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West Lafayette School Board Race: Support for “Transparency” and “Divisive Concepts” Legislation

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I went with the General Assembly image because a picture of a turd in a punch bowl would be gross.

Cast your memory back, gentle reader, to February of 2022. In some ways, it was a simpler time. Reproductive rights were still mostly legal in Indiana. Russia mostly had not invaded Ukraine. And pretty much every person I knew who was involved with the educational system in West Lafayette agreed that HB 1134 concerning “transparency” was a terrible idea.

I know I’ve been critical of the General Assembly for its approach to educational policy over the years, but its really outdoing itself with the fire hose of shit it’s directing at our local schools this year.

The biggest turd in the punch bowl is HB 1134. Let’s start with its “transparency” requirements. (Transparency is good, right? Can’t be against transparency any more than you can be against God, Mom, and Apple Pie!) The new IC 20-30-17 requires school corporations to post a ton of curricular material for classes in the August preceding the school year. I’m not sure you can tell exactly what’s required because, IC 20-30-17-5(b), which really seems like it’s going to be the critical bit of that chapter does not seem to be written in a complete sentence. Not later than August 1 of each year, the school corporation is required to post, in a manner that is disaggregated, in a manner that is accessible, and in a manner that shows bibliographic information, …. something. It’s not clear what. The next subdivision says that a summary of educational activities (which is a broadly defined term) has to be posted as far in advance as possible, but it’s not at all clear what has to be posted by August 1. In any case, this is just another administrative burden heaped on the shoulders of teachers and administrators that is extremely unlikely to have any real world benefits. If a parent has questions about their kids’ education, how about just asking?

A similarly misguided effort at transparency or parental input or some other glittering generality would mandate a “Curricular Materials Advisory Committee.” Right out of the gate, it’s clear that the advisory committee has no jurisdiction over standardized tests. That could obviously cut into the College Board’s bottom line, and that just wouldn’t do. The advisory committee is directed to have more parents than educational professionals and to have a majority of people who don’t work for the school corporation. The advisory committee is charged with making sure educational materials “are representative of the community’s interests and aligned with Indiana academic standards.” Most communities have a wide variety of interests that sometimes conflict with one another, so that’s not terribly helpful guidance. They also will make recommendations about how to comply with the incomplete sentence about posting curricular materials.

Then there is the “CRT” inspired provisions that I discussed in an earlier blog post. All sound fairly inoffensive taken on their face (e.g. no one should be taught or forced to embrace the idea that a person can be racist simply by virtue of their race). But it’s more than suspicious that these bills are reactive to efforts to teach, for example, that racism has resulted in structural inequality that persists regardless of anyone’s individual intent. Politically, I think the right has deemed it advantageous to take advantage of a panic among parents that little Johnny might be taught to believe that he should feel guilty about being a racist because he’s a white boy. Regardless of the underlying substance, I’m on record as not liking the General Assembly dictating curriculum. Additionally, there is a provision that would create an incentive to bring suits by awarding attorney’s fees to a prevailing plaintiff (which could be an out of district advocacy group) while not awarding such fees to a school that successfully defends against a suit. (To get fees, the school would have to prove that the out of district advocacy group or whoever was litigating in bad faith — which is a very heavy lift.)

Finally, there are provisions limiting a school’s ability to provide social-emotional support to students. Candidly, I do not understand the nuances of these provisions. I don’t know the support services and recommendations schools are currently providing, how they are objectionable, and what schools would be permitted to do in terms of addressing social emotional problems that are affecting the students’ educational progress if this legislation passed. Friends of mine seem to indicate that this is sparked by questions of sex and gender.

One of our local journalists, Dave Bangert (whose Substack I would recommend to anyone in Tippecanoe County) asked the six candidates for the West Lafayette School Board their opinion.

Question: The Indiana General Assembly debated a pair of bills in spring 2022 that would have provided more oversight of classrooms, including asking teachers to post lesson plans at the start of the year so parents could review them and limiting how schools teach what were termed “divisive concepts.” Do you back those proposals. Why or why not?

Laurence Wang: Those proposals make sense to me. Communication and information sharing are two major ways to improve classroom transparency. Parents are ultimately responsible for their children’s education. When parents are more comfortable with what their children are taught in classroom, they will be more willingly to send their kids to our school. I believe classroom transparency will help WLCSC’s enrollment.

