A Citizen's Guide to Indiana

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Hemp Field Day at Purdue

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Maureen Hayden, writing for CNHI, has an article that appeared in the Trib Star (again – just an awful website design – way too busy) entitled “Some have high hopes for Indiana hemp crop.”

Hemp has apparently been illegal to grow since 1970 except that, in 2014, the federal government opened up the possibility of getting a waiver from the DEA to grow the crop for agricultural research. Purdue has obtained such a waiver and, yesterday, had a hemp field day.

The ban is part of the War on (Some) Drugs even though the hemp in question has a very low THC content and is, I’m told, useless in terms of getting you high. I’m speculating that the point of the ban is that this industrial hemp looks a lot like marijuana and, therefore, would make anti-marijuana enforcement efforts more difficult?

In any case, the Purdue researchers were successful in growing the hemp.

After just one growing season, in which the seed was planted late because of a permit delay and then drenched by record rainfall, [Purdue agronomy professor Ron] Turco sums up the research conclusion this way:

“It can grow in Indiana. We know that,” he said. “The rest of it is political.”

Indiana lawmakers have been hesitant to move beyond the current constraints, fearful that by opening the door to legal hemp, legal marijuana might sneak in, too.

Disclosure: The Turcos are neighbors and family friends. From what I’ve heard, the bureaucratic challenges to growing the hemp were at least as significant as any technical challenges. Lawmakers should take a fresh look at the costs and benefits of the hemp restrictions to see if the restrictions continue to make sense (if they ever did.) There are apparently a lot of uses for such hemp (see the Wikipedia page), including as food, fiber, and building materials among other things. I don’t pretend to have any particular knowledge of whether the uses are economically compelling. However, if those uses are anywhere near as beneficial as its advocates claim, then lawmakers who support economic development and oppose burdensome, nanny-state government need to take a close look at this initiative.

Deliberate Indifference, Medical Malpractice, and Independent Judicial Research

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The 7th Circuit Court of Appeals has a fascinating (to me) opinion that involves dueling visions of what sort of independent research by appellate court judges is appropriate in the context of a pro se claim of 8th Amendment cruel and unusual punishment due to inadequate medical care while in prison. (h/t Indiana Law Blog).

Some background information:
1. Mostly judges are supposed to decide a case based on facts established through properly designated evidence. In the context of motions for summary judgment, the judge is supposed to resolve factual disputes in favor of the non-movant. Some limited factual information is permitted to be admitted through “judicial notice.” Judicial notice is usually reserved for things that can’t reasonably be disputed (e.g. sunrise, sunset times; the authenticity of government records (though not necessarily the veracity of their contents)).

2. In the Eighth Amendment context, prisoners have a Constitutional claim if prison officials demonstrate “deliberate indifference to a serious medical need.” It is a higher standard than medical malpractice.

In this case, an inmate suffered from esophagitis. The prison doctor prescribed him Zantac but the inmate complained about the times he was able to get it (not close enough to meal times) and that he was restricted in his ability to get it from the prison pharmacy for periods of time, told that if he wanted it, he would have to get it from the commissary with his own money. The defendants submitted evidence from the prison doctor that giving him Zantac twice a day, regardless of the times, was appropriate. According to the dissent, the record established the following:

On Rowe’s claim that the timing of his Zantac doses showed deliberate indifference to his health, the evidence in the record consists of two items. First, plaintiff Rowe asserts in his verified complaint and in several affidavits that he believes the prison’s schedule for giving him two 150 mg Zantac pills each day left him in unnecessary and avoidable pain for hours every day after meals. Second, defendants filed an affidavit from defendant Dr. William Wolfe, who was a career physician in the United States Air Force and is now a contract physician for the Indiana Department of Correction. Dr. Wolfe testified: “It does not matter what time of day Mr. Rowe receives his Zantac prescription. Each Zantac pill is fully effective for twelve hour increments. Zantac does not have to be taken before or with a meal to be effective. Providing Mr. Rowe with Zantac twice daily as the nursing staff makes their medication rounds, whatever time that may be, is sufficient and appropriate to treat his heart burn symptoms.”

