The New York Times Continues to Mislead About School Choice in Michigan

Another day, another distortion from the Grey Lady on school choice.

In its quest to build a false narrative about Betsy DeVos, nominee for Secretary of the U.S. Department of Education, the New York Times has continuously misled readers about the effects of charter schools in Detroit. The latest example comes from today’s editorial:

[DeVos] has also argued for shutting down Detroit public schools, with the system turned over to charters or taxpayer money given out as vouchers for private schools. In that city, charter schools often perform no better than traditional schools, and sometimes worse.

The NYT editors based their claim on a (faultyTimes op-ed from November in which Douglas Harris made the following claim:

As one of the architects of Detroit’s charter school system, [DeVos] is partly responsible for what even charter advocates acknowledge is the biggest school reform disaster in the country. […] One well-regarded study found that Detroit’s charter schools performed at about the same dismal level as its traditional public schools.

At the time, Ramesh Ponnuru of National Review called out Harris for misrepresenting the Stanford CREDO study he had cited: “Follow the link to that ‘well-regarded study,’ and the results of Detroit’s charter schools do not sound nearly as helpful to Harris’s case as he suggests.”

Back in July, I highlighted the same report’s findings to dispel a similarly misleading description in the NYT:

As shown in this table from page 44 of the CREDO report, nearly half of Detroit’s charter schools outperformed the city’s traditional district schools in reading and math scores, while only one percent of charter schools performed worse in reading and only seven percent performed worse in math.

CREDO 2013 Michigan Charter School Study

Swan Song from a “Reluctant” Hawk

President Obama will deliver his Farewell Address tonight to a capacity crowd in Chicago’s McCormick Place convention center. It’s the right venue for the speech, the president explained last week, because Chicago is “where my career in public service began.”

Indeed, it’s the city where, as a young state senator in 2002, Obama gave an antiwar rally speech railing against the “dumb,” “rash” rush to war in Iraq; and where, as a presidential candidate five years later, he promised to “turn the page on the imperial presidency” and usher in “a new dawn of peace.” And yet, 2008’s “peace candidate” will leave office as the first two-term president in American history to have been at war every day of his presidency, having dropped over 25,000 bombs on seven countries in 2016 alone.

Given that record, it seems unlikely that Obama will use his Farewell Address to warn against excessive foreign entanglements or the dangers of the military-industrial complex. But you never know: our 44th president has never lacked chutzpah. In a speech to US troops last month, he denounced the “false promise” that “we can eliminate terrorism by dropping more bombs,” and piously proclaimed that “democracies should not operate in a state of permanently authorized war.”

An audacious statement—given that it is Obama himself who’s made perpetual warfare the new normal, and the president the ultimate “decider” in matters of war and peace. Where George W. Bush secured congressional authorization for the two major wars he fought, Obama has launched two undeclared wars (in Libya and against ISIS), ordered 10 times as many drone strikes as his predecessor, and this summer bombed six different countries just over Labor Day weekend. And it is Obama who is largely responsible for warping the 2001 Authorization for the Use of Military Force—passed three days after 9/11 to target Al Qaeda and the Taliban—into an enabling act for endless war, anywhere in the world.

Through it all, Obama has maintained the pose of a “reluctant warrior,” repeatedly lecturing the country about the dangers of an imperial presidency while forging new frontiers in the expansion of executive power. “Unless we discipline our thinking, our definitions, our actions,” he chided in May 2013, “we may be drawn into more wars we don’t need to fight, or continue to grant Presidents unbound powers.” In the same speech, Obama even had the gall to quote James Madison’s admonition that “no nation could preserve its freedom in the midst of continual warfare.”

Brexit, the EU, and the WTO

The Economist is one of my favorite news sources. The writing is always clear and interesting, and I often agree with them on substance. Nevertheless, while I hate to give them a public reprimand, a recent piece by their Free Exchange columnist on Brexit contains a misleading point that needs to be addressed.  The author appears to equate the EU and the WTO, and says, in effect, why would UK voters accept being part of the WTO when they could not accept being part of the EU? Here’s the passage in question:  

It is puzzling that Brexiteers, whose campaign was summed up as “Vote Leave, take back control”, seem happy with the WTO option. The WTO is truly global, with only a handful of countries outside it (zealous as they are about sovereignty, Brexiteers do not want to join the ranks of Turkmenistan and Nauru). But forsaking one unelected, unaccountable bureaucracy in Brussels for another housed in a leafy district of Geneva seems perverse. WTO members are at the mercy of its “dispute-settlement” regime, which allows other countries to enforce penalties.

Having worked at the WTO, I know a thing or two about it. First of all, it is small. There are 634 staff in total (that includes administrative support). The budget for 2015 was a little less than 200 million Swiss francs.

