reduction in overall drug-related deaths by 2015.” It involves more central planning — ” the creation of a community-based national prevention system” — more taxpayers’ money — “an expanded array of intervention-oriented treatment programs” — and more nannyism — “a push to screen patients early for signs of substance abuse, even during routine appointments, and the expansion of prescription-drug monitoring programs.” And don’t forget the ever-popular, ever-futile “more international cooperation in disrupting the flow of drugs and money.” Let’s write down those percentage goals, modest as they are, and see how many of them get accomplished.

As it happens, I had a chance to meet with drug czar Gil Kerlikowske and his top aides last year, as part of a series of outreach meetings as the new team planned its strategy. It doesn’t look like my advice was taken. Of course, I probably didn’t help my case by noting that our last three presidents have acknowledged using illegal drugs, and it is just incomprehensible to me how they can morally justify arresting other people for doing the same thing they did. Do they think that they would have been better off if they had been arrested and incarcerated for their youthful drug use? Do they think the country would have been better off if they had been arrested and incarcerated? If not, how do they justify punishing others?

I then suggested that they pursue the policies recommended by Timothy Lynch and myself in the Cato Handbook for Policymakers:

● repeal the Controlled Substances Act of 1970,

● repeal the federal mandatory minimum sentences and the federal sentencing guidelines,

● direct the administration not to interfere with the implementation of state initiatives that allow for the medical use of marijuana, and

● shut down the Drug Enforcement Administration.

Suspecting that the administration despite being headed a young president who in 2004 had declared the war on drugs an “utter failure” and advocated the decriminalization of marijuana, would not adopt my proposals, I went on to recommend a few mildly ameliorative reforms: stop federal lobbying in state initiative campaigns, stop federal raids on medical marijuana dispensaries and other interference with state policy choices, and stop the Pentagon from giving military equipment to local police forces.

I must admit, though, that the other think tank analysts at the meeting, both liberal and conservative, offered the sorts of proposals for more social workers and more transition programs and more doctors that seem to have ended up in the “new” proposal. Perhaps I should have come up with a couple of proposals that would have cost more money rather than less.

• A few questions to ask Supreme Court nominee Elena Kagan.

• How to treat a taxaholic.

• In England there are 4 million government security cameras, one for every 14 Britons. Are we headed in that direction?

• The E.U.‘s aggressive bailout plan: An experiment in levitation?

• Podcast:“Understanding ‘Epistemic Closure’” featuring Julian Sanchez.