The District Court judge, based on the record before it, entered summary judgment in favor of the defendants, concluding there was not a substantial issue of material fact which, if the jury credited the inmate, would provide a basis for concluding that the prison staff acted with deliberate indifference to a serious medical need (which, remember, is something beyond mere medical malpractice.)

The majority decision, written by Judge Posner, includes a great deal of information obtained by the Court of Appeals from internet websites. It then, however, says that this information is not the basis of its decision to reverse the District Court. The majority decision says that the information is neither the result of evidence presented under the normal rules of evidence or as a matter of judicial notice. It characterizes the information as falling “somewhere between facts that require adversary procedure to determine and facts of which a court can take judicial notice.” Additionally, it cites the inmate’s inability to afford or locate an expert medical witness to contradict the expert testimony provided by the jail doctor as a basis for reversing.

Judge Hamilton, writing a dissent, complains that this is not how the judicial process works. He is very skeptical of the majority’s assertion that Internet research did not play a critical role in the Court of Appeals’ decision. If it didn’t matter, why spend all that time on information located online? Such independent research by District Court judges or juries, Judge Hamilton observes, is the basis for the Court of Appeals reversing the lower court. The Court of Appeals should not engage in such extrajudicial fact finding itself. Judge Hamilton observes that “the issue on summary judgment is whether the evidence in the record would allow a reasonable jury to find in favor of the non-moving party. (emphasis in the original). By reversing the district court, the majority is necessarily concluding that this record is sufficient to sustain a jury finding of deliberate indifference. By extension, this dramatically lowers the bar for establishing deliberate indifference under the 8th Amendment. (The majority seems pretty clearly to intend that, at trial, a more complete record be established — but, under traditional principles of the federal Court of Appeals’ role in reviewing an order granting summary judgment, giving the non-movant a second bite at the apple is not an option. The unsuccessful non-movant can’t protest that he or she was going to show the jury more than he or she submitted at the summary judgment stage.)

I was amused by this critique offered by Judge Hamilton:

To justify this venture, the majority asks a number of rhetorical questions and invokes the courage of the barons at Runnymede in 1215. Ante at 14. With respect, we are an intermediate appellate court. The Federal Rules of Evidence and Federal Rules of Civil Procedure that we apply are adopted and amended through processes established by the Rules Enabling Act, 28 U.S.C. § 2071 et seq. We simply do not have authority on our own to take the law into this unknown territory.

He then expands on the practical mess this creates for other cases — litigants will have to anticipate and respond to, not just the evidence presented by their adversaries, but by outside research the judiciary might do. There is also the issue of who has to pay for the expert witnesses the indigent inmate might want or demand. The courts don’t have the resources to pay for much of that. It is unfair to make the defendants incur such expenses, not just for themselves, but for the indigent inmates, in those cases when they’ve done nothing wrong.

As is probably obvious from the way I have framed this blog post, I agree with Judge Hamilton. I don’t have much problem concluding that there was a good chance that the prison doctor exercised inadequate medical judgment. But that’s a medical malpractice claim, and if the inmate is going to make such a claim, he should bring it under that theory. (With respect to the deliberate indifference necessary to sustain a Constitutional claim, Judge Hamilton notes that even the extra-judicial information cited by the majority does not establish that “Dr. Wolfe was so thoroughly and obviously wrong that a jury could infer that prison staff were deliberately indifferent to Rowe’s health needs.” (emphasis in the original)).

That the judicial process presents difficulties for people without financial resources is beyond dispute, but this ad hoc decision by the majority is unworkable on the scale that will be necessary if this decision stands as precedent for other cases. My hope is that the 7th Circuit reviews this en banc and determines that the record is insufficient to permit a jury to conclude something more than medical malpractice took place.