More importantly, the WTO does not make any rules of its own. The WTO member governments agree to a set of rules (mostly related to constraining protectionism), and they can enforce the rules through a special dispute procedure.  However, governments ultimately make their own decisions about whether to comply.  If they really don’t want to change after having been found in violation of the rules, they can accept the trade sanctions imposed by others.

By contrast, the EU is a vastly different entity.  The European Commission alone employs 32,966 people and had a budget of over 3 billion euros in 2015.  The total EU budget for 2015 was around 162 billion euros.

The EU is still not considered to be a nation-state, but it is getting pretty close, and I think it’s fair to say that it offers a kind of supra-national governance. It has become famous for its regulations on obscure issues such as “marketing standards for bananas” (including their curvature), as well as broader issues such as “rules governing the manufacture, presentation and sale of tobacco and related products”.  And its enforcement mechanisms cannot be evaded in the way WTO obligations can be.

I don’t want to get bogged down here in the relative merits of being part of either institution.  The point here is simply that equating the EU and the WTO as two “unelected, unaccountable bureaucracies” misses the vast distinctions between the two.  It is not difficult at all to understand how someone might want Britain out of the EU while remaining in the WTO.

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The Chilling Effect of the Government’s Subpar Subpoenas

Here we go again. History repeats itself with classified-ad website Backpage.com’s announcement yesterday that it’s shuttering its “adult” section after years of unrelenting pressure from public officials at all levels of government. 

Most recently, the Senate’s Permanent Subcommittee on Investigations (PSI) hauled several Backpage.com officials before it for a public shaming without bothering to wait for a ruling on the legality of its “investigation.” In California, just before Christmas then-attorney general (now U.S. Senator) Kamala Harris refiled criminal charges against Backpage’s CEO and its former owners in the face of a December 9 ruling throwing her initial charges out.

These tactics represent a marked escalation since September 2010, when Craigslist caved in to pressure from a group of 17 state attorneys general and shut down its “adult advertisements” section. As a federal court had already ruled at that time—and numerous courts have held since—the government cannot assume that ads that mention sex are advertising illegal transactions, much less coercive sex-trafficking. Laws censoring such websites have been roundly and repeatedly held to violate the First Amendment.

But the law is one thing, and less-direct pressure tactics are quite another. It’s harder to hold government accountable when it tries to hide what it’s up to with public letters, demands, and investigations, even if meritless.

Can States Forcibly Unionize Small Businesses?

Imagine that you run a family daycare out of your home. You have no direct connection to the state government, but its bureaucrats decide that because you lack an “organized voice” as a profession, they’re going to appoint a union representative to speak on your behalf. So you get a union you didn’t choose and which you refuse to join. This union is now representing your “interests” before the state, which isn’t even your employer. All this despite the fact that you might not even agree with what the union is saying!

It sounds far-fetched, but this is what’s happening to Mary Jarvis and several others in New York. These plaintiffs have sued the Empire State, arguing that the imposition of an exclusive representative violates their First Amendment freedom of association.

In the 2014 case Harris v. Quinn, the Supreme Court ruled that states that unionize healthcare aides and other home-based workers who are “not full-fledged public employees” cannot require those who do not wish to join the union to pay fees to support it. This new case asks the question Harris left unanswered: May a state even mandate exclusive representation for those who are “not full-fledged public employees”—or not employees of the state at all?

The U.S. Court of Appeals for the Second Circuit said that the case is easily resolved under Abood v. Detroit Board of Education (1977)—which allowed the imposition of “agency fees” on union nonmembers—and does not require further First Amendment scrutiny. Abood, however, is like a house built on the sand: It treated the First Amendment concerns public unions (should) raise as already resolved by earlier cases when in fact those cases merely resolved the question of whether Congress has the constitutional authority to regulate those public unions. Abood’s reliance on the notion of “labor peace”—which was significant in those old cases but shouldn’t be a valid First Amendment interest—conflicts with the First Amendment’s ban on compelled speech and association absent a substantial government interest.

Although the Second Circuit treated this case as automatically resolved under Abood, it would actually be a vast expansion of precedent to say that “labor peace” justifies forcibly unionizing at-home workers who are independent from the state government. States are already doing this in a number of jurisdictions—including in the First Circuit, which recently upheld a similar Massachusetts law that Cato earlier urged the Supreme Court to hear—but expanding Abood here would enable the states to mandate exclusive representation for almost any private business.

Where does it stop? Cato has filed a brief asking the Court to answer that question once and for all, and ultimately to rule that Abood should not be read to give the states free rein to unionize individuals at the expense of their First Amendment rights. The case is Jarvis v. Cuomo.

Campaign-Finance Rules Chill Speech Unrelated to Election Campaigns

In 2014, the Independence Institute—a Colorado think tank—wanted to run a radio advertisement supporting the Justice Safety Valve Act, a bill granting federal judges greater discretion in sentencing nonviolent offenders. The text of the ad asked listeners to “call Senators Michael Bennet and Mark Udall”—Colorado’s two senators at the time—and tell them to support the bill.

