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HB 1040: Grab Bag of Educational Grievances

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There is some irony in requiring public schools with free busing to instruct kids that socialism will lead to the destruction of our way of life.

Rep. Prescott has introduced HB 1040 which has a little bit of everything: red-baiting, CRT panic, pro-COVID measures, sex. All in a school setting! This has at least elements that show up in other bills that are circulating through the General Assembly. So, even if this bill doesn’t advance, the likelihood is that you’ll see at least pieces of it moving in other legislation.

It repeals IC 20-19-5 which requires the Department of Education in cooperation with the Department of Child Services, Department of Correction, and the Division of Mental Health to develop and coordinate the children’s social, emotional, and behavioral health plan that is to provide recommendations concerning (A) comprehensive mental health services; (B) early intervention; and (C) treatment services. The plan is supposed to include, among other things:(1) procedures for the identification and assessment of social, emotional, and mental health issues; (2) procedures to assist a child and the child’s family in obtaining necessary services to treat social, emotional, and mental health issues; (3) procedures to coordinate provider services and interagency referral networks for an individual from birth through twenty-two (22) years of age; (4) guidelines for incorporating social, emotional, and behavioral development into school learning standards and education programs; and (5) that social, emotional, and mental health screening be included as a part of routine examinations in schools and by health care providers. The cynical part of me says he wants to get rid of this because “social, emotional, and mental health aren’t *real* issues.” Hopefully I’m doing the Representative a disservice and there’s something more innocuous and sensible going on with this repeal.

Next, we’re on to the Critical Race Theory part of the bill. (The Wikipedia entry makes it clear that the definition of CRT is pretty fuzzy. That entry has it as a cross-disciplinary and intellectual movement based on critical legal studies holding that, among other things, “racism and disparate racial outcomes are the result of complex, changing, and often subtle social and institutional dynamics, rather than explicit and intentional prejudices of individuals.” In common discourse, the definition can get even fuzzier. But as I discuss a little below, I don’t think the debate club objections to the definition or lack thereof end up being very persuasive.)  In any case, the bill prohibits schools from promoting the following concepts:

(1) One (1) race or sex is inherently superior to another race or sex.
(2) An individual, by virtue of the individual’s race or sex, is inherently privileged, racist, sexist, or oppressive, whether consciously or subconsciously.
(3) An individual should be discriminated against or receive adverse treatment because of the individual’s race or sex.
(4) Members of one (1) race or sex cannot and should not attempt to treat others without respect to race or sex.
(5) An individual’s moral character is determined by the individual’s race or sex.
(6) An individual, by virtue of the individual’s race or sex, bears responsibility for actions committed in the past by other members of the same race or sex.
(7) An individual should feel discomfort, guilt, or anguish or another form of psychological distress solely because of the individual’s race or sex.
(8) Meritocracy or traits such as hard work ethic are racist or sexist, or designed by a particular race or sex to oppress members of another race or sex.
(9) Indiana or the United States was founded as a racist or sexist state or nation and is fundamentally or irredeemably racist or sexist.
However, notwithstanding the above, this legislation dictates that it does not prohibit instruction of the history of an ethnic group; the impartial discussion of controversial aspects of history; or  the impartial instruction on the historical oppression of a particular group of people based on race, ethnicity, class, nationality, religion, or geographic region.

First of all, I don’t like the General Assembly dictating curriculum. Second, it contains a private enforcement mechanism which creates a bounty in the amount of $5,000 plus attorney fees for successful prosecution. Regardless of the merits or lack of merit of the substance of the law, it creates incentives that will be an absolute shit show and will very much disincentivize schools from teaching, for example, historical oppression of a particular group even though the law specifically permits such instruction.  The boundaries between the permissible and impermissible will be permeable enough to lead to expensive litigation.

