Mike Kueber's Blog

April 28, 2010

What can we do to eliminate legislating from the bench?

Filed under: Issues,Politics — Mike Kueber @ 4:53 am
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While riding my bike today, I started thinking about strict construction.  It seems that every politician (at least every conservative) favors strict construction and is opposed to judicial activism (i.e., judges “legislating from the bench”), but the problem doesn’t go away.  Judges, especially federal judges, tend to think they are smarter than other people, and they have difficulty showing judicial restraint and deferring to politicians.  Instead of just howling at the moon, I wondered if there was something we could do about it.

Something we haven’t tried is to explicitly prohibit federal judges from interjecting their personal values when interpreting statutes and constitutional provisions.  This could be accomplished through an amendment to the Constitution.  Although constitutional amendments must have the support of two-thirds of the Senate and House and three-fourths of the state legislatures, I believe that there are that many strict constructionists already in office.  This proposal would have been an ideal fit for Idea #1 in the Tea Party’s Contract from America instead of its current Idea #1, which is to require each bill to identify the provision in the Constitution that gives Congress the power to do what the bill does.  (See my earlier blog – The Tea Party and a Contract from America.) 

Before attempting to draft an amendment to the U.S. Constitution, I decided we needed a simple, unambiguous definition of “strict construction.”  That is when this matter started getting complicated.  According to Wikipedia, the term has one meaning for judges and another for politicians.  For judges, it means focusing exclusively on the text and not drawing inferences (“Congress shall make no law” means no law); for politicians, it means conservative legal philosophies that emphasize legal restraint, such as originalism and textualism.  Because of these deviating definitions, the politicians’ patron saint for strict constructionism is Antonin Scalia, yet Scalia disparages strict constructionism while advancing “textualism” and “originalism” in A Matter of Interpretation, 1997: 

  • “Textualism should not be confused with so-called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist, and no one ought to be…. A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.”   
  • “Unlike an originalist, a strict constructionist would not acknowledge that ‘he uses a cane’ means ‘he walks with a cane’ because, strictly speaking, this is not what ‘he uses a cane’ means.”

Scalia’s textualism is a theory of statutory interpretation holding that a statute’s ordinary meaning should govern its interpretation, as opposed to inquiries into non-textual sources such as (a) the intention of the legislature in passing the law, (b) the problem it was intended to remedy, or (c) substantive questions of the justice and rectitude of the law.

Originalism is a corollary of textualism and is a family of theories, principally the original-intent theory and the original-meaning theory.  Both of these theories share the view that there is an authority, contemporaneous with a constitution’s or statute’s ratification, that should govern its interpretation; their difference relates to what exactly that authority is – (a) the intentions of the authors or the ratifiers or (b) the original meaning of the text.

The primary alternative to originalism is most commonly described as the Living Constitution.  This is the theory of constitutional interpretation that claims the Constitution has a dynamic meaning. The idea is associated with views that contemporaneous society should be taken into account when interpreting key constitutional phrases. 

Proponents for the Living Constitution can generally be broken into two viewpoints – (1) the pragmatist view contends that interpreting the Constitution in accordance with long outdated views is often unacceptable as a policy matter, and thus that an evolving interpretation is necessary, and (2) the flexible-intent view contends that the constitutional framers specifically wrote the Constitution in broad and flexible terms to create such a dynamic, living document.

Opponents of the Living Constitution often argue that the Constitution should be changed through the amendment process, and that the theory can be used by judges to inject their personal values into constitutional interpretation.  This brings us full circle to our constitutional amendment to instruct justices that the U.S. Constitution lives through its prescribed amendment process, not through evolving values discerned by the justices.  To accomplish this end, I suggest the following:

Amendment XXVIII

The United States Supreme Court and other federal courts shall interpret all law based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be.  Their interpretation shall not be based on non-textual sources.     

Second-guessing Supreme Court decisions

Filed under: Issues,Politics — Mike Kueber @ 3:36 am
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I don’t agree with the current practice of politicians who publicly complain about holdings in specific cases, like Obama did with respect to the Supreme Court’s recent decision on a corporation’s right to free political speech. Justices are supposed to render their decisions independent of political pressures. Furthermore, it takes a lot of chutzpah for any politician, even one with a law degree, to argue that the Supreme Court made a mistake in a particular decision Who are we to say we know more about analyzing a constitutional provision than nine Supreme Court justices? Instead of asserting that the Court made a mistake, I think we need to recognize their decision. But if we are unwilling to accept the result, we should change the law. In the case of constitutional decisions, this will require a constitutional amendment.

April 27, 2010

Ayn Rand’s self-esteem vs. Mitt Romney’s altruism

Filed under: Issues,Politics — Mike Kueber @ 5:03 am

The word “altruism” was coined by Auguste Comte, a 19th-century French philosopher who believed that individuals have a moral obligation to renounce self-interest and live for others.  Although I have always believed in altruism, my recent readings of Ayn Rand, a 20th-century Russian-American philosopher, have caused me to question that belief.

In her book, Atlas Shrugged, Ayn Rand (speaking through her alter ego, Dagny Taggart) says:

  • “I swear – by my life and my love of it – that I will never live for the sake of another man, nor ask another man to live for mine.”  

This philosophy seems extreme and reminds me of Gordon Gekko’s famous comment, “Greed is good.”  More typical in America is the following paraphrased comment by Presidential candidate Mitt Romney in his book, No Apology, while describing the reasons for America’s greatness:   

  • Americans are a religious people.  And even if they aren’t religious, they believe in a purpose greater than themselves, such as their family, community, or country.  They aren’t hedonists, except for those few who want to legalize marijuana. 

Can the philosophies of Rand and Romney be reconciled or are they mortal enemies?

Although some components of their philosophies are diametric opposites (Rand was an unabashed atheist who thought that altruism was an evil moral philosophy whereas Romney is a devout Mormon who believes in self-sacrifice), Rand and Romney share an unshakeable belief in laissez-faire capitalism, individual liberty, and productivity.  In Atlas Shrugged, Ayn Rand tells the story of an economy that collapses under the weight of a bunch of capitalists who decide that “doing good” or “doing the right thing” is more important than their companies’ bottom line.  In No Apology, Mitt Romney makes clear that “doing good” cannot come at the expense of being productive:

  • “[T]he importance of productivity transcends ideology.  Whether you are interested in spending more on benefits or you want to add to defense, achieving your objective depends on the nation’s productivity.”

Thus, both Rand and Romney believe, as did Calvin Coolidge, that “the chief business of the America people is business.”  It is not clear, however, whether they agree on governmental altruism. 

Rand’s philosophy on altruism is clear – i.e., she regarded it as immoral and evil.  Although her philosophy allows for individual kindness and good will, she strongly believed that no individual should feel obligated to help others:

  • “Do not hide behind such superficialities as whether you should or should not give a dime to a beggar. That is not the issue. The issue is whether you do or do not have the right to exist without giving him that dime. The issue is whether you must keep buying your life, dime by dime, from any beggar who might choose to approach you. The issue is whether the need of others is the first mortgage on your life and the moral purpose of your existence. The issue is whether man is to be regarded as a sacrificial animal. Any man of self-esteem will answer: ‘No.’ Altruism says: ‘Yes.’”

