African Americans Speak for Themselves: Most Want School Choice

Private school choice is the work of racists. That message, it seems increasingly clear, is going to be a major weapon wielded by opponents of educational freedom for the foreseeable future. It is the explicit contention of a new Center for American Progress report, The Racist Origins of Private School Vouchers, and of Randi Weingarten, President of the American Federation of Teachers, who has been proclaiming that modern choice programs are “only slightly more polite cousins of segregation.”

As I and others have written, the assertion that school choice originated in racism, or somehow has a more repellant history than public schooling, would be laughable if the implications of the charge were not so serious. Remember, Brown v. Board of Education was about massive, mandated segregation in public schools, the schools that defenders love to tell us serve the vast majority of students. Segregation in them meant—and means—segregation for huge swaths of people. Perhaps that is why a response to my critique of the CAP report from the Century Foundation’s Kimberly Quick focused not on history, but my pointing out that private school choice is popular with African Americans.

According to Quick this is not so, and by the way, on what grounds does someone at Cato speak “on behalf of the black community”? Cato has no African American policy scholars.

I never wrote that I speak on behalf of African Americans. I do not presume to speak for anyone other than myself. But the survey literature—African Americans speaking for themselves—is overwhelmingly on my side.

To demonstrate that polls do not show majority African American support for private school choice, Quick cites the oft-used question from the annual Phi Delta Kappa poll, which employs wording notoriously loaded against choice: “Do you favor allowing students and parents to choose a private school to attend at public expense.” “At public expense” sounds like freeloading, and “choose a private school” rather than to choose among schools minimizes the empowerment of families. Not surprisingly, this wording garners only 33 percent African-American support, though that outpaces the general public.

What is much more telling is what the polling reveals when the question is more neutral, which excludes surveys that get both high negative and positive numbers. What follows is not an exhaustive list, and there are other ways to game survey outcomes such as question order, but there have been many, more neutrally worded surveys that have shown that African Americans want private school choice.

The journal Education Next has for several years asked questions both neutral and not so neutral to gauge school choice support. As I noted in my initial response to the CAP paper, the 2016 survey found “a whopping 64 percent of African Americans supported ‘a tax credit for individual and corporate donations that pay for scholarships to help low-income parents send their children to private schools.’” The 2015 survey revealed that 58 percent of African Americans favored a program “that would give all families with children in public schools a wider choice, by allowing them to enroll their children in private schools instead, with the government helping to pay the tuition.” 66 percent supported a similar program just for low-income families, and even when using wording closer to PDK’s, pluralities of African Americans supported it. In 2016 EdChoice asked three forms of a question about vouchers, and the composite average was 61 percent of African Americans favoring them.

The Black Alliance for Educational Options has also conducted polling, with very straightforward wording, such as “do you support or oppose parent choice,” and “do you support school vouchers/scholarships?” Asking African Americans in New Jersey, Tennessee, Alabama, and Louisiana these questions, in 2015 BAEO reported support ranging from 61 percent to 65 percent, depending on the state.

Of course, EdChoice and BAEO advocate for school choice, and Education Next features many choice proponents. But some of the longest running evidence of African-American support for choice comes from the Joint Center for Political and Economic Studies, “a non-partisan, non-profit public policy organization that supports elected officials and policy experts who serve communities of color across the country.” Over many years it has consistently found plurality to significant majority African-American support for choice. Its most recent poll of which I am aware, conducted in 2008, reported that 63 percent of respondents said “yes” when asked if they “support vouchers.” At least in 2000, the exact question asked was, “Would you support a voucher system where parents would get money from the government to send their children to the public, private, or parochial school of their choice?” (I haven’t been able to confirm the question for other years.)

Perhaps all of this is why Quick’s colleague Richard Kahlenberg recently said in answer to a question I asked about black support for school choice, his understanding of the polling was the same as mine: African Americans want choice. (Or so I recall—I’m not sure if event video will be up to confirm this.) Indeed, Quick herself concedes that “it makes sense that black and brown families, too often lacking options beyond segregated, under resourced, and underperforming schools, would want alternative options for their children.”

Now, about Cato for a moment. Again, I claim no insight based on personal experience into what African Americans individually or collectively want, and I certainly wish there were more black libertarians. But when I first started working at Cato, a major player in the fight for choice in Washington, DC, was Casey Lartigue, an African American Cato scholar. Similarly, Jonathan Blanks, a Cato researcher, who is African American and recently wrote that libertarians must not downplay racism or think it will be overcome just by free markets, but school choice is nonetheless important for the black community. Of course, none of this makes choice right or wrong, nor does it make Cato any more or less a spokes-tank for African Americans.