(Emphasis added). Perhaps not incidentally, Wang was also one of those who expressed support for charter schools. So, I differ strongly with him. Also, the idea that West Side’s enrollment is suffering because teachers are not posting their curricular material in August strikes me as not aligning well with the available facts. I’d say our biggest challenge in that regard is that we are landlocked. Unlike, say, our neighboring Tippecanoe School Corporation, there aren’t any cornfields waiting to be turned into subdivisions that will add more students. And, not for nothing, but teachers hated HB 1134 with a white hot passion. If you want to see teacher retention plummet, start embracing those sorts of policies.

West Lafayette Schools: Vote to Re-Elect Karen Springer, Winner of the 2022 Indiana School Board Association “Outstanding Boardsmanship Award”

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Re-Elect Karen Springer to the West Lafayette School Board

Continuing my advocacy for the West Lafayette Schools, a quick post to anyone paying attention that you should vote to re-elect Karen Springer to the board of the West Lafayette Community School Corporation school board.  It was recently announced at the Indiana School Board Association’s Fall Conference that Dr. Springer is the 2022 winner of the ISBA Outstanding Boardsmanship Award. Karen has done great work for the West Lafayette schools, and its fantastic to see her get recognition for that work not just locally, but state wide.

Our district has the best schools in the state. Niches.com released its 2023 rankings. West Lafayette is ranked the number 1 district in the State and number 8 in the nation. It is ranked #1 in the State as a place for teachers.  Karen is part of the reason. She and the school board have hired superintendents and administrators who, in turn, have managed the school in a way that has allowed the school to provide an environment where teachers can teach and students can learn.

As many of the readers here know, I filled a vacant Board seat in 2015 and 2016. During that time, Dr. Springer served as an outstanding mentor, happily and effectively answering any questions I had. Since 2017, I’ve had the opportunity to work with Dr. Springer more closely as a citizen member of the school corporation’s policy review committee. (My utility to the committee had more to do with my legal drafting skills than my policy sensibilities, I think.) Initially, the committee undertook a comprehensive review of all of the school’s policies, which then served as the basis for recommendations to the Board as to amendments. Following that, the committee met periodically to review existing policies as laws changed or the need otherwise arose. Dr. Springer’s institutional knowledge and meticulous attention to detail were and are invaluable. She had been through a similar review process a decade earlier and was able to provide insights from that experience. This is not glamorous work, but it is important work of the type which Dr. Springer performs diligently. And, obviously, that policy review process is just one small slice of the kind of thing that she is called upon to address as a member. Her steady service through the school corporation’s highs and lows has served the corporation well during the last several years which have been more turbulent than usual. During these times of passionate public interest, Dr. Springer has been able to respond in a manner that has been calm, reasoned, informed by experience, patient, and, where necessary, firm.

Dr. Springer has helped the school navigate so much — the Batagiannis superintendent drama, the state’s slashing of education funding in 2010, passing 2010 and 2017 local school referendums in response, and hiring quality superintendents, just to name some high profile stuff. Frankly, when a school board is working well, you never hear about the work they are doing. And, I can tell you, when it was time to drum up support for renewal of the referendum in 2017, Karen was there putting in the work to help it succeed. She wasn’t just passing the necessary resolutions for the board, she was helping with canvassing efforts to ensure public support.  She’ll be there again in 2024 when it comes up again.
West Lafayette voters get three votes for school board. If you like our schools, keep a good thing going, and cast one of them for Karen.

West Lafayette’s Karen Springer receiving the 2022 Outstanding Boardsmanship Award from the Indiana School Board Association at its Fall Conference for her work with the West Lafayette School Board.

Learning Loss from School Privatization

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“School choice” was always a pretext in Indiana. Also, it hurts educational outcomes.

The original rationale for “school choice” in Indiana was to empower parents with limited resources to take their kids out of “failing schools” and improve their education by putting them in better schools. Advocates for public funding of alternatives to traditional public schools barely even nod toward those original rationales anymore. Vouchers are available to even families that are relatively well-to-do. There is no requirement that the student has ever been in a public school, failing or otherwise. And, the evidence reflects that, on the whole, student outcomes are worse when they are moved out of the traditional public schools. Steve Hinnefeld has an excellent post on the subject today.

