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“A Fearful Stumble Backward”: Lafayette Clergy on HJR 6

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A guest column appeared in the Lafayette Journal & Courier setting forth opposition to HJR 6 by 22 local clergy members.

The significance of this, I would say, is that it diminishes the potential of framing the issue as a religious versus non-religious issue or as the forces of morality versus the forces of immorality. In the past, it seems like the political narrative would suggest that “values voters” oppose anything that looked like cultural normalization of gay people. This kind of column muddies the water in that respect.

They say:

Our various religious traditions teach us to engage in the slow and demanding work of transformation. Day by day, we are called to make ourselves and the world around us a little bit better: a more loving, more hopeful and more authentic place, where all of God’s children have a chance to flourish.

As Greater Lafayette area clergy, we believe HJR-6 — the proposed amendment regarding marriage — is a fearful stumble backward instead of a faithful step forward in the work of transformation. We are united in our belief that this amendment would dignify discrimination and threaten religious liberty.

It undermines the rights of same-sex couples and their families, both long-time Hoosiers and newly arrived transplants, by jeopardizing employer-provided family benefits, legal contracts and human rights ordinances. All Hoosiers should be entitled to equal rights and protections under our state law.

That is strong work.

I do, however, take some issue with some legal analysis in the column. They point out the distinction between religious marriage and civil marriage and correctly recognize that, when heterosexual couples in Indiana are married by a religious institution, those couples receive the benefits of both religious and civil marriage. Under IC 31-11-11, same sex couples who receive the benefit of religious marriage in their church would not receive the civil benefits of marriage.

However, where the column goes legally astray, in my opinion, is when it suggests that IC 31-11-11-7 might be a restriction on their religious liberties. It provides a criminal penalty for those who “solemnize” a same sex marriage. But, I don’t think this can be fairly read to criminalize the act of sanctioning a marriage religiously. Rather, the context of the law really points to the notion that “solemnization” has to do with certifying the marriage to the State for purposes of the marriage receiving civil recognition. We had some discussion of “solemnization” here back when there were accusations flying that the General Assembly had criminalized the act of even applying for a marriage certificate by same sex couples.

So, while I agree with the column’s stance against HJR 6 as being bad policy; I can’t embrace the contention that its passage is a step down the slippery slope into religious oppression.

We Spend So Much on Medical Services Because We Spend So Little on Social Services

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Fascinating article at Boston.com by John McDonough. He comments on a book entitled “The American Healthcare Paradox“. In particular, these sources elaborate on a frequent hobby horse of mine (and many, many others who are far more knowledgeable) – that the U.S. spends way more on healthcare and gets similar or worse results:

The U.S. pays so much more for medical care than does any other advanced nation, and from that societal investment, we get mediocre to poor results on life expectancy (26th place), infant mortality (31st), low birth weight (28th), maternal mortality (25th), you name it. It’s been true since the early 1980s, and we keep looking for solutions from within the health care sector itself.

We might not be looking at all of the relevant information. Apparently there is a connection between the money we do spend on healthcare and the money we don’t spend on social services. Of the advanced (OECD) nations, we spend the absolute least on non-health social services. If you combine the two, we come in 10th place in terms of combined spending.

“Social services expenditures included public and private spending on old-age pensions and support services for older adults, survivor benefits, disability and sickness cash benefits, family support, employment programmes (eg, public employment services and employment training), unemployment benefits, housing support (eg, rent subsidies) and other social policy areas excluding health expenditures.”
. . .
“Inadequate attention to and investment in services that address the broader determinants of health is the unnamed culprit behind why the United States spends so much on health care but continues to lag behind in health outcomes.”

Some great charts in there too. Professor McDonough goes on to suggest that this means that the solution to our healthcare problems can’t be fixed from within, at least not solely within, the healthcare industry.

