A Citizen's Guide to Indiana

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Who Should Bear the Cost of Public Records?

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The Indiana Law Blog has a post discussing legislation that imposes a fee for public records searches and an editorial by the South Bend Tribune critical of that legislation. The fees in question at this time have to do with paying for time spent by public employees compiling and reviewing responsive documents. Either way you go on this sort of thing has pros and cons.

The editorial quotes Rep. Pierce:

As for the concern about public employees — paid by taxpayers, mind you — spending time on such searches when they have other jobs to do, we think Rep. Matt Pierce, D-Bloomington, put it best: “They are our employees. They work for us. To have to pay to come in and pay to get access to your records I just think is not a good principle, not a good policy.”

That’s at least a little disingenuous. The governmental entity has limited resources with which to accomplish a lot of different missions. Time spent on responding to public records requests is time not spent on those other missions. That’s not entirely inappropriate — providing the public with governmental records is one of the necessary functions. But there are limits. To get a little hyperbolic in order to illustrate the point, if one citizen made a records request that required 100% of the government’s resources in order to compile, review, and provide the response; nobody would believe that the one citizen should have the power to unilaterally hijack all of the government’s resources.  Most requests are routine, and it’s appropriate for government to respond to those requests in the ordinary course of business without charging the citizen extra for processing the request. But, at a certain point, the requests can become burdensome to the governmental entity in a way that is really not fair to other taxpayers who expect that their tax dollars are paying for services other than responding to public records requests.

Where that line is and how to draw it is difficult to say, but I don’t blame members of the General Assembly for considering the matter. I don’t think considering the question should necessarily  dismissed as an assault on the public’s right to know.

“School Choice” is like diverting money from parks to backyard swingsets and calling it “recreational choice”

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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.

Consider other institutions that help form the public such as parks and libraries: Parks give all of us green space and places to come together where we can interact with others in the community. They help define and shape the look and feel of communities and neighborhoods; they provide environmental, aesthetic, and recreational benefits to citizens; they help enhance property values; and they attract people to the community. A lot of that value would be destroyed if lawmakers decided to divert park money to individual citizens so they could spend it on backyard swing set projects, bowling alleys, and green space at their churches. You can expect proponents of such an idea would market it as “recreational choice.” Who doesn’t like choice?! Even if money was going to citizens who never used the parks in the first place to fund projects they had previously funded out of their own pockets, proponents would divide up the cost-per-citizen and claim that “recreational choice” is saving us money.

Similarly libraries are more than just books, videos, and computers. They are places where patrons can come together face to face, often for the purpose of engaging in civil discourse. Libraries help build communities. Haves and have-nots have access to information and librarians who can assist in navigating that information. Local libraries maintain collections specific to the community. They promote democratic values and are often housed in architecture that is notable in its own right. The public library was an American innovation. As David Morris noted, “Europeans had subscription libraries for 100 years before the United States was born. But in April 1833, the good citizens of Peterborough, New Hampshire created a radically new concept—a public library.”  “Media choice vouchers” that citizens could spend on books and videos at Amazon or at their church libraries wouldn’t be the same. Maybe citizens could get access to the same books and videos. Perhaps they could get more of them at a cheaper rate. But the public would, nevertheless, be diminished.

The more we turn ourselves from members of the public into an atomized collection of individuals, the weaker our communities and democratic institutions become. Dressing up these decisions in the language of “choice” does not change this fact.

On Historical Perspective and Political Discussion

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Idea: Historical perspective shapes political discussion.

It’s difficult to talk to someone about how things are if you don’t share, or at least recognize, their understanding of how things have been. Anyone who has been reading this blog for very long will probably have stumbled across me ranting about the “kids these days” genre of social aggrievement. (I happen to think kids these days are pretty good and that, in any event, every generation seems predisposed to belly ache about the younger generations. Get off my lawn!)