[T]horough evaluations of large-scale voucher programs – in Indiana, Louisiana, Ohio and Washington, D.C. – found overwhelmingly negative effects on learning as measured by test scores.

“We’ve seen some of the biggest drops in test scores that we’ve ever seen in the research community for people who take vouchers and go to private schools,” he said.

The impact on math scores, in some cases, was twice as large as the test-score decline associated with the pandemic, he said. It was on the scale of what New Orleans students lost when Hurricane Katrina shut down schools and forced families from their homes.

“They suffered that badly, in terms of their test scores,” he said. “We’re talking about nine or 10 months loss of learning. It’s massive.”

As always where Steve’s posts are concerned, I recommend reading the whole thing. So, if they’re actively hurting student outcomes, why do we keep throwing money at charters and private school vouchers instead of devoting that money to our public schools? Because, and I’d advise you to sit down dear reader, it was never about helping poor kids get out of failing public schools. “School choice” is about 1) subsidizing religious education, 2) weakening teacher’s unions, and 3) diverting public funds to friends and well-wishers of school choice advocates. Many have suggested that it’s also about re-segregating the public schools. But that wasn’t part of my original big 3, so I’ll just mention it in passing.

Charters can complement traditional public schools with tight regulation like what we’ve seen in Massachusetts. Maybe vouchers can too. But that’s not what Indiana will ever do because that’s not the point of the exercise. From the local level on up to the federal level, it’s important to vote for people who categorically support our traditional public schools. It’s important because there is more to the “public” part of public schools than merely government funding. It denotes a population with a common interest. We are not merely a collection of individuals, workers, consumers, or taxpayers. The concept of citizens and the public are closely aligned. Public education isn’t important merely because it serves the public, it is important because it creates the public. The school’s role as a public institution is something that often gets left out or ignored when the subject of “school choice” and vouchers are brought up. Disregard of the public school’s role in creating the public is a fundamental flaw in the “money-follows-the-child” model of funding education. And, as it turns out, school choice doesn’t help improve educational outcomes in any case.

Satanic Temple Sues Indiana Over Abortion Ban

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Tenet III – One’s body is inviolable, subject to one’s own will alone.
Tenet V – Beliefs should conform to one’s best scientific understanding of the world. One should take care never to distort scientific facts to fit one’s beliefs.

I used to regard the Satanic Temple as sort of the merry pranksters of religious rights activism. They have produced things like the Satanic Children’s Big Book of Activities and a giant statute of kids looking up to a seated Baphomet which they offer to state capitols that seek donations of religious statues. But reading their complaint and the attachment, what they’re doing seems a little less frivolous. With respect to Satan, they say, the Satanic Temple “venerates, but does not worship, the allegorical Satan described in the epic poem Paradise Lost – the defender of personal sovereignty against the dictates of religious authority.” They also cite their Tenets III and V in support what they describe as their “ritual of abortion.” Tenet III says, “One’s body is inviolable, subject to one’s own will alone.” Tenet V says, “Beliefs should conform to one’s best scientific understanding of the world. One should take care never to distort scientific facts to fit one’s beliefs.”

With respect to the “Satanic Abortion Ritual,” the attachment to their complaint says:

The Satanic Abortion Ritual is a destruction ritual that serves as a protective rite. Its purpose is to cast off notions of guilt, shame, and mental discomfort that a patient may be experiencing due to choosing to have a medically safe and legal abortion.

…

This ritual is intended to alleviate some of these stressors and empower the patient to be guided by the Third and Fifth Tenets when pursuing their decision. The purpose of the ritual is not to persuade someone to have an abortion if they are undecided. Instead, the ritual serves to assist in confirming their decision and to ward off the effects of unjust persecution, which can cause one to stray from the paths of scientific reasoning and free will that TST members strive to embody.

The ritual itself is described as consisting of looking at one’s reflection to remind the person of their personhood, reciting the third tenet prior to the abortion and reciting the fifth tenets.