I’ll let the evidence, and individual African Americans, speak and act for themselves. Indeed, empowering the formerly powerless to act for themselves is exactly what school choice is about.

D.C.’s Rule Requiring a “Good Reason” to Carry a Gun Struck Down

The District of Columbia has suffered another defeat in its decades-long effort to restrict gun rights.

Today the D.C. Circuit Court of Appeals struck down the District’s “good reason” requirement, which obliges individuals to demonstrate a special need before being allowed to carry a gun.

Some background: the District banned all handgun possession, including in the home, in 1976.  That policy was ruled unconstitutional in the Heller I decision in 2008, which held that the 2nd Amendment protects an individual right to have a handgun in the home for self-defense. The District responded to Heller I by banning the public carrying of handguns.  That ban was ruled unconstitutional in Palmer v. District of Columbia in 2014 (Cato’s own Tom Palmer was the named plaintiff in that case). The District was undeterred, and responded to the Palmer ruling by requiring permit applicants to provide a “good reason” why they should be allowed to carry.

The “good reason,” as defined by the D.C. government, is incredibly narrow. Simply being concerned about crime, or living/working in a crime-ridden area of the city does not suffice. Effectively the only people capable of meeting the D.C. test are those working in extraordinarily high-risk occupations or people who have received substantive, specific threats against them.

Two different District Court judges ruled against the “good reason” requirement (one ruling was set aside due to a bit of a procedural morass), and those two cases were combined on appeal to the D.C. Circuit. In a 2-1 decision, a panel of the Court of Appeals struck the “good reason” rule down as unconstitutional.

Judge Griffith of the D.C. Circuit writes:

At the Second Amendment’s core lies the right of responsible citizens to carry firearms for personal self-defense beyond the home, subject to longstanding restrictions. These traditional limits include, for instance, licensing requirements, but not bans on carrying in urban areas like D.C. or bans on carrying absent a special need for self-defense. In fact, the Amendment’s core at a minimum shields the typically situated citizen’s ability to carry common arms generally. The District’s good-reason law is necessarily a total ban on exercises of that constitutional right for most D.C. residents. That’s enough to sink this law under Heller I.

 […]

We are bound to leave the District as much space to regulate as the Constitution allows - but no more. Just so, our opinion does little more than trace the boundaries laid in 1791 and flagged in Heller I. And the resulting decision rests on a rule so narrow that good-reason laws seem almost uniquely designed to defy it: that the law-abiding citizen’s right to bear common arms must enable the typical citizen to carry a gun.

 

It’s important to note that this case is not over.

The District can appeal this ruling back to the D.C. Circuit in order to have it reheard en banc. The case could also ultimately end up in front of the United States Supreme Court which, since its rulings in Heller (2008) and McDonald (2010), hasn’t seen fit to offer further guidance to lower courts on whether the 2nd Amendment applies outside the home. With various federal courts coming to different conclusions on that question, this case represents a great opportunity to finally get a definitive answer from the high court.

Our Unhinged Fed

If you haven’t seen much of me on these pages lately, that’s because I’ve spent most of the last few weeks feeding and grooming my favorite hobby horse: that’s right, the Fed’s policy of encouraging banks to hoard reserves by paying above-market rates on their Fed reserve balances.

Well, last Thursday morning I rode the old gal to Capitol Hill, where I put her through the paces before the House Financial Services Subcommittee on Monetary Policy and Trade, at its hearing on “Monetary Policy v. Fiscal Policy: Risks to Price Stability and the Economy.” Mickey Levy of Berenberg Capital Markets, Eric Leeper of Indiana University at Bloomington, and Jared Bernstein of the Center on Budget and Policy Priorities, also took part.

Below I reproduce my five-minute spoken testimony, in which I attempt to summarize the twenty-two thousand word written testimony I submitted beforehand.  All four written testimonies, including my screed, can be read here.  Those who wish to see the entire show, including my and the other participants’ replies to members’ questions, will find a video embedded further below.

Does the Seventh Amendment Mean What it Says?

James Madison once wrote: “Government is instituted to protect property of every sort … . This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.” Because the power of eminent domain so readily runs the risk of violating private property rights, you would think that those individuals subjected to it would be afforded every procedural protection the Constitution has to offer, including the right to a trial by jury. But according to the federal government, you would be wrong.

When a group of 20 Michigan landowners contested the feds’ use of eminent domain, they asked for a jury trial. By doing so, they challenged a provision of the Tucker Act that says suits against the government for over $10,000 must be brought in the Court of Federal Claims (a legislative tribunal rather than an Article III court). This goes against the Seventh Amendment’s guarantee of a right to trial by jury, argued the landowners. The district court in Michigan sided with the government, however, and dismissed the case for lack of jurisdiction, holding that Congress is within its powers to override the Seventh Amendment’s guarantee of the right to jury trial when the federal government is the defendant (because of “sovereign immunity”).

The district court effectively shielded the government from constitutional checks and balances that protect individuals’ property rights, which is why Cato joined the National Federation of Independent Business on an amicus brief in the next stage of the case, before the U.S. Court of Appeals for the Sixth Circuit. Unfortunately, a three-judge Sixth Circuit panel agreed with the district court that the Seventh Amendment has no force against the United States, and the court is now weighing whether to rehear the case en banc, which means all the judges on the court will hear the case rather than just a three-judge panel. Cato, joined by the National Federation of Independent Business and the Southeastern Legal Foundation, is supporting the en banc petition

We argue that the Seventh Amendment’s guarantee of a trial by jury is one of the oldest rights recognized in Anglo-American law. In City of Monterey v. Del Monte Dunes (1999), the Supreme Court held that, because the claimants in takings cases are seeking compensation, such claims would have been heard by a court of law (rather than, say, an admiralty court or other specialized tribunal) at the time the Seventh Amendment was passed. Accordingly, whenever plaintiffs ask for a determination of just compensation, the right to a jury trial always attaches. Indeed, takings cases are exactly the sort of cases that should be resolved by a jury trial, because they involve factual determinations with which members of the local community are likely best acquainted.

The panel’s opinion was based on dicta in a case that said there was no right to a trial by jury in a suit brought under a federal statue. Suits under statutes are very different than suits that seek to vindicate a constitutional right. The Supreme Court has not once held that the federal government can hide behind the doctrine of sovereign immunity in this manner, picking and choosing when it wants to exempt itself from the Seventh Amendment when citizens are seeking to enforce another constitutional right. Historically, not even the king of England could exempt the crown from private-property suits—and the U.S. government does not have greater powers to deprive individuals of their private property without the just compensation that a jury determines is due. The Sixth Circuit should rehear the case to correct this error. 

Are US Bases in Asia Vulnerable? Time to Rethink Force Posture

A recent study from the Center for a New American Security (CNAS) looks at how China’s military capabilities in Asia make forward-deployed U.S. bases there vulnerable. The report warns, “the growing capability of China to threaten U.S. bases in the region” may represent “the greatest military threat to U.S. vital interests in Asia.”

“In the event of an unforeseen U.S.-China crisis,” the report explains, “a preemptive missile strike against the forward bases that underpin U.S. military power in the Western Pacific could be a real possibility…particularly if China perceives that its attempts at deterrence of a major U.S. intervention—say in a cross-strait Taiwan crisis or in a brewing dispute over the Senkaku Islands—have failed.”

Two important points need to be made in response to this assessment. First, it explores a scenario—an outbreak of war between the U.S. and China—that is extremely improbable. While it is true that Chinese strategic planners have discussed striking U.S. bases in the unlikely scenario that inadvertent escalation results in an outbreak of conflict, deterrence remains robust in Asia. China in particular has little interest in getting into a shooting war with the United States. Not only do both countries have conventional capabilities devastating enough to make any war too costly to contemplate, but nuclear deterrence and economic interdependence make a military clash not even close to being worth the fight.

Furthermore, the Defense Department describes China’s posture as “strategically defensive” and “rooted in a commitment not to attack, but to respond aggressively once an adversary decides to attack.” Indeed, China has been far less assertive than often depicted. As MIT’s M. Taylor Fravel puts it, Beijing “has compromised more frequently than it has used force,” and “has been less belligerent than leading theories of international relations might have predicted for a state with its characteristics.”

Second, even with the understanding that an all-out Chinese attack on U.S. bases in Asia is a very low probability event, it seems to me, as I argue in a recent Cato Policy Analysis, that this is a good reason to withdraw from U.S. bases in Asia, thereby making American military assets and troops less vulnerable. Granted, this would mark a truly dramatic change in U.S. foreign policy, but it wouldn’t undermine the core economic and security interests of the United States.

