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Ed Note: This article appears courtesy What You Pay For Sports.
Somewhere in the wake of the huge story about Northwestern football players forming a union came a long Twitter conversation between two TV personalities — Doug Gottlieb of CBS Sports and Bomani Jones of ESPN — about athlete exploitation in college sports. As the two of them went at it over the concepts of opportunity and privilege, Jones said something that grabbed my attention:
Of course, Bomani Jones' employer will tell you there are billions of reasons for continuing what we have. ESPN pours a significant amount of cash into college sports programming; roughly $1.33 billion will flow from ESPN's coffers into college sports during the 2013-14 academic year. That number will jump when the SEC Network launches next August.
The Worldwide Leader isn't alone. CBS and Turner Sports will shell out an average of $771 million a year for the rights to the NCAA Tournament through 2022, and Fox Sports not only built the Big Ten Network, but is paying college conferences another $250 million on top of that to air sports on both its broadcast and cable networks.
With so much cash flowing into college sports and so little protection afforded to the athletes who help produce all that cash — bear in mind the NCAA claims zero responsibility for brain trauma suffered by college football players — it's no surprise that college athletes would take it upon themselves to organize. It also begs the question: just why is so much money flowing into college football and basketball?
The short answer: millions of fans are watching.
Right. So why are they watching?
Is it because the schools at the top college conferences get the best players? Sure, that's part of it. Wouldn't it stand to reason, then, that fans of football and basketball would watch those players play in professional leagues, where the players are getting paid for their work?
Here's where we get to the heart of the problem. The American sporting landscape is littered with failed attempts at starting alternative professional leagues for football and basketball. The World Football League? The United States Football League? The XFL? The United Football League? They all failed within five years of their launch.
Minor league basketball has had a bit more traction — the Continental Basketball Association survived for decades as an NBA minor league before finally folding in 2009 — but it doesn't come close to outdrawing big-time college basketball. Go to any NBA D-League game, and you'll be lucky to find a few thousand fans in the stands. More importantly, you won't find the top high school prospects at those games. Jabari Parker gets more attention playing for Duke than he would playing for, say, the Fort Wayne Mad Ants.
This is where we begin to understand the status quo. What we have here is an issue of branding. Minor league football and basketball have no traction in America, because fans have declared their loyalty to the brands of college football and basketball teams. College football, in particular, has a century's worth of rich history in America. College students attach themselves to their schools' teams, remain attached through adulthood, and spread those attachments to children and other family members. You can't sell the Omaha Nighthawks to an army of die-hard Cornhuskers fans. They've spent decades engrossed in the University of Nebraska's football team and all of its traditions. Supporting a group of guys trying to play their way into the NFL is not enough. These people demand Nebraska football.
When you think about it, though, what is the Nebraska football team if not a group of guys trying to play their way into the NFL? Perhaps that wasn't the case during the heyday of Bob Devaney in the 1960s, but times change. Aside from age and lack of pay, what truly separates Nebraska football players from those Nighthawks? If you put the Cornhuskers in Nighthawks uniforms, however, football fans in Nebraska would not flock to them. They demand all the bright red trappings of Nebraska football, and they won't settle for another brand.
It might seem like little more than Jerry Seinfeld's old "rooting for laundry" skit on the surface, but Nebraska graduates will certainly be quick to tell you it's much more than that. So will graduates of Alabama, Auburn, Ohio State, Michigan, Clemson, Florida State, Texas, Oklahoma, and dozens of other schools.
And who understands that mindset better than ESPN?
ESPN has turned profiting from fan loyalty into a science, and they continue to throw billions of dollars at college football because the Nielsen ratings tell them it's what the people want.
What the people want, however, no longer jibes with what football players need now. Times change, but the NCAA has steadfastly refused to change with the times, making 2014 money from TV deals while forcing players to adhere to 1954 ideals. The amount of money changing hands — Big Ten schools like Nebraska, for example, will get between $23 and $25 million each per year from multiple TV deals — exposes the hypocrisy within big-time college sports. The powers that be collect billions of dollars from TV networks, while the players that fans tune in to watch are systematically denied the opportunity to profit from their endeavors.
Of course, this is not a issue for the game of baseball. Minor league baseball has been a staple in this country since the late 19th century. The NFL never developed the kind of minor league system that baseball did — largely because, up until the Super Bowl era, college football was far more important than pro football. The NFL spent much of the first half of the 20th century struggling to stay afloat, while college football and Major League Baseball dominated the sports pages, and baseball built a player development system that now has long-established brands. The Reserve Clause might have limited the fair market value of many baseball players, but the players were still paid as professionals and still free to profit from commercial endorsements.
It's also not an issue for international soccer, which abolished maximum salary rules in 1961. Southampton FC runs an exceptional youth academy that has produced quite a few world-class players, and larger clubs have paid Southampton millions of pounds to acquire the contracts of teenagers in the Saints Academy. Arsenal paid £5 million up front for 16-year-old Theo Walcott in 2006, then paid £12 million up front for 17-year-old Alex Oxlade-Chamberlain in 2011. Tottenham Hotspur also paid Southampton £5 million up front for a certain Welsh 17-year-old now plying his trade in Madrid.
Ponder for a moment how much Jameis Winston's contract might have been worth in that sort of environment. Cam Newton and Reggie Bush were allegedly paid under the table, but how much might they have been paid if schools could do so openly? Now ponder why is the NCAA so determined to prevent us from answering that question.
Mark Cuban has actually endorsed a soccer-style player development model for minor league basketball – sign players out of high school, develop them, then sell them on to NBA teams. If a new professional league formed to do this very thing, though, would anyone watch? If, say, the Bull City Blues opened for business in Durham, NC, with Jabari Parker and Andrew Wiggins on the roster, would basketball fans go to see them play, or would they stay home and watch Duke play Kansas on ESPN, regardless of who was actually wearing the uniforms? For football and basketball, fans right now are telling TV networks they care far more about the names on the front of the jerseys than the names on the back of them.
That's why it's difficult to imagine anyone making the effort to create a new developmental league and promote it properly, especially for football. A new football league attempting to sign kids out of high school and develop them for pro careers would struggle mightily against the billion-dollar machine that is college football, because the brands of the schools — the names, the logos, the traditions, and all that surrounds them — are far too entrenched in the public psyche. Fans ultimately don't care about the immorality inherent in the system, because they are too loyal to the schools' brands to let them go.
This might be why it's ultimately up to the players themselves to change this status quo, just as it was up to the MLB Players Association to abolish the Reserve Clause in baseball — a movement that might never have started without Curt Flood's refusal to accept a trade. Time will tell if these Northwestern football players will be remembered as Flood is, but without their actions, college football will certainly remain business as usual. Everybody's watching the players, but collectively, who's really looking out for them?
Follow Dave Warner on Twitter @whatupay4sports.


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Iain M. Banks' new novel, Surface Detail, is some of the best work he's done in his galaxy-spanning Culture universe. A story of virtual Hell and true resurrection, it's about the consequences of technology that makes religious afterlives possible.
At the center of a sprawling cast of characters - including hyperintelligent AI Minds, virtual avatars, politicians, slaves, and ambiguously-sentient alien habitats - is a woman named Lededje. She's from a vast but low-level civilization called the Sichult Enablement, which has space travel and advanced science but still embraces a form of slavery called "indented intagliation." When one family owes another money, they must give one or more of their children to pay those debts. The "indented" children are often bred expressly for this purpose, with a beautiful tattoo signifying ownership written into the structure of every cell of their body - essentially a fractal tattoo that covers the skin, and continues on into infinite smallness inside the DNA itself. Lededje is one of the most valuable tattooed "intagliates" owned by Veppers, a powerful businessman whose family made its first fortune in massive multiplayer games.