Urbanophile on Why Legislatures are Hostile to Big Cities

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The Urbanophile has an interesting post discussing a study that seems to show a correlation between the size of a city and chances that measures involving that city in particular will pass. There is an inverse relationship. In other words, the bigger the city, the more likely bills involving that city will be defeated in the state legislature. The explanation seems to involve the greater size leading to greater division among representatives from that area. So, in the case of Indianapolis:

This study explains very well, for example, the travails of the proposed IndyConnect transit plan for Indianapolis in the Indiana General Assembly. It has not been rural legislators who have led the opposition, but local ones. These include people like Sen. Brent Waltz, who represents the south side of Indianapolis and would rather widen north side neighborhood streets than implement transit, and Senate Budget Committee Chairman Luke Kenley, who is from the north suburbs, representing the area where local officials have most promoted a rail line. They are both Republicans, but prior to his retirement, Democrat Bill Crawford, a long time African American political leader, had voiced skepticism as well. If local legislators won’t vote for the bill, why should anyone else?

Rise Above the Mark

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Mikel Livingston, writing for the Lafayette Journal & Courier, has an article entitled, “1,000 attend documentary premiere two years in the making” about the premiere of Rise Above the Mark; a documentary about the effect of the privatization/voucher/charter movement on public schools. I am happy to say that I was among the 1,000.

It is an effort spearheaded by the West Lafayette Schools Education Foundation — an organization associated with West Lafayette School Corporation but funded separately. WLCS superintendent, Rocky Killion has been instrumental in its development. The documentary, I think, has two primary goals: start a discussion that is focused on finding the best way to develop the children who will be our citizens in the future; and to give a voice to the public schools and public school teachers who feel that they have been largely voiceless in the debates that have gone on in recent years. The pro-voucher side is well-funded, well organized, and seems to have the ear of most of the decision makers.

Relentless standardized testing is panned by this film. We spend a lot of money paying testing companies to waste a good bit of our kids’ educational time in order to provide information that the teachers and principals already knew. (The implication (not mentioned in the film) is that those advocating standardized testing don’t particularly trust public school teachers and administrators.) It also distorts the educational process; tending to produce students who lack creativity and the ability to self-direct their studies. Our democracy depends on creative, self-directed citizens far more than it relies on citizens with superior Scantron bubble filling skills.

Another primary point is that we have had 20+ years to experiment with public funding of alternative schools and, turns out, they don’t produce results that are notably better than traditional public schools. Often enough, they perform worse.

The sharpest attacks were on some of the Indiana-specific processes we have seen; particularly those having to do with former Superintendent of Public Instruction, Tony Bennett. The stony-hearted inflexibility, and rules-are-rules attitude, shown by the Indiana State Board of Education toward Munster High School was contrasted with the contortions and after-the-fact metric changing used to ensure that political darling, Christel House charter received an “A” instead of the “C” that the initial metrics gave it. Munster High School was apparently given a “C” for its performance. Due to the metrics in place, the difference between the school receiving an “A” instead of a “C” was one special education student who required a little extra time to graduate. Had that particular student graduated on time, the grade would have been dramatically different. Munster did not get nearly the consideration that Christel House did. The Munster principal (I believe that was his position) cynically wondered whether he could have saved Munster’s grade if he had contributed $100,000 to Bennett’s campaign the way Christel House’s founder did.

The documentary also goes abroad, looking at what countries with successful educational outcomes do that works. Finland’s model, in particular, appears to be one to emulate. Students can choose; but all of the schools are public, all are well funded, and there is not a great deal of disparity in funding. On the other hand, nowhere is a privatization model notably successful.

One thing only alluded to briefly is that money is a driving force behind the privatization movement. Having a conversation about finding the best way to educate our kids is only useful if all the people honestly agree that the best way to educate should guide our decisions. If both sides are motivated by a desire for excellent education; common ground can likely be reached. You look at the evidence about what educational models are most successful, you look at the resources, and you allocate the resources accordingly. However, if one side is (probably secretly) motivated primarily by a desire to redirect resources to friends and well-wishers; successful educational models probably aren’t going to be all that persuasive. I’m not saying that any of the people involved in this debate are nihlistic opportunists looking to mine the educational system for power and profit. I’m just saying that if such people designed an educational system, it would probably look a lot like the system we’ve been developing over the last twenty years.

