You can’t handle the truth!

March 12, 2009

(Guest Post by Matthew Ladner)

A Few Good Men was a good movie that could have been a great movie. On the good side, no romance between Demi Moore and Tom Cruise, and very well done court room drama. On the bad side, the director had to make sure that we understood that Jack Nicholson’s character was the bad guy by having him make crude remarks to Demi Moore. It was like a 30 second summary of Titanic where Leo’s arrogant rival tells Kate Winslet “I’m going to slap you now so that the audience will understand that I’m the bad guy.”

My favorite part of that summary by the way was the meeting between Leo and Kate’ s characters. Leonardo says “I’m pretty!” Kate says “I’m pretty too!” Leo responds “Yes, you are pretty, but not as pretty as me.”

But I digress.

Out here among the cacti, we have a pervasive myth that Arizona public schools are desperately underfunded to the tune of $6,500 per pupil. After the officials report this hideous number to the NCES, then comes the claim that Arizona is ranked 49th in per capita spending. This however is an exercise in issue framing.

As it turns out, Arizona has plenty of company in claiming to be 49th in spending. