McCain the Burkean?

Jonathan Rauch has a fascinating short essay in the May edition of The Atlantic (not yet available online) labeling John McCain as a solid conservative, with his seeming anti-establishmentarian iconoclasm nothing more than another indicia of the G.O.P.’s desertion of its core values.

McCain, you see, is a true follower of Edmund Burke, who was “[t]radition-minded but (contrary to stereotype) far from reactionary,” believing in “in balancing individual rights with social order” and advocating only incremental, thoughtful reform. Modern conservatives (or at least Republicans), on the other hand, disdain “small ball” and want to blow up the government.

It’s a clever analysis, especially the contrast of conservative ideas with conservative temperament (though a candidate whose temper is often said to be an Achilles heel is hardly the best vehicle for making that distinction). Ultimately Rauch is too clever by more than half, however, torturing McCain’s policies until they confess to the writer’s thesis. For example, even if it were true that McCain’s campaign finance work ultimately “produced a reform that was mostly modest in its aims,” the Senator’s attack on free speech is a square peg that cannot be forced into a round Burkean hole. And McCain’s latent support for the extension of the Bush tax cuts can much more easily be attributed to presidential politics than to a convoluted notion that after a few years a policy “becomes well established and woven into everyday life” (and therefore must continue lest societal stability be torn asunder).

“McCain,” Rauch concludes, “is an antirevolutionary, not a counterrevolutionary.” That may be true in some sense – and McCain’s views on many issues are genuinely conservative (just as others are libertarian and yet others herald a trust-busting populism) – but it doesn’t make him Burkean.

“Biggest … Lie … Ever”

A friend and supporter of my work on REAL ID sent me a link to this WebMemo from the Heritage Foundation, entitled “All Aboard: Fifty States Now Compliant with Real ID.” I’m using the subject line of his email as the title of this post.

There certainly seems to be confusion in some quarters about REAL ID’s current status. Let’s take a brief look at how states stand in terms of compliance.

Because not a single state will comply with REAL ID on the statutory deadline, May 11th, the Department of Homeland Security has been giving out deadline extensions willy-nilly the last few months. It gave extensions just for the asking to states that have statutorily barred themselves from complying, for example.

Some states refused to even ask for extensions. When this happened, DHS quickly switched to issuing states extensions if the states were independently changing their driver’s licensing processes in ways that would meet any of the requirements of REAL ID. States like Montana and New Hampshire wrote to DHS expressing no intention to comply with the law, but stating what they had done on their own. These DHS interpreted as requests for extensions, and granted them.

When the governor of Maine last week finally sent DHS a letter stating his intention to submit legislation relating to REAL ID compliance, the DHS took that as a request for an extension and granted it. The Maine legislature will have to consider any such bills, of course. Maine’s is the legislature that was the first in the country to reject REAL ID.

Getting deadline extensions by hook and by crook out to all 50 states is a pretty long way from getting all 50 states to comply. The actual state of things is reflected well on this map, maintained at the ACLU-run Web site It shows seven states still self-barred from complying, and many others protesting the law. An eighth - Idaho - recently saw legislation barring compliance with REAL ID move through the Senate and to the governor’s desk.

Census Bureau Misleads Media

Bureau of the Census press release issued on April Fool’s day (!) bore the title: “Public Schools Spent $9,138 Per Student in 2006.” Lots of media folks fell for their gag, including the Washington Times and the Examiner.

Here’s the joke: the Census Bureau’s own Excel file reports total spending in public schools for 2006 as $526,648,505,000 (sheet “1”, cell G9). It also reports total enrollment as 48,380,507 (sheet “18”, cell E8). Are you seeing anything hinky yet? Divide the first number by the second and you get $10,886that is total per pupil spending for US public schools during the 2005-2006 school year.

What gives? The headline number used by the Bureau was NOT total spending per pupil, it was only “current operating spending” per pupil – that means it excluded capital spending on building upgrades and new construction as well as interest on debt (see Table 8 of their .pdf report). The word “current” in this sense refers not to the period in which the data were collected but to the categories of spending encompassed.