It’s time to look around the world at what more school systems do to produce a highly educated, capable citizenry and discuss how to imitate those methods. Rolling the dice on our kids’ lives guided by non-evidence based ideological convictions is reckless.

PD 3206 – Small Estate Administration by Distributees and not by Creditors

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The Probate Code Study Commission endorsed the language in PD 3206 (pdf) for recommendation to the General Assembly. It would specify that a “distributee” (defined elsewhere as “those persons who are entitled to the real and personal property of a decedent under a will, under the statutes of intestate succession, or under IC 29-1-4-1”) as opposed to persons generally claiming an interest in the estate are entitled to take certain actions in small estate matters (e.g. open the estate with an affidavit; gather assets from debtors of the decedent; . Small estates are those with a value under $50,000.

The concern appears to be to distinguish heirs and the like from, say, creditors of the decedent who might have a claim against the estate but who (at least in the mind of the probate study commission) would be problematic as administrators of the estate.

Airing of Grievances: Valuing Education Edition

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Festivus is approaching fast, and, rather than waiting for December 23, I thought I’d get one off my chest. Various discussions have reminded me that I harbor a good deal of resentment from my youth as a smart kid in a community or social setting where I did not feel like intellectual accomplishments were particularly valued. My parents definitely valued education, and the community at least nominally paid lip service to the value of good grades. McDonalds even gave me a free hamburger for getting “A”s. (Well done, kid. You’d better get good grades and get a good job to pay for the insulin you’ll need from the diabetes our food is going to give you!)

But, when I see someone struggling in life because they didn’t get a good education; there is at least some part of me that sees that person as the 12 year old asshole classmates of mine who teased me relentlessly for using big words. Eventually, I learned to dumb down my speaking patterns and navigate middle school social circles, but the message was clear. A guy who can throw a spiral 80 yards is a hero. A guy who can use language with precision is an object of scorn. That message is reinforced when the discussion at family gatherings is more apt to be the latest high school basketball phenom than anything to do with intellectual achievement.

Sure, this is all decades old water under the bridge, but I’d hazard a guess that long nursed, adolescent grievances are a more important component of policy decisions than any of us would care to believe.

One issue that raised this in my mind was a discussion online surrounding the forthcoming Rise Above the Mark film developed by West Lafayette School Corporation. The goal of the film is (at least to my understanding) to change the approach to education reform.

“We’re using the wrong kinds of reforms,” [WLSC Superintendent Rocky] Killion said. “What it’s doing is driving everyone down to mediocrity as opposed to lifting up and allowing us to go further.

The Twitter discussion had one friend quip that the message of the film would be a single card that said, “Don’t let poor people into your school.” I responded that this wasn’t entirely the situation with West Lafayette schools. For example, grad students aren’t wealthy, but if you stack your schools with parents who value education, your school is bound to do well. Another friend noted the importance of distinguishing between wealth and class. While grad students aren’t wealthy, they are of the desirable class. Which leads me to wonder what the roots are of these non-wealth based class distinctions.

Growing up, my folks did not much share details about our financial condition, so I don’t know exactly how much wealth we did or didn’t have. I’d say we were pretty well in the middle of the middle class during the bulk of my childhood. My impression is that my step-dad rose up the ranks at his company and ended up being pretty successful; but during the days when there were five of us kids in the house, I can’t imagine there was a lot of money flowing through. Not that we felt particularly deprived or anything; but, while we didn’t start the day hungry by any means, we also weren’t wealthy by any stretch of the imagination.

Even if I didn’t have a distinct advantage of wealth, however, my family was lousy with college degrees. Mom had a master’s degree in education, I believe. Dad had a bachelor’s degree. My father had a law degree. His father at least went to IU, and I know his great uncle was a lawyer who help compile the Indianapolis City Code back in the early 20th century. Grandpa (on Mom’s side) was a doctor of osteopathy. I think Grandma had a masters in fine arts. I didn’t realize that this sort of thing wasn’t necessarily common until later. Even most of my close friends growing up came from families with college educated parents. And it’s not just education. My speech patterns reflect the prevailing upper class patterns. As a young kid, I was taught little things like which side of the plate the fork goes on and where the napkin goes. Just by personal preferences, I can be pretty uncouth at times; but, when the situation demands it, I’ve been given the tools to navigate the upper social classes. And, of course, I’m passing all of these things along to my own kids.

Which brings me back to West Lafayette Schools. Some of this class stuff is fairly incidental. Cole is awfully fastidious (see what I did there?) about his table settings, but WLCS isn’t going to struggle if Harper puts her spork on the wrong side of her school lunch. However, without their teachers doing a thing, my kids came in with a pretty solid base line education; they came in knowing that education is important; they have been conditioned to be reasonably respectful to authority figures such as their teachers; and they just honestly enjoy school. Stack your school with kids like that, and your school will excel, almost regardless of what kind of teachers you have in there. Stack your school with kids who will make life tough on another kid for using a five syllable word, and the situation will get choppier.

However, soaking in the kind of class privilege that I have does make it hard for me to understand at a visceral level what’s so hard about infusing your kids with a value for education. Every parent has to know it’s important. But, I guess if you haven’t internalized that fact, your kids are going to hear you saying that school is important once in awhile whereas they will see you if you are spending much of your free time watching sporting events and not reading a book. Nominal lip service to the idea just isn’t enough.

See also:

Indiana’s revenue in November fell short of projections, so Gov. Mike Pence said today that state agencies and higher education funding will be cut back[.]

7th Circuit hears case challenging Wisconsin’s Abortion Hospital Admitting Privilege Law (h/t Indiana Law Blog)

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The Indiana Law Blog posted an entry on an AP article on a 7th Circuit Oral Argument over a Wisconsin law that requires doctors to have admission privileges at a hospital before the doctor is allowed to perform an abortion. Audio of the argument is here (mp3). You can’t always tell what a judge really thinks from the questions he or she asks, but in this case, the judges, Hamilton and Posner in particular, did not seem to be buying the Wisconsin Deputy Attorney General’s argument that the hospital admitting privilege requirements specifically for abortion was motivated by a concern for women’s medical well being.

At times appearing exasperated, Posner repeatedly interrupted Lennington, asking why lawmakers — if it’s true they saw the law as primarily a public health measure and not an anti-abortion bill — focused on abortion clinics and not other outpatient clinics, such as those performing laparoscopic surgeries.

“Why did they start with abortion clinics? Because it begins with the letter ‘A’?” Posner asked.

Lennington answered, “I don’t have a conjecture (about why).” Later, in response to similar questions, Lennington said it was the prerogative of legislators to act as they did.

Posner also cited figures that just .3 percent of abortions have medical complications. Asked if there were records of women dying in Wisconsin after abortions, Lennington said he didn’t know.

At that point, Posner said about the law, “It doesn’t sound reasonable. It sounds irrational.”

Having been on the receiving end of Judge Posner’s questioning once upon a time and having once been employed to do the bidding of a state legislature regardless of my personal opinions, I definitely sympathize with the deputy attorney general in this case.

The Indiana Law Blog noted the similarity between the challenged Wisconsin law and the admitting privilege requirements of IC 16-34-2-4.5 and also referenced this Wisconsin case as potentially having an impact on the Southern District of Indiana’s injunction on enforcement of the new law requiring Planned Parenthood’s facility in Lafayette which provides medication abortions to meet the same facility requirements as those providing surgical abortions.

Criminal Law and Sentencing Committee 2 – Underreporting of Sex Crimes Against Girls

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As I mentioned in part 1, the Indiana General Assembly’s Criminal Law & Sentencing Policy Study Committee received a variety of testimony at its October 31, 2013, meeting. Rep. Hale reported that, according to the Center for Disease Control, one in six girls in Indiana has been raped or sexually assaulted. Rep. Hale further indicated that the number is actually higher because crimes are under-reported. According to federal data, Indiana is the second worst state in the nation for rape and sexual assault against high school aged girls.

