This morning, Thomas Sowell offered his readers a reflection on work. If just that, the column’s one identifiable point would have made for a nice Wednesday morning pat-on-the-back: we don’t always enjoy work, but doing one’s job well, whatever it is, should foster a progressive career.

Apparently, though, Sowell wanted to contribute to a larger debate. “It was painful,” he wrote, “to see an internationally renowned scholar say that what low-income young people needed was ‘meaningful work.'”  He concluded the column with this: “Telling young people that some jobs are ‘menial’ is a huge disservice to them and to the whole society. Subsidizing them in idleness while they wait for ‘meaningful work’ is just asking for trouble, both for them and for all those around them.”

So, a scholar recently said something about youngsters benefitting from meaningful work, and some policy might allow those youngsters time to look for work before settling into McJobs. Leaving merits momentarily aside, let us note how Sowell’s column exemplifies ineffective, echo-chamber rhetoric: (1) When making a policy point, the posited argument or policy proposal ought be concisely, but fairly, presented; and (2) rants may make for a tasty, rare burger for the red meat crowd but do little to further civic debate.

From which scholar does Sowell dissent? A google news search for “scholar and ‘meaningful work'” this afternoon brought up a collection of National Review-ish websites containing Sowell’s syndicated column. Perhaps Sowell refers to Canadian Finance Minister Jim Flaherty comment on there being no bad jobs, and the subsequent reaction? We can’t be sure. And with what policy does Sowell urge our skepticism? Does it have anything to do with the recent stories in the NY Times on menial tasks composing unpaid internships or burgeoning advocacy groups helping jobless college grads I couldn’t figure it out. Nor should it be the reader’s job to figure it out.

Maybe–probably–it is all just a rant. The value of a rant is, like the value of attending a rally, group identification. It exposes some of your gut instincts and assumptions, connecting you to others feeling those same emotional pulls. Apart from securing a sense of self and of belonging, group identification can increase the sway of whatever identifiable policy the group prefers.

The value in rants’ and rallies’ group identification is also its limit. Such speech bolsters identity and solidarity rather than confronting the points on which reasonable people may differ with nuanced, dispassionate argument. Hence, the absence of campaign slogans with which anyone disagrees. We all favor life, we all favor choice, opportunity, hope, progress, and values. Rants and rallies digress, in the end, to meaningless code words associated with one group or another, with little value to civic debate.

The result is the type of writing in Sowell’s column, intended solely for already-receptive readers convinced, in this case, of the inanity of academia, the absolute virtue of the private market, and the parasitic nature of the unemployed.

Too much of a category of education is, according to Sowell, ruining the social norms that foster work ethic. Sowell defines that category as “absolutely counterproductive courses that fill people with a sense of grievance and entitlement, without giving them either the skills to earn a living or a realistic understanding of the world required for a citizen in a free society.” Consequently, college boys are tipping buffalo in Yellowstone and college girls are hitch-hiking. That is really his argument. Further, colleges are breeding a society of unrealistic expectations. To wit, “educated elites” push the harmful idea that youngsters should get meaningful work.

Sowell stumbles upon something here that could really be useful. He asks: “What is ‘meaningful work’?”

Indeed, what underlying assumptions, fears, and expectations ought we address in assessing a job market bursting with educated, thoughtful, and qualified youngsters for whom scant opportunities are open? Over the past couple decades, the landscape of skills and status awareness has changed exponentially. With an internet connection, one can freely take an MIT course. Likewise, one can keep tabs of exactly what position any high school peer has aquired. One need not have read Alain de Botton’s “Status Anxiety” to guess at the emotional, even existential toll experienced by anyone giving a damn about It All these days.

But, Sowell treats us to no such inquiry. Rather, he composes a straw man of what some unidentified group of “Utopian intellectuals” think of meaningful work: the “notion seems to be that it is work whose performance is satisfying or enjoyable in itself.” And it is never done solely for money. From there, Sowell really decks out the strawman as something of a Platonic Republican desiring “a society where all-wise elites would decide what each of us ‘needs’ or ‘deserves.'”