I have similar feelings with respect to lamentations about “how things are nowadays.” Things are generally good nowadays. (Though it’s tough to escape the fear that things could rapidly become much worse, particularly given the current crop of lawmakers.) But, my opinions about relative merits of today versus yesterday aside, it’s tough to even discuss the subject if you don’t know what version of “yesterday” a person is using as a benchmark.

I like to read Tipsy’s blog because: a) he’s a friend; and b) he posts stuff I would never come across on my own. Today’s offering includes some quotes from David Gelertner. His benchmark of the history of journalism is maybe somewhere in the 50s or 60s, and he is unhappy with the liberal trajectory of journalists caused by journalism schools:

[On the Cultural Revolution of the past 50 years] the growing importance of education schools and of journalism schools were three of the most important aspects of this big change. The transformation of journalism from a battered-hat group of rough-speaking, hard-drinking, widely-admired “ordinary guys” who were thought to be mostly conservatives to penetrating, opinionated intellectuals who are mainly liberal is a major story in itself.

This caught me off guard, not because of the “liberal media” accusation but because, when thinking of the historical progression of journalism, I wouldn’t have started with the 50s guy. In my mind (and I’m not saying this is at all accurate), I have dim thoughts of publications associated with 16th century London coffee houses, the political essays of the Founders (and libelous muck by the likes of James Callender),  and then to what’s probably my real historical benchmark for journalism — the yellow journalism of Joseph Pulitzer and William Randolph Hearst.

With that as a benchmark, in my mind, the import of journalism schools is a progression from Hearst’s “you furnish me the pictures, and I’ll furnish the war” brand of yellow journalism to a more serious profession, grounded in the importance of objective facts. This is something I regard as generally positive, though I do have my opinions on the shortcomings of “objectivity.” It creates a blind spot by ignoring that every narrative has a bias, and it leads to a “both-sides” style of reporting that has trouble grappling with the situation where one side has a great deal more substance behind its arguments. On my own, thinking about that history, I barely would have registered the icon of the grizzled, alcoholic “common sense” noir journalist of the 50s and 60s. Without recognizing that as a point of departure, a hypothetical conversation between myself and Mr. Gelertner on the merits of modern versus historical journalism probably wouldn’t be very productive.

I have similar issues when he talks about the history of citizens, religion, and government:

[W]e all know that faith in the Judeo-Christian religions is dramatically weaker than it used to be. But human beings are religious animals, and most will find an alternative if the conventional choices are gone.

The readiest replacement nowadays for lost traditional religion is political ideology. But a citizen with faith in a political position, instead of rational belief, is a potential disaster for democracy.

I’m not sure what his historical benchmark is here, 1950s America again? But my thoughts on the subject are a mashup of places and times. You have a lot of societies where government and religion were the same: Egypt, Mesopotamia, Rome, and China come to mind. Right now, I’m reading about the period where political tensions between the (Constantinople-centered) Christians of the Roman Empire and the Zoroastrians of the Persian Empire led to greater religious fervor in both places (coupled with persecution of minority religions). The battle between those political powers weakened both and opened the door to the rise and spread of Islam which prevailed, in part, by practicing religious tolerance — particularly with respect to Christianity and Judaism. Christian American — and especially Judeo-Christian America — is a blip on the historical landscape.

I would not be surprised if Mr. Gelertner is smarter than me, knows more about history than I do, and/or knows more about religion than I do. But I think it’s safe to say neither of  us is dumb or ignorant in these areas. Yet, we probably come to radically different conclusions about how today compares to yesterday, simply because yesterday is so vast in terms of its potential scope of places and times.

I think this is a common problem for political discussions generally. So, find out what your counterpart’s vision of “yesterday” might be.

 

Challenge to Election 2016 under the “Guarantee Clause” of the Constitution

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Friend of the blog, and accomplished Indiana lawyer, Mark Small has become involved in a case challenging the 2016 Presidential Election. Pro se petitioners from Massachusetts petitioned the First Circuit for a writ of mandamus to conduct a new election, alleging that Article IV, section 4 of the United States Constitution guarantees a republican form of government and protection against invasion. Petitioners allege, in effect, that the interference of Russia with the U.S. elections constitutes an invasion that has deprived them of a Republican form of government. The First Circuit denied their request and they have appealed to the United States Supreme Court.