The lawsuit is brought on behalf of unnamed “Involuntarily Pregnant Women” who seek to remain anonymous for fear of violent retribution from domestic terrorists motivated by animosity to proponents of abortion. The complaint describes zygotes, blastocysts, embryos, and fetuses, and clarifies that Indiana law deviates from the medical literature by describing all of these as “fetuses.” It then challenges the law as an unconstitutional taking of the Involuntarily Pregnant Women’s property rights in their uteruses without just compensation.

The uterus of an Involuntarily Pregnant Woman is a tangible thing in which she has
property rights, including without limitation, the property right to:
A. Have her uterus removed for any purpose, including without limitation, changing
her sex; or
B. Rent it out to a third party as a gestational carrier; or
C. Retain any blastocyst, embryo, or nonviable fetus in her uterus; or
D. Exclude any blastocyst, embryo, or nonviable fetus from her uterus;
E. Remove any blastocyst, embryo, or nonviable fetus from her uterus.

Citing the commercial value of gestational surrogacy, it challenges Indiana’s abortion ban as involuntary servitude in violation of the Thirteenth Amendment.

I don’t expect those property/servitude arguments to fly. But the complaint gets more interesting when it states that Indiana’s abortion ban impermissibly discriminates between those who become pregnant by incest or rape versus those who become pregnant by accident.


73. All women have the fundamental right to use contraception and engage in sex just for the pleasure and intimacy it brings and without any purpose or intent to become pregnant (“Protected Sex”).

74. The Involuntarily Pregnant Women engaged in Protected Sex but became pregnant without their consent due to the failure of their Birth Control.

75. The Indiana Abortion Ban imposes criminal penalties on anyone who provides an abortion to an Involuntarily Pregnant Woman.

76. The Indiana Abortion Ban does not apply to anyone who provides an abortion in the first ten (10) weeks of EGA to a pregnant woman who is pregnant due to rape or incest. Indiana
Code § 16-34-2-1(A)(2)(a).

77. The Indiana Abortion Ban discriminates between two different classes of women who are pregnant without their consent – women who are pregnant by accident and women who are pregnant by rape or incest.

It also challenges the disparate treatment between women who become pregnant by protected sex versus those who are pregnant by in vitro fertilization, citing IC 16-34-1-0.5 as excluding in vitro fertilization from the Indiana Abortion Ban.

Finally, the complaint argues that the state’s abortion ban violates Indiana’s Religious Freedom Restoration Act. (IC 34-13-9). (Unfortunately, later on – in paragraph 96 – they cite something other than the Indiana Code, section 73-401 et seq. A quick Google search suggests that this is a reference to Idaho’s RFRA.) Indiana’s RFRA is worded very broadly. Religious exercise is defined as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” I don’t see that the chapter actually gets around to defining “religion.” I have not done a deep dive, but I don’t think Indiana courts have grappled directly with this question. And, I think federal courts have grappled with it to a degree, but mainly focused on whether the religious belief was “sincerely held.” When you get into it, today’s “religions” are yesterday’s “cults.” And courts have not thought it their place to police whether any particular person is correct about how they are practicing a religion. So, even if the thinkers and the leaders say that Religion X dictates one thing, they aren’t going to dismiss a practitioner who sincerely believes that Religion X dictates a different thing. And even if you can argue that the Satanic Temple started as something of a joke, the longer it sticks around the greater chance that some of the people who support it will be utterly sincere in embracing its tenets.

I’m not optimistic that they’ll win this lawsuit, but it throws a bit more sand in the gears of the Indiana General Assembly’s efforts to take away the reproductive rights of Hoosier women and girls.

Update: People a lot more knowledgeable than me pointed toward an interesting law review article that’s relevant: “Forced Labor, Revisited: The Thirteenth Amendment and Abortion.” (One of the people observed that, “enslaved women were *literally* the means of production of valuable assets, and part of the legislative history of the 13th Amendment is that it covers their forced pregnancies as forced servitude.”) And, look, I get it – the argument that pregnancy is slavery is jarring. But, as the author notes, that’s largely because we view pregnancy through the lens of women who want to be mothers. I doubt the argument that state compelled pregnancy amounts to involuntary servitude will carry the day, but it’s worth reading (if even only to reject it afterward) rather than simply rejecting the argument out of hand.