Filed Under: Law

Richmond Attorney Bob Burton Retiring

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Bill Engle, writing for the Palladium-Item, has a nice article about Richmond attorney, Bob Burton, retiring on August 31 after 50 years practicing law in Richmond. This one is of particular interest to me because I can’t tell you how much the Burtons meant to my childhood. His son, Matt, being my best friend, I was a permanent fixture in the Burton household in the 70s and 80s. Bob and the rest of the family were beyond kind to me. While I have to give my own family priority in terms of childhood influences, Bob and Kathy Burton come in as a not terribly distant second. So, it makes me happy to see Bob get some recognition for a long and productive career in the law.

From the article:

Burton built a reputation for being thorough and professional.

“Bob was absolutely excellent at preparing a case,” said former Wayne Superior Court I Judge P. Thomas Snow, who is now judge of the county’s 4D Court. “As a judge, I respected him. He was always completely prepared and really skilled in the court room.

“All the judges appreciated that because it made everybody’s job easier. He was an excellent practitioner of the law as well as a really capable trial attorney,” he said.

“Bob was just a class act. He was a wonderful attorney and did a great job for his clients,” said Wayne Superior Court II Judge Greg Horn. “When I was a young attorney, he was always there and always willing to help. I’ve never forgotten that.”

Lawyers are traditionally really bad at retiring. They’re like old soldiers and tend to fade away from their firms rather than flipping a switch and being done with the business. It’s my understanding that Bob has been winding things down for awhile now. Hopefully he enjoys a long and enjoyable retirement and plenty of time with all of his grand kids.

Some Thoughts on Being a Concerned Citizen

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Between my former work as a legislative services attorney and my current work as a county attorney with some other government work thrown into the mix at various times, I’ve attended a lot of public meetings over the past 20 years. Like, really a lot.

Mostly these are not attended by citizens and, for the most part, that’s more or less ok. There is a lot of routine business handled at these meetings by people who are good at what they do. For example, there’s really no call for John Q. Public to get involved with every drainage plan that gets reviewed when some business wants to add some parking spaces.

But, occasionally a concerned citizen or citizens will undertake a kind of watchdog role by trying to come to every meeting of a government body or all of those concerning a particular topic. This can be beneficial and is certainly the citizen’s right. But, I’ve noticed that some approaches are more effective than others. The overarching rule for being an effective concerned citizen is “don’t be a jerk.” Now, I’m not talking here about people whose goal is to effect far reaching social change — civil rights protesters and the like. That’s above my pay grade, and I’m not presuming to know what is effective in that context. I’m thinking more of the good government watchdog who wants to ensure that local decision makers are acting in the best interest of the public.

The most effective people I’ve seen working for that purpose are clear, direct, brief, and polite. They aren’t shy about speaking up when they don’t like things, but they don’t belabor the point, don’t wander off topic, recognize the scope and limits of the public body they’re attending, and avoid delusions of grandeur or that they’re participating in some Manichean battle of good versus evil (where their place on the side of good is never in doubt.)

These individuals attend consistently and, often, don’t have to speak at the meeting. Before and after the meeting, they are willing and able to chat with the public officials in an amiable, friendly way, even if they disagree with the official’s politics. They don’t always get their way. In fact, very often they don’t get their way. But, public policy isn’t binary — decisions are usually made on a spectrum. And, in the back of the public official’s mind — it seems to me — the official will maybe ratchet the policy a notch or two just because they know they’ll get some push back from a citizen whose position they’ve come to know, understand, and perhaps respect to some degree — even if the official will never necessarily agree with that position or frame of reference.

Contrast this with the belligerent bellyacher. This person will never be happy and often treats the public official rudely. Public life being what it is, officials usually don’t have thin skin and can usually endure some level of criticism. But, if you don’t agree with the citizen’s policy views in the first place, the citizen is never going to be happy, and he or she treats you badly besides, what is the upside to accommodating such a person? Mostly the rest of the public will find such a person off-putting in any case, so there is likely no political downside to simply enduring that citizen as best you can and then moving ahead without regard to that individual’s preferences.

Somewhere in the middle you have the people who are not up to speed on the purpose or the powers of the public body in question. A technical planning board isn’t going to be able to do much when the plans are in order but a citizen complains, not about the plans, but — for example — the social value of the business submitting the plan. Or maybe they’ll complain about federal policy to the local government officials. Or they’ll spend a great deal of time talking about extraneous information. These citizens aren’t disagreeable. In fact, they often present very sympathetic stories. But, ultimately, they are not effective because, even where the policymaker wants to help them, there is simply nothing that can be done for them in the context of whatever the public body is designed to consider.