Needless to say, Lededje isn't happy with her situation. Veppers rapes her over and over, and she runs away - only to be murdered by her vengeful owner. And that's when things get bugfuck, as a Ship would say. Because the dead slave wakes up a free member of the Culture, her mind downloaded into a new body. It turns out that a visiting Ship whimsically implanted her with a neural lace - the Culture tech that allows people to back up their brains, among other things - and her entire consciousness is beamed to the nearest Culture vessel at the moment of her death. It's typical of the Culture to meddle in other societies like this, and especially typical of eccentric Ships to become oddly attached to certain people for no particular reason.
Lededje is just one of those lucky people whom Ships seem to like. Her relationship with one ship, a psychotic, ultra-high powered Abominator class warship named Falling Outside the Normal Moral Constraints, helps her salvage a sense of self from the wreckage. And propels her into the middle of a horrific war.
It's a war over both religion and technology. The Culture and a few other of the "Involveds," advanced civilizations in the pan-galactic astropolitical scene, are trying to stamp out Hell. Turns out that the neural lace technology which backs up people's brains has uses beyond resurrection into a new body. Many societies, including the Culture, have built vast virtual Heavens for people who are ready to give up the physical world but want to keep on living in a less challenging environment. And a few societies have set up Hells for people they believe deserve everlasting punishment.
The usual do-gooders aren't thrilled about consigning anybody to an everlasting torment in a sea of fire, pain, and degradation. Certainly the Culture doesn't approve. And so they and the Involveds agree to resolve the dispute by staging a massive, several-decade-long war in the virtual world to determine whether the Hells should be left standing. Unfortunately, at the moment Lededje is resurrected, the pro-Hell side is winning.
As Lededje struggles to overcome the trauma of having lived through a real hell, a cast of other characters are coping with the reality of virtual Hell. Two figures whom we follow over the course of the book are Prin and Chay, legal scholars and social justice activists from a planet that embraces the idea of consigning people to Hell. But their politicians deny that Hell exists. So Prin and Chay get themselves inserted into a Hell so that they can see firsthand what goes on there, and return to testify. What they discover is so soul-flaying - described with the kind of loving, disgusting detail that Banks always brings to scenes of torture - that it drives Chay completely insane. And propels Prin into the galactic spotlight when he returns to testify.
As we spiral outward from Prin and Chay into the virtual and real war rooms of battle over Hell, we meet players from politicians and special agents to soldiers, all of whom are on fire with moral certainty about what should be done with the dead. The war finally explodes out of the virtual into the real, much the way all religious wars do. With the war over the Hells, Banks brilliantly evokes a metaphor for religious conflict on Earth, which begins with spiritual disagreements and ends with burning buildings. But he's also cleverly within the realm of SF speculation here, spinning out a possible (and realistic) result of immortality technologies.
What, exactly, will we do with the virtual avatars of our dead when we can upload our minds? Of course we'll send them to Hell. Why not?
These matters of astropolitics don't matter at all to Lededje, however, who just wants to get back to Sichult in her new body and kill Veppers. That's how she hooks up with the Abominator ship. She's been assigned to a Ship with appallingly good manners, and Lededje aims to misbehave. Bored, warmongery, and possibly altruistic beneath it all, Falling Outside the Usual Moral Constraints agrees to take her home, though it doesn't promise to let her kill anybody. It's a Culture Ship after all. As they zoom ridiculously fast across the galaxy to Sichult, the two are tangled up in the war over Hell as it metastasizes into reality.
Surface Detail is one of Banks' most successful Culture novels. The war to end Hell reverberates believably across personal and macropolitical subplots, and the entire story is infected with a wicked humor that is Banks' forte. There is an especially brilliant moment when he describes the juvenile humor of Hell, and from that point on you realize that this is a war whose premise is as absurd as it is dire. (Like all wars perhaps, but setting it in a virtual Eli Roth movie drives that point home.) Banks deftly evokes a society where technology makes religious beliefs a reality, without ever solving the basic problems religion has always caused. Wars rage over who (if anyone) should be consigned to Hell. And even though slaves can be reincarnated with godlike powers, they can't transcend the grievances of their previous lives.
It's not necessary to have read previous Culture novels to appreciate Surface Detail, though of course familiarity with the Culture universe will help (io9 has a handy introduction to the Culture here).
For fans of the Culture, there are a lot of worldbuildy bits that will delight you. The Abominator ship is a terrific character, completely mad, bloodthirsty and hilarious. And we get to know some new sections of the Culture's spy division Special Circumstances - Quietus, which deals with the dead in their virtual worlds; and Numina, which focuses on the Sublimed.
Admittedly Banks' novel sometimes slaloms into long, tangential tales of minor characters who, while interesting, end up getting in the way of the action rather than advancing it. He also has a way of dropping major characters when he isn't sure what to do with them. Quietus agent Yime begins as a fascinating, multilayered person and winds up turning into a plot device doomed to lead an unsatisfying life for no real reason.
Despite these few problems, this is a terrific novel that's as much fun to read as it is to talk about afterward. Ultimately the Culture's technology is like religion: It can invade your mind without you realizing it, and change your perspective forever. That can be liberating, or it can feel like centuries spent in Hell.
You can buy Surface Detail from Orbit Books or your favorite bookseller.
If you want wallpaper-sized images of the top image, you can get them via Orbit Books.

subset: commoncrawl


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INDIANAPOLIS -- Top-ranked Ohio State won its second consecutive NCAA championship Sunday morning at Eagle Creek Park, totaling 126 points after claiming individual national titles in the first and second varsity eights and a seventh-place overall finish in the first varsity four.
California finished second overall with 118 points, while Brown earned 116 points for a third-place finish. Stanford (110 points) and Virginia (105 points) rounded out the top five teams.The Buckeyes, who now have seven top-five team finishes at the NCAA championships, become the fifth team overall to win consecutive national titles and the first since Brown (2007-08). With gold-medal finishes in the first varsity eight and second varsity eight, Ohio State now holds five individual national titles, the fourth-highest total in NCAA rowing history, also becoming the fourth team in NCAA history to win both events at the national regatta in the same year.
The first varsity four began the final day of racing for the Buckeyes, competing in the petite final against Indiana, Notre Dame, Michigan, Wisconsin and Princeton. The crew of Sarah Kessler, Anna Ralph, Anna Gackowski, Katie Beletskaya and coxswain Sarah Asad sounded the horn in first place with a time of 7:53.05, placing ahead of Michigan (7:55.68) and Indiana (7:56.66) to grant the boat a seventh-place overall finish and collect a crucial 16 points toward the team championship total.
The second varsity eight took to the course next, becoming the first team since Brown (2003-04) and the third team overall to claim consecutive national titles in the second varsity eight event. The crew of Daphne Socha, Chloe Meyer, Nicole Becks, Lauren Eckles, Meghan Birkbeck, Anne Dietrich, Katie King, Taylore Urban and coxswain Sami Jurofsky crossed the line in 6:59.43, finishing in front of second-place Princeton (7:02.02) and third-place Virginia (7:02.69) and amassing 44 points to propel the Buckeyes into first place overall with only one grand final race remaining.
The first varsity eight of Aina Cid Centelles, Elodie Ravera, Eelkje Miedema, Ashley Bauer, Stephanie Williams, Catherine Shields, Holly Norton, Claire-Louise Bode and coxswain Victoria Lazur secured the national title for Ohio State, finishing the season with a perfect record (12-0) after crossing the line first in 6:44.48, a length over second-place Brown (6:48.47) and third-place California (6:48.51). With the win, the first varsity eight claimed its first individual national title and became the second consecutive Buckeye crew to finish a season with a perfect record as the second varsity eight did so (12-0) in 2013.


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An old friend emailed me to ask:
"I wanted to get your response to some basic questions concerning technologies available for creating an enterprise level application that is built upon a Web Server, Web based applications, and a large distribution model and collection model. The project is starting from scratch and so there is no legacy code involved but other than that I won't bore you with the details…
"Would you head down the .NET route or J2EE?