Mark has since taken up their cause and has filed a motion (pdf) for the United States Supreme Court to appoint a special master. The petition is currently set for consideration at the Supreme Court’s conference of March 17, 2017. A friend predicted that the Court will decline to hear the case “under the ancient rusted can of worms doctrine.” I tend to agree with that prediction. Then again,  I’m also one of those guys who rolls his eyes and the idea of playing the lottery. That’s based on sound mathematics. And, yet, someone in town bought a ticket that won $435 million.

It’s an interesting idea that is founded on the premise that Russia engaged in cyberwar to alter the election to place its chosen candidate in the Presidency and those sympathetic to him in the House and Senate. (I acknowledge that this “hacked the election” rhetoric is a bit slippery — hacking the actual voting machines is one thing; setting up fake Twitter accounts to promote desired messages is a different thing. There are potentially different levels of interference in the spectrum in between.) Those same bodies refuse to investigate activity from which they benefit. Where is a state or a citizen of a state to go for relief? The argument here is that it’s the judiciary. (Though, you eventually run into that possibly apocryphal quote from Jackson that “John Marshall has made his decision, now let him enforce it!”)

Small argues not only that the judiciary is the branch of government that can provide relief in this situation but also that they have the authority, through a special master appointment, to investigate allegations of election tampering. He first notes that the Founders were extremely concerned by the prospect of foreign powers meddling in our affairs. At the time our Constitution was created, this kind of political intrigue was very much a current memory. Small quotes Hamilton in Federalist 68 when he says:

Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one querter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union?

Hamilton was writing about how the electoral college was designed to guard against foreign influence. But, Small points out that the electoral college is not independently elected as the Founders anticipated and they are elected “part and parcel, in the same process as that by which vote are cast for the President and Vice-President.” He turns to Madison’s Federalist 43 and its interpretation of the “Invasion Clause” for additional support. Madison said that the provision served to protect states against “foreign hostility” and against ambitious or vindictive enterprises of its more powerful neighbors. He reads this passage as supporting the proposition that the judiciary has a role in implementing the protections of the guarantee clause:

In cases where it may be doubtful on which side justice lies, what better umpires could be desired by two violent factions, flying to arms, and tearing a State to pieces, than the representatives of confederate States, not heated by the local flame? To the impartiality of judges, they would unite the affection of friends.

The role of the judiciary is particularly important where the executive and legislative branches are compromised (in this case, they are alleged to be the beneficiaries of Russian interference). The solution is to appoint a special master — sort of an ad hoc investigative arm of the judiciary — to do the following:

a.) Identify those officials, agencies, departments and offices of the United States Government engaged in the collection, analysis, and reporting of data pertaining
to cyber intrusions, and mitigation of effects of intrusions conducted and/or facilitated within the United States by the Government of Russia and or its agents in the year 2016.

b.) Obtain from those officials, agencies, departments and/or offices, and, subject to the discretion of the Special Master, obtain from third parties, whose identities are disclosed to the Special Master, any and all summaries, analyses or reports, classified or unclassified, related to cyber intrusions, more probably than not conducted directly or indirectly by the Government of Russia, and that were determined by those officials, agencies, departments and/or offices to have been related to the November 2016 congressional and presidential elections.

c.) If the Special Master determines the Government of Russia more probably than not committed one or more cyber intrusions involving the Presidential and
Congressional elections in one or more precincts/districts in one or more states in the year 2016, enquire of polling organizations and the election officials in each
of the affected precincts/districts/states to determine the possible impact of those intrusions.

d.) Prepare for the in camera review by the Supreme Court of a report of the findings of the Special Master conforming, to a reasonable extent, to the
standards of Federal Rules of Evidence 702 and 703 as to whether there were cyber intrusions more probably than not committed by the Government of Russia
which may have impacted one or more of the November 2016 congressional and presidential elections.

e.) If such intrusions probably occurred and possibly caused such impacts, the report would identify any individuals, whether agents of the Government of
Russia or others who probably aided or abetted the intrusions, detail the probable type and extent of each intrusion, describe the possible impact of each intrusion
or pattern of intrusions, and identify the particular relevant election races.