(It’s always a little exciting to come upon the more hyperbolic segments of a rant.  Is there really someone out there this purports to describe?  Is it a true depiction of that person’s argument?  Please, then, let there be a counter point, this can’t help but be an invigorating debate.  But alas, it never really is a true depiction; or, when rarely so, the depicted is too far out there to represent any meaningful policy proposals.)

“At the very least,” a calmer Sowell contends, “many intellectuals do not want the poor or the young to have to take ‘menial’ jobs.” 

We come again, then, to what might be the heart of some policy debate about which Sowell has something to say.  But I have no idea what the debate is, and what Sowell has to add.  The very next sentence he write is this: “But people who are paying their own money, as distinguished from the taxpayers’ money, for someone to do a job are unlikely to part with hard cash unless that job actually needs doing, whether or not that job is called “menial” by others.”

I think he’s saying that someone has to perform menial work which, to Roomba’s great vexation, is a truism.  Fantastically, he states the truism within a demonstrably false claim.  In fact, those “paying their own money, as distinguished from the taxpayers’ money” are exceedingly likely to pay for jobs that do not need being done.  Today, I spent money on clothes, music, television, and ginger ale all of which I did not need.  Most jobs stem from want rather than need, as ought be understood by any economist thinking over the Great Recession.

So, without really addressing the point, or making much of an argument, Sowell airs out what he really wants to air out, the message so favored by the readers of every page that popped up when I tried to find out what he was talking about: “People who lack the skills to take on more prestigious jobs can either remain idle and live as parasites on others or take the jobs for which they are currently qualified, and then move up the ladder as they acquire more experience.” Ahhh, “parasites,” that’s the stuff.  The ranting code word of Ayn Rand’s adorers everywhere.  It’s good to feel that group identity sinking in.

Cary Sherman did his job as chief executive of the Recording Industry Association of America and submitted a column for publication in the NYT opinion pages bemoaning the sudden demise of the House and Senate bills that would have greatly amped up copyright enforcement and facilitated pre-trial injunctions shutting down websites potentially subject to enforcement.

On the substance, the population thus far unburdened by IP law can still stand for some hearty and honest debate, a brief outline for which follows for a few paragraphs.  But this blog frequently turns attention to public discourse, civic participation, and the general level of earnest reasoning put into lawmaking.  Sherman’s column touches those themes, and I’ll look into that after this brief SOPA intermission.

The most interesting provisions for civic debate are (1) the definitions at sec. 103(a)(1) and the (2) the preliminary injunction provision at sec. 103(c)(5). (I’m using SOPA’s provisions).

Existing copyright law generally uses a litigation scheme of copyright owner against copyright violator. SOPA allowed enforcement against a new group: sites “dedicated to the theft of US property.” That notion seems uncontroversial, so it is the definition of that phrase, at sec. 103(a)(1), that deserves good discussion. Such a site, says the bill, is “primarily designed” to violate copyrights (seems reasonable), or has little purpose other than violating copyright (a little more hazy), or “marketed … for use in, offering goods or services in a manner that engages in, enables, or facilitates” violating copyrights (hmmm?).

That last prong of the definition–marketed for services that might enable copyright violation–is I think the bone of contention for most folks opposing the bill, as a great many social media sites allow people to post originial, derivitive, and copyrighted work without pre-screening.  Easily, a lawyer could argue that fits this definition of sites “dedicated to the theft of US property.” It seems to me alot of good debate is to be had, in any event, on (1) whether we want to allow enforcement against copyright infringement facilitators and (2) how to define such actors.

And what to do with them? That is another ripe topic for debate – such as whether courts should be able to allow a website to be shut down prior to the trial that determines whether the site fits whatever definition we settle upon for sites “dedicated” to IP theft.

My sense is that about 99% of the debate could be had over those two sections. The techies can cover the remaining 1% by providing points and counterpoints on the merits of enforcing against domain names rather than an IP address to obtain copyrighted data on a particular server.

But, back to Sherman. It is predictable that the RIAA head would present an argument in favor of more stringent IP enforcement. What I found more interesting was an argument he promised in the first sentence: “how the democratic process functions in the digital age.”

Parsing out the meta-arguments regarding civic participation and social policy from the his arguments attached to SOPA/PIPA, I got this:

Hyperbolic sloganeering hinders sound public policy-making, particularly when injected by corporations with an ability to reach and sway a large audience.