There were several witnesses. The first recounted an incident when she was in high school where she was making out with a guy in the front seat of a car, voluntarily got into the back seat of the car, but was ignored by the guy when she screamed “No! Please Stop!”

She says she didn’t report the rape because she thought she would be blamed because of the way it started out with an innocent make-out session in the front seat of a car.

“It kinda leads to the, you know, the self-blame, the self-doubt. Why did I put myself in that situation that’s so often confirmed by society. So I was asked to get in the back seat. And at that point I was fine with what was going to happen. At the moment that he began to have sex with me, I remember screaming, ‘No! Please stop!'” Crosby said.

Crosby says after dealing with a mother in denial about the rape and an ER doctor who didn’t seem interested, she just shut up.

Dr. Hibbard, a pediatrician at Riley’s Children’s Hospital, testified that kids often don’t know they have been assaulted or, if they do, blame themselves. They are also afraid of the intrusive nature of a subsequent investigation if they do report the incident.

In response to a question from Senator Young concerning mandatory reporting, Dr. Hibbard testified that reporting is complicated because a child who is 14 or 15 year old and who has had consensual sexual intercourse may or may not be the victim of abuse or neglect, depending on the age of the child’s partner. In addition, if a child does not perceive that the sexual contact is a crime, the child will not report it.

Anita Carpenter of the Indiana Coalition Against Sexual Assault testified that sexual assault education is the most important step for improving reporting; and that schools should provide this education. Dr. Parrish-Sprowl, a professor at IUPUI said that a study should be conducted that determines how much underreporting actually occurs. He anticipates that a study such as the one he has in mind would cost about $50,000 – $60,000.

An article (pdf) by Katie Cierniak, Julia R. Heiman, and Jonathan A. Plucker, published in January 2012, contains additional information about the data.

The CDC recently (December 2011) released U.S. data on the prevalence of sexual violence nationwide, in their National Intimate Partner and Sexual Violence Survey (NISVS): 2010 Summary Report. This survey estimates that approximately 1 in 5 women in Indiana have been victims of rape at some point within their lifetime (Black et al., 2011). Furthermore, a 2009 survey indicates that females in 9th -12th grades in Indiana have the second highest rate in the nation of forced sexual intercourse (CDC, 2010).
. . .
In the survey, rape is defined as “any completed or attempted unwanted vaginal (for women), oral, or anal penetration through the use of physical force (such as being pinned or held down, or by the use of violence) or threats to physically harm and includes times when the victim was drunk, high, drugged, or passed out and unable to consent.

Types of rape were broken up into three categories: completed forced penetration was reported by 12.3% of women; attempted forced penetration by 5%; and alcohol and drug facilitated rape reported by 8%. For women, rapes are typically perpetrated by current or former spouses or boyfriends and typically happen when they are young: 42% prior to the age of 18 and 80% prior to the age of 25. College women appear to be especially vulnerable. Among males, rape statistics are much lower, but boys who are assaulted are likely to be assaulted at a much younger age and, males in general are less likely to report rape.

On Rep. Hale’s Facebook entry on the subject, Steph Mineart had a good suggestion:

Can we gather some evidence about who is committing these crimes? We know a lot of the statistics about the girls who are victims. They must be talking about who the perpetrators are, right? Can we get a window into that data? Having profiles and data about the perpetrators would go a long way towards getting them off the streets and into jails where they belong, or at least educating them properly about how not to be criminals. It seems to me that directly addressing them as the problem instead of dancing around the issue talking about sex education would help a lot.