"Which Web Server (Apache, IIS, or something else) should we use and why?
"Which Web development language (ASP.NET, Ruby, Ruby on Rails, Java, Python, etc.) would you recommend and why?
"What do you use at your company and why?"
Ah, an excellent question, simultaneously impossible to answer and very easy to answer!
Sorry, I should stop speaking in riddles. A while ago I wrote an article called Lord Palmerston on Programming in which I claimed that some of these programming worlds, like .NET and Java, were so huge and complicated that you never could really tell if they were going to be good enough for your needs until it was too late. In particular, a debate between the C#/.NET/IIS stack and the Java/J2EE/Apache/Solaris stack and the PHP/Apache/Linux stack could go on and on for years and years and you'd never find the right answer. That's because there are so many pros and cons of all these platforms that advocates of each side can debate and debate and never get any closer to the Truth, but it sure as heck is a fun debate.
You might think that if you could find someone with extensive experience in multiple platforms, they would be the right person to ask. I haven't found a lot of people like that. What I do know for sure, though, is two things:
People all over the world are constantly building web applications using .NET, using Java, and using PHP all the time. None of them are failing because of the choice of technology.
All of these environments are large and complex and you really need at least one architect with serious experience developing for the one you choose, because otherwise you'll do things wrong and wind up with messy code that needs to be restructured.
Last summer when we had a group of interns build Copilot, we had to decide what language to use for new code. I know that typically on new projects there's a long evaluation period where you decide what technology to use, along with lots of debates that include some crazy person actually wasting quite a lot of time evaluating Squeak and Lisp and OCaml and lots of other languages which are totally, truly brilliant programming languages worthy of great praise, but just don't have the gigantic ecosystem you need around them if you want to develop web software. These debates are enormously fun and a total and utter waste of time, because the bottom line is that there are three and a half platforms (C#, Java, PHP, and a half Python) that are all equally likely to make you successful, an infinity of platforms where you're pretty much guaranteed to fail spectacularly when it's too late to change anything (Lisp, ISAPI DLLs written in C, Perl), and a handful of platforms where The Jury Is Not In, So Why Take The Risk When Your Job Is On The Line? (Ruby on Rails). Before you flame me, Ruby is a beautiful language and I'm sure you can have a lot of fun developing apps it in, and in fact if you want to do something non-mission-critical, I'm sure you'll have a lot of fun, but for Serious Business Stuff you really must recognize that there just isn't a lot of experience in the world building big mission critical web systems in Ruby on Rails, and I'm really not sure that you won't hit scaling problems, or problems interfacing with some old legacy thingamabob, or problems finding programmers who can understand the code, or whatnot. So while Ruby on Rails is the fun answer and yes I've heard of 37 Signals and they're making lovely Ruby on Rails apps, and making lots of money, but that's not a safe choice for at least another year or six. I for one am scared of Ruby because (1) it displays a stunning antipathy towards Unicode and (2) it's known to be slow, so if you become The Next MySpace, you'll be buying 5 times as many boxes as the .NET guy down the hall. Those things might eventually get fixed but for now, you can risk Ruby on your two-person dormroom startup or your senior project, not for enterprisy stuff where Someone is Going to Get Fired. Python get a half because it's on the border, about to cross the line from an "interesting" choice to a "safe" choice.
Oh and I know Paul told you that he made his app in Lisp and then he made millions of dollars because he made his app in Lisp, but honestly only two people ever believed him and, a complete rewrite later, they won't make that mistake again.
The safe answer, for the Big Enterprisy Thing where you have no interest in being on the cutting edge, is C#, Java, PHP, or Python, since there's so much evidence that when it comes right down to it zillions of people are building huge business-critical things in those languages and while they may have problems, they're not life-threatening problems.
How do you decide between C#, Java, PHP, and Python? The only real difference is which one you know better. If you have a serious Java guru on your team who has build several large systems successfully with Java, you're going to be a hell of a lot more successful with Java than with C#, not because Java is a better language (it's not, but the differences are too minor to matter) but because he knows it better. Etc.
What we ended up doing with the interns was just telling them that they had to build it in C# and ASP.NET. In particular, one intern, who wrote the website part of Copilot, had enough experience with ASP.NET to know what things to avoid (like viewstate) and knew to avoid the gotchas that make it impossible to have two <forms> in one page, etc. etc., so he did a beautiful job architecting the ASP.NET code exactly the right way to begin with so we didn't get into trouble later. And the benefit was that not one minute was spent debating the merits of programming languages, a fruitless debate if I've ever seen one.
Finally — as to what we use — Copilot is C# and ASP.Net, as I mentioned, although the Windows client is written in C++. Our older in-house code is VBScript and our newer in-house code is C#. FogBugz is written in Wasabi, a very advanced, functional-programming dialect of Basic with closures and lambdas and Rails-like active records that can be compiled down to VBScript, JavaScript, PHP4 or PHP5. Wasabi is a private, in-house language written by one of our best developers that is optimized specifically for developing FogBugz; the Wasabi compiler itself is written in C#.


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California drought: Why farmers are 'exporting water' to China
- Published
While historic winter storms have battered much of the US, California is suffering its worst drought on record. So why is America's most valuable farming state using billions of gallons of water to grow hay - specifically alfalfa - which is then shipped to China?
The reservoirs of California are just a fraction of capacity amid the worst drought in the state's history.
"This should be like Eden right now," farmer John Dofflemyer says, looking out over a brutally dry, brown valley as his remaining cows feed on the hay he's had to buy in to keep them healthy.
In the dried-up fields of California's Central Valley, farmers like Dofflemyer are selling their cattle. Others have to choose which crops get the scarce irrigation water and which will wither.
"These dry times, this drought, has a far-reaching impact well beyond California," he said as the cattle fell in line behind his small tractor following the single hay bale on the back.
"We have never seen anything like this before - it's new ground for everybody."
California is the biggest agricultural state in the US - half the nation's fruit and vegetables are grown here.
Farmers are calling for urgent help, people in cities are being told to conserve water and the governor is warning of record drought.
But at the other end of the state the water is flowing as the sprinklers are making it rain in at least one part of southern California.
The farmers are making hay while the year-round sun shines, and they are exporting cattle-feed to China.
The southern Imperial Valley, which borders Mexico, draws its water from the Colorado river along the blue liquid lifeline of the All American Canal.
It brings the desert alive with hundreds of hectares of lush green fields - much of it alfalfa hay, a water-hungry but nutritious animal feed which once propped up the dairy industry here, and is now doing a similar job in China.
"A hundred billion gallons of water per year is being exported in the form of alfalfa from California," argues Professor Robert Glennon from Arizona College of Law.
"It's a huge amount. It's enough for a year's supply for a million families - it's a lot of water, particularly when you're looking at the dreadful drought throughout the south-west."
Manuel Ramirez from K&M Press is an exporter in the Imperial Valley, and his barns are full of hay to be compressed, plastic-wrapped, packed directly into containers and driven straight to port where they are shipped to Asia and the Middle East.
"The last few years there has been an increase in exports to China. We started five years back and the demand for alfalfa hay has increased," he says.
"It's cost effective. We have abundance of water here which allows us to grow hay for the foreign market."
Cheap water rights and America's trade imbalance with China make this not just viable, but profitable.
"We have more imports than exports so a lot of the steamship lines are looking to take something back," Glennon says. "And hay is one of the products which they take back."
It's now cheaper to send alfalfa from LA to Beijing than it is to send it from the Imperial Valley to the Central Valley.
"We need to treat the resource as finite, which it is," he says. "Instead, most of us in the states, we think of water like the air, it's infinite and inexhaustible, when for all practical purposes it's finite and it's exhaustible."