And here are some of what I glean as his preferred norms, with his specific arguments in quotes:

  • Civic choices should be based on reason rather than rhetoric (“We need reason, not rhetoric, in discussing how to achieve it.”);
  • Companies purporting to provide information without bias should not be allowed to present an opinion (When Wikipedia and Google purport to be neutral sources of information, but then exploit their stature to present information that is not only not neutral but affirmatively incomplete and misleading ….);
  • No one sector in american economy should be allowed to drown out another perspective (“Get enough of them to espouse Silicon Valley’s perspective, and tens of millions of Americans will get a one-sided view of whatever the issue may be, drowning out the other side.”);


  • It is problematic that people can so easily spread a civic meme without being experts on the underlying issue (Sure, anybody could click on a link or tweet in outrage — but how many knew what they were supporting or opposing?).


I couldn’t agree more with what I’ve interpreted to be the basic normative assumption in Sherman’s argument.  (And I’ll be interested if someone has a conflicting interpretation – just remember to strip out SOPA, et al).  Indeed, I would be forever grateful if the Sunday morning shows and cable news anchors began their analysis of political talking points with whether they were hyperbolic, reduced to slogans, or injected into the public conscience by unduly influential corporate spending or unfair (let’s call it) pulpit-advantage.  Indeed, the civic necessity of education is, in my mind, to cause citizens to enter knowingly and thoughtfully into policy decisions affecting them and their fellow citizens.

Each of the four specific points could be the subject of some interesting debate.  I can imagine good arguments all around.  Reason seems preferable; but rhetoric, sometimes, can reach through the reasoning of self-interest for certain common goods.

Bullet two is a bit of a mess.  Companies like Google can certainly provide neutral search results and still submit a message of its own.   (And a quick note on the substantive argument – Google and Wikipedia, insofar as their webpages sent a message, are not the infrastructure providers with the ability to speed up or slow down particular content that advocates of net neutrality wish to keep neutral).

Sectors interested in particular policy tend to be more tuned to bills affecting them than the general public that might eventually be affected by the policy.  Lots of good government groups try to rectify that problem, for bills and subsequent agency regulations.  My gut cheers Sherman’s call for broader participation; but the fourth bullet point tempers that enthusiasm.

Because we undoubtedly do want some expertise going into policy and regulatory decisions.  How to balance the desire for public input and accountability with the real need for technocratic competence?

A glance at the comments section under Sherman’s column offers little hope that folks want to thoughtfully confront these broader themes of “the democratic process functions in the digital age.”  Still, I’ll stay tuned.



The REINS Act presents an opportunity for those interested in administrative law to look into their assumptions and values. A few ideas immediately come to mind: efficiency, accountability, expertise, and good government. The prospect of a process in which the political branch passes a law, then passes it along to agencies to promulgate rules, then brings back in those rules for approval before agencies may start enforcing them presents a shift in the administrative process, the fascination of which I’m not sure either side in the debate really trumpets.

The supporters seem to think the rulemaking process is a part of process of making the statute in the first place; so it makes perfect sense that Congress should sign off on the rules promulgated pursuant to its own initiatives. Supporters also assume the elected representatives’ quick votes on the rules provide a measure of democratic accountability. They are generally skeptical of the competence and accountability of bureaucrats.

Objectors seem to think rulemaking is a function by which Presidents impose policy and assert power as a useful opposing branch to Congress. Objectors assume voters can hold agencies accountable every four years during the Presidential elections. They are generally skeptical of the political motivations and monetary capture of Congresspeople.

I haven’t seen as much discussion on what REINS means for the process of governing, and the values we attach to the various actors within government. So, below are a few questions.

Should a current Congress be able to prevent the promulgation of statutes passed by a prior Congress, without actually repealing the statute?

Say the GOP won both houses in 2010 with a veto proof majority and promptly passed laws requiring the Occupational Safety & Health Administration to revise its regulations to prevent only the workplace hazards causing “severe or frequent injuries.” OSHA works on the new rule for a few years, researching the severity and frequency of each occupation’s injuries, and finally produces the rule to Congress in 2013. Meanwhile, Democrats swept back into control of the House in 2012. The Democrats don’t have the votes to repeal the 2010 “NOSHA Act,” but when presented with OSHA’s rule, reject it by resolution. And they do so on every revised rule.

