Masson's Blog
Sen. Kruse is engaged in a bit of culture war nonsense with SB 131 which mandates that each school classroom and library display a framed picture or durable poster with “In God We Trust” and the U.S. and Indiana flags. The poster has to be 11″ x 17″, the “In God We Trust” has to be at least 4″ x 15″ and the flags each have to be at least 5″ x 5″. No funds are appropriated for this expense.
This is bush league stuff. We’ve got real problems.
Whenever there is an act of violence in my community, it’s pretty reliable that people express a belief that things are more dangerous these days. And, just reading national news and related commentary, I think it’s common to think that things are more dangerous these days. I don’t know what the statistics are locally, but I know that – despite how people may feel – violent crime is down over the last 20-30 years. “Using the FBI numbers, the violent crime rate fell 51% between 1993 and 2018. Using the BJS data, the rate fell 71% during that span.”
I think reasons we don’t feel safer include: 1) Nostalgia softens the rough edges of the past; 2) our brains are wired to amplify current concerns about danger; and 3) we’re exposed to more information — including bad news about violence — than we were in the past. On that last point, I don’t think our brains are wired to distinguish very well between reports of violence in the immediate vicinity and reports of violence that are more distant. In terms of how we feel reports of violence, near and far, just get added to one big bucket of anxiety. Intellectually, we know that there’s a difference, but I don’t know that our minds and bodies readily make that distinction on an emotional level.
Sen. Taylor has introduced SB 88 attempting to address conflicts of interest by charter school organizers. The issue is with these ostensibly public schools directing public money to themselves or their relatives. There is not a lot of transparency or oversight with these operations — we saw that with the Indiana Virtual School charter where little Daleville was theoretically providing oversight. One potential issue is self-dealing by charter schools — where they can do things like lease property from subsidiaries of the charter school operators. Karen Francisco outlined what the shell game can look like in Indiana.
SB 88 would prohibit a charter school organizer from entering into a contract with any person from which an officer or employee (or relative of an officer or employee) will receive compensation. It creates an exemption for contracts valued at under $1,000. This is certainly a start, but I’m not sure it goes far enough. For example, I’m not sure it covers the situation where the self-dealing arrangement goes three or four companies deep — e.g. the organizer rents at higher than market price from a nominally independent third party who then enters into an inflated maintenance contract with the organizer’s son.
Incidentally, this also helps illustrate why the Presidential candidates who try to distinguish between supporting for-profit and not-for-profit charter schools are offering an unhelpful distinction. I’m no happier if public schools receive less money and the public money goes through a non-profit charter school to a for-profit company owned by the charter school operator’s daughter.
Sen. Niezgodski has introduced SB 51 which would disqualify call center operators for grants if they relocate their operations to a foreign country and imposes a civil penalty on a call center operator receiving certain state grants if the operator doesn’t notify the Indiana Economic Development Commission 120 days before the relocation. It also requires that “all call center and customer service work” done for state agencies in the executive be performed entirely within the state of Indiana.
There are a number of problems with this legislation. First of all, I don’t see that call center or customer service work is defined anywhere. There is also an effort to carve out larger call centers by referencing aggregate hours worked by employees that I don’t think quite succeeds with what can be a surprisingly slippery drafting problem. Second, how much are we spending in state grant money to support call centers? Is it enough to make this legislation worth the effort? Third, why the narrow focus on call centers? Are these really the jobs that we want to make a particular priority in Indiana? I’m tempted to take issue with the foreign country provision, but there might be some Commerce Clause issues if this legislation was triggered by a call center moving to a different state within the U.S.
This feels like one of those bills that’s trying to address a very specific situation, but I don’t know the back story.
Sen. Leising has introduced SB 58 which appears to be a reaction to the revelation that last year’s ILEARN test did not produce reliable metrics. Under this legislation, a school’s performance rating for 2018-2019 can’t be any lower than 2017-2018, “additional consequences” for school improvement may not be applied for the 2018-2019 school year, and ILEARN scores can’t be used for a teacher’s performance evaluation. “Additional consequences” has to do with provisions under IC 20-31-9 providing for escalating consequences for each year that a school is in the lowest performance category (e.g. state takeover or closure in the 4th year.) Note: I’m going off the digest with for the proposition that the “additional consequences” are paused. I can’t quite parse the language of the bill to reach the conclusion that the clock stops running for the 2018-2019 school year – my reading suggests that the 2017-2018 performance will be substituted unless the school wants the 2018-2019 performance to be applied. But the language is pretty dense, so I might be misreading something.
Sen. Leising has also introduced SB 59 which provides that ILEARN scores (and other “objective measures of student achievement and growth”) may not account for more than 5% of a teacher’s total performance evaluation. I should be a little tempered in my critique here – it’s an improvement on the status quo. That said, I would strongly argue that ILEARN is not an objective measure of student achievement or growth. Fact is, we don’t know what the hell it is measuring. Its metrics – which, lest we forget, cost the State $40 million – are unreliable. ILEARN suggests that West Lafayette, the 20th best STEM school in the nation, has 40% of its students lacking proficiency in math or English. If the test missed that badly in West Lafayette, it can’t be trusted in other schools either. Using this test as even 5% of a teacher’s evaluation is too much. Furthermore, even if we had a standardized test that was a reliable measure of student growth and achievement, using them as a measure of teacher performance is problematic since there are too many confounding variables for us to mistake correlation for causation. Usually those test results end up being pretty well correlated with a student’s socioeconomic status.