Alfalfa farmer Ronnie Langrueber believes he's doing his bit to help the American economy out of recession.
"In my opinion it's part of the global economy," he says, adding that only a fraction of the hay goes to China.
"We have to do something to balance that trade imbalance, and alfalfa is a small part we can do in the Imperial Valley to help that."
He believes the whole "exporting water" argument is nonsense - that all agricultural exports contain water - and that there are few better uses for it.
"Is it more efficient to use water for a golf course for the movie stars?" Langrueber said.
"Or is it more efficient for farmers to use it to grow a crop and export it and create this mass economic engine that drives the country?"
Japan, Korea and the United Arab Emirates all buy Californian hay. The price is now so high that many local dairy farmers and cattle ranchers can't afford the cost when the rains fail and their usual supplies are insufficient.
But they have to buy what they can.
Cattle rancher John Dofflemyer certainly sees it as exporting water abroad - he resents the fact hay is sent overseas.
Hay trucks are a common sight heading north up the road from the Imperial Valley - despite the high prices, the cattle farmers have to buy what they can.
Even with recent rains in northern California there's still a critical shortage of water.
Drought is often an excuse for politicians to build dams or reduce environmental controls, but it's no long-term fix.
In those places awash with water - where global trade distorts the local market - decisions need to be made by those without something to gain.
That's where it gets even more complicated.


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Need a bigger dose of cute? You've come to the right place!
The First Daily Doses of Cute
Daily Doses of Cute Part 18
Daily Doses of Cute Part 19
Daily Doses of Cute Part 20
Daily Doses of Cute Part 21
Daily Doses of Cute Part 22
It's the hokey pokey...yes, that's what it's all about!
Love these guys!!
OMG that's perfect! Thanks for the laugh.
It IS a dog's life!ReplyDelete
Been away for a while (lots of odd things - deaths, accidents, part time job, etc). Love the new look and layout. Love the cropped photo - and I can't wait for the "Daily Donkey"!ReplyDelete
Love it! This picture warmed my heart in this cold snowy day. Thanks!ReplyDelete
I luv to 2 step too!ReplyDelete
Hi Susan! I missed a couple of days visiting here and when I come back - WOW!! - a whole new look! I love it! Looks great! and I think all of your hard work is paying off!
The picture of Bert & Bear dancing is just too, too cute! Thanks for sharing it with us.
Now, I've got to go poke around this newly-redesigned site - looks like fun to me!!
Tooooo cute! Made me laugh - thanks for brightening my day! Nothing like a new puppy to "shake things up" a bit!ReplyDelete
Doggie Dance School! Hot diggety !
Oh Bert and Buddy Bear.
How I could hug them both right now!!
Thank you Susan for your wonderful blog. It sure brightens my day and brings me a smile !
You have to print and frame this for the new "shack."ReplyDelete
December 2015 update: Hi! For some reason I can't figure out, Blogger hasn't been letting me leave comments on my own blog (!) for the last several months, so I've been unable to respond to your comments and questions. My apologies for any inconvenience! You're always welcome to email me: farmgirlfare AT gmail DOT com.
Hi! Thanks for visiting Farmgirl Fare and taking the time to write. While I'm not always able to reply to every comment, I receive and enjoy reading them all.
Your feedback is greatly appreciated, and I especially love hearing about your experiences with my recipes. Comments on older posts are always welcome!
Please note that I moderate comments, so if I'm away from the computer it may be a while before yours appears.
I try my best to answer all questions, though sometimes it takes me a few days. And sometimes, I'm sorry to say, they fall through the cracks, and for that I sincerely apologize.
I look forward to hearing from you and hope you enjoy your e-visits to our farm!


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People who lack vision might call Pizza Hero a mere video game.
If they do, they're seeing only a slice of—no joke—what could be an extraordinary development in our society. We are talking about Pizza Hero, a pizza-making video game from Domino's that can be downloaded for free on the iPad. But we are also talking about so much more.
We are talking about a piece of software that could change how the American labor force finds work. And, if not that, it might at least change the way we order our pizzas.
Pizza Hero is ostensibly a simple pizza-making video game. (Download it for free from the App store.) The player's goal is to make pizzas quickly and tidily. You rub your fingers on the screen of an iPad to roll some dough. You slide your fingers in a few more circles to spread the sauce, then sprinkle some cheese with the tap of your fingertips. You poke toppings into place. Finally, you put the thing in the oven (bonus points if you shove your iPad forward while you do this... again, I'm not joking; they programmed that in there.).
To play Pizza Hero is to fail at it often, which may reflect the high pizza-making standards of the Domino's Pizza company. It also makes for a punishing game, one that compliments your sauce technique in the same virtual breath that your topping-placement sucks. This game has a low tolerance for pizza crust that isn't a perfect circle, and you will be forced to trash your whole pizza if you fail to evenly sprinkle the cheese.
There are good reasons why this game is so rough on its players. Its players are, you see, prospective Domino's Employees…
Innovation #1: You Can Get a Job If You Play Well
In an idea they may have borrowed from the 1984 nerd-classic movie The Last Starfighter, Pizza Hero doubles as video game and job-training tool. If you pass its introductory challenges and its "Two Pizza Throwdown" mission (your task: make a couple of pizzas), you'll be prompted to apply for a job at Domino's. The app loads the real Domino's career page, with links to a job application.
In The Last Starfighter, the teenage hero discovered that the spaceship-shooting arcade game he played in his trailer park was actually a recruitment tool for fighting in an intergalactic war. That was fake. Pizza Hero is real and could winnow the field of potential Domino's pizza chefs to only those who have excelled using pizza-making simulations. It doesn't technically do that, but it could.
Veteran pizza-makers may scoff that rolling virtual dough on an iPad screen is not predictor of dough-rolling talent in the real world. They might be right, but what will they say when UPS starts hiring people who excel at route-mapping in driving games? Who will laugh last when banks shortlist job applicants who earned a high-score in some delightful iPhone money-counting game? Surely, a man or woman's love for quest-management in Skyrim or Tiny Tower can be channeled into a career in the non-virtual world.
If you can make perfectly circular pizzas on your iPad, I believe you've got a shot at doing it well in real life Domino's, too.
Innovation #2: You Can Make a Virtual Pizza To Order a Real One
In the old days, you had to tell the people at the pizzeria what kind of pizza you wanted. In modern times, Domino's let people assemble the pizza they need delivered on their website. You click around on a picture of crust, adding toppings. Then you order.
Pizza Hero takes pizza-ordering to its next amazing level. From the game's front menu, you may select "I want to make my pizza by hand." Then, using the same dough-spreading and topping-plopping techniques you mastered elsewhere in the game, you can assemble a pizza… then click to order it. Virtual pizza done, the real thing shows up.
If this seems like more hassle than just calling up Domino's and telling them what kind of pizza you want, you're right. This is a superfluous, overly complicated way of doing something, the pizza-ordering equivalent of yelling barely-recognized voice commands at your phone instead of just dialing the number. At least this option puts you vaguely back in touch with the labor required to make your pizza. They should do this kind of thing for people who are buying diamond rings.
Pizza Hero has been with us since late last year. The job-application element only kicked in this month, a Domino's official tells me.
Domino's social media specialist Phil Lozen doesn't serve up download stats for the game, but he says "we've been extremely happy with the downloads and the rankings we've gotten for the app." He's happy that Pizza Hero has a four-star review ranking and proud to say that gamers have put more than two million pizzas in the game's oven.
But has anyone gotten hired from this thing?
"We're only a week into the campaign so too early to tell as far as how many new hired," Lozen said, "but we have indeed gotten some applications from Pizza Hero, which is exciting!"
I salute the innovations in Pizza Hero. Anything to battle the unemployment problem in America, I say. And anything to make ordering pizza more interesting!