As to the substance of these provisions, I don’t want to #BothSides the issue, but I’m gonna #BothSides the issue. I think politicians and policymakers on the right-wing are cynically exploiting fears people have about their kids by turning a molehill into a mountain. I think the left-wing commentariat is disingenuously trying to tell people that the molehill doesn’t exist. When this came up in the context of the Virginia elections, folks on the left often responded by adopting a very technical definition of what constitutes Critical Race Theory and saying it wasn’t taught anywhere and/or claiming that this was an effort to, for example, eliminate teaching that slavery was part of American history.  There was little effort to grapple with the notion that curriculum informed by Critical Race Theory or Critical Theories generally might be making its way into course work, school support services, or other aspects of the educational system — even if Critical Race Theory itself was not taught. (As it happens, in West Lafayette an anti-racist advocacy group has presented the school board with a demand to “add a course in critical race theory to the core curriculum.” The demand, presented in the Summer of 2020, predated the Virginia election campaigns.) On the right, there seems to be a deliberate effort to misunderstand how racism in the past can lead to structural inequality in the present. Caught in the middle are people who don’t have any particular interest in the power struggle but who are open to working with others to make things more equitable.  As with so many things these days, there are some fairly loud people demonizing people on the other side, so it is easy to ignore people of good will quietly trying to figure out the best way to make things better. This bill will absolutely not be productive to people of good will. But, maybe it will help people screaming at each other to get elected.

And then we move on to the pro-COVID provisions. Basically, it lets anyone – student or teacher – opt out of a mask requirement. It also prohibits requiring a student or school employee to be vaccinated against COVID as a condition of attendance. The traditional move is to characterize this as a pro-liberty move. But, as Jeremy Bentham observed, “rights and obligations, though distinct and opposite in their nature, are simultaneous in their origin, and inseparable in their existence. According to the nature of things, the law cannot grant a benefit to any, without, at the same time, imposing a burden on some one else[.]” In this case, the right to be mask-free necessarily requires others to breathe more of the virus-laden air expelled by the person exercising that right. There’s always going to be tension when balancing individual rights with the well-being of the community. In the middle of a pandemic, this is not the right balance to strike. For the most part, we should leave these decisions in the hands of our public health officers who can respond in a manner that’s both better informed and more agile than what can be done by the legislature.

But, Doug, you may ask — does this bill fight communism? Yes, dear reader. Of course it does. This bill is a floor wax *and* a dessert topping. Students must receive instruction that socialism is incompatible with the principles of freedom upon which the United States was founded and that if it were to replace our current form of government, “the government of the United States would be overthrown and existing freedoms under the Constitution would no longer exist.” Never mind that most Americans wouldn’t know socialism if it deposited a social security check into their FDIC-insured bank accounts. This instruction isn’t limited to socialism but also applies to “Marxism, communism, totalitarianism, or similar political systems.” Not sure if this totalitarianism or ‘similar political systems’ would encompass fascist or nationalist ideologies.

Onto sex. A school has to get parental consent before providing instruction on (1) abortion; (2) birth control or contraceptives; (3) sexual activity; (4) sexual orientation; (5) transgenderism; or (6) gender identity. (Is being transgender an ‘ism’?) This is well-trodden area in the culture wars. I’ll just mention that the best way to reduce the need for abortions is to provide good sex education and access to contraception.

And now “transparency.” There’s an incredibly burdensome online posting requirement for books, lectures, and “all materials presented to students in connection with an educational activity.” This will require a great deal of effort on the part of the school, and very little of the material will be reviewed. Of the material reviewed, I suspect a good chunk of that will be associated more with political axe grinding than any real effort to engage with the school on improving the quality of instruction received by students. The cost/benefit analysis of these provisions is heavy on the “cost” side and light on the “benefit” side.

Finally, there is a prohibition on providing students with mental health services without parental consent. The legislation singles out counseling with respect to abortion and gender identity for special attention but seems to require consent even for behavioral evaluations, personality analyses, mental health surveys, and assessments for the purpose of providing multi-tiered systems of support and positive behavior interventions. Seems like this will hamstring schools seeking to adjust educational approaches based on particular behavioral needs of the students.

 

SB 114: Promoting the Spread of COVID

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Sen. Tomes has introduced SB 114 designed to increase the spread of COVID and to limit the ability of government to respond to the public health crisis. I’m not going to parse the legislation with any care because it clearly was not drafted with any care. Basically it prevents government from taking measures to preserve the public health that hinge on a person’s likelihood of being a vector of disease. The government can’t inquire about whether a person has been vaccinated or has immunity due to having been infected, can’t require face masks based on a person’s likelihood of having immunity, and – among other things – can’t create an incentive for its employees to get vaccinated. It would allow a court to award a $10,000 windfall on top of any actual damages to an individual claiming a violation of this legislation.