Because of Rand’s unwavering opposition to individual altruism, she felt even stronger that the government should not act altruistically.  Instead, she saw the role of government as limited to protecting our national security and maintaining law & order.  The uncertainty with Romney’s philosophy is whether, because of his belief that Americans are a Christian, altruistic people, he might feel it is appropriate to adopt public policies that are consistent with that altruism, especially if he thinks that non-Christian hedonists are not doing their fair share of altruism.  Romney’s book suggests that he agrees with Ayn Rand on limited government, but I suspect his fervent altruism and political pragmatism would cause him to act like Bush-41, who raised taxes despite his “read my lips” pledge.  “Not that there’s anything wrong with that.”

April 25, 2010

The Tea Party and a Contract from America

Filed under: Issues,Politics — Mike Kueber @ 10:02 pm

Nearly 100 years ago, Will Rogers said, “I belong to no organized party.  I’m a Democrat.”  Rogers was joking, but today a Tea Party member can say that with a straight face.  The Tea Party, which started in early 2009 and has experienced explosive growth, prides itself on being decentralized and disorganized. 

Consistent with its core values, a group called Tea Party Patriots recently completed the year-long development of a Contract from American (which is a play on words with Newt Gingrich’s Contract with America).  Based on suggestions, feedback, and voting by hundreds of thousands of supporters on a specialized website, the Patriots identified the Tea Party’s ten best ideas for a return to a individual liberty, limited government, and economic freedom.  I have listed the ideas below, along with my two cents on their merits. 

Contract from America

1. Protect the Constitution

Require each bill to identify the specific provision of the Constitution that gives Congress the power to do what the bill does. (82.03%)

Mike Kueber – This provision makes less sense than any other provision in the contract.  Any bill sponsor will easily identify the specific empowering constitutional provision, and that will leave us arguing about whether the Supreme Court has correctly interpreted the Constitution.  I took the position in my congressional campaign that, under our system of government, we need to let the Supreme Court interpret the Constitution, and if we don’t agree with that interpretation, then we need to change the Constitution.  The U.S. Supreme Court is not an institution that is supposed to be lobbied and pressured by public sentiment.

2. Reject Cap & Trade

Stop costly new regulations that would increase unemployment, raise consumer prices, and weaken the nation’s global competitiveness with virtually no impact on global temperatures. (72.20%)

Mike Kueber – I agree that most cap & trade proposals would be expensive to the American economy and would do little to affect global temperatures.  But I suggest that we seriously consider Mitt Romney’s tax-swap proposal, which would entail taxing some forms of energy use (e.g., gas) and concurrently reducing other taxes.  This sort of tax swap would encourage energy conservation without increasing the tax burden in America.

3. Demand a Balanced Budget

Begin the Constitutional amendment process to require a balanced budget with a two-thirds majority needed for any tax hike. (69.69%)

Mike Kueber – This provision makes sense, except it needs to allow for deficit spending with a two-thirds majority.  Federal deficits can be helpful in times of war or economic emergency.

4. Enact Fundamental Tax Reform

Adopt a simple and fair single-rate tax system by scrapping the internal revenue code and replacing it with one that is no longer than 4,543 words—the length of the original Constitution. (64.90%)

Mike Kueber – Simple and fair is fine, but it is too simplistic to think that a tax code can be written as briefly as a constitution.  Furthermore, I believe a “fair single-rate tax” is an oxymoron; a fair rate must be progressive.

5. Restore Fiscal Responsibility & Constitutionally Limited Government in Washington

Create a Blue Ribbon taskforce that engages in a complete audit of federal agencies and programs, assessing their Constitutionality, and identifying duplication, waste, ineffectiveness, and agencies and programs better left for the states or local authorities, or ripe for wholesale reform or elimination due to our efforts to restore limited government consistent with the US Constitution’s meaning. (63.37%)

Mike Kueber – As I noted in Provision 1, the U.S. Supreme Court determines constitutionality in America, not a Blue Ribbon taskforce.  However, there is nothing that stops the federal government from voluntarily declining power that the Supreme Court would allow it.  So this is a good idea, especially if the recommendations of the taskforce are given up-or-down votes like the BRAC commissions.  

6. End Runaway Government Spending

Impose a statutory cap limiting the annual growth in total federal spending to the sum of the inflation rate plus the percentage of population growth. (56.57%)

Mike Kueber – This provision will lock-in the size of government at its current size.  That is bad because we may want government to take on some additional responsibilities.  Also, the provision is probably unnecessary because of Provision 3 – the balanced-budget provision.  If gov’t. has to pay for what we spend, I think it will quit spending so much.  And finally, a statutory cap will probably be ineffective because it could be simply changed with another statute.

7. Defund, Repeal, & Replace Government-run Health Care

Defund, repeal and replace the recently passed government-run health care with a system that actually makes health care and insurance more affordable by enabling a competitive, open, and transparent free-market health care and health insurance system that isn’t restricted by state boundaries. (56.39%)

Mike Kueber – I agree that Obama’s government-run health insurance needs to be replaced by a more competitive free-market system.  But I don’t this provision goes far enough to bring down the cost of health insurance and it fails to address availability for 40 million uninsured Americans.

8. Pass an ‘All-of-the-Above” Energy Policy

Authorize the exploration of proven energy reserves to reduce our dependence on foreign energy sources from unstable countries and reduce regulatory barriers to all other forms of energy creation, lowering prices and creating competition and jobs. (55.51%)

Mike Kueber – The title to this provision is sound strategy, but the verbiage amounts to nothing more than more drilling and less regulations.  I think the federal government needs to be pro-active in developing alternative, renewable energy sources and in creating incentives for energy conservation.

9. Stop the Pork

Place a moratorium on all earmarks until the budget is balanced, and then require a 2/3 majority to pass any earmark. (55.47%)

Mike Kueber – I have never heard a defense of earmarks that makes any sense.  I don’t understand why only 55.47% of the people placed this provision in their top ten.

10. Stop the Tax Hikes

Permanently repeal all tax hikes, including those to the income, capital gains, and death taxes, currently scheduled to begin in 2011. (53.38%)

Mike Kueber – I think the issues of taxing and spending should be considered together, not separately.  And both issues are adequately addressed in the balance-budget provision.  I think critics of the Death Tax would change their position if they were required to replace the lost revenues by increasing taxes from some other source.  I think the Death Tax on huge estates is the best tax in America because it is virtually harmless and creates a more level playing field for the rest of us.

Illegal immigration and racial profiling in Arizona

Filed under: Issues,Politics — Mike Kueber @ 5:33 am

This past Friday Arizona enacted an immigration law that many have characterized as America’s toughest.  Proponents, including Arizona Governor Jan Brewer, argue that the law will provide law enforcement officers with another tool in fighting crime.  Opponents express concern that Hispanics in Arizona will be subjected to racial profiling.  Before weighing in on the racial-profiling issue, I decided to read the new law.  

Arizona’s Senate Bill 1070 is titled Support Our Law Enforcement and Safe Neighborhoods Act.  Section 1 of the bill makes clear that its intent is not to deal with illegal immigrants who are engaged in illegal activity, but rather to facilitate “the cooperative enforcement of federal immigration law… to make attrition through enforcement the public policy of all state and local government agencies in Arizona.”  This statement stands in stark contrast to the standard refrain we have heard through the years from various public employees that it was not their job to be “immigration cops.”  Well, that is no longer true for state and local government agencies in Arizona.