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Appellee, who had been exempted from military service as a Class I-O conscientious objector but who performed required alternative civilian service, after being denied educational benefits under the Veterans' Readjustment Benefits Act of 1966, brought this class action for a declaratory judgment that the provisions of the Act making him and his class ineligible for such benefits violated the First Amendment's guarantee of religious freedom and the Fifth Amendment's guarantee of equal protection of the laws. After denying appellants' motion to dismiss for lack of jurisdiction because of 38 U.S.C. 211 (a), which prohibits judicial review of decisions of the Administrator of Veterans' Affairs on any question of law or fact under laws administered by the Veterans' Administration providing for veterans' benefits, the District Court rejected appellee's First Amendment claim but sustained the Fifth Amendment claim. Held:
BRENNAN, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, WHITE, MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 386.
Gerald P. Norton argued the cause for appellants. On the brief were Solicitor General Bork, Acting Assistant Attorney General Jaffe, Harriet S. Shapiro, Morton Hollander, and William Kanter.
Michael David Rosenberg argued the cause for appellee. With him on the brief were Charles R. Nesson and Matthew Feinberg. *
[ Footnote * ] Donald S. Burris filed a brief for the National Interreligious Service Board for Conscientious Objectors as amicus curiae urging affirmance.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
A draftee accorded Class I-O conscientious objector status and completing performance of required alternative [415 U.S. 361, 363] civilian service 1 does not qualify under 38 U.S.C. 1652 (a) (1) as a "veteran who . . . served on active duty" (defined in 38 U.S.C. 101 (21) as "full-time duty in the Armed Forces"), and is therefore not an "eligible veteran" entitled under 38 U.S.C. 1661 (a) to veterans' educational benefits provided by the Veterans' Readjustment Benefits Act of 1966. 2 Appellants, the Veterans' [415 U.S. 361, 364] Administration and the Administrator of Veterans' Affairs, for that reason, denied the application for educational assistance of appellee Robison, a conscientious objector who filed his application after he satisfactorily completed two years of alternative civilian service at the Peter Bent Brigham Hospital, Boston. Robison thereafter commenced this class action 3 in the United States District Court for the District of Massachusetts, seeking a declaratory judgment that 38 U.S.C. 101 (21), 1652 (a) (1), and 1661 (a), read together, violated the First Amendment's guarantee of religious freedom and the Fifth Amendment's guarantee of equal protection of the laws. 4 Appellants moved to dismiss the action on the [415 U.S. 361, 365] ground, among others, that the District Court lacked jurisdiction because of 38 U.S.C. 211 (a) which prohibits judicial review of decisions of the Administrator. 5 The District Court denied the motion, and, on the merits, rejected appellee's First Amendment claim, but sustained the equal protection claim and entered a judgment declaring "that 38 U.S.C. 1652 (a) (1) and 1661 (a) defining `eligible veteran' and providing for entitlement to educational assistance are unconstitutional and that 38 U.S.C. 101 (21) defining `active duty' is unconstitutional with respect to chapter 34 of Title 38, United States Code, 38 U.S.C. 1651-1697, conferring Veterans' Educational Assistance, for the reason that said sections deny plaintiff and members of his class due process of law in violation of the Fifth Amendment to the Constitution of the United States . . . ." 352 F. Supp. 848, 862 (1973). 6 We postponed [415 U.S. 361, 366] consideration of the question of jurisdiction in light of 211 (a) to the hearing on the merits, and set the case for oral argument with No. 72-700, Hernandez v. Veterans' Administration, post, p. 391. 411 U.S. 981 (1973). 7 We hold, in agreement with the District Court, that 211 (a) is inapplicable to this action and therefore that appellants' motion to dismiss for lack of jurisdiction of the subject matter was properly denied. On the merits, we agree that appellee's First Amendment claim is without merit but disagree that 1652 (a) (1), 1661 (a), and 101 (21) violate the Fifth Amendment and therefore reverse the judgment of the District Court.
We consider first appellants' contention that 211 (a) bars federal courts from deciding the constitutionality of veterans' benefits legislation. Such a construction would, of course, raise serious questions concerning the constitutionality of 211 (a), 8 and in such case "it is a [415 U.S. 361, 367] cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the [constitutional] question[s] may be avoided." United States v. Thirty-seven Photographs, 402 U.S. 363, 369 (1971).
Plainly, no explicit provision of 211 (a) bars judicial consideration of appellee's constitutional claims. That section provides that "the decisions of the Administrator on any question of law or fact under any law administered by the Veterans' Administration providing benefits for veterans . . . shall be final and conclusive and no . . . court of the United States shall have power or jurisdiction to review any such decision . . . ." (Emphasis added.) The prohibitions would appear to be aimed at review only of those decisions of law or fact that arise in the administration by the Veterans' Administration of a statute providing benefits for veterans. A decision of law or fact "under" a statute is made by the Administrator in the interpretation or application of a particular provision of the statute to a particular set of facts. Appellee's constitutional challenge is not to any such decision of the Administrator, but rather to a decision of Congress to create a statutory class entitled to benefits that does not include I-O conscientious objectors who performed alternative civilian service. Thus, as the District Court stated: "The questions of law presented in these proceedings arise under the Constitution, not under the statute whose validity is challenged." 352 F. Supp., at 853.
This construction is also supported by the administrative practice of the Veterans' Administration. "When faced with a problem of statutory construction, this Court shows great deference to the interpretation given the [415 U.S. 361, 368] statute by the officers or agency charged with its administration." Udall v. Tallman, 380 U.S. 1, 16 (1965). The Board of Veterans' Appeals expressly disclaimed authority to decide constitutional questions in Appeal of Sly, C-27 593 725 (May 10, 1972). There the Board, denying a claim for educational assistance by a I-O conscientious objector, held that "[t]his decision does not reach the issue of the constitutionality of the pertinent laws as this matter is not within the jurisdiction of this Board." Sly thus accepts and follows the principle that "[a]djudication of the constitutionality of congressional enactments has generally been thought beyond the jurisdiction of administrative agencies. See Public Utilities Comm'n v. United States, 355 U.S. 534, 539 (1958); Engineers Public Service Co. v. SEC, 78 U.S. App. D.C. 199, 215-216, 138 F.2d 936, 952-953 (1943), dismissed as moot, 332 U.S. 788 ." Oestereich v. Selective Service Board, 393 U.S. 233, 242 (1968) (Harlan, J., concurring in result); see Jaffe, Judicial Review: Question of Law, 69 Harv. L. Rev. 239, 271-275 (1955).
Nor does the legislative history accompanying the 1970 amendment of 211 (a) demonstrate a congressional intention to bar judicial review even of constitutional questions. No-review clauses similar to 211 (a) have been a part of veterans' benefits legislation since 1933. 9 While [415 U.S. 361, 369] the legislative history accompanying these precursor no-review clauses is almost nonexistent, 10 the Administrator, in a letter written in 1952 in connection with a revision [415 U.S. 361, 370] of the clause under consideration by the Subcommittee of the House Committee on Veterans' Affairs, comprehensively explained the policies necessitating the no-review clause and identified two primary purposes: (1) to insure that veterans' benefits claims will not burden the courts and the Veterans' Administration with expensive and time-consuming litigation, 11 and (2) to insure that the technical and complex determinations and applications of Veterans' Administration policy connected with veterans' benefits decisions will be adequately and uniformly made. 12 [415 U.S. 361, 371]
The legislative history of the 1970 amendment indicates nothing more than a congressional intent to preserve these two primary purposes. Before amendment, the no-review clause made final "the decisions of the Administrator on any question of law or fact concerning a claim for benefits or payments under [certain] law[s] administered by the Veterans' Administration" (emphasis added), 38 U.S.C. 211 (a) (1964 ed.) 71 Stat. 92. In a series of decisions, e. g., Wellman v. Whittier, 104 U.S. App. D.C. 6, 259 F.2d 163 (1958); Thompson v. Gleason, 115 U.S. App. D.C. 201, 317 F.2d 901 (1962); and Tracy v. Gleason, 126 U.S. App. D.C. 415, 379 F.2d 469 (1967), the Court of Appeals for the District of Columbia Circuit interpreted the term "claim" as a limitation upon the reach of 211 (a), and as a consequence held that judicial review of actions by the Administrator subsequent to an original grant of benefits was not barred.