Not a bad start, but seems like there is room for improvement here. I’m an enthusiastic amateur when it comes to education law – I’d love to see the opinions of people who know the ins and outs of this stuff.
SB 30, introduced by Sen. Randolph, would expand the tax credit for teachers for purchase of classroom supplies from $100 to $500. The related fiscal note estimates that this would decrease State tax revenues by between $5.9 million and $15.5 million annually. If I understand the note correctly, the lower bound is the amount claimed by teachers under a similar federal provision that’s capped at $250. It’s assuming that the $250 cap more or less lets teachers claim everything they’re spending. The upper bound of $15.5 million basically assumes that the teachers currently claiming $250 have enough expenses left over that they could max out a $500 credit as well.
I’m generally of the opinion that teachers shouldn’t have to pay for classroom materials out of pocket. So an increase in the credit sounds like a good idea. And, if we then learn that teachers are subsidizing our education system to the tune of $15.5 million per year, we should raise the credit again.
The Democratic primary brought wine caves into the national discussion. But have you heard about the fabled target shooting caves of Indiana? Me neither. But SB 9 addresses landowner immunity for people hurt there. I presume they are beautiful but deadly. Like Gymkata. New legislation states:
A person who goes upon or through the premises, including caves, of another . . . for the purpose of target shooting or preparing to target shoot does not have an assurance that the premises are safe for that purpose.
I’m just having a little bit of fun with this one. SB 9, introduced by Sen. Tomes is an effort to bring target shooting under the broader immunities that are already in place for letting people onto your land to use natural resources there and for “agritourism.” The general idea behind what I’m going to call the natural resource immunity (I think there might be another shorthand for this that’s not coming to mind) is that, as a policy matter, we like it when people enjoy the great outdoors for swimming, camping, hiking, sightseeing, accessing or departing from a trail, hunting, fishing, or trapping. However, if standard rules of negligence apply, landowners who might otherwise be cool with letting people wander about are not going to be inclined to take the risk. The immunity does not extend to malicious or illegal acts and preserves common law rules about attractive nuisances.
Existing law defines “agritourism activity” as:
(1) an activity at an agricultural, horticultural, or agribusiness operation where the general public is allowed or invited to participate in, view, or enjoy the activities for recreational, entertainment, or educational purposes, including farming, ranching, historic and cultural agricultural activities, self-pick farms, or farmers’ markets;
(2) an activity involving an animal exhibition at an agricultural fair; or
(3) natural resource based activities and attractions, including hunting, fishing, hiking, and trail riding.
Landowners are given certain immunity if a participant in an agritourism activity gets hurt from an incident arising out of the “inherent risks of agritourism activity.” SB 9 would add target shooting as an agritourism activity.
So, what’s with the caves? It has to do with a legislative drafting choice. The existing natural resource immunity law covering hiking made special mention of caves (I’m going to guess there was a case involving caves at some point). This language was mirrored when the General Assembly added a similar provision for hunting, fishing, and trapping. So, the language was again carried over in this legislation specific to people who enter onto land for the purpose of target shooting.
As a policy matter, I think my main concern is whether this affects liability to uninvolved third parties who get hurt. The scenario I have in mind is a landowner who allows people to use the land for target shooting where the landowner knows or should know that it’s not properly set up for target shooting — maybe it’s too close to a road without some kind of proper backstop or barrier. An errant shot hits someone not involved with the target shooting. The errant shooter doesn’t have the resources to pay for the damage. Is an obvious asset — the land owned by the negligent landowner — protected and unavailable to pay for the damage caused by the negligence? My preference would be to see language specifying that the immunity does not extend to claims by third parties uninvolved in the target shooting.
Sen. Niemeyer has introduced SB 82 which would prohibit counties from using schools as polling places after December 31, 2023. It also contains a provision allowing a school to request that its property not be used as a location prior to that date. (Disclosure: I’m going off of the bill digest. I can’t get the body of the bill to load. The General Assembly’s website continues to be almost unbearably clunky as it’s been since its PDF/frame-heavy redesign many years ago.)
As with so many things, this is a decision the school should make. I don’t know what the stated rationale for this bill will be. If I’m being cynical, my thought is that the “wrong” sorts of voters tend to be in and around schools (especially if a school referendum is on the ballot!) There is a superficially plausible security argument to be made. Having a bunch of strangers coming in and out of the school could potentially create some anxiety. But the fact that this change can apparently wait for four years undermine the idea that this is a security concern. And, again, a school would be in a better position to make that call.
This will potentially add expense to the voting process as the election officials might have to rent space that the schools might have otherwise made available to them for no charge.
There are plenty of takes on the impeachment of Donald Trump, but for posterity’s sake, here is another. Donald Trump has been impeached with 230 votes in favor.