If the results of the investigation showed that the margin of victory was the result of illegal activity and/or espionage and aggression by a foreign power, then the Courts would have the authority to fashion equitable relief including potentially a re-election.

Like I said, I view this as a long shot but, as I also said, someone is hundreds of millions of dollars richer than they were last week because they are far more optimistic than I am.

130th Anniversary of the “Black Day” of the Indiana General Assembly

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February 24, 1887, became known as the “Black Day of the General Assembly” when political tensions devolved into an all out brawl. The following is from my bicentennial installment on Gov. Isaac Gray, “The Sisyphus of the Wabash.”

In 1884, Governor Gray had aspirations to have the General Assembly elect him to the U.S. Senate. Some of Gray’s fellow Democrats had no desire to see the former Republican elected to that post. (As a Republican state senator, Gray made a name for himself barring the doors against Democrats attempting to leave the Senate to break a quorum in an effort to prevent ratification of the Fifteenth Amendment.)

So, Gray’s (now) fellow Democrats were content when lieutenant governor Mahlon Manson accepted President Cleveland’s appointment to the position of revenue collector. This would leave Gray with no successor if he were elected to the Senate and, therefore, served to thwart his ambitions. Gray, however, asked the attorney general to give him an opinion that it was acceptable to have a special election for lieutenant governor in the 1886 mid-term election. The attorney general responded that this was permitted.

However, Democrat Alonzo Smith was the President pro tem of the Senate and he argued that there was no vacancy. Rather, he argued, the President pro tem was the acting lieutenant governor and would be until the term expired. Nevertheless, an election was held for lieutenant governor in 1886. The Republican nominee, Robert Robertson won the election — apparently with the support of Democratic governor Gray. He believed that, with a Republican lieutenant governor, he could get Republican support to send him to the U.S. Senate since that would get him out of the way and put a member of their party in the governor’s office. Meanwhile, Republicans also took control of the Indiana House in that election. Even though the wave was against them, Democrats held on to the Indiana Senate due to senators who had not been up for election.

When the General Assembly started its session, the minority senate Republicans caused a commotion and were ignored as the (Democratic majority) Senate re-elected (Democrat) Smith as President pro tem and acting lieutenant governor. Then, the House and Senate met in joint session and the (Republican) Speaker ignored the bitter protests of Democrats as the Speaker announced that (Republican) Robertson had won the lieutenant governor’s election. The Speaker turned the gavel over to Robertson (presiding over the Senate as the lieutenant governor). Robertson was shouted down by Democrats as he tried to speak and the joint session eventually adjourned in disorder.

The Marion County Circuit Court issued an injunction prohibiting Robertson from exercising power, reasoning that the mid-term election of a lieutenant governor was unconstitutional. However, on February 23, 1887, the Indiana Supreme Court reversed the Circuit Court saying that the Circuit Court did not have jurisdiction over the matter and neither did the Supreme Court. Rather, the court held, it was the General Assembly’s issue to resolve. One source (I’m not  sure of that sources’ source, but it paints a picture) described the scene the next day as follows:

On February 24, 1887, Robertson arrived at the Senate Chamber to preside over the Senate. A group of Democratic Senators attacked him and beat him to the floor. The Senate president pro tempore ordered the doormen to expel Robertson. The doormen complied. Republicans soon raised a ruckus, demanding that Robertson be allowed to take his seat. When the Democrats resisted, fights broke out all over the Senate chamber. As the fighting progressed through the floor, one Democratic Senator pulled a gun and shot a hole in the Senate Chamber’s ceiling. He then threatened the Republicans, saying he would start killing them if they did not desist in fighting. This halted the conflict in the Senate, but people outside the chamber, alerted to the happenings inside the Senate, began fighting. The fight soon spread to the House of Representatives. They overwhelmed the outnumbered Democrats and ran through the Capitol, dragging Democrats outside to beat them. Another group broke down the Senate door and began dragging Democratic Senators outside. Governor Gray was compelled to send for the police, who came and brought the conflict under control. Four hours of chaos led to a total shutdown of legislative activity for that session, as the Democrats refused to communicate with the Republicans and the Republicans refused to communicate with the Democrats.

I read one source that said the General Assembly was deadlocked and no further business was done that session. However, I also see that the General Assembly passed a bill on March 3, 1887, to create the Indiana Soldier’s & Sailors Monument, so I’m not entirely sure what transpired after the ruckus.

Gray was, needless to say, not elected to the U.S. Senate and he earned the nickname “Sisyphus of the Wabash” for his extensive but ultimately futile labors. This incident was raised a quarter of a century later by advocates of the 17th Amendment arguing for direct election of U.S. Senators and to end the practice of state legislatures selecting them.

Vouchers do not improve education

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Indiana General Assembly school vouchers

School vouchers are an example of embracing ideology over evidence.

Kevin Carey, writing for the Upshot, has a column about recent studies that indicate vouchers are not improving educational outcomes. There has really never been strong evidence showing that voucher students do better than students attending traditional public schools. And, recent studies, show that they probably do worse. Given that traditional public schools add value to the community over and above the individual educations they provide to the students who attend, we should conclude and begin unwinding this voucher experiment. To improve public schools, we should look to systems in other countries that are outperforming ours and seek to emulate those things they are doing better.

The first results discussed by Mr. Carey came from Indiana where:

Researchers examined an Indiana voucher program that had quickly grown to serve tens of thousands of students under Mike Pence, then the state’s governor. “In mathematics,” they found, “voucher students who transfer to private schools experienced significant losses in achievement.” They also saw no improvement in reading.

The next came from Louisiana where:

They found large negative results in both reading and math. Public elementary school students who started at the 50th percentile in math and then used a voucher to transfer to a private school dropped to the 26th percentile in a single year. Results were somewhat better in the second year, but were still well below the starting point.

Finally, Ohio, where a study financed by the pro-voucher Waltons concluded, “Students who use vouchers to attend private schools have fared worse academically compared to their closely matched peers attending public schools.” Massachusetts seems to have a more successful program than Indiana, Louisiana, and Ohio, but it is marked by “nonprofit public schools, open to all and accountable to public authorities. The less “private” that school choice programs are, the better they seem to work.”

In Indiana, the motivating impulse for voucher enthusiasts seems to be a combination of: a) undermining the influence of teachers’ unions; b) subsidizing the preferences of those who would want a private religious education; and c) providing access to that sweet, sweet education money to friends and well-wishers of voucher proponents.

We’re not going to free-market our way out of our educational problems. Again, we don’t need to re-invent the wheel. Other places are having better success with their educational systems. We need to identify methods that are successful and copy them.

Indiana gets high ranking for “small business climate”

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A few of our state legislators were on Twitter touting Indiana’s ranking for “small business climate” reported in Inside Indiana Business (your number one source for people saying “Inside Indiana Business.”) The rankings came from the “Small Business & Entrepreneurship Council” which appears to be a conservative advocacy group. The group’s rankings are based on a “state’s policy climate for small business and entrepreneurship based on criteria including taxes, regulation and government spending.” Based on its criteria, it ranks Indiana 7th.  First on the list was Nevada. Last on the list are California, New Jersey, New York, Minnesota, Vermont, and Hawaii.

A favorable business climate is useful insofar as it makes citizens happier, healthier, and more prosperous.