Section 11-1051 contains the guts of the new law:

  • B. For any lawful contact made by a law enforcement official or agency of this state or a county, city, town or other political subdivision of this state where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person.  The person’s immigration status shall be verified with the federal government pursuant to Title 8 United States Code Section 1373(c).  [This Code section authorizes communications between state/local officials and INS regarding immigration status.]

It is difficult to directly attack SB 1070 because its narrow objective is to enforce existing federal immigration law.  To directly attach the law is to condone law-breaking.  So critics of SB 1070 attack it indirectly.  President Obama’s two-pronged attack is typical in warning that the law threatens “to undermine basic notions of fairness that we cherish as Americans, as well as the trust between police and our communities that is so crucial to keeping us safe.” 

Obama’s first prong of concern is racial profiling, which is generally understood to be something like “stopped while driving black.”  But Governor Brewer has explicitly declared that she will not allow racial profiling of Hispanics in Arizona.  In fact, she has already ordered state officials to develop a training course for officers to learn what constitutes reasonable suspicion someone is in the U.S. illegally. 

I have been unable to learn if ethnicity can be considered with other factors in deciding that a “reasonable suspicion exists” that a person is in America illegally.  I assume, but do not know, that AZ Border and Immigration personnel routinely consider ethnicity when looking for illegal immigrants.  The problem seems analogous to looking for terrorists post-9/11, where the target individuals are predominantly from a single ethnicity.  If a large majority of illegal immigrants in Arizona are Hispanic, shouldn’t law enforcement be able to consider that as a factor in deciding whether there is reasonable suspicion?   

If giving any consideration to skin color is considered unfairly discriminatory against Hispanic-Americans (and perhaps it is), I wonder if enforcement of  this law could be directed against any person, regardless of color, who is stopped by police for some other reason and then doesn’t speak English or have identification, like a driver’s license.  That would be non-discriminatory, as it would be applied against Anglos and African-Americans, too. 

Obama’s second prong of concern is that this law enforcement activity will cause an estrangement between the police and Hispanics.  Or it will render illegal immigrants vulnerable to lawbreakers because illegal immigrants will be unable to call on the police for help.  While that may be true, this is not a call for Obama to make.  Rather it is a call for the state of Arizona to make, and they have made it.

Urban Legend #1 – Cardinal Roger M. Mahony of Los Angeles went further than Obama and said the ability to demand documents was like “Nazism.”  I couldn’t find anything in the law relating to this demand for documents, so perhaps Mahoney is speculating that Hispanics will voluntarily carry documents to avoid extended hassles with the police.  Of course, there are situations where all people are required to have documents, such as a drivers license when driving or a green card when a non-citizen is visiting America, and failing to have that document might cause reasonable suspicion.

Urban Legend #2 – Proponents of SB 1070 assert that the law specifically prohibits racial profiling.  In fact, the term “racial profiling” is never used in the law.  Proponents may be referring to Paragraph J in the law, which says the law “shall be implemented in a manner consistent with federal laws regulating immigration, protecting the civils rights of all persons and respecting the privileges and immunities of United States citizens.”

President Obama is using the passage of SB 1070 to renew his push for comprehensive immigration reform in Washington.  Of course, he and most Democrats will want reform to include some form of amnesty/path to citizenship for illegal immigrants, and it is not clear whether any Republicans will agree to this. 

Personally, I believe some long-term illegal immigrants (those in U.S. for more than 10 years) who have been productive and otherwise law-abiding should be offered a path to citizenship.  This path seems appropriate, not only because America is humane and generous, but also because America is partly to blame for allowing these immigrants to take roots here.  (Mis raices estan aqui, according to John Wayne.)  Analogous legal concepts of statute of limitations and adverse possession suggest that there is justice in providing long-term illegal immigrants with a path to citizenship.

Until the federal government acts, however, all illegal immigrants in Arizona will be under heightened risk of deportation.  The law takes effect 90 days after the Legislature adjourns, although there will almost certainly be judicial challenges.  Let’s hope that SB 1070 prompts the federal government to start doing its job of passing good legislation.

April 20, 2010

Mitt Romney – presidential timber?

Filed under: Book reviews,Issues,People,Politics — Mike Kueber @ 9:01 pm

Due to my renewed interest in politics, I’m thinking about being actively involved in supporting a 2012 presidential candidate.  Kevin Brown suggested that I take a look at his favorite – Mitt Romney – who just came out with a book on some critical issues in American politics.  My thought prior to reading the book was that Romney might be my type of candidate because of his strong business qualifications, which tend to lead to pragmatism, and because of his Mormonism, which might lead toward more tolerance of other beliefs.  While I found the economic pragmatism, I didn’t find much social tolerance.  

In several instances, Romney has taken positions that can be demagogued by the radical right:

  • Support of the TARP and the stimulus.  Although responsible Republicans supported these programs, the radical right was free to “just say no.”  The current Senatorial campaigns of McCain and Crist are in grave danger because of their support of these programs.
  • Belief in global climate change and that human activity is a contributing factor.  Again, most reasonable people accept this, but not the radical right.  To reduce his chances of being demagogued for his position, Romney has adopted an ingenious, plausible action plan – i.e., instead of spending trillions of dollars to reduce global warning, we should spend the money in the future to deal with the effect of global warning, if it occurs. 
  • Not in favor of cutting taxes.  Romney believes that both parties share responsibility for the exploding national debt.  He thinks Democrats are too focused on increased spending and Republicans are too focused on cutting taxes.  Nowhere in the book does Romney repeat the absurd position of the radical right that cutting taxes is a good way to increase long-term revenue.  If that were true, Democrats would want to cut taxes so they would have more money to spend.  (Both parties agree that cutting taxes can provide a short-term economic stimulus.)
  • Mandated health coverage.  The Massachusetts health plan was developed by Romney, and it includes mandated coverage, which is the component of ObamaCare that is subjected to the strongest conservative, constitutional argument.  Romney is left with the weak argument that mandated health coverage should be developed state-by-state, not uniformly by the national government.
  • Tax reform.  Romney is concerned that potential benefits of the FAIR tax or Value-Added Tax are out-weighed by the practical uncertainties that they would create.
  • Social Security.  Romney intelligently opposes the privatization of Social Security.  This position is more compelling in light of the recent stock-market fluctuations and the elimination of pensions by most employers.  It makes perfect sense to plan for retirement to include the stability of Social Security and the volatility/growth of a 401k/IRA.

In addition to these preceding positions, which I found imminently reasonable and highly pragmatic, I noticed several other positions that contained great insights.  My favorite was the importance that Romney placed on productivity, which requires innovation, which causes dislocation, which government should do more to ameliorate.  I was also intrigued by Romney’s suggestion that entitlements should not be considered as mandatory or automatic.  Because entitlements comprise such a large percentage of government expenditures, we will be able to achieve a balanced budget only by cutting entitlements. 

There are two other Romney recommendations that I endorse – (1) exploding medical costs can be contained only when incentives for overtreatment are reversed, and (b) a tax-swap involving (a) a carbon-oil tax and (b) other offsetting tax reductions (such as reducing income tax rates) has great potential for reducing our energy dependence on foreign oil. 

My disappointment with Romney concerned his social positions.  I had hoped that he would be tolerant and nonjudgmental toward people who chose to live differently than the Religious Right, but instead he seems intent on converting them.  Romney is strongly pro-life, anti-gay marriage, and pro-religion.  He thinks that people who believe in legalizing marijuana are hedonists, not real Americans who are living for something greater than themselves.       