I think the impeachment and removal process is an extraordinarily serious thing. I thought the impeachment of Bill Clinton was frivolous, I never supported the impeachment of George W. Bush, and I wasn’t particularly supportive of calls for Trump’s impeachment early on in his Presidency. All that throat clearing aside, I think it was appropriate in this case. Trump was using the power of his office and national security money to shake down the President of Ukraine to have him interfere in a U.S. election on Trump’s behalf. Using the power of the Presidency to invite a foreign power to meddle in a domestic election is exactly the kind of thing the Framers had in mind when they put the impeachment process into the Constitution.
Trump supporters mostly didn’t even try to defend Trump’s actions. They made some half-hearted effort to say that Trump just had an abiding interest in fighting corruption. But this was severely undercut by Trump’s general indifference to appearances of impropriety and the fact that his concern for corruption seemed to begin and end with Biden, not to mention the Trump family’s own struggles with nepotism. What they lacked in convincing argument, Trump enthusiasts tried to make up for in volume, loudly complaining about the process. It’s the sort of defense that will look familiar to anyone who has ever seen a sovereign citizen challenge his speeding ticket. (You don’t have any jurisdiction over me! The flag in the courtroom has gold fringe!) Also, the “it’s a Republic not a Democracy” rhetoric used to promote the sanctity of the Constitution’s electoral college process after Trump lost the popular vote was conveniently forgotten in favor of an abiding concern for the “will of the people” when faced with the Constitution’s impeachment and removal process.
I don’t think the Senate will remove Trump. Tribalism being what it is, I don’t think there is a particular political upside for Democrats. But sometimes you have to do the right thing, and impeachment in this case was the right thing.
(Side note: Tulsi Gabbard voted “present,” which shows you that the Democratic primary voters who have stayed away from her in droves kind of had her number all along.)
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West Lafayette Community School Corporation has sued Governor Holcomb in his official capacity (Cause 79C01-1909-PL-115 in the Circuit Court of Tippecanoe County) to challenge a law that requires local school corporations to make unused buildings available to charter schools for a dollar before they can sell them, leave them vacant, or (the law is less clear) lease them for non-school purposes. West Lafayette has an old building, Happy Hollow, that’s on its last legs and the school corporation has long term plans to use the site, likely as an early education facility, once it gets a solid model put together and can line up the proper funding. In the meantime, it’s being leased to the City of West Lafayette as a temporary city hall for which the City is paying the School a healthy lease payment which, in turn, is being used to fund School operations.
Earlier this year, the General Assembly passed HB 1641 which added IC 20-26-7.1 featuring the $1 lease/purchase requirements. (If a school sells real estate in violation of this requirement, proceeds from the sale go to the State to fund charter school grants). In the case of Happy Hollow, the school corporation arguably has to forego a revenue stream from the City lease or put long term plans on hold if a charter school expresses interest and an intent to get a charter school up and running in the next two years.
So that’s the background. Being a strong proponent of local government and of public schools, it will come as no surprise to anyone that I take the school’s side on this one. But that’s not what prompted me to write this.
In defending the lawsuit, Governor Holcomb (by counsel) has made the breathtaking argument:
“[T]he Takings Clauses and Just Compensation do not apply to the State’s relationship with political subdivisions.”
“[M]unicipalities and subdivisions of the State cannot request just compensation even if there is taking[.]”
The State’s argument does not offer any limitation to this principle which is unique to schools. The State can take local government property and not pay for it. Full stop. The argument is that local government is merely a “subalternate instrumentality” of the State government — in other words, local government is just a tool of State government, so there’s really been no loss if the State commandeers local property for its own purposes.
There is an old United States Supreme Court case, Board of Commissioners of Tippecanoe County v. Lucas, 93 U.S. 108 (1876) where the Court said, “the legislature of a state possesses the power to direct a restitution to taxpayers of a county or other municipal corporation of property exacted from them by taxation, into whatever form the property may be changed, so long as it remains in possession of the municipality.” (emphasis added) It’s true that the State has a lot of power to direct the affairs of local government. So, if the State said that the school had to sell vacant property at market value and, for example, use the proceeds to buy school buses for itself, the “taking” argument would be much weaker. Yes, the State is meddling in local affairs, but taxes paid by local residents are not being diverted to other entities.
But that’s not the argument the Governor is making. Local government property can be used for any purpose the State wants. It doesn’t matter if taxpayers supported a local tax rate precisely because decisions about the use of those taxes were being made by the city council or school board. This goes well beyond taking local school property to subsidize charters. In principle, it could be used to sell off the Wayne County Courthouse in Richmond and use it to subsidize toll road operations in northern Indiana. Or whatever. Like I said, the argument doesn’t offer any limiting principle to the State’s authority to seize local government property without paying for it.
Now, if I had to guess, this is probably the case of an attorney operating out of Indianapolis trying to grind out a win without having run the argument past any political types. I highly doubt that Gov. Holcomb knows anything about this argument even though it’s being made in his name. I suspect the political types would understand that an assertion by the State of unfettered control over local resources is unlikely to be well received outside of the State House.