The article by Cierniak, et al, says that studies have attempted to identify characteristics of perpetrators, but I did not see much information about those characteristics in the paper. About all I could discern was that the perpetrators were known to their victims. I share the desire to know more about the perpetrators because I think that would really help to make the situation less foreign to me. My frame of reference is that of an adult white male. The closest I ever got to sexual assault was a teenage acquaintance who was a little too interested in waving his penis around when he was with a group of guys. So, I have a tough time imagining the internal narrative of a guy who decides it’s o.k. to pressure a girl into sex or rape her. I doubt it’s as simple as a two dimensional villain who just wants to get off and doesn’t give a shit about who gets hurt in the process. But, maybe it is. And I wonder if it’s a wide spectrum of guys committing the rapes or is it a relatively narrow group of guys who, for some reason, get around a lot. Teaching guys that these internal narratives, whatever they are, are not acceptable would be helpful. Identifying the techniques these guys (if it’s a narrow spectrum) use to get around so they can be counteracted would be helpful.

As a father of both a boy and a girl who aren’t that far off from being teens, this sort of information horrifies me. Teaching the boy not to be a rapist is relatively straight forward. Teaching the girl how to avoid rapists is more of a mystery to me.

Criminal Law and Sentencing Committee 1 – Juvenile Boot Camps Don’t Work

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I was browsing the Indiana General Assembly’s Criminal Law and Sentencing Committee page, as one will do on a Tuesday morning. It has not posted a final report, but there were some interesting things in the October 31, 2013, minutes (pdf).

During an exchange between the committee, a question was asked about whether boot camp for juveniles was an effective form of discipline. Turns out that they are not only not effective, they are actually counterproductive.

During Committee discussion, Judge Heimann stated that an Ohio study demonstrated that boot camps caused the recidivism rate to increase. While many proponents believed that it would reduce recidivism by instilling military-style discipline, the end result was that bootcamp-trained juveniles made good tools for criminal gangs.

I had not given the matter much thought; but reading this, I am not surprised that boot camps would have a certain appeal or that they would ultimately be counterproductive. They are appealing because, for some reason, we love punishment. We fear coddling a wrongdoer. Kids these days have it too easy!

But, ultimately, throwing kids into a pool of other kids from chaotic backgrounds, yelling at them, and expecting something good to happen probably isn’t very realistic.

—–

What I have in mind for item #2 is committee discussion under-reporting of juvenile crimes; particularly sex crimes against girls.

Medical Malpractice Cause of Action Not Tolled Pending Second Opinion

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The Indiana Court of Appeals decided a case today entitled “Anonymous Physician v. Wininger”. (The physician is anonymous at this stage of litigation due to particulars about how the medical malpractice system works.)

The plaintiff had gone to the Anonymous Physician (AP) for problems with her foot. AP performed surgery on her second toe in early 2007. As of October 2007, the Plaintiff realized that her foot hurt worse than it had prior to the surgery. However, she did not go for a second opinion until April 2009. On her intake sheet, she listed the reason for her visit as “AP messed her foot up.” The second doctor said that the second toe on her foot was too short.

Plaintiff did not file her malpractice action until March 2011. The statute of limitations for a medical malpractice action is two years. (The abbreviation for statute of limitations, S.O.L., coincidentally is the same as that for Shit Outta Luck; which are, functionally, the same thing. If a would be litigant doesn’t file a claim within a certain amount of time, they are barred from doing so.)

The Plaintiff argued that the two years didn’t start to run until she got the second opinion and, therefore, knew that the pain in her foot was caused by the alleged negligence of AP. The court disagreed. If the patient is unaware of the negligence of the medical professional, the statute of limitations is tolled only “until the patient experiences symptoms that would cause a person of reasonable diligence to take action that would lead to the discovery of the malpractice.”

In this case, such symptoms were present not later than October of 2007 and, therefore, the action was barred.

As a side procedural note, it looks like the doctor got lucky. The trial court sided with the Plaintiff. However, it certified the case for an interlocutory appeal (an appeal that happens in the middle of the underlying case) and the Court of Appeals agreed to take it. Both of those things are discretionary. Either court could have declined to have the issue addressed by the Court of Appeals until after the case had concluded. If that had happened, before getting a shot at a decision on appeal, the parties would have had to incur a great deal of expense trying the malpractice case and would have faced a great deal of pressure to settle the case.