As of today, I am inclined to support Romney because his economic philosophy is so consistent with mine, but I will remain open-minded to other candidates who show more social tolerance.

The following is a detailed summary of the book:


No Apology, the Case for American Greatness, by Mitt Romney, St. Martin’s Press, 2010

Mitt Romney believes that America has played a critical role in fostering peace and freedom throughout the world and that it can continue to play this role only if it remains economically and militarily strong.  This book examines issues that affect the ability of America to remain strong. 

In Chapter One, Romney identifies the four contenders to world leadership:

  1. America’s power is based on economic freedom and political freedom;
  2. China’s power is based on free enterprise and authoritarian rule;
  3. Russia’s power is based on its energy resources and authoritarian rule; and
  4. Iran’s power is based on violent jihadism – conquest and compulsion.

To ensure continued American leadership, Romney suggests that all government programs needs to be evaluated first on whether they make us stronger or weaker.

In the second part of Chapter One, Romney describes how Obama is taking America’s foreign policy in a different, dangerous direction.  Since the end of World War II, American foreign policy had three pillars – active involvement in world affairs, active promotion of American values (democracy, free enterprise, and human rights), and a collective security umbrella for America and its allies.  By contrast, Obama wants America to be an arbitrator rather than an advocate; he wants American to be more nonjudgmental towards those who have different values; and he apologizes for American arrogance, unilateral actions, and unjust interference.  Shortly after No Apology was published, Obama was quoted as saying at the Nuclear Security Summit, “whether we like it or not, we remain a dominant superpower, and when conflicts break out, we get pulled in.”  Conservative commentators have taken Obama to task for the comment, and Mitt Romney would assert that he likes very much for American to remain a dominant superpower.

In Chapters Two, Three, and Four, Romney provides (a) his description of why historically, great powers decline (they shut their borders, became isolated from progress, and fearful of competition), (b) his explanation of why it is important for American to remain a great power (we are one of the “good” countries, and our competitors (China, Russian, and Iran) aren’t so good, and (c) his evidence of why America is declining as a foreign power (weakening nuclear, counterinsurgency, land-war, air, and naval capabilities, discontinuities – nations leapfrogging our technologies, and faltering allies).

Chapter Five begins the core of the book.  Romney asserts that America can remain strong only if its economy is strong, and our economic strength is based on our productivity.  Romney suggests that productivity is so important that it “should be a constant in the media and in the minds of citizens.  And the importance of productivity transcends ideology.  Whether you are interested in spending more on benefits or you want to add to defense, achieving your objective depends on the nation’s productivity.”

Romney believes that long-term productivity can be achieved only through continual innovation.  He quotes from Alan Greenspan, “Creative destruction – the scrapping of old technologies and old ways of doing things for the new – is the only way to increase productivity and therefore the only way to raise average living standards on a sustained basis.”  Unfortunately, innovation causes hardship to some, and this causes well-intentioned people to resist innovation.  Business and unions continually petition the government to protect them against new competitors who have innovated.  Romney’s advice to the government is – “the most important thing government can do to promote innovation and productivity is to not block it, as by preventing creative destruction.”  But Romney wants to ameliorate the localized harm caused by creative destruction – “For all the benefits that productivity improvements bestow on the many, we need to make sure that the cost is not borne by the few….  As a nation we must do everything we can imagine to help the affected people transition to new and productive employment.”

Chapter Five also includes a discussion of the bank bailout (TARP) and the stimulus program.  Romney agrees that the TARP and stimulus were needed, but criticizes their implementation:

  • “Secretary Paulson’s TARP prevented a systematic collapse of the national financial system; Secretary Geitner’s TARP became an opaque, heavy-handed, expensive slush fund.  It should be shut down.”
  • “…as the magnitude of the economic slide became more pronounced, a second stimulus was called for….  The ‘all-Democrat’ stimulus that passed in 2009 will accelerate the timing of the start of the recovery, but not as much as it could have had it included genuine tax- and job-generating incentives.”

And finally, Chapter Five includes a discussion of various proposed tax reforms.  Romney is intrigued by a Fair Tax (a national sales or consumption tax of 25-30%), but he is reluctant to endorse something so revolutionary because of critical uncertainties – such as whether people quit buying things just to avoid taxes.  At a minimum, he would want to structure the tax to avoid a windfall to the rich and a hit to the middle class.  Romney hates a value-added tax because he thinks government would use it to supplement its income instead of using it to eliminate the income tax.  (Indeed, as I write this note, it appears the Democrats are planning that.)  Romney’s preferred tax plan would be to simplify the code, eliminate taxes on middle-class savings, and consolidate corporate and individual taxes on the same money.

In Chapter Six, Romney suggests that our generation of Americans will have to be careful to avoid being branded as “The Worst Generation.”  He believes this branding may be appropriate because we were granted so much from our parents and, in turn, we might give our children an oppressive national debt.  To avoid this inglorious end, we need to address “the entitlement nightmare,” and we do this my creating public awareness that pushes the issue to the front burner.  One idea – “In 2008, the liberal Brookings Institution and the conservative Heritage Foundation joined forces to recommend that our elected officials stop considering all entitlement spending as ‘mandatory and automatic,’ because it is not, after all.  Congress and the president have the power to appropriate spending as they see fit, even for so-called mandatory programs like entitlements.”

Regarding Social Security, Romney says, “But given the volatility of investment values that we have just experienced, I would prefer that individual accounts were added to Social Security, not diverted from it, and that they were voluntary.”

Regarding Medicare, Romney wants to move away from the current fee-for-service reimbursement system and move toward more efficient systems, such as per-person or per-diagnosis plans.  But he concedes that this won’t be enough to fix Medicare; it will need a more fundamental alteration (apparently beyond the scope of this book).

Regarding taxes, spending, and deficits, Romney says, “There are people in both parties who see the budget as something of a game of chicken.  Some Democrats are eager to spend so much that Republicans have to raise taxes, and some Republicans, on the other hand, are intent on lowering taxes so much that Democrats have to cut spending.  Both sides take great satisfaction in their respective battle plans: the Democrats for spending more and the Republicans for taxing less.  My vote is for the Republicans, but in either case, deficits cannot be accepted as part of political tactics; there is simply too much as stake….  There are times when deficit spending may be an appropriate bridge to finance a national emergency or to stimulate a depressed economy, but it should not be a permanent part of the budget.”

In Chapter Seven, Romney addresses national health insurance.  Romney is exceptionally knowledgeable because he extensively studied hospital operations when he was a business consultant and, as governor he led the adoption of mandatory health insurance in Massachusetts.  Romney carefully describes the differences between his initial proposal and the plan eventually adopted by the state legislature:

  1. Under Romney’s proposal, everyone was required to buy insurance or show that they could pay for their own medical costs.  The legislature removed the option to self-insure.
  2. Romney’s proposal excluded some expensive treatments, but the legislature added coverage for dental care and in vitro fertilization.
  3. Romney proposed a large penalty for employers who didn’t provide health insurance, but the legislature significantly reduced the penalty.
  4. Romney proposed that everyone should pay at least a portion of the premium, with a sliding scale based on income.  A subsequent governor decided that the lowest-income people would pay nothing.