Congress perceived this judicial interpretation as a threat to the dual purposes of the no-review clause. First, the interpretation would lead to an inevitable increase in litigation with consequent burdens upon the courts and the Veterans' Administration. In its House Report, the Committee on Veterans' Affairs stated that "[s]ince the decision in the Tracy case - and as the result of that decision and the Wellman and Thompson decisions - suits in constantly increasing numbers have been filed in the U.S. District Court for the District of Columbia by plaintiffs seeking a resumption of terminated benefits." H. R. Rep. No. 91-1166, p. 10 (1970). This same concern over the rising number of court cases was expressed by the Administrator in a letter to the Committee:
Thus, the 1970 amendment was enacted to overrule the interpretation of the Court of Appeals for the District of Columbia Circuit, and thereby restore vitality to the two primary purposes to be served by the no-review clause. Nothing whatever in the legislative history of the 1970 amendment, or predecessor no-review clauses, suggests any congressional intent to preclude judicial cognizance of constitutional challenges to veterans' benefits legislation. Such challenges obviously do not contravene the purposes of the no-review clause, for they cannot be expected to burden the courts by their volume, nor do they involve technical considerations of Veterans' Administration policy. We therefore conclude, in agreement with the District Court, that a construction of 211 (a) that does not extend the prohibitions of that section to actions challenging the constitutionality of laws providing benefits for veterans is not only "fairly possible" but is the most reasonable construction, for neither the text nor the scant legislative history of 211 (a) provides the "clear and convincing" evidence of congressional intent required by this Court before a [415 U.S. 361, 374] statute will be construed to restrict access to judicial review. See Abbott Laboratories v. Gardner, 387 U.S. 136, 141 (1967).
Turning to the merits, the District Court held that, by not including appellee and his class, the challenged sections of the Act create an arbitrary classification in violation of appellee's right to equal protection of the laws. In determining whether, in limiting the class of draftees entitled to benefits to those who serve their country on active duty in the Armed Forces, Congress denied equal protection of the laws to Selective Service registrants who perform alternative civilian service as conscientious objectors, 13 our analysis of the classification proceeds on the basis that, although an individual's right to equal protection of the laws "does not deny . . . the power to treat different classes of persons in different ways[;] . . . [it denies] the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification `must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly [415 U.S. 361, 375] circumstanced shall be treated alike.' Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)." Reed v. Reed, 404 U.S. 71, 75 -76 (1971). 14 [415 U.S. 361, 376]
Unlike many state and federal statutes that come before us, Congress in this statute has responsibly revealed its express legislative objectives in 1651 of the Act and no other objective is claimed:
The District Court reasoned that objectives (2), (3), and (4) of 1651 are basically variations on a single theme reflecting a congressional purpose to "eliminate the educational gaps between persons who served their country and those who did not." 352 F. Supp., at 858. Therefore, [415 U.S. 361, 377]
Of course, merely labeling the class of beneficiaries under the Act as those having served on active duty in [415 U.S. 361, 378] the Armed Services cannot rationalize a statutory discrimination against conscientious objectors who have performed alternative civilian service, if, in fact, the lives of the latter were equally disrupted and equally in need of readjustment. See Richardson v. Belcher, 404 U.S. 78, 83 (1971). The District Court found that military veterans and alternative service performers share the characteristic during their respective service careers of "inability to pursue the educational and economic objectives that persons not subject to the draft law could pursue." 352 F. Supp., at 859. But this finding of similarity ignores that a common characteristic shared by beneficiaries and nonbeneficiaries alike, is not sufficient to invalidate a statute when other characteristics peculiar to only one group rationally explain the statute's different treatment of the two groups. Congress expressly recognized that significant differences exist between military service veterans and alternative service performers, particularly in respect of the Act's purpose to provide benefits to assist in readjusting to civilian life. These differences "afford the basis for a different treatment within a constitutional framework," McGinnis v. Royster, 410 U.S. 263, 271 (1973).
First, the disruption caused by military service is quantitatively greater than that caused by alternative civilian service. A conscientious objector performing alternative service is obligated to work for two years. Service in the Armed Forces, on the other hand, involves a six-year commitment. While active duty may be limited to two years, the military veteran remains subject to an Active Reserve and then Standby Reserve obligation after release from active duty. This additional military service obligation was emphasized by Congress as a significant reason for providing veterans' readjustment benefits. A section entitled "Compulsory Reserve requirements" of the Senate Report states: [415 U.S. 361, 379]
These quantitative and qualitative distinctions, expressly recognized by Congress, form a rational basis for [415 U.S. 361, 382] Congress' classification limiting educational benefits to military service veterans as a means of helping them readjust to civilian life; alternative service performers are not required to leave civilian life to perform their service.
The statutory classification also bears a rational relationship to objective (1) of 1651, that of "enhancing and making more attractive service in the Armed Forces of the United States." By providing educational benefits to all military veterans who serve on active duty Congress expressed its judgment that such benefits would make military service more attractive to enlistees and draftees alike. Appellee concedes, Brief for Appellee 28, that this objective is rationally promoted by providing educational benefits to those who enlist. But, appellee argues, there is no rational basis for extending educational benefits to draftees who serve in the military and not to draftees who perform civilian alternative service, since neither group is induced by educational benefits to enlist. Therefore, appellee concludes, the Act's classification scheme does not afford equal protection because it fails to treat equally persons similarly circumstanced.
The two groups of draftees are, in fact, not similarly circumstanced. To be sure, a draftee, by definition, does not find educational benefits sufficient incentive to enlist. But, military service with educational benefits is obviously more attractive to a draftee than military service without educational benefits. Thus, the existence of educational benefits may help induce a registrant either to volunteer for the draft or not seek a lower Selective Service classification. 17 Furthermore, once drafted, educational benefits may help make military service more palatable to a draftee and thus reduce a draftee's unwillingness to be a soldier. On the other hand, because a [415 U.S. 361, 383] conscientious objector bases his refusal to serve in the Armed Forces upon deeply held religious beliefs, we will not assume that educational benefits will make military service more attractive to him. When, as in this case, the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not, we cannot say that the statute's classification of beneficiaries and nonbeneficiaries is invidiously discriminatory. 18
Finally, appellee argues that the District Court erred in holding that "the challenged exclusion does not abridge [appellee's] free exercise of his religion," 352 F. Supp., at 860. He contends that the Act's denial of benefits to alternative service conscientious objectors interferes with his free exercise of religion by increasing the price he must pay for adherence to his religious beliefs. That contention must be rejected in light of our decision in Gillette v. United States, 401 U.S. 437 (1971).