Is it desirable to allow a representative to vote in favor of a popular bill, but against its implementation?

Obstruction by resolution might not be by a later Congress against its predecessor. As I mentioned in a prior post, a representative might vote for the “Everyone Likes it in Theory” Act, but against the “Actually Putting it into Practice” regulation. REINS, then, might afford our elected officials another tool in the trickery of campaign ads.

Certainly it is possible that a representative will sincerely believe an agency got something wrong in its rule, and want to send it back for revision. That presents its own danger–the sometimes endlessness of noodling in minutia. Until now, we’ve left it for agencies to do the fine tuning, which takes years. REINS invites politicians into that process.

What does it mean to interpret a vague piece of legislation; when agencies add the necessarily tremendously detailed rules to statutes, are they in fact legislating or implementing existing legislation?

On one end of the spectrum, if a court believes that an agency actually changed a statute through rulemaking, the rule will be overturned. On the other end, a rule carrying out a specific statutory directive will stand.

In between are those rules that inspire the most written about doctrine in administrative law, Chevron, in which the statute was a little fuzzy and the agency decided on a particular interpretation.

Or rules that apply expertise where Congress asked for such expertise: like, Congress instructing the EPA Administrator to prescribe emission standards for air pollutants “which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” 42 U.S.C. 7521(a)(1).

Is a rule an executive or legislative function?
Writers commonly describe agencies as performing quasi-legislative (rulemaking) and quasi-judicial (enforcing, adjudicating) tasks. I’ve wondered whether it’s appropriate to allow the “quasi-legislative” description to place agencies within the legislative branch in a separation of powers argument. Indeed, in my mind, rulemaking is neither an executive nor legislative function.

Rulemaking is simply an agency’s placing into executable rules already existing legislation. If an agency changes the legislation in the process of making a rule, the rule is invalid.

Execution, I think, is better left to those activities that enforce rules in effect. Note, of course, that a great deal of interpretation (guidance, decisions on when to enforce, allocation of resources) goes on in the act of enforcing.

Rulemaking, though, involves an effort to take a law and apply a framework with which it will apply to the real world. The idea has long been that Congress is institutionally unable to prescribe every detailed rule, so it delegates to experts that last step, teeing up one more question for now:

What is the best structure for, and by what process can we assure, an appropriate balance of expertise and accountability in the final rules governing our day-today lives?

The Constitution failed to provide a framework for the administrative state, even though (thanks to Professor Mashaw we know that) the framers should have seen it coming. Thus, statutory law (the APA) provides our structure, and that is what REINS aims to alter.

Far more than the canards of jobs, red tape, or the benefit of having regulations generally, the discussion REINS should be inspiring is of the basic processes of lawmaking and rulemaking. Will better (whether your opinion of “better” means fewer, more, or more effective) regulations result from providing Congress an up or down vote on every promulgated rule?

Will that process add significantly to the time it takes to put any given rule into effect, and is that good or bad? Will that process push agency rulemaking staff to work with Congressional staff and lobbyists far more while drafting rules, and is that good? Will they pay more attention to politics and less to economists and scientists? Will the need to pass Congressional approval become a response to public comments?

I tend to think REINS allows for political cover and massive regualtory delay. I doubt it will ever make the President’s desk, and if it does it’ll be vetoed. However, in another time, if such a change indeed comes along, I will dream of a world in which voters pay attention to how their representatives vote (on both the bill and the rule); in which every representative has the philosophical capacity to vote for or against general principles and the technocratic capacity to vote for or against the subsequent rule; and in which every representative can speed read sufficiently to fully understand and give a fair assessment of a rule within 15 to 30 days.

Finally, a correction: when I first posted on REINS I’d only read Section 1. REINS requires both houses of Congress to approve by joint resolution any new major rule. I thought a vote wasn’t required, which would have problematically allowed Congress to kill rules through inaction. That’s not the case, but the actual provisions, which do require an up or down vote, pose some problems.