Despite these developments, Romney believes that the Massachusetts plan is working.  But the Mass plan is not the Obama plan.  Romney opposes ObamaCare because of the public option (subsequently deleted form the bill) and because mandatory health insurance should be tailored by each state to meet their needs; let the states be “laboratories of democracy.”  In the event ObamaCare is adopted, Romney proposes the inter-state sale of health insurance to increase competition.

In the second part of Chapter Seven, Romney discusses in-depth his plan to force-down medical costs, something that he notes was beyond the scope of the Mass plan.  Romney describes some popular proposals – electronic records, on-line reporting re: prices and quality (so-called transparency), and malpractice reform – but concludes that they are not enough.  Real change will require bringing the free-market to health care.  Currently, health care has a multitude of incentives for over-treatment or over-use (he refers to the New Yorker article comparing costs and treatment in El Paso vs. McAllen), and Romney wants to see incentives (such as co-pays and deductibles) that discourage unnecessary visits and treatments.  (Incidentally, this is why ObamaCare is trying to tax Cadillac plans to death, but labor unions deferred the tax until 2018.)  Romney wants to shift toward consumer, doctor, and hospital incentives, such as paying doctors for the quality of their work instead of the quantity of their work.  Romney is not hopeful re: managed care (HMOs) because top-down controls don’t work like bottom-up incentives. 

In Chapter Eight, Romney discusses education.  Because of serious warning signs, Romney has concluded that education is deteriorating in America and this threatens its economic and military leadership.  Similar to other issues discussed by Romney, he believes that the examination of data can lead to solutions.  Data has shown that reducing class size or spending more money do not lead to improved academic performance, but the quality of teachers does.  To improve the quality of teachers, we need to select the best and brightest, work to improve their skills, and monitor performance.  “Intervention” is needed if teachers or schools that do not perform.  Because of Romney’s love of data, he loves No Child Left Behind.  Although he doesn’t directly discuss the appropriateness of the feds in education, he notes that, “Only the federal government had the clout to force testing through the barricade mounted by the national teachers’ unions.”  Vouchers are politically infeasible, but charter schools are a viable and promising alternative for school choice.

Chapter Nine deals with energy independence.  Romney concedes that climate change is occurring – “the reduction of global ice caps is hard to ignore” – and that human activity is a contributing factor.  But Romney does not suggest that American respond by making dramatic changes to its economy.  Instead he suggests that it, on one hand, reduce emissions where economically reasonable (where consistent with our objective of reducing dependence on foreign oil) and, on the other hand, prepare to mediate the effects of sea level changes on affected populations.  Spending money to reduce global warming is inefficient because reducing global temperature by a very small amount requires enormous investment.

Romney favors the aggressive pursuit of domestic energy sources such as oil, gas, coal, nuclear, wind, and solar.  He doesn’t see any great benefit to four so-called game changers:

  • Carbon cap-and-trade – an energy tax that will have minimal effect on global warming;
  • Government standards such as CAFÉ – not big enough to change the game;
  • Oil or carbon tax – would fatten government and be too regressive; and
  • Tax swap – would penalize industries and people that depend on energy.

Of the four game-changers, the tax swap might work if some of the weaknesses could be ameliorated.

In Chapter Ten, Romney describes those American values that make us great:

  • Americans like to work, and that makes us productive.  However, welfare is eroding our work ethic.  Our safety-net programs must be reformed to reward work.
  • Americans value education.
  • America respects risk-taking – “As a nation, when we salve our collective need for security by regulating and burdening the risk-taker and heavily taxing the reward they receive for risk and innovation, we deaden the entrepreneurial spirit and imperil the American economic engine.”
  • Americans are a religious people.  And even if they aren’t religious, they believe in a purpose greater than themselves, such as their family, community, or country.  They aren’t hedonists, except for those few who want to legalize marijuana.
  • Americans are patriotic, pro-life, anti-same-sex marriage, strict constructionists, and informed voters.

Chapter Eleven closes the book by listing 14 Leading indicators that reflect whether America is effectively leading the world, such as the prevalence of freedom in the world, a national security assessment, relative productivity, and national debt.

The Epilogue lists 64 steps that will support the three pillars that sustain a free and strong America – a strong economy, a strong military, and a free and strong people.

Johnny Reb and Confederate History Month

Filed under: Issues,Politics — Mike Kueber @ 7:33 pm
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Virginia Governor Bob McDonnell (R) recently got in trouble for issuing a proclamation that recognized April 2010 as Confederate History Month.  The proclamation upset some people because it failed to acknowledge that the Confederacy was forever stained by its precipitating raison d’être – i.e., slavery in the South.  McDonnell apologized for the oversight and revised the proclamation to include a paragraph acknowledging the stain of slavery on the Conferacy, but before the controversy could go away, Mississippi Governor Haley Barbour (R) exacerbated the situation by asserting that the original proclamation was not a mistake and that every mention of the Confederacy does not require an anti-slavery caveat – “I don’t know what you would say about slavery, but anyone who thinks that you have to explain to people that slavery is a bad thing – I think it goes without saying.”  Not coincidentally, Barbour routinely issues similar proclamations in Mississippi without an anti-slavery caveat.

I have attached below a copy of the amended proclamation, and I believe the amendment was appropriate.  I understand Barbour’s assertion that every mention of the Confederacy doesn’t require an anti-slavery caveat, but the inclusion of a caveat in the context of this proclamation seems appropriate. 

Disputes like this are certain to erupt again and again until we either discuss our way to a consensus or, more likely, we agree to disagree.  Can we have a consensus on the following:    

  • Should white Southerners be proud of Confederate war heroes?  Clearly, yes.  Although many Americans failed to show proper respect to our servicemen who returned from Vietnam, our nation has clearly evolved so that now servicemen who return from Iraq are honored even by those who vehemently oppose the Iraq war.  Johnny Reb unquestionably was a gallant and brave soldier serving his state, and he deserves honor for his conduct. 
  • Should white Southerners be proud of the Confederacy?  I think, no.  Although some white Southerners argue that the Civil War was about States’s Rights, I believe the general consensus is that the Civil War was fought because the South felt the North was threatening the long-term viability of slavery, and Governor McDonnell’s amendment acknowledges this – “the institution of slavery led to this war.”  Thus, secession over slavery is nothing for white Southerners to be proud of. 
  • Should white Southerners be proud of the ante-bellum South?  I think, yes.  Although slavery was, as Governor McDonnell recently stated, “an evil and inhumane practice that deprived people of their God-given inalienable rights,” the stain of slavery should not blot out everything else that was good about the old South.  Let’s not forget that Washington and Jefferson were Southern slave owners who made immense contributions toward making America what it is today – a beacon of liberty for the entire world.  We can continue to honor them without routinely including an obligatory anti-slavery caveat.

Emotionally, I stand squarely on the side of honoring Confederate heroes even though my home state of North Dakota didn’t exist at the time of the Civil War and it is stocked with people who emigrated from northern Europe in the late 1800s and early 1900s.  Thus, the Civil War and slavery are not directly a part of my heritage.  Yet I have always been attracted to the thought of Johnny Reb, the underdog who rebelled against the heavy hand of the federal government (even before I learned about States’ Rights).  This attraction came to full bloom during college when I was exposed to Gone With The Wind.  I became so enamored of Rhett Butler and the South’s rebel cause that I briefly considered changing my name to Rhett Ezekiel Bayou, or REB for short.  However, because slavery was not directly a part of my heritage, and because I have no close African-American friends, I am probably not sufficiently sensitive to the stain that slavery has left on people or institutions, and I need to occasionally remind myself of that, just like Governor Bob McDonnell did.   