So, be nice, be persistent, be focused, and be concise. Government generally benefits when citizens can engage with it in this fashion.

Roads Compromised by No-Tax Pledge

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Maureen Hayden, writing for CNHI, has an article in the Terre Haute Trib Star, entitled No-tax pledge clouds Indiana’s road funding debate in which Rep. Bob Cherry muses about the impact on Grover Norquist’s no-tax pledge in light of Indiana’s road funding needs. The broken bridge on I-65 is the specific trigger for these thoughts, but Indiana’s overall infrastructure needs are also a concern.

(Note: The Trib Star web page is unpleasant with pop ups and ads and whatnot — I really have to be interested in an article before I click on one.)

Back in 1998, then-candidate Bob Cherry made a promise never to raise taxes.
Seventeen years later, as the state needs billions of dollars to fix its crumbling roads and bridges, the Greenfield lawmaker wonders if it was a mistake.
“How can we make good public policy for the future if we’re tied to the past?” he said.
. . .
Cherry, a vice-chairman of the House’s Ways and Means Committee, said he fears the no-tax pledge will keep the General Assembly from acting on a long-delayed but needed solution.

The article mentions, in addition to the I-65 bridge, that 350 others maintained by the state are deemed structurally deficient. The gas tax, used to fund such repairs, has not been raised since 2002. Inflation and more efficient cars have reduced the amount available even as the infrastructure has continued to age.

Norquist’s no-tax pledge is an anti-government suicide pact. Norquist famously said he wants to shrink government to size where he could drag it into the bathroom and drown it in the bathtub. This dysfunctional relationship to government is one thing for an activist and ideologue like Norquist, quite another for lawmakers who have to govern. I’m not thrilled by the prospect of higher taxes. I’m less thrilled by the idea of traffic jams and sketchy bridges.

Another note – The Interim Committee on Roads and Transportation currently has no meetings scheduled. What to do about I-65 specifically and our roads and bridges in particular would be an excellent topic of study.

Trial Court Dismisses Public Records Lawsuit Against Indiana House of Representatives

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Katie Heinz and Matt McKinney, writing for the Indy Channel, report that the trial court judge has dismissed the public records lawsuit brought against the Indiana House Republican Caucus. I had a post back in March about the underlying request and the trip to the Public Access Counselor.

The request was for, essentially, correspondence from Sept. 1, 2014 to the present between Rep. Eric Koch and various players in the energy policy world (e.g. Duke Energy, NIPSCO, Vectren, etc.)

In resisting the request, the House is claiming that it is exempt under the Access to Public Records Act (APRA) and that, as a matter of policy, they need to be exempt:

House Speaker Brian Bosma told RTV6 in March that complying with public records requests could dissuade constituents from contacting their legislators.

“You’d truly be surprised at the things people share with their legislators,” Bosma said. “Many times we’re the point of last resort when family tragedy occurs.”

As an initial matter, I am not sure that the language of APRA really contains such a broad exemption for communications to the Indiana General Assembly. But, assuming for the sake of argument that they are, the exemption would be horribly underinclusive if the rationale was truly to protect communications between constituents and elected officials. Why just the General Assembly? It’s not like they’re the priesthood of the republic to whom citizens confess their sins and impure thoughts. Constituents communicate all sorts of concerns to all sorts of lawmakers and elected officials. There is not one principled reason for carving out an exception specifically applicable to the General Assembly on this basis. Either ditch the exemption for the General Assembly or make it applicable to all of the State’s elected officials.

I’ll be interested to get a look at the trial court’s rationale. But, to a certain degree, the rationale is going to be incidental. This is the sort of thing the Court of Appeals or, if they’re interested – the Supreme Court, will have to sort out.