The process is roughly this, for major rules: an agency submits to Congress its rule; the majority leaders of the House and Senate introduce resolutions accepting the rule, and then pass it on to the relevant committee; that committee then has 15 days to allow the joint resolution to stand, or propose amendments to the underlying statute; the joint resolution then goes tot he calendar for an up or down vote that must happen within 15 session days, with debate limited to 2 hours.

Jonathan Adler praises REINS’ expedited review and mandatory vote, but it is a strange comfort. Agencies take several years to develop major rules, and Congress is to vote on the thing in about 30 days. If one house plays more safe than sorry, and rejects the rule, it is back to the perdurable drawing board.

Sometimes a politician’s talking point perfectly capture the underlying intent to deceive.  Actually, that happens a lot.  A bit more rarely, such a talking point also captures an interesting point about civics and popular perceptions.  It happened yesterday, when Sen. Kay Bailey Hutchison said that the FCC’s net neutrality rules are “a stunning reversal from a hands-off approach to the Internet that federal policymakers have taken for more than a decade.”

(1) In a nutshell, the net neutrality rules forbid internet providers from favoring some content providers over others.  So, for instance, Verizon can’t take a bunch of money from Disney and send along blazing fast ABC programming to your monitor while non-Verizon-paying video producers get throttled.  Rather, internet providers must blindly provide equal access to the highway without special lanes for the paying preferred.

(2) It’s been widely discussed lately that resistance to “control” is at the heart of both the Tea Party and Occupy Wall Street movements, the former concerned with government control and the latter concerned with corporate control.

(3) Hutchison asserts that prohibiting companies from making deals with each other (resulting in faster or slower websites for those of us downstream from the deal-making) is harmful government control.  It is doubtlessly correct that the FCC is exercising some control.  But her comment is in a contextually, and horribly incorrect tunnel of vision looking only at the sphere of companies making deals.

(4) The rules, pretty clearly, do much more to keep control from happening than to allow control.  Net neutrality is basically a mandatory Autobahn.

(5) Thus, Hutchison very ably demonstrated the problem of rhetoric in the dearth of context.  In this case, not many folks were fooled.

I’m reminded today that being tone-deaf and being a Representative are, ultimately, mutually exclusive attributes.  I reckon Rep. Cantor isn’t actually representative of the desperate people of Joplin; but, I’ll think of them, and of my disdain for ideological blinders, while I vote against him in 2012.

The story in the Times today on poorly managed foreclosure paperwork lays most blame for the mess on the lack, in quality and quantity, of manpower to handle the work.

The root of today’s problems goes back to the boom years, when home prices were soaring and banks pursued profit while paying less attention to the business of mortgage servicing, or collecting and processing monthly payments from homeowners.

When borrowers began to default in droves, banks found themselves in a never-ending game of catch-up, unable to devote enough manpower to modify, or ease the terms of, loans to millions of customers on the verge of losing their homes. Now banks are ill-equipped to deal the foreclosure process.

Some industry executives add that they’re committed to helping homeowners but concede they were slow to ramp up. “In hindsight, we were all slow to jump on the issue,” said Michael J. Heid, co-president of at Wells Fargo Home Mortgage. “When you think about what it costs to add 10,000 people, that is a substantial investment in time and money along with the computers, training and system changes involved.”

It occurred to me: there are many, many smart people looking for jobs.  Lots.  And lots of them are from the financial sector, or otherwise well qualified to jump into the work of handling mortgage and foreclosure paperwork.  Why aren’t banks hiring and training part of that multitude?

Don’t they have the resources?

I know several details muddy the waters, but there is ultimately one factor I can imagine that really blocks what seems like a win-win situation (banks being able to handle the foreclosure stampede, and people being able to have jobs).  That factor is the desire to protect the much higher ups’ incomes. It’s a shame.

There is one fact that I am assuming; and that, if proven wrong, this post is wrong.  If wealthy bankers do not reside in the 10% that took home 50% of the Nation’s pre-tax income in 2007, or the 1% that took home 23% – if, for instance, the post-2007 busted economy has so torn down the financial sector’s ability to pull in massive income for its board members – then I am wrong, and the resources are not there.  Otherwise, I maintain that it is a shame that a very few very rich people are ruining it for the job seekers and home buyers out there.