Confederate History Month

WHEREAS,  April is the month in which the people of Virginia joined the Confederate States of America in a four year war between the states for independence that concluded at Appomattox Courthouse; and

WHEREAS,  Virginia has long recognized her Confederate history, the numerous civil war battlefields that mark every  region of the state, the leaders and individuals in the Army, Navy and at home who fought for their homes and communities and Commonwealth in a time very different than ours today; and

WHEREAS,  it is important for all Virginians to reflect upon our Commonwealth’s  shared history, to understand the sacrifices of the Confederate leaders, soldiers and citizens during the period of the Civil War, and to recognize how our history has led to our present; and

WHEREAS, it is important for all Virginians to understand that the institution of slavery led to this war and was an evil and inhumane practice that deprived people of their God-given inalienable rights and all Virginians are thankful for its permanent eradication from our borders, and the study of this time period should reflect upon and learn from this painful part of our history; and

WHEREAS, Confederate historical sites such as the White House of the Confederacy are open for people to visit in Richmond today; and

WHEREAS, all Virginians can appreciate the fact that when ultimately overwhelmed by the insurmountable numbers and resources of the Union Army, the surviving, imprisoned and injured Confederate soldiers gave their word and allegiance to the United States of America, and returned to their homes and families to rebuild their communities in peace, following the instruction of General Robert E. Lee of Virginia, who wrote that, “…all should unite in honest efforts to obliterate the effects of war and to restore the blessings of peace.”; and

WHEREAS,   this defining chapter in Virginia’s history should not be forgotten, but instead should be studied, understood and remembered by all Virginians, both in the context of the time in which it took place, but also in the context of the time in which we live, and this study and remembrance takes on particular importance as the Commonwealth prepares to welcome the nation and the world to visit Virginia for the Sesquicentennial Anniversary of the Civil War, a four-year period in which the exploration of our history can benefit all;

NOW, THEREFORE, I, Robert McDonnell, do hereby recognize April 2010 as CONFEDERATE HISTORY MONTH in our COMMONWEALTH OF VIRGINIA, and I call this observance to the attention of all our citizens.

April 18, 2010

American education policy

During my Congressional campaign, I was sometimes asked to discuss my position regarding primary and secondary education in America.  Unfortunately, I hadn’t followed the matter closely, although I had heard complaints in past years about excessive testing and more recently I had heard that Rick Perry and Texas had refused to apply for a large sum of federal education money because the money came with pre-conditions.  When responding to questions on the campaign trail, I would speak in favor of vouchers, some type of testing, and more free-market principles, but I didn’t understand the concept of charter schools or the components of No Child Left Behind.  

Following the campaign, I decided to rectify this deficiency in my background on education policy, and by fortuitous timing, Diane Ravitch authored a new book that served as a perfect primer.  A detailed summary of the book can be found below, but first I will describe five conclusions that I took from the book:

  1. Improper federal role in education.  The federal government isn’t responsible for education in America, so it shouldn’t borrow money to give to the states as bribery for education policies dictated by the federal government.  Ravitch noted that conservative Bush-43 expanded the role of the federal government in education, and liberal Obama completed the federal takeover, but these were mere incidental comments, and it was clear that she wasn’t interested in constitutional correctness.
  2. Proper federal role in education.  The federal government has a role in helping the states develop sound education policies.  For example, the federal government has facilitated the states in developing uniform standards.  Math and reading standards developed by 48 states (sans Texas and Alaska) were announced earlier this year.  Also, national testing enables states to compare the effectiveness of different practices.  But there should be no coercion or bribery, as currently included in Race to the Top (R2T) and Obama’s update of No Child Left Behind (NCLB).
  3. Charter schools (and choice).  Ravitch usually bases her conclusions on objective research/studies, but her opposition to charter schools seems subjective, almost political.  She concedes that charter schools are effective for their students, but she worries about the deterioration of the public schools that are left behind.  (I think a good analogy is an aging neighborhood that people eventually abandon.  Gov’t. would prefer that residents stay in place and maintain their neighborhood, but gov’t. allows residents to vote with their feet and leave for better neighborhoods.)  As a political matter, I think Americans will insist on choice and competition, albeit with winners and losers.  It’s unfortunate that there will be losers, but America has to be about equality of opportunity, not equality of results.  Charter schools clearly improve opportunity for everybody.
  4. Testing (and accountability).  Ravitch concludes that making high-stakes decisions (such as firing principals and closing schools) based on test results will cause teachers and districts to “teach the test.”  I agree with that conclusion.  As Bob Davis used to say at USAA, weak managers will tend to manage to the metrics on which they are evaluated.  That is why we need to carefully design tests and then carefully use the results.  Small numbers (such as one teacher for one year) should have limited usability, whereas large numbers (a large school over several years) should be difficult to explain away if they are consistently bad.  Also, testing should not be limited to math and reading because other subjects are essential to a balance education – e.g., science and history.
  5. No Child Left Behind.  NCLB is a work in progress.  Although Obama campaigned against NCLB, I think he acted correctly when he recommended mending it, not ending it.  There are problems with testing and charter schools, but education in America would be hurt with their elimination.


The following is a lengthy summary of the book: 

The Death and Life of the Great American School System

How Testing and Choice Are Undermining Education

By Diane Ravitch, published by Basic Books – 2010

This is a story of American school system from the perspective of an educator who has been studying education policy since 1968.  In her introductory chapter, Ravitch asserts that she has been guided through the years by two constants:

  •  “One constant has been my skepticism about pedagogical fads, enthusiasms, and movements.  The other has been a deep belief in the value of a rich, coherent school curriculum, especially in history and literature, both of which are so frequently ignored, trivialized, or politicized.”   

Despite her assertion of skepticism, Ravitch appears to have been co-opted by the Bush-41 administration in 1991 to become “hopeful, even enthusiastic about the potential benefits of testing, accountability, choice, and markets.”  Now in 2010 she has changed her mind because, “I saw how these ideas are working out in reality.”  In a sense, Ravitch has come full circle to find wisdom in a landmark educational report that has been ignored in recent times.   

A Nation at Risk

Ravitch provides an excellent history of the education-reform movement, starting with a major report in 1983 titled A Nation at Risk (ANAR).  ANAR, which was drafted by a Reagan’s National Commission on Excellence in Education, suggested that American education was falling apart because of the liberal, permissive, no-values school reforms in the late 1960’s and early 1970’s.  According to ANAR, the erosion of academic performance could be reversed (a) by developing a solid curriculum (four years of English, three years of math, science, and social studies, and one-half year of computer science) and (b) by developing teachers with an aptitude for teaching and a competence in their academic discipline.  ANAR was a report, not a law, and states and schools were free to ignore the report and its recommendations. 

While working in the Bush-41 administration, Ravitch tried to facilitate the creation of voluntary national standards in history, English language arts, science, civics, economics, the arts, foreign languages, geography, and physical education, but the project fell apart in 1994 when the proposed history standards where attacked by Lynne Cheney for their political bias.  Because of the controversy, the Clinton administration’s Goals 2000 declared that curriculum standards should be left to each state.  According to Ravitch, many states responded by publishing vague documents and called them standards. 