The case of DC is even more egregious. The Census reported, and the media picked up, the “current expenditure figure of $13,466, but presented it as though it encompassed all spending. In fact, if you divide the Census’s own total DC spending figure by its own total enrollment figure, you get a total per pupil spending figure of $18,098 for Washington, DC in 2005-06

But even this figure is a misleading understatement of per pupil spending in district schools, because it lumps district schools together with (thriftier) charter schools. Take that into account and you can begin to see how total spending in district schools has ballooned to the $24,606 I reported yesterday.

If the Bureau of the Census wants to discharge its responsibility to serve the public with accurate, meaningful statistics, it should stop misleading the media with ambiguous language hooked to ”current” spending figures and explicitly give both “current” and total spending figures. It should also offer estimates of total spending at the time of their press releases, extrapolating from historical trends, because their data are always outdated by two or more years, and hence always understate spending at the present time.


Unable to post bail for a robbery charge, a nineteen year-old man spends his days and nights in the city jail awaiting his trial.  Then his mentally deranged cell mate beats him up and rapes him.  Prison guards rescue the man after dithering for two hours.  

Some people believe that prisons are supposed to be hell-holes.  That will help to discourage bad people from commiting crimes in the first place.  Wrong.  Some people need to be incarcerated, but they don’t deserve to be brutalized. 

More here and here.

The Arrogance of Power

Federal prosecutor wants a federal judge to order citizens to stop talking to the media about a case.  In extraordinary circumstances, a judge can order the attorneys in a particular case to stop talking to the media … but a censorship order to other people?!  Even if the judge promptly rejects this request, we should all be troubled that this was even attempted.  This prosecutor should be shown the door right away.

More here, here, and here.   

You’ve Come a Long Way, Baby

I just finished Steven Teles’s important new book, The Rise of the Conservative Legal Movement.  As far as legal nonfiction goes, this is not going to be the bestseller that Jeffrey Toobin’s or Jan Crawford Greenburg’s recent tomes on the Supreme Court have  become, let alone Clarence Thomas’s memoirs.  In part this is because more people are interested in the intense Kremlinology of the least public branch of government – the nine black-robed magistrates in their marble palace at One First Street – than in the nuts and bolts of the reaction to the left-wing excesses of the legal academy.

But more than that, this worthy study will fly under the radar more than it otherwise should because it is an academic book, written with the research methodology and citation practices of a social scientist investigating a particular phenomenon.  It is to Teles’s great credit that he avoided (for the most part) the political science jargon in which such a project could have gotten swallowed, but a journalistic narrative this ain’t.  Perhaps to even greater credit, Teles managed to write this book without once resorting to the often confusing and usually superfluous empirical models and regression analyses that are now demanded by practitioners of the “soft” sciences – probably because he already has tenure.

Teles ably takes us through the development of law and economics – the only way to get alternative voices into law schools resistant to anti-New Deal, anti-Warren Court views – and two generations of libertarian/conservative public interest law, as well as cataloguing the wealth of archival materials from what the Clintons considered the heart of the vast right-wing conspiracy, the Federalist Society.  Curiously, the only mentions of Cato are in a footnote describing Charles Koch as one of our founders and a brief reference to my boss, Roger Pilon, “fuming in his Washington office when the [Harriet] Miers [Supreme Court] nomination was announced.”

In any event, I do recommend the book to those interested in the successes, failures, and false starts of a broad movement to save the law – and consequently legal practice and the courts – from the radicalization that beset academia and public interest organizations in the 1960s.  Is it better to set up law & econ outposts in hostile institutions (Yale, Harvard) or takeover law schools wholesale (George Mason)?  Is it better to have businessmen (Mountain States Legal Foundation) or idealists (Institute for Justice) running a public interest litigation shop?  What sorts of cases are best taken up by the likes of IJ so as to have maximum long-term effect on the legal culture?  These are the sorts of questions Teles analyzes, providing some interesting answers and leaving, as one expects from an academic tract, room for further research.

The Real Cost of Public Schools

In yesterday’s Washington Post I pointed out that DC public schools are spending about $24,600 per pupil this school year – roughly $10,000 more than the average for area private schools. There wasn’t room to explain those estimates in the Post, so I provide the details here.