Update The trial court order (copy obtained by the Indiana Law Blog) is not a wealth of information. It simply says that the court finds the Masariu case to be applicable and therefore grants the motion to dismiss for lack of justiciability. That case is State ex rel Masariu v. Marion Superior Court No. 1, 621 N.E.2d 1097 (Ind. 1993) which, itself, is not a tour de force of reasoning and research.

Betty Masariu was the Clerk of the Indiana House of Representatives and, in that capacity, a lawsuit was brought seeking to compel her to produce certain voting records of the House. (The decision itself does not reveal anything else about the voting records requested.) The Indiana Supreme Court cited Article 3, Sec. 1 of the Indiana Constitution which provides:

“The powers of the Government are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial; and no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided.”

Under that section, according to the Masariu decision, the Supreme Court was prohibited from determining that disclosure of the voting records was required under the Access to Public Records Act. To do so, the Court declared, would “amount to constitutionally impermissible judicial interference with the internal operations of the legislative branch.” Assuming that the APRA requires production of such records (which is the required assumption at this stage of the litigation), it’s unclear how requiring such production constitutes interference with the House’s internal operations — in as much as, if APRA requires it, the General Assembly imposed the requirement on itself (along with other governmental entities).

The Masariu decision is opaque, but the case it cites, Roeschlein v. Thomas, 258 Ind. 16, 280 N.E.2d 581 (1972) and the manner in which it is cited hints at a distinction: (“Courts cannot be authorized to undermine the exclusive constitutional authority of the presiding officers of each house to authenticate all legislation.”) It might be (and I’m only speculating) that this request for voting records was part of an effort to say that some piece of legislation was not passed correctly and was, therefore, invalid. Roeschlein was an effort to invalidate Article 7 of the Indiana Constitution concerning the judiciary, revised in 1970. Part of the complaint was that the Joint Resolution containing the constitutional amendment was not properly passed by the Indiana General Assembly. The Indiana Supreme Court said that it was enough that the joint resolution was authenticated as having been properly passed by the Speaker of the House and the President pro tem of the Senate. The Court was not going to get into the internal business of either chamber to investigate the underlying mechanics of how the legislation was passed.

Roeschlein seems like an entirely appropriate invocation of separation of powers. Masariu looks like a sketchy but plausible invocation if the underlying voting records were sought as part of an effort to invalidate legislation certified as passed by the Speaker. The present case does not seem to raise such concerns at all. The General Assembly passed a law that applies to all government records, including its own. (Or, again — if these records are exempt under APRA, that’s a separate argument.) While a court should hesitate to impose such a requirement on the General Assembly on the court’s own, where the General Assembly has imposed the requirement upon itself as a matter of state law, the courts should feel free to compel individual Representatives to comply with the law in the same manner it compels members of the executive branch to comply with APRA. Does this mean that the Governor is exempt from complying with APRA under Article 3, section 1? If not, why not? And, because Article 3, section 1 doesn’t just mention the governor along with the legislative branch, it specifies “the Executive including the Administrative,” under this rationale, all of the executive branch agencies would seem to be justified in invoking interference with their “internal operations” as a reason not to produce records.

That’s my initial take, anyway. If and when the Court of Appeals and/or the Indiana Supreme Court takes this up, I am hoping for a more extensive discussion than the one paragraph ruling of the trial court or even the six paragraph decision of the Masariu case. If separation of powers is the rationale, I would also welcome some explanation about why the same rationale would or would not apply to APRA requests directed to the executive branch.

I-65 Over the Wildcat

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So, the bridge is out on Northbound I-65 over the Wildcat in Tippecanoe County. According to the INDOT press release:

Structural engineers monitoring the I-65 northbound bridge over the Wildcat Creek noticed movement in the riverbank pier and ordered the bridge closed Friday afternoon. An estimated reopening date for the bridge will not be known until soils testing and analysis is completed. INDOT will work to provide updates as new information is available.

Chris Morisse Vizza and Hanna Smith, writing for the Lafayette Journal & Courier provide additional information:

What caused the bridge to drop 9 inches last week while construction crews worked to widen it has not yet been determined, pending further tests. Officials believe soil conditions and an underground artesian spring, in conjunction with construction work on the bridge, caused the structure to settle or sink into the ground, necessitating its closure.

