Archives: June, 2013

Understanding Disappointing Charter School Results

Here are two things that everyone interested in education should know: some of the top performing schools in the country are charter schools, and, on average, charters do not perform significantly better than traditional public schools. The former point is exemplified by the likes of the American Indian Public Charter Schools in Oakland (which the local board recently voted to shut down), and the second by the latest national report from Stanford University’s Center for Research on Education Outcomes.

There is no necessary contradiction between these two findings. It could simply be that there is higher variance in charter schools than in regular public schools, which would cause charters to be over-represented among top and bottom performers without necessarily differing from regular public schools on average. 

Charter optimists believe that to be the case, and they expect that consumer choice and the ability of low-performing charters to fail and close down will gradually raise average performance as good charter networks crowd out bad ones. There is even some evidence that things may be moving in that direction—results of the latest Stanford U. study are less bleak than those of the previous one. 

The most dedicated charter school optimists are perhaps the philanthropists who are subsidizing their growth. But this is where the problems become most visible. A couple of years ago, I studied the many dozens of California charter school networks to measure the correlation between their academic performance and the amount of philanthropic funding they had attracted. In a nutshell, there isn’t one. There is, in fact, a stronger correlation between the length of a charter network’s name and its academic performance than there is between its grant receipts and its performance.

Philanthropists are indeed helping to scale-up charter school networks, but they are doing so effectively at random—much like the lotteries by which over-subscribed charters must admit their students.

This should not be too surprising. Many philanthropists talk about getting a return on their investments, but, in practice, they lack the incentives to do so that characterize for-profit investors. Philanthropists are in the business of giving money away. Investors are in the business of bringing it in. The former do not expect a financial return on their investments; the latter do.

The Court Trims The Indian-Adoption Law. Enough To Make It Constitutional?

Today, in Adoptive Couple v. Baby Girl, the Supreme Court dodged the constitutional flaws of the Indian Child Welfare Act, instead choosing to rely on statutory interpretation to reverse a lower court’s troubling decision. The very first sentence of Justice Alito’s majority opinion hints at one of the underlying constitutional difficulties with ICWA, its assignment of family-law entitlements by race: “This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee.” Justice Thomas’s important concurrence points to another reason to doubt the statute’s constitutionality—its ouster of state courts from their traditional supremacy in family law, based on sources of federal authority (such as the Indian Commerce Clause) that have never been recognized as supporting such ouster.

Justice Sotomayor’s dissent has some force in arguing that the majority is departing from the most natural reading of ICWA’s text, as well as Congress’s likely intent, and in particular that it may be casting doubt on some rights of biological, noncustodial Indian fathers that Congress may have intended the law to protect. As Justice Thomas rightly argues, however, today’s ruling makes sense in light of the doctrine of constitutional avoidance, in which the Court construes doubtful laws so as to avoid possible unconstitutionality. Eventually, if not in this case, ICWA’s constitutional difficulties will be back before the Court in a form it can’t evade. My April coverage of the case in Reason is here; background at SCOTUSBlog, Overlawyered, and RadioLab.

NSA Spying, NSA Lying, and Where the Fourth Amendment Is Going

If you want a good primer on the NSA spying disclosed so far, check out the item by Cato alum Tim Lee on the Washington Post’s WonkBlog. It’s a blessedly brief but informative run-down covering:

- mass collection of phone records;

- the PRISM program, which gathers data about Americans incidentally to its stated aim of foreign surveillance; and

- the NSA’s fiber optic eavesdropping: “[T]he NSA has a broad program (actually, several of them) to sweep up Internet traffic from fiber optic cables.”

Also, be sure to read the letter Senators Wyden (D-OR) and Udall (D-CO) sent to NSA head General Keith Alexander yesterday. In it, they point out inaccurate and misleading statements the NSA made in a recently distributed fact sheet. At a certain point, inaccuracies become willful.

On the question of whether surveillance of every American’s phone calling is constitutional, Lee notes how the government and its defenders will rely on a 1979 case called Smith v. Maryland. In that case, the government caused a telephone company to install a pen register at its central offices to record the numbers dialed from the home of a suspected robber. Applying doctrine that emerged from Katz v. United States (1967), the Court found that a person doesn’t have a “reasonable expectation of privacy” in phone calling information, so no search occurs when the government collects and examines this information.

It takes willfulness of a different kind to rely on Smith as validation the NSA’s collection of highly revealing data about all of us. Smith dealt with one suspect, about whom there was already good evidence of criminality, if not a warrant. The NSA program collects call information about 300+ million innocent Americans under a court order. And the Supreme Court is moving away from Katz doctrine, having avoided relying on it in recent major Fourth Amendment cases such as Jardines (2013), Jones (2012), and Kyllo in 2001.

Nobody knows where exactly the Court is headed with the Fourth Amendment in the challenging area of communications, but I’ve argued for reaching back to the wisdom of Justice Butler, dissenting in Olmstead (1929):

Telephones are used generally for transmission of messages concerning official, social, business and personal affairs, including communications that are private and privileged – those between physician and patient, lawyer and client, parent and child, husband and wife. The contracts between telephone companies and users contemplate the private use of the facilities employed in the service. The communications belong to the parties between whom they pass.

