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.

The Costs of E-Verify - and the Immigration Laws

In my paper, “Electronic Employment Eligibility Verification: Franz Kafka’s Solution to Illegal Immigration,” I analyzed a number of different factors that would frustrate a national employment eligibility verification system. Most of them had to do with responses that undermine the functioning of the verification system itself. But I also talked about avoidance. Under a national electronic employment eligibility system, I wrote, “[w]ork ‘under the table’ would increase, and, along with it, other forms of illegality.”

Strong validation of that notion came from an interesting source last week: the Congressional Budget Office. CBO and the Joint Committee on Taxation estimate that the SAVE Act (the “Secure America Through Verification and Enforcement Act”), a bill to take E-Verify national, would result in lost federal revenue of $17 billion over 10 years. That is because more undocumented workers would be paid outside the tax system. That’s a lot of work under the table.

Those who have fixated on immigration law enforcement often cite the rule of law, which is certainly an important thing. But the rule of law thrives when the law is at peace with the people, not when it’s a cudgel. As I also wrote:

Proponents of internal enforcement and electronic employment verification surely stand on a sound principle—the rule-of-law ideal that people should enter the country legally. But current immigration law is a greater threat to the rule of law than any of the people crossing the border to come here and work. Our immigration policies have fostered the illegality so common in the employment area.

Some Myth-Busting Is Quite Revealing

After DHS Secretary Chertoff’s testimony to the Senate Judiciary Committee this week (at which he was apparently rebuked for “bullying” states on REAL ID compliance) he sat down with a group of bloggers to discuss things.

Congratulations are due the Secretary for making himself available in an open forum like this, especially because it allows us some insight into his thinking. It makes more clear why he and his colleague Stewart Baker feel a need to engage in so much REAL ID “myth-busting.” Though I have assumed their comprehension of the problems with REAL ID, perhaps I have been mistaken, as Secretary Chertoff does not exhibit a good sense of information technology or the information economy.

Here’s the myth that Secretary Chertoff purports to bust:

I had someone say to me today, “Well, when you have these REAL ID licenses with a machine-readable zone … it’s gonna be used to track people. People can skim it. And they can steal it. And then they can use it to follow you around.” Now this is a fantasy. This is just not true.

The Secretary overstates the argument and so shades into attacking a straw man, but the context is conversational. So let’s look at what the real argument is, and then at the Secretary’s responses. I touched on the question of tracking in my testimony to the Senate Homeland Security and Governmental Affairs Committee:

There are machine-readable components like magnetic strips and bar codes on many licenses today. Their types, locations, designs, and the information they carry differs from state to state. For this reason, they are not used very often. If all identification cards and licenses were the same, there would be economies of scale in producing card readers, software, and databases to capture and use this information. Americans would inevitably be asked more and more often to produce a REAL ID card, and share the data from it, when they engaged in various governmental and commercial transactions.

In turn, others will capitalize on the information collected in state databases and harvested using REAL ID cards. Speaking to the Department of Homeland Security’s Data Privacy and Integrity Advisory Committee last week, Anne Collins, the Registrar of Motor Vehicles for the Commonwealth of Massachusetts said, “If you build it they will come.” Massed personal information will be an irresistible attraction to the Department of Homeland Security and many other governmental entities, who will dip into data about us for an endless variety of purposes.

This is not an argument that the currently proposed REAL ID license would be read surreptitiously, as might happen with an RFID-chipped card. (The Secretary says that REAL ID currently does not require RFID, but neglects to mention that the “Enhanced Driver’s License,” which satisfies REAL ID, has one.) The argument is that a great deal more data about us will be collected.

This will include “meta-data” - information about the collection of information, such as time, place, purpose, collecting entity, and so on. Combined identity data and meta-data form footprints about our comings and goings. These footprints, collected in interoperable databases, combine to form tracks.

Perhaps it’s a complicated argument, but it’s a coherent one: REAL ID would lead to tracking of law-abiding Americans.

Nothing the Secretary says conveys that he’s aware of meta-data or actual data collection processes. He says that the machine-readable zone (or MRZ) is “nothing more than the information on the face of the license. I already have a reader for the license - it’s called my eye - and I can read what’s on your license. So therefore there’s nothing I’m going to get out of the MRZ that I can’t get from the face of the license.”

Alas, even this isn’t quite true. The regulation prescribes certain minimum data elements for the MRZ, but doesn’t restrict the use of others, and it doesn’t require states to restrict the content of the MRZ to only what is on the face of the license. The MRZ could lead to tracking of people and their activities based on their race, for example, a data element many states currently include in their MRZs. Despite receiving comments concerned with this during the rulemaking process - oh, and in congressional testimony - DHS declined to prohibit including race in the MRZ of REAL IDs.

Card readers are not just little electric eyeballs. They record information in digital form. This means that identical copies of these records are easy to store, easy to compile, easy to transfer, and easy to reuse. Collecting information in digital form is materially different from collecting information in analog form. Most people who work with technology know that implicitly. To be credible on identification technology issues, one must know this and acknowledge its significance.

Finally, the Secretary says that the DHS is not going to create a lot of databases using REAL ID. That may be his intention, but he’s in office for about ten more months. And whether DHS creates them or not, databases of information harvested using REAL ID would likely be available to DHS.

It is very hard to design information technology systems that do not collect and retain information. The current secretary’s personal opinion about databases just isn’t good evidence of whether or not there will be databases of information about the comings and goings of law-abiding Americans. Chances are very good if REAL ID is implemented that there will be.