Let’s not lose sight of the goal. At the end of the day, things like taxes and regulations (or lack thereof) are tools to improve the lives of citizens. The lists that we want Indiana to be on top of are the ones about how prosperous, happy, and healthy our lives are.

In this list on healthiness, Indiana ranked 41st (Hawaii 1st, Vermont 2nd, Minnesota 6th). In terms of prosperity, here is a chart showing average disposable income by state (adjusting for cost of living). Indiana ranks toward the bottom. Minnesota and New Jersey still fare pretty well on that list. In terms of the happiest states, Indiana is in the bottom 40%.  Hawaii, California, Minnesota, and Vermont are all well above us. New York is comparable.

Sure, I don’t know much at all about the lists I linked to or the people who prepared them. But I also don’t know much about the Inside Indiana Business linked list. Still, eye on the prize, please lawmakers. If the pro-business policies are leading to improved quality of life for citizens, keep them. If they aren’t, then adjust them. Don’t mistake the means for the ends.

 

HB 1024: Mandating Creation of Limited Public Forum Permitting Students to Engage in Religious Expression during School Events

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Rep. Bartlett (800-382-9842) has introduced HB 1024 which has a number of provisions concerning treatment of religion in public schools. The provision I’m concerned about mandates creation of a limited public forum at school events where students speak. I’ll get to that in a second. Some of the stuff that I like or am indifferent to are:

  1. It requires high schools to offer comparative religion as an elective. Subject to my caveat that I pretty much universally dislike the General Assembly dictating school curriculum, this is a class that I enthusiastically support. Students should understand the wide range of religious beliefs, how they differ, how they are similar, how religion shapes history, and how history shapes religion. Such knowledge is vital to understanding the world.
  2. It says that students can’t be discriminated against for offering a religious viewpoint. Among other things, “Homework and classroom assignments must be judged by ordinary academic standards of substance and relevance and against other legitimate pedagogical concerns identified by the public school. Students may not be penalized or rewarded on account of the religious content of their work.” As I read this, you can mark the student wrong if they claim the earth is 6,000 years old in science class. But, if they proclaim love of the messages of Jesus or Muhammad or the Buddha as part of their work in their Spanish journal, the religious content can’t be a basis for marking them up or down. I think there is probably a feeling in certain circles that kids are being persecuted for their religious expression. I am skeptical of whether this is true — my guess is that it’s either mostly not happening or the reports are disingenuous about the real reason for whatever penalty was received by the student. In any event, if there are schools penalizing or rewarding kids for religious viewpoints (outside of ordinary academic standards), they should stop.
  3. Allows kids to pray on their own — before, during, and after school — to the same extent they can engage in nonreligious expression on their own. Generally, I’m o.k. with this. Though I can see it being a source of litigation. If little Jimmy gets disciplined for telling his classmate her family is going to hell for being an unbeliever in the same way little Johnny gets disciplined for telling his classmate her family is going to jail for being criminals,  that seems like it should be legal under this bill. But, of course, little Jimmy might forget a few details on his way home, and little Jimmy’s family lawyer may massage a few details before the matter gets to court. That sort of problem isn’t unique to this legislation. Again, I’m not sure how much this is an actual problem in the real world. I usually hear about how prayer isn’t allowed in school from people whose real complaint is that schools themselves, as an arm of the government, aren’t allowed to encourage or facilitate prayer. They either can’t understand or don’t understand the difference between government speech and private speech.
  4. Similar to item #3, religious groups are to be able to access school facilities on the same basis as other noncurricular groups and shouldn’t be denied facilities simply based on their religious viewpoints. Again, I’m generally supportive of this. Things get a little tricky when you’re talking about their ability to promote their meetings using school communications. In theory, that’s fine, but it’s not tough to imagine a situation where captive students get the message, which they perceive to be endorsed by an authority figure, that it would really be in their best interest if they voluntarily went to this religious group’s event. That’s not a great dynamic no matter the event, but given my historical knowledge from my comparative religion class (see item #1), I know that the interaction between government & religion can be particularly problematic.