But under the Bipartisan Campaign Reform Act of 2002 (BCRA, better known as McCain-Feingold), any organization that spends at least $10,000 on “electioneering communications” in one year is required to make several public disclosures, including “the names and addresses of all contributors who contributed an aggregate amount of $1,000 or more” toward the advertisement. Further, an “electioneering communication” is defined as any broadcast that “refers to a clearly identified candidate for Federal office” within 60 days of a general election. Since Udall was running for reelection that year, the ad would have qualified even though it had nothing to do with Udall’s campaign.

The Independence Institute challenged the rule as an unconstitutional burden on its First Amendment right to speak on issues of public concern. After losing before a three-judge district court, the Institute has now appealed directly to the Supreme Court. Cato, joining the Institute for Justice, has filed a brief urging the Court to grant the case a full hearing on the merits.

We make two broad points. First BCRA’s disclosure provision is undeniably content-based, which should subject it to strict scrutiny under the First Amendment (meaning the government needs to provide a compelling justification). The law applies only if a speaker chooses to make reference to a candidate for office, so the law expressly draws distinctions based on the expressive content of speech.

Second, mandatory-disclosure laws chill speech by forcing people to surrender their “privacy interest in keeping personal facts away from the public eye,” as the Supreme Court put it in U.S. Department of Justice v. Reporters Committee for Freedom of Press (1989). In the context of reviewing disclosures made under the Freedom of Information Act, the Court has recognized that “embarrassment in … social and community relationships” is among the consequences of disclosure that “must be given great weight.” U.S. Department of State v. Ray (1991).

Exactly the same analysis holds true for donors to advocacy organizations. For many people—without tenure, without salary protection, and without security details—government-mandated disclosure of their political leanings and personal data is a real barrier to political participation. Forcing people to divulge their personal information threatens to expose them to reprisals, and this deterrent effect is pervasive precisely because it is impossible to predict whether your viewpoint will trigger retaliation.

BCRA’s disclosure rule is content-based, intrudes on speech and association, and has not been shown to serve a legitimate governmental interest. Because enforcement of the rule raises a substantial question under the First Amendment, the Court should take up Independence Institute v. FEC and ultimately overturn the district court.

You Ought to Have a Look: How to Properly Worry about Climate Change, aka, Lukewarming

You Ought to Have a Look is a regular feature from the Center for the Study of Science.  While this section will feature all of the areas of interest that we are emphasizing, the prominence of the climate issue is driving a tremendous amount of web traffic.  Here we post a few of the best in recent days, along with our color commentary.

In our last episode of You Ought to Have a Look (which was prominently quoted in an editorial in Nature magazine this week), we looked at reasons why folks who are wishing climate change mitigation should be the driving force behind most federal regulations should be very worried about what the incoming Trump Administration has in store. Most of his announced agency heads, etc., don’t share their vision (unlike those currently running the Obama Administration).

This week we start off with a guide to how folks should worry about climate change in general. Is it really true that, according to President Obama, “No challenge—no challenge—poses a greater threat to future generations than climate change”? The short answer is no. The long answer is provided by Manhattan Institute’s Oren Cass is his recent piece for National Affairs called “How to Worry about Climate Change”.

Oren describes how climate change is different from typical political policy questions:

Climate change is a different kind of problem from health-care reform, gender equality, or almost any traditional subject of political attention and action. Its relevant effects are still decades or centuries away. Scenarios with the most extreme effects, rather than the most likely ones, provide the sense of urgency and the rationale for policy responses. Those extreme outcomes are often distant ripples from the initial effect of a warmer climate, transmitted outward through multiple steps of causation and combined with other factors to produce or amplify the damage. By the time actual impacts arrive, the time for action may have long passed. But if climate change is not a typical policy problem, how should policymakers approach it?

…Yes, climate change is a problem. But what kind of problem?

He then sets out to answer that question:

Climate change—forecasted, irreversible, and pervasive—might therefore be called a “worrying problem.” Here, “worrying” does not mean “concerning” (though it is that as well), but rather something tailor-made for worry. Its effects exist primarily in the imagination and have poorly defined bounds that encourage speculation; a point of no return looms. Yet the contours of those bounds and that point may become clear only after it is too late to correct course.

Other worrying problems exist. They tend to emerge where clear long-term trends in technological or social change produce concerning side effects.

Oren provides other examples of “worrying problems” such as a global pandemic caused by international travel and urbanization, overuse of antibiotics, nuclear weapons, interconnectivity of financial systems, democratization of communications technologies, computer viruses, superhuman computer intelligence, weaponized nanotechnology, and many more, including social ones, as well as the sustainability of the Western welfare state itself. As Oren says there is “much to worry about,” but reminding everyone that “we should heed the well-known warning: ‘What worries you masters you.’”