SB 124: Ending the Tyranny of Turn Signals

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Sen. Freeman has introduced SB 124 which repeals the law requiring turn signals by motorists turning or changing lanes. I’m open to the idea that this repeals a section that is redundant in some way. Maybe there is another section requiring turn signals? But, it looks like Sen. Freeman is urging that motorists not be required to signal when turning or changing lanes. I’m just going to go on the record with my controversial opinion that signaling turns and lane changes is helpful.

The bill also addresses the location of a petition for specialized driving privileges by a person whose license is suspended. There are administrative suspensions (BMV) and court-ordered suspensions. Current law appears to let you petition for specialized driving privileges when there is an administrative suspension by asking any court in the county where you live. This modifies that somewhat by saying that if you have an administrative suspension *and* a court ordered suspension, you have to request relief from the administrative suspension in the same court where you have the court ordered suspension.

SB 90: Limiting Planning Powers of Local Government

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Sen. Doriot has introduced SB 90 which would limit the development planning powers of local government. In particular, it dictates that a unit of local government cannot require the donation of right-of-way to the unit as a condition of permitting subdivision of a parcel. Instead, if the unit wants the right of way, under this legislation, it needs to buy the right of way from the developer. Unless I’m missing something, this is a bad idea. Large parcels of agricultural land don’t make the same kind of demands on public infrastructure as land that is subdivided for (usually) residential purposes. So, it’s entirely appropriate for a local unit of government to regulate the subdivision process to require that the developer make certain concessions that will offset the demands and reduce the costs to the public.

In this case, the proposed legislation would likely encourage the development of subdivisions that open up onto narrow county roads that were adequate for agricultural uses but were never intended to serve more intensive uses. Alternately, the taxpayers of the unit of government would have to pay to acquire additional right-of-way in order to serve the development that the landowner probably just made a bundle off of carving up into residential lots.

SB 85: Drainage Task Force (DTF: The Bad Boys of Drainage!)

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(Edited: Thanks to Phil’s comment, I see I missed a good headline on my first draft. Should’ve called this one “DTF: The Bad Boys of Drainage!”)

Sen. Leising has introduced SB 85 establishing the “Drainage Task Force.” It calls for a task force of mainly state officials to review whether the state/local balance of authority over drainage matters is appropriate. And it asks vaguely loaded questions such as “whether the objective inherent in drainage law, that of simply draining agricultural land, is yielding to conservation and pollution control objectives.’ I’ll acknowledge that draining agricultural land was likely the primary objective of the original drainage laws, but I don’t think there is anything “inherent” about that. It’s tough to say that increasing agricultural output is a proper use of government powers while limiting damage to other people by regulating pollution is not.

The task force would consist of 12 legislators, 1 member of DNR, one member of a county drainage board, one member of a soil & water conservation district, a member of the “American Society of Farm Managers and Rural Appraisers,” and a member of a statewide farm organization. (I’d guess the latter would be the Indiana Farm Bureau, but maybe there are other options.) That feels like way too many legislators to be useful. I’d also suggest getting a variety of County Surveyors involved — probably at least one from a primarily rural county, one from a primarily urban county, and one from a county with a good mix of urban and rural.

Drainage is one of those topics that’s so important. But it’s one of those things that’s invisible until something goes wrong.

SB 83: Mandatory Public Comment at School Board Meetings

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Sen. Leising (the quixotic cursive crusader) has introduced SB 83 which mandates the opportunity for public comment at school board meetings. This is a reaction to the measures taken by school boards to deal with pro-COVID parents who objected to the idea of having to work with the community to limit the spread of COVID. Some members of the public not only disagreed with mask policies, they turned abusive and belligerent. When the Public Access Counselor was asked about how public bodies could comply with the Open Door Law and still get business done when civility broke down, the PAC observed that public comment was not required by the Open Door Law and eliminating the public comment period was one tool that boards could use when necessary.