But, then we have this business about mandating limited public forums. It requires a school to adopt a policy “which must include the establishment of a limited public forum for student speakers at all school events at which a  student is to publicly speak.”  The policy regarding the limited public forum must also require the school corporation to:  “provide the forum in a manner that does not discriminate  against a student’s voluntary expression of a religious viewpoint, if any, on an otherwise permissible subject; and  provide a method, based on neutral criteria, for the selection of student speakers at school events and graduation ceremonies.” It directs the Department of Education to consult with religious liberty advocates to develop a model policy.

So, what’s this business about a “limited public forum?” The Supreme Court has, primarily in the last 50 years or so, developed a “forum” framework to try to ascertain whether — when allowing or disallowing speech on public property —  the government is violating the Free Expression Clause of private individuals. Because government speech is also potentially involved, the Establishment Clause is also implicated. When the government owns property, it has the right to control that property; but the Court has given the government more leeway in some places than others. You can probably picket at the park. You probably aren’t allowed to burst into the mayor’s office to picket around his desk. So, the Supreme Court has reasoned that there are “traditional public forums.” These are parks, streets, and sidewalks. The government can regulate expressive activity with reasonable time, place, and manner restrictions, but it has to have great reasons to restrict your expressive activity and the restrictions have to be viewpoint neutral. There are “designated public forums” which are not “traditional,” but which the government has opened up to public expression (maybe a plaza of some sort). Unlike “traditional public forums,” a government can “undesignate” them so to speak, but until that happens, the same broad protections in favor of expressive activity apply.

There are also “nonpublic forums” — these are places the government has not opened up to expressive activity. The mayor’s office or a military installation, for example. Government has broad discretion to restrict expressive activity in these situations; simply limiting activity to the government function the space was meant to serve.  Mixed in with these three broad categories, the courts have dabbled with others — one of which is the “limited public forum” which is where the government has opened up the forum for certain groups or for the discussion of certain topics. For example, if the government rents out a theater it owns, it can exclude picketers, but it can’t exclude a play from performing there simply because it dislikes the play’s viewpoint.

Things get trickier when the question of government speech is involved. Government itself is allowed to have a viewpoint and advance that viewpoint. Furthermore, when the government is a speaker, the Establishment Clause gets involved. A minister preaching the gospel in a public park doesn’t run afoul of the Establishment Clause. A teacher preaching the gospel to students in school does. The question of when the government switches from mere forum provider to speaker isn’t always so easy. If a private organization puts up a cross in a public space where other organizations are free to put up their own religious or secular displays probably isn’t an Establishment Clause Problem. If a private organization puts up a cross on a prominent tree in the town square that the town never opens up to other religions or speakers, then the religious expression is probably imputed to the government. The government is more likely to be viewed as the speaker when the forum is not public.

And, so, we come back to HB 1024. The goal is, I assume, to open up functions like graduation speeches to religious expression and maybe even proselytization by student speakers. Where the forum is not public, the school controls access to the podium, and attendance is in some sense coerced, there is a significant risk that the courts are going to impute that religious speech to the school. This bill is trying to turn the government from speaker into mere forum provider by requiring schools to have a policy of some sort that declares the existence of a limited public forum. The legislation urges that accommodations be made for people who don’t want to hear the religious speech — put it at the beginning or end or excuse those who don’t like it. It also urges that selection of speakers be based on “neutral criteria.” But, it doesn’t say “neutral” as to what. “Neutral criteria” is an oxymoron.

I don’t think this is going to work. During a government function, some incidental praise for the higher power revered by the speaker isn’t going to hurt anyone. But this seems like an effort to allow religion to be more central to a public function, and the benefits of these legal contortions don’t seem to justify the likely expense. If the forum isn’t generally open to the public like a traditional or designated public forum and the government is controlling access to the podium, it seems highly likely that speech is going to be imputed to the government, regardless of what you call it.