The authors of the CNAS report have a very different view. They recommend spending billions of dollars on missile defense systems to better protect U.S. bases. Notably, they concede this would be an extremely expensive way to not even solve the problem: this “admittedly expensive investment in several billion dollars of missile defense forces” would only marginally reduce the damage done to U.S. bases and troops. These new missile defense systems, they admit further, would still be “overwhelmed by sheer numbers” of Chinese ballistic missiles.

A far wiser, and cheaper, solution would be to withdraw U.S. bases from the region and encourage allies to build up some of the same surveillance, targeting, and missile defense technology China possesses. Another Pentagon boondoggle to inappreciably shore up America’s outdated strategic force posture in Asia is not the way to go.

I Beg My Pardon?

If you’re looking for an upside to the Trump presidency, there’s this at least: it promises to be endless fun for executive-power geeks. That “this is not normal” means there’s plenty of opportunity to consider constitutional questions that rarely come up in periods of relative normalcy.

Case in point: the current debate over whether the president has the power to pardon himself, sparked by Friday’s Washington Post report that President Trump “has asked his advisers about his power to pardon aides, family members and even himself” in connection with the special prosecutor’s Russia investigation. Trump himself chimed in over Twitter Saturday:

 

 

On ABC’s “This Week” Sunday, Trump attorney Jay Sekulow denied that any such discussion had taken place, but told George Stephanopolous that “with regard to the issue of a president pardoning himself…. from a constitutional, legal perspective you can’t dismiss it one way or the other.” 

It’s true that the president’s power to self-pardon isn’t clear. What is clear, however, is that if he misuses the pardon power, he can be impeached for it. 

Compare Medical and College Inflation with Services, not Goods

A Wall Street Journal report, “Colleges Pull Back Tuition’s Long Rise,” includes a graph showing the cumulative increases in consumer price indexes (CPI) since 1990 for College Tuition, Medical Care, and All Consumer Prices.

Adding up nearly three decades of increases looks dramatic, but doesn’t show when various prices changes accelerated or slowed. More important, prices for college tuition and medical care are dominated by skilled human services, so they should be properly compared with service prices in general rather than with all items. 

All Consumer Prices (shown as an erratic black line in the graph) includes falling quality-adjusted prices for such tech products as computers and televisions, for example, and cyclically-volatile prices of internationally traded commodities such as oil, steel, and grain.

Service prices largely reflect wages and benefits for skilled labor, which (unlike commodity prices) almost never fall. If service prices did not increase faster than the CPI in general, then real compensation in service sectors could never rise.

Medical care prices compared to other services & CPI

This graph omits college tuition because that CPI item is particularly problematic due to averaging large differences in quality and “financial aid” (selective discounts from sticker prices). The Bureau of Labor Statistics explains some of the difficulties:

“The inclusion of financial aid has added to the complexity of pricing college tuition. Many selected students may have full scholarships (such as athletic), and therefore their tuition and fixed fees are fully covered by scholarships. Since these students pay no tuition and fees, they are not eligible for pricing. In addition, there are other students who pay a very small fee to the college since the majority of their tuition and fixed fees are covered by scholarships. When these situations are priced by BLS Field Staff, normal increases in tuition/fees and minor declines in scholarship awards can provide extremely large changes for entry in the CPI index. For some of these same quotes, minor tuition declines or minor scholarship award increases can actually result in negative prices, which make the quotes ineligible for use in the CPI.”

The graph compares two decades of year-to-year price increases for Medical Care and Services in general. The CPI for medical services alone (not shown in the graph) has actually increased somewhat less than the CPI for all Medical Care, which suggests prices of drugs and medical devices increased faster than physician and hospital fees. There have been major improvements in the quality of drugs and medical devices, however, and economists doubt the CPI adequately adjusts for quality improvement. As a BEA report notes, “If there are unobserved attributes that change over time (e.g. perceived efficacy or experience with the drug), these indexes will count any price increases associated with these changes as increases in price, not quality.”

Have Medical Care prices risen faster than Services prices in general? Yes, but the difference in annualized price increases was typically smaller than one percentage point except in 2002 and 2010, when recession’s aftermath depressed other services prices more than (heavily-subsidized) medical care prices. 

Recessions’ impact on commodity prices pushed the year-to-year overall CPI below zero at times, which underscores the inaptness of comparing prices of medical or educational services to any price index such as the CPI which is heavily weighted by goods.

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