The author dismisses the argument that women assume the risk of pregnancy by engaging in sex by making the analogy to a worker who is subjected to compulsory service under the guise of a contract. “A contract for service (already a pretty strange characterization of her “consent”) is consistent with the Thirteenth Amendment only if the contractor ‘can elect at any time to break it, and no law or force compels performance or a continuance of the service.'” I was happy to see the author engaged with the critique that family obligations were not the same as economic obligations. He replied, in part, “Child support obligations do not raise Thirteenth Amendment concerns because they do not require specific bodily labor from anyone; one can raise the money any way one likes, just like any other contractual obligation.”

For my part, I see this argument lost in the same morass that makes the rest of the abortion debate challenging: when and why is human life entitled to greater moral consideration than other kinds of life? People can and have written books wrestling with these questions. I’m not even going to scratch the surface with a blog post. The closer the zygote, blastocyst, embryo, or fetus is to a self-sufficient child, the more likely it is that have some moral duty at least not to go out of our way to let it die. This is obviously in conflict with the compelling rights of the individual mother. Whatever you think of the textual grounding of Roe, its practical balancing of these interests on the trimester model was fairly sound.

Indiana Secretary of State: Michael Leppert on Destiny Wells and Commitment to Service

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Michael Leppert has an excellent post on the Indiana Secretary of State race. When I graduated college and went to work at the State House in the mid-90s, I barely knew what the office did. But that was back when we had the luxury of taking our election infrastructure more or less for granted. With Trump enthusiasts attempting to tear down that infrastructure by, among other things, baselessly attacking the results of the 2020 election; election oversight by the Secretary of State’s office becomes much more important.

Somehow the issue of military service has become a dominant theme in the discussion of this race. Destiny Wells, the Democratic candidate, has highlighted her and has unquestionably served. Diego Morales, the Republican candidate, has also touted his military background, but the details of his service are … murky. From Leppert’s post:

All three candidates have military service in their backgrounds, with Democrat Destiny Wells a Lt. Colonel in the Army National Guard, having enlisted 19 years ago while a student at Indiana University. She deployed to Afghanistan in 2016-17.

There’s that word again: service. Wanting to be Indiana’s Secretary of State requires a primary desire to serve, really serve, in that role. And to do it without an eye on the next thing, or any number of other things, is what this time in our history requires also.

Morales has sought public office before, losing in the primary running for Indiana’s CD-4 in 2018. As a candidate for secretary of state, he initially rejected the 2020 presidential election results, calling it a “scam,” according to the Associated Press. He has since said President Biden is the legitimate president.

Wells, who announced her candidacy for secretary of state in January, told the Indiana Capital Chronicle that the 2020 election was not stolen and peddling that theory is a threat to democracy.

Ultimately, Leppert observes, Secretary of State is a position where we need a person who seeks to serve. Serve in a way that builds confidence in our voting systems. Wells’ background and public statements make it pretty clear that she’s better situated to do this.

West Lafayette School Board: Anti-Incumbent Candidates Receptive to Charters

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Charters are bad for traditional public schools in Indiana. Do not vote for candidates who embrace them.

On Thursday night, West Lafayette City Councilman David Sanders hosted a forum for the six candidates running for the West Lafayette School Board. It was not a lengthy affair. Opening, closing, and two questions that all of the candidates answered. One of the questions was fairly anodyne – what do you want to accomplish if you are elected? The second question, however, was a bit of a curve ball. He asked if the candidates supported charter schools. This really should have been a bunny of a question. If you’re running to be on the board of a traditional public school as strong as the West Lafayette Community School Corporation, there is no upside to embracing charters. You should be committed to keeping a good thing going.

The two incumbents, Witt and Springer, are categorically against charters. They’ve been in the trenches for many years and have seen how the Indiana General Assembly has used charters and private school vouchers to undermine the traditional public schools in Indiana. While it may work in other places, it’s a non-starter here. (As I’ve pointed out on this blog, Massachusetts has managed to make some productive use of charters, but it has a regulatory structure that the Indiana General Assembly will never, ever embrace.) A third candidate, George Lyle, seemed to recognize that as well, nodding toward the theory behind charters but not supporting the way they’re implemented here.