There, the petitioners, conscientious objectors to particular wars, argued that 6 (j) of the Military Selective [415 U.S. 361, 384] Service Act of 1967, 50 U.S.C. App. 456 (j), which limits an exemption from military service to those who conscientiously object to "participation in war in any form" (emphasis supplied), infringed their rights under the Free Exercise Clause by requiring them to abandon their religious beliefs and participate in what they deemed an unjust war or go to jail. We acknowledged that
The challenged legislation in the present case does not require appellee and his class to make any choice comparable to that required of the petitioners in Gillette. The withholding of educational benefits involves only an incidental burden upon appellee's free exercise of religion - if, indeed, any burden exists at all. 19 As Part II, supra, demonstrates, the Act was enacted pursuant to Congress' Art. I, 8, powers to advance the neutral, secular governmental interests of enhancing military service and aiding the readjustment of military personnel to civilian life. Appellee and his class were not included in this class of beneficiaries, not because of any legislative design to interfere with their free exercise of religion, but because to do so would not rationally promote the Act's purposes. Thus, in light of Gillette, the Government's substantial interest in raising and supporting armies, Art. I, 8, is of "a kind and weight" clearly sufficient to sustain the challenged legislation, for the burden upon appellee's free exercise of religion - the denial of the economic value of veterans' educational benefits under the Act - is not nearly of the same order [415 U.S. 361, 386] or magnitude as the infringement upon free exercise of religion suffered by petitioners in Gillette. See also Wisconsin v. Yoder, 406 U.S. 205, 214 (1972).
Title 32 CFR 1622.14 (1971) directed local Selective Service Boards that
[ Footnote 2 ] Title 38 U.S.C. 101 provides, in pertinent part:
[ Footnote 3 ] In defining the class the District Court stated: "The court also rules that certification of a class, pursuant to Fed. Rule Civ. Proc. 23, is warranted, the class to include all those selective service registrants who have completed 180 days of `alternate service' pursuant to 50 U.S.C. App. 456 (j), and who have either (1) satisfactorily completed two years of such service or (2) been released therefrom for medical or other reason after 180 days of such service." 352 F. Supp. 848, 851.
[ Footnote 4 ] Although "the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is `so unjustifiable as to be violative of due process.'" Schneider v. Rusk, 377 U.S. 163, 168 (1964); see Frontiero v. Richardson, 411 U.S. 677, 680 n. 5 (1973); Shapiro v. Thompson, 394 U.S. 618, 641 -642 (1969); Bolling v. Sharpe, 347 U.S. 497 (1954). Thus, if a classification would be [415 U.S. 361, 365] invalid under the Equal Protection Clause of the Fourteenth Amendment, it is also inconsistent with the due process requirement of the Fifth Amendment. See Richardson v. Belcher, 404 U.S. 78, 81 (1971).
[ Footnote 5 ] Title 38 U.S.C. 211 (a) provides:
[ Footnote 6 ] A second paragraph of the judgment declares that appellee and members of his class, who have satisfactorily completed two years of alternative civilian service, or who, after completing 180 days of such service, have been released therefrom, are to be considered "eligible" within 1652 (a) (1) to receive benefits to the same degree and extent as veterans of "active duty"; and alternative service shall be considered "active duty" within 101 (21) as applied only to c. 34 of Title 38. 352 F. Supp., at 862. In view of our result, this paragraph of the judgment is also reversed.
[ Footnote 7 ] The District Court's jurisdiction was invoked by appellee pursuant to 28 U.S.C. 1331, 1337, 1343, and 1361. Appellants appealed pursuant to the provision of 28 U.S.C. 1252 which provides:
[ Footnote 8 ] Compare Ex parte McCardle, 7 Wall. 506 (1869); Sheldon v. Sill, 8 How. 441 (1850), with Martin v. Hunter's Lessee, 1 Wheat. 304 (1816); St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 84 (1936) (Brandeis. J., concurring). See Hart, The Power of Congress [415 U.S. 361, 367] to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362 (1953).
[ Footnote 9 ] Section 5 of the Economy Act of 1933, 48 Stat. 9, which created the present Veterans' Administration, provided:
[ Footnote 10 ] The only discussion of 5 of the Economy Act of 1933 was in the Senate, where it was stated that 5 "gives to the Veterans' Administration only such authority as the Administration now has." 77 Cong. Rec. 254 (1933).
The 1940 Act received little more discussion. However, Senator George remarked of the no-review clause:
[ Footnote 11 ] "There is for consideration the added expense to the Government not only with respect to the added burden upon the courts, but the administrative expense of defending the suits."
Hearing on H. R. 360, 478, 2442 and 6777 before a Subcommittee of the House Committee on Veterans' Affairs, 82d Cong., 2d Sess., 1963 (1952).
[ Footnote 12 ] "In the adjudication of compensation and pension claims a wide variety of medical, legal, and other technical questions constantly arise which require the study of expert examiners of considerable training and experience, and which are not readily susceptible of judicial standardization. Among other questions to be determined in the adjudication of such claims are those involving length and character of service, origin of disabilities, complex rating schedules, a multiplicity of medical and physical phenomena for consideration intercurrently with such schedules, and the application of established norms to the peculiarities of the particular case. These matters have not been considered by the Congress or the courts appropriate for judicial determination but have been regarded as apt subjects for the purely administrative procedure. Due to the nature and complexity of the determinations to be made, it is inevitable that the decisions of the courts in such matters would lack uniformity. It cannot be expected that the decisions of the many courts would be based on the uniform application of principles as is now done by the Veterans' Administration through its system of coordination by the central office and by its centralized Board of Veterans' Appeals."
Hearing, supra, n. 11, at 1962-1963.
[ Footnote 13 ] In an effort to enhance the attractiveness of service in the Public Health Service and the National Oceanic and Atmospheric Administration, the Act also makes educational benefits available to commissioned officers in those services. 38 U.S.C. 101 (21), 1652 (a) (3). Officers in those services are usually specialists in various fields of science and possess a high degree of technical expertise. See 42 CFR 21.11, 21.25-31, 21.41-42 (1972); 33 U.S.C. 883a-883b. Appellee does not argue that he and his class, and the officers of those services, are so similarly circumstanced that the different treatment the Act accords the two groups constitutes a denial of equal protection.
[ Footnote 14 ] Appellee argues that the statutory classification should be subject to strict scrutiny and upheld only if a compelling governmental justification is demonstrated because (1) the challenged classification interferes with the fundamental constitutional right to the free exercise of religion, and (2) I-O conscientious objectors are a suspect class deserving special judicial protection. We find no merit in either contention. Unquestionably, the free exercise of religion is a fundamental constitutional right. However, since we hold in Part III, infra, that the Act does not violate appellee's right of free exercise of religion, we have no occasion to apply to the challenged classification a standard of scrutiny stricter than the traditional rational-basis test. With respect to appellee's second contention, we find the traditional indicia of suspectedness lacking in this case. The class does not possess an "immutable characteristic determined solely by the accident of birth," Frontiero v. Richardson, 411 U.S., at 686 , nor is the class "saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process," San Antonio School District v. Rodriguez, 411 U.S. 1, 28 (1973). As the District Court observed:
[ Footnote 15 ] Testimony and statements at a hearing on the proposed Veterans' Readjustment Benefits Act of 1966, before the Senate Sub-committee on Veterans' Affairs, reflect a consciousness of the special sacrifices made by veterans of military service. For example, Senator Yarborough, chairman of the subcommittee and author of the Act, remarked that "[t]he bill I have introduced provides an opportunity to demonstrate that we, as a nation, do recognize the extreme unique personal sacrifices extracted from our cold war veterans by their military service." "Their need is not based on the type of military duty they performed, but on the lack of opportunity to readjust back to civilian life after having been removed for 2 to 4 years." Hearings on S. 9 before the Subcommittee on Veterans' Affairs of the Senate Committee on Labor and Public Welfare, 89th Cong., 1st Sess., 6, 8 (1965). In testimony before the sub-committee Senator Mondale stated that "[t]he previous GI bills were not designed to reward veterans for the battle risks they ran, but were designed to assist them in readjusting to civilian life and in catching up to those whose lives were not disrupted by military service. And that is what the cold war GI bill is intended to do." Id., at 152.
[ Footnote 16 ] Title 50 U.S.C. App. 456 (j) provides that I-A-O conscientious objectors may be inducted into the Armed Forces and assigned to noncombatant service. Thus, I-A-O conscientious objectors perform "active duty" as defined in 38 U.S.C. 101 (21) and are therefore eligible under 38 U.S.C. 1652 (a) (1), 1661 (a) to receive veterans' educational benefits.