Engineers apparently feel that using the Southbound bridge to provide one lane of traffic each way is not a viable option because the lanes would be too narrow. As of yet, there is no timeline for re-opening until the tests come back. “Closed until further notice” is an ominous phrase. Those of us in Tippecanoe County suddenly find ourselves discussing routes to and from Indy as assiduously as we normally discuss the weather and basketball.

I see pundits trying to fix the blame for this on Gov. Pence. I’m open to additional information on the subject, but for now, I’m not buying it. Certainly I don’t see eye-to-eye with the man on some of his policy preferences. The fixation on the surplus as a metric of government efficiency or economic health strikes me as a pernicious bit of modern day mercantilism. Economic health isn’t indicated by the amount of wealth a state is able to amass but, rather, (at least in part) by the velocity with which the money flows.

In a very real way, the velocity of money is tied to the velocity with which goods and people can get around. Your goods are going to cost more if you are paying truck drivers extra to sit in traffic moving stuff from the factory to the store. So, in that respect, $2 billion in the bank is less valuable that $2 billion invested in public infrastructure.

But, we need to be more concerned about fixing the problem than we are on fixing the blame. We need engineers to identify the problem and solutions for restoring the bridge to safety. We need construction companies and workers to implement the repair. We need to be more pro-active about identifying deteriorating infrastructure and spending the money necessary to fix it — preferably during economic periods where unemployment is high and interest rates are low. And, rather than railing against government, we need to learn from this problem and take a moment to appreciate the infrastructure we have and figure out how to improve and expand it.

70 Years Since Nagasaki

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On August 9, 1945, the U.S. dropped the second atom bomb, this time on Nagasaki. Hiroshima gets the most attention for being first, but Nagasaki was the one that ended the war. Initially, the Japanese city of Kokura, an important manufacturer of munitions, was the target. However conditions over Kokura made the bomb delivery difficult and the bombers went to Nagasaki as their secondary target.

The Japanese government had not reacted to the Hiroshima bomb on August 6. The war council still insisted on four conditions for surrender: the preservation of the Emperor, disarmament being the responsibility of the Imperial Headquarters, no occupation of the Japanese Home Islands, Korea, or Formosa, and delegation of the punishment of war criminals to the Japanese government. After Nagasaki, Japan dropped all of the conditions except preserving the Emperor, and he announced the surrender.

Probably it would have been better if World War II could have been ended without opening the Pandora’s box of atomic weapons. But, it’s difficult to say that their discovery would have been far off in any case. However, I have little patience for those who make the American decision to use the atomic bomb as unconscionable and try to paint Japan as a sympathetic victim. Japan was under the leadership of war mongers and, once that type gets control, it is difficult to dislodge them. Their treatment of conquered peoples had been deplorable, and their defense was tenacious. The bombs made victory swift and complete. Internalization of the defeat by the population and the resulting peace could be structured in a way that made pernicious “stabbed in the back” (post WWI Germany) or “Lost Cause” (post Civil War South) mythologies less likely to arise. This is to say nothing of the Americans who would not have to die invading Japan to end World war II.

The formal surrender of Japan would take place on the USS Missouri on September 2, 1945. We don’t need to be proud of the bombing at Nagasaki but neither, I think, do we need to be ashamed of it.

More Loans for Charter Schools

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Kris Turner, writing a story that appeared at the Lafayette Journal & Courier, reports that the State has released details about a loan program for charter schools.

The program gives charters access to $50 million in state-funded loans and comes on the heels of the state’s forgiveness of $90 million in charter school loans in 2013.

$140 million here, $140 million there, and pretty soon we’re talking about real money. Let’s invest in our public schools.

The loans carry a 1% interest rate and will theoretically be paid back within 10 years. The loans are further secured by the facilities that are built with the loan proceeds. However, I’m not sure what the re-sale proceeds are on a defunct school building if you foreclose on them.