On the other side of the fence, we have an anti-incumbent group of three candidates. That this group is receptive to charter schools is a matter of concern. Wang and Mumford said clearly that they support charter schools. Janes who answered the question later in the line up and perhaps sensing the mood of the crowd, hedged quite a bit before ultimately landing on the the position that West Lafayette was not the place for them. [Update 9/26/2022: I’ve received feedback from people who disagree with my characterization of the Janes’ response. My recollection was an answer that spent most of the time allotted speaking to why parents would want charter schools before, as I said, ultimately landing on the position that West Lafayette was not the place for charter schools. I do not recall the opposition to charters being stated in the beginning of the answer or hearing anything that alluded to concerns about how the State has used charters to undermine public education in Indiana. I guess the quibble was with me calling this a “hedge.” Fair enough. If a video of the forum surfaces, I’ll take a look at it to see if my recollection is faulty. Memories being what they are, it’s possible I conflated some of her response with the Mumford answer since the two seem aligned on most issues.]

So, what’s wrong with charter schools? In a Facebook post, one of our teachers said she couldn’t support a candidate who supports charters. A person in the thread respectfully disagreed, arguing that competition is good. Well, what’s wrong with that? Isn’t competition good? Not the way things are set up in Indiana. In the Massachusetts example, the charters are tightly regulated with a lot of good oversight  by its state board of education so that charters and traditional public schools complement each other. In Indiana, on the other hand, it’s the wild west for charters. They don’t “compete” by the same rules. They fracture the school system, divert money from traditional public schools, and there is no evidence that students perform better in those charters — the outcomes are either the same or worse.

In Indiana, recently, the Indiana Virtual School and Indiana Pathway Academy were chartered by the tiny Daleville School corporation which received a fee of 3% of the charter schools’ state funding. The result was that they inflated their numbers to double what they could prove and, according to a State Board of Accounts audit spent more than $85.7 million with vendors who were connected with school officers or employees but failed to provide appropriate paperwork.
It used to be that a school board member’s attitudes about charters was not a matter of direct concern. To be sure, a candidate’s attitudes about charters is a pretty good proxy for their awareness of the challenges faced by traditional schools in Indiana and their level of concern for those challenges. If you think that what the Indiana General Assembly has been doing with charters is just a matter of providing a little “healthy competition,” you either haven’t been paying much attention or the stresses that state policy has put on our local schools isn’t a matter of great concern for you. But recent changes in the law have made this more of a direct concern for schools. Pursuant to IC 20-40-3-5, public schools are authorized to transfer money from referendum tax levies to charter schools operating in the school’s attendance area. West Lafayette’s current referendum tax levy will come up for re-authorization during these school board members’ terms of office. When that happens, we do not need members on the board who are at all sympathetic to charters.

Indiana Trial Court Temporarily Reinstates Reproductive Rights and Enjoins SB 1

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Liberty

“[T]hose who wrote our Indiana Constitution believed that liberty included the opportunity to manage one’s own life except in those areas yielded up to the body politic. The common law, our constitution, and Indiana’s statutes all reflect a commitment to self-determination.”

The Circuit Court Judge for Owen County, sitting as special judge in Owen County, has enjoined the enforcement of Indiana’s recently passed SB 1 which stripped Hoosier girls and women of their reproductive rights. The preliminary injunction was based on the court’s determination that Plaintiffs — a group including the ACLU and Planned Parenthood — were reasonably likely to prevail on the merits of their argument that Article 1, section 1 of the Indiana Constitution protects a right to bodily autonomy that SB 1 violates.

Article 1, section 1 provides:

WE DECLARE, that all people are created equal; that they are endowed by their CREATOR with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that all power is inherent in the people; and that all free governments are, and of right ought to be, founded on their authority, and instituted for their peace, safety, and well-being. For the advancement of these ends, the people have, at all times, an indefeasible right to alter and reform their government.

The court observes that the right to bodily autonomy had been recognized as judicially enforceable in a pair of 1855 decisions and that whether a right to privacy exists under the Indiana Constitution is an open question. The court further observes that, in 2004, the Indiana Court of Appeals recognized a right to abortion under Art. 1, sec. 1. However, that Court of Appeals decision was vacated when the Indiana Supreme Court took up the case in question. In finally deciding that case, the Indiana Supreme Court specifically declined to weigh in on whether the Indiana Constitution protects reproductive rights. The upshot is that the question remained open.  The trial court in this case has determined that the Indiana Constitution does protect reproductive rights inasmuch as the state constitution has been more protective of individual rights than has the federal rights.