[ Footnote 17 ] The lower classifications are listed and defined in 32 CFR 1622.1-1623.2 (1973).
[ Footnote 18 ] Appellee also contends that the Act violates his Fifth Amendment due process rights because, "[t]he exclusion of I-O conscientious objectors from the vital assistance provided by the Act's educational program is the product of a vindictive and harsh policy" whose "purpose is clearly to punish I-O conscientious objectors for adhering to their beliefs." Brief for Appellee 20, 51. To be sure, if that were the purpose of the exclusion of I-O conscientious objectors from the benefits of the Act, the classification would be unconstitutional, "[f]or if the constitutional conception of `equal protection of the laws' means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 534 (1973). However, we have not been cited to, nor has our own research discovered, a single reference in the legislative history of the Act to support appellee's claim. We therefore find appellee's claim wholly lacking in merit.
[ Footnote 19 ] By enacting legislation exempting conscientious objectors from the well-recognized and peculiar rigors of military service, Congress has bestowed relative benefits upon conscientious objectors by permitting them to perform their alternative service obligation as civilians. Thus, Congress' decision to grant educational benefits to military servicemen might arguably be viewed as an attempt to equalize the burdens of military service and alternative civilian service, rather than an effort by Congress to place a relative burden upon a conscientious objector's free exercise of religion. See Clark, Guidelines for the Free Exercise Clause, 83 Harv. L. Rev. 327, 349 (1969).
MR. JUSTICE DOUGLAS, dissenting.
In my dissent applicable to Braunfield v. Brown, 366 U.S. 599 , I expressed the view that Pennsylvania's Sunday closing law was unconstitutional as applied to Sabbatarians, see 366 U.S., at 561 , 575, 577. The State imposed a penalty on a Sabbatarian for keeping his shop open on the day which was the Sabbath of the Christian majority; and that seemed to me to exact an impermissible price for the free exercise of the Sabbatarian's religion. Indeed, in that case the Sabbatarian would be unable to continue in business if he could not stay open on Sunday and would lose his capital investment. See id., at 611.
In Girouard v. United States, 328 U.S. 61 , we held, in overruling United States v. Schwimmer, 279 U.S. 644 , that the words of the oath prescribed by Congress for naturalization - "will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic" - should not be read as requiring the bearing of arms, as there is room under our Constitution for the support and defense of the Nation in times of great peril by those whose religious scruples bar them from shouldering arms. We said: "The effort of war is indivisible; and those whose religious scruples prevent them from killing are no less patriots than those whose special traits or handicaps result in their assignment to duties far behind the fighting front. Each is making the utmost contribution according to his capacity. The fact that his role may be limited by religious convictions rather than by physical characteristics has [415 U.S. 361, 387] no necessary bearing on his attachment to his country or on his willingness to support and defend it to his utmost." 328 U.S., at 64 -65.
Closer in point to the present problem is Sherbert v. Verner, 374 U.S. 398 , where a Seventh Day Adventist was denied unemployment benefits by the State because she would not work on Saturday, the Sabbath day of her faith. We held that that disqualification for unemployment benefits imposed an impermissible burden on the free exercise of her religion, saying: "Here not only is it apparent that appellant's declared ineligibility for benefits derives solely from the practice of her religion, but the pressure upon her to [forgo] that practice is unmistakable. The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship." Id., at 404.
And we found no "compelling" state interest to justify the State's infringement of one's religious liberty in that manner. Id., at 406-408.
In Wisconsin v. Yoder, 406 U.S. 205 , we held that Wisconsin's compulsory school attendance law as applied to Amish children would gravely impair the free exercise of their religious beliefs.
The District Court in the present case said that the penalty which the present Act places on conscientious objectors is of a lesser "order or magnitude" 1 than that [415 U.S. 361, 388] which has been upheld in past cases. 352 F. Supp. 848, 860.
That is true; yet the discrimination against a man with religious scruples seems apparent. The present Act derives from a House bill that had as its purpose solely an education program to "help a veteran to follow the educational plan that he might have adopted had he never entered the Armed Forces." H. R. Rep. No. 1258, 89th Cong., 2d Sess., 5. Full benefits are available to occupants of safe desk jobs and the thousands of veterans who performed civilian type duties at home and for whom the rigors of the "war" were far from "totally disruptive," to use the Government's phrase. The benefits are provided, though the draftee did not serve overseas but lived with his family in a civilian community and worked from nine until five as a file clerk on a military base or attended college courses in his off-duty hours. No condition of hazardous duty was attached to the educational assistance program. As Senator Yarborough said, 2 the benefits would accrue even to those who never served overseas, because their "educational progress and opportunity" "[have] been impaired in just as serious and damaging a fashion as if they had served on distant shores. their educational needs are no less than those of their comrades who served abroad."
But the line drawn in the Act is between Class I-O conscientious objectors who performed alternative civilian [415 U.S. 361, 389] service and all other draftees. Such conscientious objectors get no educational benefits whatsoever. It is, indeed, demeaning to those who have religious scruples against shouldering arms to suggest, as the Government does, that those religious scruples must be susceptible of compromise before they will be protected. The urge to forgo religious scruples to gain a monetary advantage would certainly be a burden on the Free Exercise Clause in cases of those who were spiritually weak. But that was not the test in Sherbert or Girouard. We deal with people whose religious scruples are unwavering. Those who would die at the stake for their religious scruples may not constitutionally be penalized by the Government by the exaction of penalties because of their free exercise of religion. Where Government places a price on the free exercise of one's religious scruples it crosses the forbidden line. 3 The issue of "coercive effects," to use another [415 U.S. 361, 390] Government phrase, is irrelevant. Government, as I read the Constitution and the Bill of Rights, may not place a penalty on anyone for asserting his religious scruples. That is the nub of the present case and the reason why the judgment below should be affirmed.
[ Footnote 1 ] "First, the denial is felt, not immediately, as in Sherbert, but at a point in time substantially removed from that when a prospective conscientious objector must consider whether to apply for an exemption from military service. Secondly, the denial does not [415 U.S. 361, 388] produce a positive economic injury of the sort effected by a Sunday closing law or ineligibility for unemployment payments. Considering these factors, the court doubts that the denial tends to make a prospective alternate service performer choose between following and not following the dictates of his conscience." 352 F. Supp. 848, 860.
[ Footnote 2 ] Hearings on Legislation to Provide GI Benefits for Post-Korean Veterans before the House Committee on Veterans' Affairs, 89th Cong., 1st Sess., 2899.
[ Footnote 3 ] Gillette v. United States, 401 U.S. 437 , is irrelevant to the present case. There we were concerned with whether the petitioners were validly excluded from classification as conscientious objectors. Here the question is whether the Government can penalize the exercise of conscience it concedes is valid and which exempts these draftees from military service. Moreover, in Gillette we relied upon the fact that the Government's classification was religiously neutral, id., at 451, imposed only "incidental burdens" on the exercise of conscience, and was "strictly justified by substantial governmental interests that relate directly to the very impacts questioned," id., at 462. Here the classification is not neutral but excludes only those conceded by the Government to have religious-based objections to war; and thus the burden it imposes on religious beliefs is not "incidental." And here we have no governmental interest even approaching that found in Gillette - the danger that, because selective objection to war could not be administered fairly, our citizens would conclude that "those who go to war are chosen unfairly or capriciously [resulting in] a mood of bitterness and cynicism [that] might corrode the . . . values of willing performance of a citizen's duties that are the very heart of free government." Id., at 460. The only governmental interest here [415 U.S. 361, 390] is the financial one of denying this appellee and his class educational benefits. That in my view is an invidious discrimination and a penalty on those who assert their religious scruples against joining the Armed Services which shoulder arms. [415 U.S. 361, 391]
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