In 2001, Bush-43 came into office with his Texas program of accountability, high-stakes testing, data-driven decision making, choice, charter schools, privatization, deregulation, merit pay, and competition among schools.  The program was called No Child Left Behind and was supported by Republicans and Democrats.  The program focused its testing exclusively on English and Math and declined to set any nationwide standards.  Instead each state was free to establish its own standards.

 Experiments in education

Chapters 3-5 in Ravitch’s book describe three famous, influential experiments by local-education districts that have been conducted since A Nation at Risk:   

  1. The Transformation of District 2.  District 2 was one of New York City’s 32 school districts, and in 1987 Anthony Alvarado was named superintendent.  Alvarado attempted to bridge the difference between two competing pedagogical techniques for English – phonics and whole language.  “Phonics” consisted of explicit instruction in phonics, spelling, grammar, and punctuation, whereas “whole language” emphasized student-centered activities, figuring out words in context, and reading experiences.  Alvarado’s new methodology was called Balanced Literacy, which integrated phonics and whole language by focusing mainly on reading strategies and teaching children to identify them by name and practice them.  All principals and teachers were taught on Balanced Literacy and required to teach it.  District 2 also adopted the Constructivist method for teaching math.  Following the adopting of Balanced Literacy and Constructivist Math, District 2 test scores on these subjects increased significantly, and many researchers attributed these improvements solely to the pedagogical reforms.  Ravitch suggests, however, that demographic and economic transformation in the District may have been the main cause of the improvement.
  2. Lessons from San Diego.  In 1998, San Diego attempted to reform its schools by hiring a hard-nosed, non-educator U.S. Attorney Alan Bersin, who hired District 2’s Tony Alvarado as chancellor for instruction.  Bersin/Alvarado developed a Blueprint for Student Success in a Standards-Based System, which borrowed heavily from District 2’s Balanced Literacy and Constructivist Math.  Ravitch points out that these reforms were successfully adopted because they employed a Left-Right strategy – i.e., the pedagogical left loved all of the money spent on professional development contracts and the business right loved the accountability applied to schools and teachers.  Ravitch concluded that Bersin’s get-tough policy failed in San Diego because it sapped educators of their initiative and enthusiasm.
  3. The Business Model in NYC.  Between 1969 and 2002, control of NYC schools was decentralized.  In 2001, Michael Bloomberg was elected mayor and in 2002 he persuaded the state legislature to give him ultimate power and responsibility for the city’s schools.  Bloomberg hired U.S. Attorney Joel Klein to run the city’s Department of Education, and Klein adopted the same Left-Right strategy that Bersin had in San Diego – i.e., “he selected instructional programs (including Balanced Literacy and Constructivist Math) that pleased the pedagogical left, awarded large contracts to vendors of these programs, and created a large number of jobs for consultants and coaches (Princeton Review and Kaplan Learning) who were knowledgeable about progressive approaches.  And he satisfied the business community by vigorously promoting choice and accountability.”  The Bloomberg-Klein program was called Children First and it embodied the same ideas as the federal No Child Left Behind program – i.e., accountability and choice.  Ravitch concedes that she was initially in support of the Mayor’s takeover, but eventually concluded that mayoral control is not necessarily a good thing.    

No Child Left Behind (NCLB)

Chapter Six discusses the federal experiment regarding education policy – No Child Left Behind.  The four principles of NCLB, as initially described by George W. Bush in a 28-page document, were – (1) annual testing of every student in grades 3-8 using a state test, not a national test, (2) decisions on how to reform schools would be made by states, not Washington, (3) low-performing schools would get help to improve, and (4) students in persistently bad schools would be able to transfer.  These four principles were expanded into the 1,100-page NCLB bill, which was approved by huge bi-partisan majorities.

The major focus of NCLB is accountability, including the following features:

States would develop their own tests to identify performance levels – basic, proficient, and advanced.

  • All students (by race, ethnicity, income, and disability) would be tested for math and reading annually in grades 3-8 and once in high school.
  • All states must have timelines for achieving 100% proficiency by 2013-2014.  (Thus, the title, No Child Left Behind.)
  • All schools and districts must make “adequate yearly progress” toward 100% proficiency.
  • Any school that didn’t make adequate yearly progress would be labeled as “school in need of improvement” (SINI) and would face a series of onerous sanctions (year one – put on notice; year two – offer students the right to transfer to a successful school; year three – free tutoring to low-income students; year four – corrective action of curriculum changes, staff changes, or longer school day or year; and year five – restructure.
  • Restructuring options were to convert to a charter school, replace principle and staff, relinquish control to private management, turnover control to the state, or “any other major restructuring of the school’s governance.
  • Mandatory participation every other year in National Assessment and Educational Progress (NAEP) testing for math and reading in grades four and eight.

Ravitch supported NCLB until 2006, at which time she concluded that the “NCLB toolkit” for failing schools (free after-school tutoring and charter schools) was not working.  Only a small percentage of the kids offered tutoring or a move to a better school accepted the offer.  Ravitch suggested that the feds and local educators should reverse role – i.e., the feds should collect data/information and local educators should design and implement improvements.

Ravitch argued that the major conceptual flaw with NCLB is that it mandated that 100% of the students achieve proficiency by 2013-2014.  She compared that to a goal of eliminating pollution or crime.  The critical flaw is that when schools fail to achieve their goal of 100% proficiency, they are subjected to the draconian sanction of restructuring.  Thus, virtually all schools, even the best, would eventually be forced to restructure because 100% proficiency is virtually unachievable.  As Ravitch said, “It makes little sense to impose remedies that have never been effective and to assume that they will produce better than reasonably good results.”  Many states attempted to avoid the draconian remedies by dumbing-down their tests and defining proficiency in a more generous way.  In their effort to increase their scores, many states all spent more time teaching math and reading and spent less time on history, science, and the arts.  This led their scores to go up even though the national NEAP test failed to reflect any gains.  

Choice (Vouchers and Charter Schools)

Chapters Seven examined Choice and Chapter Eight examined Accountability.  According to Ravitch, the progenitor of educational choice was Milton Friedman, who wrote in essay in 1955 suggesting that the government should fund schooling, but should not run the schools.  Instead it should give a voucher to each student, who would then select a school to attend.  Vouchers failed to achieve success because (1) the courts questioned whether vouchers could be used at religious schools, and (2) the left and media questioned whether vouchers would be used to evade desegregation requirements. 

In the 1990’s, Milwaukee and Cleveland established voucher programs and the U.S. Supreme Court finally ruled in 2002 that vouchers did not violate the Establishment Clause of the U.S. Constitution, but by then charter schools were the reform de jour.  Charter schools were developed by Ray Budde in Massachusetts in 1988.  His idea was to give an organization (perhaps a group of teachers) to receive a 5-year charter to meet some performance goals in return for increased autonomy.  The concept had Left-Right appeal because the Left saw charter schools as a firewall against vouchers and the Right saw them as a means to deregulate education and create competition.  An unfortunate side effect to the growing popularity of charter schools was that they not only pulled kids away from public schools, but also away from Catholic  schools, which had been doing yeomen’s work for many years educating poor kids without the benefit of public financing. 

By 2010, 30,000 students were going to school on vouchers while 1.4 million were attending charter schools.  According to Ravitch, the achievements of charter schools are spotty, with some exceptional and other horrible.  One of the best is KIPP (Knowledge is Power Program), a culture-changing program.  “The theory of the charter movement is that competition with the regular public schools will lead to improvements in both sectors….  But in reality, the regular public schools are at a huge disadvantage …. because charter schools may attract the most motivated students, may discharge laggards, and may enforce a tough disciplinary code, but also because the charters often get additional financial resources from their corporate sponsors….