Local Government Mugged by the Constitution

Is the government like a mugger: “Your money or your life”? The Florida Supreme Court said yes. So did the U.S. Supreme Court’s four liberals. But Justice Samuel Alito, joined by his conservative brethren, begged to differ today as the High Court reversed the court below in Koontz v. St. Johns River Water Management District, a ringing victory for property rights.

In 1994 (note when this case began), Coy Koontz Sr. sought a permit from the District to develop his 15-acre tract. He offered to mitigate several environmental effects and to foreclose any future development on 11 acres. But that wasn’t enough for the District. Among other things, they demanded that he (1) reduce the size of his development to one acre and deed to the District a conservation easement on the remainder of his property, or (2) hire contractors to make improvements on District-owned wetlands several miles away.

No dice, he said. So he did what every red-blooded American would do – he sued. And today the Supreme Court said he was right to do so – as Cato and the Institute for Justice did in our amicus brief supporting Mr. Koontz. Under the Court’s Nollan and Dolan, precedents, governments cannot condition the approval of a land-use permit on an owner’s relinquishing a portion of his property unless there’s a nexus and rough proportionality between the government’s demand and the effects of the proposed land use. And there was no such nexus here.

As important a win as this is for the Fifth Amendment’s Takings Clause, it is equally important for adding heft to the Court’s often uncertain “unconstitutional conditions” doctrine, which at its core stands for a simple proposition: the government cannot put you to a choice between two of your entitlements. As Justice Scalia put it in the Nollan case, this was “not a valid regulation of land use, but ‘an out-and-out plan of extortion.’” The government cannot act like a mugger.

Supreme Court Restores Constitutional Order, Strikes Down Outdated Voting Rights Act Provision

In striking down Section 4 of the Voting Rights Act, the Supreme Court restored a measure of constitutional order to America. Based on 40-year-old data showing racial disparities in voting that no longer exist, this provision subjected a now-random assortment of states and localities to onerous burdens and unusual federal oversight. Recognizing that the nation has changed, the Court aptly ended the extraordinary intrusion in state sovereignty that can no longer be justified by the facts on the ground.

“If Congress had started from scratch,” Chief Justice Roberts wrote for the majority, “it plainly could not have enacted the present coverage formula. It would have been irrational for Congress to distinguish between States in such a fundamental way.” And so this law must fall.

Of course, the Court really should’ve gone further, as Justice Thomas pointed out in a concurring opinion. The Court’s explanation of Section 4’s anachronism applies equally to Section 5. In practice, however, Congress will be hard-pressed to enact any new coverage formula because the pervasive, systemic discrimination in voting that justified such an exceptional intrusion into the normal constitutional order is now gone.

And that’s a good thing. Today’s ruling underlines, belatedly, that Jim Crow is dead.

Obama Tackles Global Warming — On His Own Authority

In a speech today at Georgetown University, President Obama will lay out his sweeping plan to address what he believes is our “moral obligation” to address climate change – apparently oblivious to serious studies questioning the extent and cause of the problem, to the futility of our acting alone as China, India, and others do nothing, and to the far-reaching economic effects his plan will have on an economy already struggling with regulatory overkill.

And he plans to do all of this not with the concurrence of Congress but in the face of congressional opposition. He will act unilaterally, by executive order. Yet he has that power, thanks to constitutionally dubious congressional delegations and court decisions stretching back over many years. See here for a detailed discussion of how the president came to have such awesome power.

Time to End the Farmers’ Dole

Last week Washington enjoyed a miracle. Legislators failed in a high profile attempt to mulct the public.

Legislators were debating the Farm Bill, which mixes Food Stamps and agricultural price supports. Even though Washington is drowning in red ink, Republicans and Democrats wanted to approve a measure to spend nearly a trillion dollars over the next decade. 

The Democrats and Republicans disagreed only over details. The Democratic Senate approved $955 billion. The House Republican leadership wanted $940 billion. The president took no position other than to support more spending. 

However, last Thursday the House leadership miscalculated and lost support from Democrats as well as conservative Republicans, leading to the bill’s surprise defeat.

Of course, Washington was filled with recriminations. But the collapse of the legislation is very good news. As I pointed out in my latest Forbes column, the politicians’ failure creates a rare opportunity for real change. 

Indeed, both parts of the Farm Bill require transformation.

As I wrote:

The first step would be to separate Food Stamps from price supports. Debate the former in the context of the scores of overlapping and expensive welfare programs. Indeed, the Carleson Center for Public Policy recently counted an astounding 157 means-tested federal programs. Total government spending on general welfare runs about $1 trillion a year. It’s time Congress rethought and revamped the entire welfare industry.

As for the farmers’ dole, abolition is the only sensible policy. New Zealand successfully took this approach in 1984. 

Farmers are practiced businessmen who employ sophisticated scientific techniques to produce food and sophisticated financial tools to manage risk. Farmers are enjoying boom economic times. Wealthier on average than other Americans, farmer don’t need their own special welfare program.  Indeed, many operators already make a profit with little or no federal support. 

It is rare to stop the two major parties when they combine for a raid on the taxpayers. The task now is to make their defeat permanent. In recent years Americans have deregulated communications, finance, and transportation. Agriculture should be next.

Read the rest here.