DC public schools receive funding from several sources: the District’s local operating budget, special supplementary operating funds from the DC City Council, capital funding for building improvements and construction, and the federal government. To arrive at the real total per pupil funding figure for the district, all of these funding sources must be added up, excluding funding aimed at charter schools or higher education, and the resulting total must be divided by the number of students enrolled. Here are those numbers, with sources:

The latest available version of the 2007-08 local operating budget for DC (.xls file) can be found on the website of the DC Fiscal Policy Institute. The relevant line items for our purposes are:

DC Public Schools:                            $806,251,000
Teachers’ Retirement System:        $6,000,000
“State” Education Office:                 $28,753,000
Department of Education:                 $2,367,000

Before summing these up to get the local operating subtotal, we have to subtract inapplicable funds from the “State” Education Office item. About $5 million of that funding is for higher education programs, and the agency’s k-12 services cover charter schools as well as district schools. To account for this, I first subtract the $5 million and then pro-rate the remaining balance based on district schools’ share of local public school enrollment (.707), for an adjusted SEO value of $16.8 million. That brings the total local operating budget for district schools to: $831.4 million. [Note that the SEO was recently reorganized and renamed “the Office of the State Superintendent of Education,” but while some responsibilities have shifted from the district level to the new OSSE, bringing their funding with them, this reorganization does not change the overall combined operating budget for the two entities.]

Additionally, public school chancellor Michelle Rhee requested, and the DC City Council granted, $81 million in supplementary operating funding, as reported by the Washington Post.

Capital funding for 2007-08 is $218 million, down from $223 million last year, according to the DC Fiscal Policy Institute.

Federal funding for District of Columbia public schools (.xls), including charter schools, is $103 million according to the Department of Education’s website. Pro-rating this to exclude charter schools (a rough estimate that should understate federal funding received by district schools), we are left with $72.7 million. Under the Washington, DC school voucher program, however, DC public schools are granted an additional $13 million dollars annually (a “sweetener” added to the bill to ease its passage through the legislature), bringing the total up to: $85.7 million.

The grand total of DC public school funding for 2007-08 is thus $1.216 billion. Divide that by the OSSE’s official enrollment figure of 49,422 students, and you arrive at an estimated total per pupil spending figure of $24,606.

To estimate the total per pupil spending in DC area private schools, I began by entering the tuition data from the Washingtonian’s 2007-08 Guide to Private Schools into a spreadsheet, eliminating boarding-only and pre-school-only institutions. In schools that gave ranges of tuitions for ranges of grades from 1 through 12, I averaged the published tuitions to obtain a single figure for each school. For each school that published tuition ranges covering pre-K or K through the regular grades, I estimated a weighted average tuition that leaned more heavily on the high end of the tuition range. This was to avoid skewing the average tuition inadvertently downward by overweighting the kindergarten or pre-kindergarten tuition figures, which are sometimes (but not always) considerably lower than tuition for the regular grades.

Once I had average published tuition figures for all the schools, I adjusted them downwards to account for the fact that DC area schools offer tuition assistance that reduces the actual average tuition paid to about 89.4 percent of the average published tuition (according to a study by the Association of Independent Schools of Greater Washington). I then multiplied this real average tuition by 1.25 because in earlier research in Arizona I found that, on average, 20 percent of total private school funding comes from non-tuition sources (mainly parish subsidies and alumni donations). [This adjustment probably overstated total per pupil spending in DC private schools, because I had already eliminated from consideration all special subsidized tuition rates for members of the faith or members of the parish at religious schools, counting only the full tuitions charged to members of other religions.]

The resulting figures for private schools were:

Average tuition actually paid: $11,627
Median tuition actually paid: $10,043
Estimated average total per pupil spending: $14,534
Estimated median total per pupil spending: $12,534

So the average total per pupil spending in DC area private schools, some of the most elite private schools in the entire nation, is about $10,000 less than the comparable figure for DC public schools. The difference is about $12,000 when we consider the median total spending in private schools, because the average is skewed upward by a few grand institutions with lavish buildings set on forested acreage.

Despite their vastly higher spending, DC public schools are often in abysmal physical condition. If the bureaucracy cannot maintain its buildings with all these funds, and despite having caring and dedicated leadership, we should not be surprised that it fails at the more challenging task of offering a good education.

The real cost of this dysfunctional system is not measured in dollars and cents but in the hopes and futures it has destroyed. As I’ve said before, our inner-city school districts have become slaughterhouses of dreams. For America to live up to its meritocratic promises, all families must be afforded an escape from these schools, and offered the educational choice currently enjoyed only by the elites.