In his biography of Thomas Jefferson, Joseph Ellis locates in Jefferson’s intellectual persona the “‘once upon a time’ character” of his interpretation of history*. Ellis used that theme while discussing A Summary View of the Rights of British America and in the Declaration of Independence. Quickly, the gist is that once things were as they should be, and now they are corrupt. In Summary View, Ellis writes, Jefferson evoked an “elaborate and largely mythological version of English history” wherein the Norman Conquest corrupted society with the notion that all property belongs ultimately to the king.

Ellis says this about Jefferson’s frame of mind while writing Summary View:

But the appeal of the Whig histories derived from something more than rhetorical or logic power. They were influential precisely because they told a story that fitted perfectly with the way his mind worked. Their romantic endorsement of a pristine past, a long-lost time and place where men had lived together in perfect harmony without coercive laws or predatory rulers, gave narrative shape to his fondest imagination and to utopian expectations with deep roots in his personality. The Whig histories … put into words the visionary prospects he already carried around in his mind and heart.

I thought about Ellis’s description of Jefferson’s once-upon-a-time-ism today. It came to me when I heard a politician talking about helping Main Street rather the Wall Street. (No link is needed, you hear a variation on that theme often enough.) The Main Street evocation is an interesting and vague rhetorical device. I wonder if Main Street, like Jefferson’s pre-Norman Britain, is mythological.

What does a politician mean while evoking Main Street? A small town? The dead center of an old city?

My hunch is that ‘helping Main St’ is a rhetorical nod toward populism. But it is lazy and irresponsible. I think ‘Main St’ is a stand-in for the central, downtown commercial road in a small to medium sized city. On it are several small businesses owned by residents of that city. To protect that would require some massive state or federal government intervention into local governments’ zoning and economic policies. Is that what the Main St protectors suggest? Or, perhaps, a constitutional amendment affecting the commerce clause, and allowing state and local protectionism against big box invasion?

Another rhetorical possibility is that ‘Main St’ refers to the idea of middle class, suburban living – work at an office park and trips to Home Depot, Walmart, Target, Lowes, Olive Garden, and TGI Fridays. (such an evocation makes no sense as big boxes don’t normally fit on the smaller ‘Main Streets,’ but we’ll leave tht aside.) Protecting Main St can only mean, in that sense, protecting the people, because those establishments are owned and run by ‘Wall Street.’ Given, they employ local citizens; but, again then, the rhetoric must logically refer only to the people, not the businesses.

Ultimately, it is unclear and potentially meaningless to make political hay of protecting Main Street. Rhetorically evoking Main Street is an attempt to do what Jefferson did with his utopian freedom-loving ancient Britain. It is apparently, weirdly enough, part of human nature to think things were better back when. When you got your shoes shined on Main Street, secured a contract with a firm handshake, and never sued anyone. The reality of which is all hogwash. It works though, I think, because we want that Main Street.

Main Street evocations fall into the category of interesting rhetorical maneuvers that bring the audience’s attention to how it wants things to be. The problem with it is that it is beyond unspecific, it is deceptive. I would love to live in Mayberry, but last I checked downtown is mid-gentrified and there’s a Great Clips where Floyd’s used to be.

*He mentions this as being what folks call Whig history; but, I thought that was the sense that history has led up to a more perfect present, which is quite different from what the upcoming quote suggests, so I’ll leave aside for now what Ellis means by Whig history.

A few days back, I put up a snarky post on NC-GOP Tom Fetzer’s seemingly endless fascination with the details of Democratic spending.  I get the fact that he wants the narrative in North Carolina to be, basically, that the donkeys are a scandalous bunch.  And Fetzer can take whatever political tack he wants.  To the extent, though, that picking fights on spending becomes more technicality than substance, the politics gets tiresome.  And it goes both ways – I groaned at reading this today in N&O’s Under the Dome blog:

N.C. Democratic Party Executive Director Andrew Whalen has filed a complaint with the State Board of Elections that accuses Republicans of failing to properly document an October golf fundraiser.

The complaint comes after a string of complaints filed against Democratic Gov. Bev Perdue by N.C. Republican Party Chairman Tom Fetzer. Whalen’s complaint states that in October, the party held a fundraiser at Riverwood Golf and Athletic Club in Clayton. The club is managed by former Republican gubernatorial candidate Fred Smith.