[N]othing in the Indiana Open Door Law guarantees or even mentions the right  to participate in the proceedings of a governing body much less interrupt…[G]overning bodies can choose whether to extend the courtesy of a  comment forum, and therefore revoke it if misused. Tumult, disorder, and disturbance on the part of the audience should not be tolerated by a board, council, or commission.  This office does, and will always, advocate for a meaningful public comment opportunity  at public meetings, if practical. Ultimately, however, a public comment forum during a  meeting is a privilege and a courtesy extended by a governing body to the public.

Sen. Leising’s bill does not have much to say about the public comment period she would require school boards to provide. Certainly, it does not give schools any tools to deal with interruption, tumult, disorder, or disturbances. This legislation could be read as a sanction for using such tactics as a means by which to influence public policy. By the same token, however, the legislation says nothing about rules the school board could use to regulate the public comment period. “You have ten seconds and comment must be germane to agenda items. Go!”  Any rules on public comment used to ensure order is maintained will no doubt be decried as tyranny. But, I suppose once everything is tyranny, then nothing is tyranny.

SB 12: Semiquincentennial Commission

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Sen. Kruse has introduced SB 12 which would establish a Semiquincentennial Commission to commemorate the 250th anniversary of the signing of the Declaration of Independence. I’d never heard the word “semiquincentennial” before, so at least this bill has taught me that. It designates required members of the commission: the governor, lieutenant governor, the adjutant general of the Indiana National Guard, director of the Indiana Dept. of Veteran’s Affairs, four legislators, and representatives from: Revolutionary War reenactment organization, Civil War reenactment organization, the VFW, the American Legion, executive director of Indiana War Memorials, Boy Scouts, Girl Scouts, Sons of the American Revolution, Daughters of the American Revolution, Fraternal Order of Eagles, and the Indiana Historical Society.

It’s at least mildly interesting to me that the statute requires the representative from the Sons of the American Revolution to be the chair and the representative from the Daughters of the American Revolution to be the vice-chair. I have a vague notion that some of these type organizations have problematic pedigrees — though, it’s entirely possible I’m thinking of the Daughters of the Confederacy and their Lost Cause, Klan-loving b.s.

SB 11: If the State displays the Declaration of Independence, it must include a plaque talking about religion

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Sen. Kruse has introduced SB 11 which is kind of a reverse of what you normally see with these religious display bills. Normally, the approach is to encourage government units to display religious items and mix them in with enough secular stuff that it might pass First Amendment, Establishment Clause challenges. This one says it’s o.k. for State agencies to display historical documents that aren’t primarily thought of as religious documents — specifically the Declaration of Independence, parts of the Northwest Ordinance, Washington’s Farewell Address, and the Mayflower Compact — but then requires that such displays be accompanied by a plaque talking about religion.

A display of [one of the listed documents] must be accompanied by a document entitled “Educational Documents for Acknowledging America’s Religious History” that reads as follows: “Many historical documents pivotal to American law, constitutionalism, and political theory have deep roots in religion. Examples include the Mayflower Compact, the Declaration of Independence, the Northwest Ordinance, and Washington’s Farewell Address, which collectively express5the American ideals of liberty, equality, personal responsibility, and the rule of law. The purpose of this display is to help the general public understand the role that religion has played in the legal history of the United States and Indiana.”

(Emphasis mine). Religion did have a huge impact on America’s development. Sometimes for the better. Sometimes for the worse. And, significantly, sometimes the impact had to do with the Founders understanding from relatively recent conflicts like the Thirty Years War how badly things could go when government and religion got too mixed up with one another. The decision to legislatively insist on a religious focus when the State displays the Declaration of Independence is misguided and probably unconstitutional.

SJR 3: Urging a Constitutional Convention to Fix United States Supreme Court at Nine Justices

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Sen. Buck has introduced Senate Joint Resolution 3 which would have the State of Indiana directing Congress to call a Constitutional Convention for the purpose of amending the United States Constitution to fix the number of Supreme Court Justices at 9. First of all, I’m on record as saying that a Constitutional Convention is a terrible can of worms to open:

For his part, Long envisions a convention which is narrow in scope. But revolutions often get away from their bourgeois instigators. Once a Constitutional Convention was opened up, I would anticipate radical factions taking over.

Second, there is nothing magic about nine Supreme Court Justices other than that, by blocking President Obama’s nomination of Merrick Garland and ramming through Ruth Bader Ginsburg’s successor, Sen. Buck’s political party has managed to capture a majority of the seats on the Supreme Court. Article III of the Constitution says nothing about the size of the court. The Framers initially set the number at six Justices. In 1801, the number was reduced to five but, before the Court could shrink, in 1802, it was restored to six. As the country grew, so did the Court. It was expanded to seven in 1807, nine in 1837, ten in 1863. In 1866, Congress enacted a plan to reduce the Court back to seven through attrition, but it only got down to eight in 1867 and then was returned to nine in 1869.

As a political matter, I think it would be an extremely heavy lift to get the number of Justices changed. If the People desire a Constitutional amendment to fix the number of Justices, I’d suggest that it go the route of every other Constitutional amendment to date: two-thirds of each house of Congress proposing an amendment and having it ratified by 3/4 of the States.

SB 34: Prohibition on Medical Services to Minors Related to Gender Identity

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Sen. Kruse has introduced SB 34 prohibiting medical services to minors related to gender identity. It contains some exceptions where “the minor has a medically verifiable genetic disorder of sex development, including having: (A) both ovarian and testicular tissue; or (B) external biological characteristics that are ambiguous3 resulting from having a 46,XX karyotype with virilization or 46,XY karyotype with undervirilization.” The other exception is for situations where “(2) The minor has an abnormal sex chromosome structure that has been diagnosed using genetic testing by a physician licensed under IC 25-22.5.” I don’t know what those technical terms mean. But, notably, there is no exception for situations where the minor, the minor’s parents, and the medical provider all agree that the medical services are in the best interest of the minor.

This bill would prohibit the following:

[A health care professional may not] attempt to change,14reinforce, or affirm a minor’s perception of the minor’s own sexual attraction or sexual behavior, or attempt to change, reinforce, or affirm a minor’s gender identity when the identity is inconsistent with the minor’s biological sex, by performing or causing to be performed any of the following procedures on the minor: (1) Castration. (2) Vasectomy. (3) Hysterectomy. (4) Oophorectomy. (5) Metoidioplasty. (6) Orchiectomy. (7) Penectomy. (8) Phalloplasty. (9) Urethroplasty. (10) Vaginoplasty. (11) Mastectomy. (12) Lobotomy. (13) A surgery to remove a healthy organ or body part.

The bill would also prohibit:

[A health care professional may not] attempt to change, reinforce, or affirm a minor’s perception of the minor’s own sexual attraction or sexual behavior, or attempt to change, reinforce, or affirm a minor’s gender identity when that identity is inconsistent with the minor’s biological sex, by engaging in any of the following activities: (1) Prescribing, administering, or furnishing to the minor a drug to stop or delay puberty. (2) Prescribing, administering, or furnishing to a female9minor testosterone or estrogen-suppressing drugs. (3) Prescribing, administering, or furnishing to a male minor estrogen or testosterone-suppressing drugs. (4) Subjecting a minor’s genitals to an electric current. (5) Penetrating the minor’s fingers with needles. (6) Restraining and placing ice on the minor’s hands. (7) Wrapping the minor’s hands in heat coils. (8) Subjecting the minor to an ice bath. (9) Injecting drugs into the minor to induce vomiting. (10) Restraining the minor with ties or harnesses. (11) Inflicting any physical pain or suffering.

Back in the old days, I would have joked about Sen. Kruse going to wilder parties than the ones I get invited to. But I don’t have the heart for it. Questions about gender identity and what to do about it when a person’s identity differs from their biological sex are difficult. I think they’re especially difficult because puberty can be a kind of ticking clock where the release of hormones is going to make the inconsistency more difficult for the person to navigate and also difficult because making the wrong decision — either by taking action or by not taking action — can have significant impacts for the rest of the person’s life. I do not think these questions are ones the General Assembly is well equipped to answer on behalf of these families.