The debates of our Constitutional Convention leading up to ratification of the current Indiana Constitution suggest that those who wrote our Indiana Constitution believed that liberty included the opportunity to manage one’s own life except in those areas yielded up to the body politic. The common law, our constitution, and Indiana’s statutes all reflect a commitment to self-determination.

The Court acknowledges that abortion was not lawful at the time the Indiana Constitution was ratified. However, this does not foreclose the language of Article I, § 1 from being interpreted at this point as protecting bodily autonomy, including a qualified right by women not to carry a pregnancy to term. The significant, then-existing deficits of those who wrote our Constitution particularly as they pertain to the liberty of women and people of color-are readily apparent. As Justice Boehm points out in his Brizzi dissent, “[i]n 1851 we had slavery in many states and Article II, Section 5 of the 1851 Constitution denied the right to vote on the basis of race. Married women had no property rights until they were conferred by statute in 1923. Both of these subjects were debated at length in the 1851 Constitution, but both were left in a state that, by today’s lights, is wholly incompatible with fundamental principles of ordered liberty.” Our analysis here cannot disregard this reality, particularly when considering questions of bodily autonomy.

…

It is without question that the State has an interest in regulating abortion. Plaintiffs concede as much at oral argument. State interests in abortion regulation can include protection of maternal health, preserving fetal life, maintaining societal ethics, promulgating medical ethical standards, and creating bright line rules distinguishing between infanticide and lawful abortion to name a few.

It is also without question that the judicially enforceable liberty rights that are reasonably likely to exist under Article I, § 1 are not unqualified. S.B. 1, however, materially burdens Hoosier women and girls’ right to bodily autonomy by making that autonomy largely contingent upon first experiencing extreme sexual violence or significant loss of physical health or death.

S.B. 1 also materially burdens the bodily autonomy of Indiana’s women and girls by significantly and arbitrarily limiting their access to care. S.B. 1 does so by requiring women and girls to seek treatment at hospitals or ambulatory surgery centers that are majority hospital-owned. The huge majority of abortions are performed in the clinic setting. The evidence supports that the hospitalization requirement is likely to significantly limit the availability of the procedure (even for currently excepted rape and incest victims), will likely significantly increase the cost, and is unlikely to increase the safety of Hoosier women and girls. The Indiana State Health Department’s own reports support the contention that abortion clinics are capable of safely providing the treatment.

(Internal citations omitted, emphasis added).

This is obviously just the initial salvo in the litigation. This being Indiana, I’m not terribly optimistic that the Indiana Supreme Court will ultimately adopt this reasoning. But, it’s definitely a fight worth having. And, the referendum in Kansas suggests that the kinds of draconian restrictions on reproductive liberty adopted by the Indiana General Assembly this summer are not popular, even in red states. So, maybe my pessimism is misplaced.

Nostalgia and Cynicism Masquerading as Wisdom

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I made the mistake of reading the newspaper comment section, and it brought to mind a couple of themes. First is how nostalgia distorts things. The tragedies of today resonate way more than the statistics of yesterday. So, you have people who compare the slings and arrows they are currently experiencing or the fire hose of Bad News from around he world on the one hand with the sepia toned memories of yesteryear, relieved of the clutter, chaos, anxiety, and other negativity that accompanied yesteryear as it was actually happening. It’s like thinking that the music of [pick decade] was so much better than today’s music. You’re comparing every song you’re hearing today against only those songs from the 70s or 80s that survived. Sure, “Billie Jean” was pretty catchy, but 40 years later, it’s not all mixed in with Vandenberg’s “Burning Heart.” The latest murder or robbery is pretty disturbing, especially if it happened in town. And it doesn’t really become less disturbing if I quote statistics telling you that violent crime in the U.S. is about half as prevalent now as it was 30 years ago. Things can *feel* worse even when they are objectively better.