There is a point at which money issues become substantive.  If a hidden contributor ends up benefiting from otherwise inexplicable legislation, I’d be interested.  On the other hand, gotcha political tricks based on technicality screw ups are lame.  By hunch is that Fetzer’s been riding a train of the latter, and the Dems are trying hop aboard.

Virginia has taken a regrettable step back from the direction of human dignity.  But the media folks are blaming the wrong person.  They, and the folks protesting, need to shift their ire away from Attorney General Cuccinilli and towards Governor Bob McDonald.

Here’s a Washington Post headline from this weekend: “Virginia attorney general to colleges: End gay protections.”  And here’s the Huffington Post (the internal link is to the WaPo article: “As anyone who cares about human rights in America should know by now, Ken Cucinelli [sic], Virginia’s Attorney General, has “urged the state’s public colleges and universities to rescind policies that ban discrimination on the basis of sexual orientation….”

From Charlottesville’s NBC local news: Gay rights supporters met at UVa, “in response to a letter from the state attorney general that would dramatically change discrimination rules – or protections – for gays and lesbians on grounds.”

From Richmond’s Times Dispatch: “Students and faculty urged Virginia Commonwealth University administrators this morning to take a strong stand against Attorney General Ken Cuccinelli’s opinion that gays cannot be included in state anti-discrimination policies.”

The protections that Cuccinelli ripped to shreds, according to the news, are not his to make or destroy.  The letter was an advisory opinion.  Back in 2006, the prior Attorney General opined, also, that protections against state agencies hiring or firing based on sexual orientation were unconstitutional.  But I don’t recall reading news stories about that 2006 advisory opinion, because no one cared (because, in turn, the executive had no interest in enforcing it).

Flash back to the Washington Post circa 2005:

RICHMOND, Dec. 16 — Gov. Mark R. Warner (D) on Friday quietly amended an executive order that for the first time explicitly bans Virginia state agencies from discriminating against gays in hiring and promotions.

The policy went into effect immediately, and a spokeswoman for Gov.-elect Timothy M. Kaine (D) said the incoming governor plans to continue the policy by signing the same executive order when he is inaugurated Jan. 14.

And back to 2010.  Shortly after his inauguration, Governor McDonald decided to discontinue the protections against gayscrimination in state agencies, and stripped those provisions from the prior two Democratic administrations’ executive order.  One ought seen that coming, as McDonald was the 2006 Attorney General that opined the protections unconstitutional in the first place.  As Cuccinelli’s Advisory Opinion notes:

In 2006, this office concluded that the addition of sexual orientation as a protected employment class by way of an executive order of the Governor was intended to, and did, alter the public policy of the Commonwealth.

In both 2006 and 2010, the Attorneys General were offering an opinion on the state of Virginia law relating to protections, within state units, for gay workers against discrimination.  The legislature, then nor now, did not place those protections within the State’s statutes, so the question is whether the Governor can create those rights with an executive order.  The difference between this 2010 letter and the AG’s letter from 2006 is that the Governor’s and Attorney General’s offices agree.

Virginia’s colleges and universities are, as AG Cuccinelli’s assailed letter describes, state government institutions.  What, though, is the scope of authority that college boards (in VA, the “Boards of Visitors”) have in setting out rules and regulations for the college?  It’s a legitimate legal question, and falls in with the old chestnuts of administrative and local government law: who tells these government units what to do; how much discretion do these government units have; and, to what degree of specificity must authority derive from the legislature or executive?

Those are decent legal questions for discussion.  And that is what the AG’s letter is about.

In late 2005, then Governor Warner made the decision to incorporate gays within the State’s anti-discrimination rules despite the legal uncertainty.  That decision is what initiated those protections and sparked headlines.  Now, it should be the current Governor’s decision to rescind those protections in the headlines.

A condensed version of Dean Boger’s 2003 article,  Education’s “Perfect Storm?” The Effect of Racial Resegregation, High Stakes Testing, and School Inequities on North Carolina’s Poor, Minority Students, is archived online from the Spring 2003 issue of Popular Government.  The perfect storm for public education consists of three factors: resegregation along increasingly marked socioeconomic and race lines; high-stakes testing and accountability; and continuing inequalities in school finance and resources. The factors’ convergence, to summarize Boger, would be a major blow to public education.