Rep. Milo Smith blocked independent redistricting legislation instead of proposing amendments

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Julie McClure, writing for the Columbus Republic, has an article on how Rep. Milo Smith (317-232-9620) blocked HB 1014, introduced by Rep. Jerry Torr and prepared by the interim special study committee on redistricting. The bill  establishes a redistricting commission “to create, hold hearings on, take public comment about, and recommend plans to redraw general assembly districts and congressional districts.”  It requires LSA to provide staff and administrative services, establishes standards to govern the commission and the agency in the creation of redistricting plans, and provides that the general assembly must meet and enact redistricting plans before October 1 of a redistricting year. Additionally, it authorizes the general assembly to convene in a session to act on redistricting bills at times other than the times the general assembly is currently authorized to meet. Generally, the idea is to make redistricting more of a non-partisan effort and reduce the temptation to gerrymander districts for particular results.

Smith is the chair of the House Elections and Apportionment Committee which gives him the power to call or not call a vote on legislation. He permitted a hearing on the bill but then blocked a vote. In the Republic article, he cites a number of potential concerns about the legislation. In particular, he questions a process whereby the General Assembly would come back at an irregular time to approve the maps and, whether the bill is specific enough about the existing process kicking in if the General Assembly does not approve the redistricting commission’s maps.

But, the salient point is that he did not propose amendments to address his concerns. And it’s not like Rep. Torr just sprang it on him. This was legislation recommended by the Interim Study Committee on Redistricting. If Rep. Smith had concerns while the committee was studying the issue, he presumably could have communicated those to the Committee this summer or fall. Additionally, it’s pretty routine for legislators to allow legislation to proceed with promises by other legislators to work on fixes as the session progresses. So, Rep. Smith’s refusal to hold a vote, ostensibly because of imperfections in the bill, comes off as disingenuous.

75th Anniversary of EO 9066 and American Internment of Japanese Americans

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A couple of days ago, Amy and I were talking about the internment of Japanese Americans in the U.S. during the 1940s. One of the things we discussed was how little we learned about this monumental event when we were in high school. She didn’t remember hearing about it. I remembered a little, but no one made a big deal of it. Almost as if to underscore the idea that this is an under-remembered event in U.S history, the 75th anniversary of the signing of EO 9066 — the executive order that kicked off the undertaking — came and went without me realizing it. I don’t think it received much coverage. I know a lot of people complain about America bashing / blame-America-first, but this is one that we should legitimately feel bad about. It was clearly the wrong thing to do, and it happened within living memory.

On February 19, 1942, President Roosevelt signed the executive order that led to the forced relocation and incarceration of between 110,000 and 120,000 people of Japanese ancestry. About 2/3 of them were citizens. It happened in the wake of Pearl Harbor, so security was the ostensible reason for the action. But fear and racism appear to be the real reasons. There was little or no evidence of a threat based on race, and we did not treat the Italians or Germans in nearly the same way. The majority of mainland Japanese Americans were forcibly relocated from their West Coast homes during the spring of 1942.

These citizens were forcibly housed in internment (or concentration if you prefer) camps in remote locations, often, featuring “tar paper-covered barracks of simple frame construction without plumbing or cooking facilities of any kind. The spartan facilities met international laws, but left much to be desired. Many camps were built quickly by civilian contractors during the summer of 1942 based on designs for military barracks, making the buildings poorly equipped for cramped family living.” These citizens, who had done nothing wrong, were guarded and often surrounded by barbed-wire.

The citizens who were forced into incarceration often suffered substantial financial losses. They were prevented from taking more than they could carry and forced to leave a great deal behind. The non-Japanese who were allowed to stay on the West Coast were able to profit at their expense. A 1948 act purported to make compensation for these losses available to those who had suffered them, but the paperwork required was unreasonable under the circumstances and did not come close to making the individuals whole.

We should remember this, not just as an occasion of the majority population treating a minority population badly; but also as a time when fear and unreason caused us to do horrible things to our fellow citizens. And we should remind ourselves of what we did so that we don’t do it again.