The second was what I call cynicism masquerading as wisdom. Culturally, I think we just regard people who perceive or predict gloom and doom as being more serious than people who point out the good or even the stable and mundane. If you predict dangers that don’t materialize, people mostly don’t remember or care. Better safe than sorry, I guess. If you predict sunshine and rainbows prior to a disaster, people will roast you for it. Also, there’s a certain dog-bites-man quality to things working. It’s just not news. Man-bites-dog, on the other hand, deserves a headline. Given that bias for novelty, it’s easy to get the sense that everything is collapsing.

I don’t know that there’s a lot of help for these things. But, the anxiety associated with thinking you live in Fallen Times compared to the good old days isn’t healthy for us. I think the best we can do is probably to be aware of these dynamics, calibrate for them, and adjust our filters accordingly. Also, take a walk and talk to your friends, family, and other real people.

Vote for the Builders

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Idea: Don’t vote for someone whose idea of a good time is venting their spleen on “Nextdoor.com”

Election season is once again upon us. From local races to national ones, it seems like every election cycle is critical. What should you look for in a candidate? Mere partisanship is not enough. For example, four years ago, everyone was rightfully pissed at Trump and his supporters. But, I know of situations where they expressed that anger by voting in local races for any individual who happened to have a “D” by their name, electing people that other Democrats have come to view as toxic. In our local school board races (a subject near and dear to my heart), you can’t fall back on partisan labels anyway. So, how do you pick the people who are going to be good for your community and good at governing?

I’m going to suggest that we all look for the builders. Look for the people who participate in the community and make its institutions stronger. The people who coach little league or organize field trips or plan the Rotary fundraisers. The ones who strengthen the non-profits, run the food drives, or build props for the musical. Avoid the ones who seem always to tear down. Partisanship for partisanship’s sake is a red flag. The people who are perpetually beating a drumbeat of doom, eager to cast stones at functional and dysfunctional institutions and programs alike, never giving credit where it is due — these people are not seeking to improve things. And, if placed in office, they will not improve things. What kind of job do you think a person is going to do in office if they spend their days and nights on social media tearing down organizations they seek to lead? If they paint every bump in the road as a crisis, do you think they’ll suddenly become level-headed and efficient once elected? If negative drama is their brand, it’s not going to change just because they become an officeholder.

This sort of advice might ring hollow, might even be hollow, for state and federal races. Politics at that level is, to some extent, gang warfare; and it’s a numbers game. If your gang is on the outs, it doesn’t matter how civic minded its members might be. But local politics doesn’t have to be that way, and shouldn’t be that way. Don’t vote for the person who shows up to the public meeting to yell at local officials about, say, health policy but who would never volunteer at the vaccine clinic or serve as secretary on the parent-teacher association. Vote for the person who would organize an ice cream social to raise money for the school music program. If your school’s serving the public well, look for the candidates who have been involved in making it that way.

Ultimately, with local races, take the time to find out who the people are, and what they’ve done for the community. If their only claim to fame is an active online presence or pointed and perpetual criticism of the institutions they seek to run, electing them is going to give you a bad time. You might find yourself wondering why that little slice of local government you used to never hear about is suddenly a dysfunctional source of headlines.

Former state senator Brent Waltz sentenced on federal campaign finance charges

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Brent Waltz has been sentenced to ten months in prison on federal campaign finance charges. You can read about the details of the indictment here and here. But, I’m going to summarize it as Waltz getting casino money and being part of a straw man donor scheme to funnel that money to his 2016 primary campaign to be the Republican nominee for the Ninth District Congressional seat. Waltz lost that primary to “Tennessee” Trey Hollingsworth. Waltz ultimately only picked up 13% of the vote in the primary which included four other candidates.

The reason I want to underscore that the money was connected to the casino industry is that Waltz became a state senator after unseating Larry Borst in the 2004 primary. Borst had served for a decades and was chair of the Senate Finance Committee. As long-time State House reporter, Jim Shella observed in a 2020 IBJ column:

Waltz was first elected to the state Senate in 2004 after he won a GOP primary against powerful Finance Committee Chairman Larry Borst. Borst was opposed to more gambling, and Waltz had the support of Republicans who saw Borst as an obstacle. There has been an open discussion in Statehouse hallways ever since about Waltz’s ethics.

I won’t go so far as to say that Borst would be gratified by Waltz’s conviction and sentencing. But his concerns about the gaming industry in Indiana certainly seem to have been proven valid.