And, there is still the possibility that, like the $90 million loan that came before, this new $50 million loan will be forgiven by the State:

In 2013, the state forgave and paid off more than $90 million in charter school loans. The move drew protests from traditional public schools whose loans were not forgiven and consequently charter schools were no longer given access to the loan money.

Kenley said Pence and House Speaker Brian Bosma plan to do the same thing again with the new loan program — an assertion that neither denied outright.
. . .
[T]he new loan program . . . gives charter schools access to up to $50 million in loans from the state’s common school fund.

The fund has about $170 million available — money that would normally be reserved for traditional public school loans for construction and technology purchases. Now, charter schools can access nearly a third of the funds at an interest rate of just 1 percent.
. . .
Overall, 43 of the state’s 79 charter schools already have outstanding obligations, for a collective debt of about $120 million.

Traditional public school districts carry much larger debt loads, but those loans are typically backed by property tax levies, making them relatively safe bets. Of the 655 outstanding common school fund loans to traditional public schools, none are behind on payments, according to the state treasurer’s office. Nor have any traditional public school loans been forgiven.

Charter schools, on the other hand, are less predictable. Several of the charter schools whose loans were forgiven in 2013 ceased operations shortly thereafter.

In Which I Address Another Voucher Argument in the Local Paper

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The Lafayette Journal & Courier featured a column by an administrator at one of the local Christian schools entitled “Why School Choice is Working.” Despite the title, the column doesn’t really establish that “school choice” (i.e. vouchers/privatization, etc.) is “working.” For starters, it doesn’t really define what “working” is. (My assumption is that this should mean that we end up with a better educated population. But, for all I know, someone else might think it enough that we’re handing kids diplomas without spending as much money.)

But, on to the arguments.

Item the first: The columnist argues that vouchers are actually saving our educational system money because a “voucher will always cost less than public school tuition because it cannot exceed 90 percent of the cost of attending a public school.” I’ll just re-state my response from the last time this argument surfaced in the paper:

First of all, not all children cost the same to educate. As I’ve mentioned before, that’s a major issue with taking a “dollars-follow-the-child” approach. Some kids are easier to educate than others. My guess is that the tougher cases are more likely to stay in public schools. Secondly, this ignores the subsidy potential for parents who, in the absence of the “choice” legislation would have paid 100% of their decision to put their kid in a non-public school. This is a windfall for those families. No one is forcing you to give your kids a public, secular education, but now we’re subsidizing the decision to send kids to private and/or religious schools.

Item the second: The local schools’ test scores are improving and the administrator’s particular school have remained the same. This “does no harm” argument is not compelling. First of all, this particular argument is anecdotal. I have no idea whether it is representative of the state as a whole. But, even if it was, maintaining the status quo in terms of educational quality is hardly a compelling case for publicly funding private education.

Boiled down, those are the two arguments the column puts forward. So, the headline (which may not be the author’s doing) is not really on point. He also asserts that publicly funding a religious education is constitutional because it’s the parent’s choice. I don’t think one follows from the other, but won’t quarrel with him at this point because, where these vouchers are concerned, the religious angle really isn’t at the heart of my beef. I don’t really like it any better when the vouchers are going to private, secular schools.

Lacking any evidence that these voucher experiments are actually improving education, proponents of school privatization are left with bare assertions that “empowering” parents to “choose” is, by itself, a sufficient reason to publicly fund private education. Being empowered and choosing are good things, right? I’m sure their marketing consultants tell them that. But, as I’ve said before, these are not sufficient reasons for insisting on unproven schemes for improving our schools. Other countries have figured a lot of this out. We don’t have to reinvent the wheel. We can look at what has worked elsewhere and copy it.

Near as I can tell, the voucher proponents fall into one of three general camps:

1. People who were going to send their kids to something other than a traditional public school anyway and want to have that decision subsidized.

2. People who see that big pot of education money as a business opportunity.

3. People who regard “free market” arguments as a sort of dogma and believe that making the school system more like a marketplace must improve education, regardless of the actual data.

And, I suppose honorable mention should go to lawmakers and politicians who see this as a way to disempower public school teachers as a political force. But that is, perhaps, a discussion for another day.