Although the Obama administration is clear in its opposition to vouchers, it strongly favors the expansion of charter schools.  Obama’s Race to the Top program specifically requires all states to eliminate any legal limits on the expansion of charter schools.  Ravitch concludes, “In barely twenty years, the idea of school choice rapidly advanced in the public arena and captivated elite opinion.  Given the accumulating evidence of uneven results, this was surprising.”      


Bush-41 had six education goals and Clinton had eight.  Bush-43 and NCLB had only one goal – 100% proficiency in math and reading by 2014.  Ravitch points out that the problem with the NCLB isn’t the testing, but rather the misuse of testing for high-stakes decisions. 

“The problem with using tests to make important decisions about people’s lives is that standardized tests are not precise instruments.”

  • “Testing experts frequently remind school officials that standardized tests scores should not be used in isolation to make consequential decisions about students, but only in conjunction with other measures of student performance, such as grades, class participation, homework, and teachers’ recommendations.
  • “Given the importance of test scores, it is not surprising that teachers and school officials have devised various ways of gaming the testing system.
  • “Of all the ways of gaming the system, the most common is test preparation.
  • “Campbell’s Law: ‘The more any quantitative social indicator is used for social decision-making, the more subject it will be to corruption pressures and the more apt it will be to distort and corrupt the social processes it is intending to monitor.’
  • “The pressure to increase test scores is likely to produce high scores, whether by coaching or cheating or manipulating the pool of test takers.
  • “The starkest display of score inflation is the contrast between the state-reported test scores, which have been steadily (and sometimes sharply) rising since the passage of NCLB, and the scores registered by states on NAEP, the federal assessment program.”

Prior to NCLB, federal education policy was concerned with improving the quality of teachers.  NCLB shifted to a singular focus of raising test scores in reading and math.  One of the criticisms of NCLB was that it failed to incorporate an emerging concept called “value-added assessment,” which means that all teachers would be evaluated on their ability to increase the test scores of their students from beginning-of-year to end-of-year.  Ravitch questions the utility of value-added assessments because there is often insufficient information to reach any solid conclusion about a specific teacher.  Ravitch also questions whether Teach for America (TFA) is helping students because experience is one of the most important factors found in successful teachers and TFA teachers typically quit just as they are getting the requisite experience to be effective.

Misguided Foundations

In Chapter Ten, Ravitch skewers the Billionaire Boys’ Club – i.e., foundations that attempt to improve education in America.  In 1998, the Big Four foundations involved in education were Annenberg, Lilly, Packard, and Kellog.  By 2002, they were replaced by the Big Three of Gates, Walton, and Broad.  The problem, according to Ravitch, is that the new foundations were based on wealth that had been created through competition, choice, deregulation, incentives, and other market-based approaches.  Naturally, these foundations thought these same principles could be applied to improve education in America.  Using so-called venture philanthropy, these “foundations came to exercise vast influence over American education because of their strategic investment in school reform.”  The Walton Foundation has focused on school choice through vouchers and charters.  The Gates Foundation has spent millions in an unsuccessful attempt to show that smaller schools would be more effective.  It has now shifted to study performance-based pay for teachers, which necessarily involves finding ways to measure effectiveness and also firing ineffective teachers.  The Broad Foundation is involved in teaching management skills to educators and has supported non-educators such as Bersin in San Diego and Klein in NYC in management positions for districts.

Race to the Top (R2T)

Race to the Top was part of Obama’s stimulus program in 2009.  It creates a financial reward for states that most quickly adopt as many of Obama’s list of 19 best practices for education.

  • Great Teachers and Leaders (138 total points)
    • Improving teacher and principal effectiveness based on performance (58 points)
    • Ensuring equitable distribution of effective teachers and principals (25 points)
    • Providing high-quality pathways for aspiring teachers and principals (21 points)
    • Providing effective support to teachers and principals (20 points)
    • Improving the effectiveness of teacher and principal preparation programs (14 points)
  • State Success Factors (125 total points)
    • Articulating State’s education reform agenda and ELAs’ participation in it (65 points)
    • Building strong statewide capacity to implement, scale up, and sustain proposed plans (30 points)
    • Demonstrating significant progress in raising achievement and closing gaps (30 points)
  • Standards and Assessments (70 total points)
    • Developing and adopting common standards (40 points)
    • Supporting the transition to enhanced standards and high-quality assessments (20 points)
    • Developing and implementing common, high-quality assessments (10 points)
  • General Selection Criteria (55 total points)
    • Ensuring successful conditions for high-performing charters and other innovative schools (40 points)
    • Making education funding a priority (10 points)
    • Demonstrating other significant reform conditions (5 points)
  • Turning Around the Lowest-Achieving Schools (50 total points)
    • Turning around the lowest-achieving schools (40 points)
    • Intervening in the lowest-achieving schools and LEAs (10 points)
  • Data Systems to Support Instruction (47 total points)
    • Fully implementing a statewide longitudinal data system (24 points)
    • Using data to improve instruction (18 points)
    • Accessing and using State data (5 points)

At the end of Chapter Ten, Ravitch noted that R2T marks the death federalism in education because the feds are taking over.  That may be an exaggeration, however, because states aren’t required to participate in this competition, and several states (like Texas) have declined to submit applications. 

R2T does not replace No Child Left Behind (NCLB).  In March 2010, Obama’s Education Secretary Arne Duncan presented Congress with a 41-page blueprint to update NCLB.  The three major proposed changes are:

  1.  Instead of mandating that failing schools offer free tutoring or transfers, the proposal will make these remedies optional.
  2. Schools will be placed in three categories – the best 10% will receive additional benefits, the middle 75% will be left alone, and the worst 15% will face radical intervention (including dismissal of principals in the worst 5%).
  3. The $29 billion will be allocated to states based on competition (like R2T) instead of traditional spending formulas that spread it evenly throughout the states. 

The Obama/Duncan proposal fails to address whether the NCLB requirement for 100% proficiency by 2014 should be continued, so Congress will be forced to make that decision.  The proposal does, however, create a new requirement that all high school graduates be “college- and career-ready” by 2020.  This would seem to address Ravitch’s suggestion that testing needs to go beyond math and reading and into other areas of study.   The program also incorporates Ravitch’s suggestion for testing accountability that focuses on yearly improvement, not the absolute testing result.  

Back to the Basics

Ravitch concludes with a chapter on Lessons Learned.  She points out that a democratic society needs educated citizens who know the country’s history, its government, and the working of its economy.  They must be more than proficient in math and reading.  The successful education system will have:

  • A strong curriculum;
  • Experienced teachers;
  • Effective instruction;
  • Willing students;
  • Adequate resources; and
  • A Community that values education.

 “The most durable way to improve schools is to improve curriculum and instruction and to improve the conditions in which teachers work and children learn, rather than endlessly squabbling over how school systems should be organized, managed, and controlled….  Our schools will not improve if we entrust them to the magical powers of the market….  Our schools cannot improve if charter schools siphon away the most motivated students and their families in the poorest communities from the regular public schools….  If there is one thing all educators know, and that many studies have confirmed for decades, it is that there is no single answer to educational improvement….  But the market, with its great strengths, is not the appropriate mechanism to supply services that should be distributed equally to people….”