Dean Boger’s article describes the judicial pickle in which desegregationist school boards found themselves in 2003: federal judicial control after Brown and Swann transformed the South into the most integrated region in the nation; but, as local control sifts back to school boards, the federal courts have taken away the tools with which they might remain models of integration – namely, the ability to directly consider race while making school assignments.  And that judicial erasure of an integrationist tool is joined by local political pushes for neighborhood schools and parental choice.  The article goes on to cover the other factors, but I want to remain on segregation for now.  In the conclusion, Boger finds some hope in the Wake County school system’s approach using socioeconomic indicators, that had been in place since 2000 (before that, since the 1970s, Wake used race).

Within North Carolina and the Fourth Circuit, the model of school assignment that Wake County has chosen to pursue would, if adhered to over time, avoid much of the educational damage that this article has forecast.  Wake County assigns students on the basis of socioeconomic status and academic performance: no school may have more than 40 percent of its children eligible for subsidized lunches or more than 25 percent of its students scoring below grade level.  This approach actively resists the demographic trends toward high-poverty and low performing schools that set up sorting behavior by white and middle-class parents.  Yet the capacity of the Wake County school board to sustain broad support for these policies will be seriously tested in the coming few years, and other school districts may not find leaders willing to follow Wake County’s example.

Alas, Boger predicted correctly, Wake couldn’t hold up.  On Tuesday night, the Wake County school board, consisting of a new majority that came about with the October 2009 school board elections, voted to end school busing for diversity.

The current superintendent, Del Burns, announced his resignation after the new Wake County school board coalesced.  He said he could not “in all good conscience, continue to serve as superintendent.”  From the Independent:

“I will not allow myself to be a pawn in political gamesmanship.” The new majority’s policies, Burns warned, if allowed to take effect, would balkanize Wake’s schools, chopping the unified system into separate “have” and “have-not” subdistricts—some 20 in all. High-poverty areas, or zones, would have high-poverty schools, despite extensive research about how that hurts the children forced to attend them.

For more on some of the politicking behind all this, see the Independent’s treatment, tellingly titled “Wake County Goes to Hell”:

Indeed, the Wake election was the mirror image of the tea-party campaign mounted nationally last year against President Barack Obama’s health care reforms. In both cases, a loud, relatively affluent minority was fighting to protect its rights as it perceived them (“my” health insurance, “my” schools). In both, people vehemently rejected any suggestion that what they have should be shared with others (the uninsured, schools in low-income neighborhoods).

And in both, organizers were supplied and paid for by rich conservatives.

In Wake County, in fact, the same multimillionaire conservative helped fund the anti-health care protests and the campaign to seize the school board: Raleigh businessman and former state Rep. Art Pope.

Politics aside, it’s important to recognize that, for many folks interested in education, integration is about more than cultural benefits.  It is about student improvement.  The version of Dean Boger’s article that appeared in Popular Government highlighted Bill McNeal – then Wake County’s superintendent (he left in 2006 to head up NC’s Association of School Administrators).

In the two years since McNeal became superintendent of Wake County Schools, the district has posted impressive gains in the end-of-year tests.  Last year, 89.4 percent of students in grades 3-8 scored at or above grade level, a 4.5 percent increase since 2000.  Reading scores were up two points for all students, four points for black and Hispanic students; and math scores were up three points for all students, six points for blacks and Hispanics.


And speaking of student improvement – let me close with a link dump.  I’ve noticed several interesting articles lately on teachers; and one, today, on Diane Ravitch.  Perhaps this is all warm up to one our our next great domestic debates, revising No Child Left Behind.

The Atlantic and NY Times seem to have engaged in a contest on who can create the best how-do-we-make-good-teachers articles Here’s the Atlantic’s take, and here is the NY Time’s.

And here’s the key graph from the Ravich article:

Once outspoken about the power of standardized testing, charter schools and free markets to improve schools, Dr. Ravitch is now caustically critical. She underwent an intellectual crisis, she says, discovering that these strategies, which she now calls faddish trends, were undermining public education. She resigned last year from the boards of two conservative research groups.

If local politics has you down, go enjoy those articles.


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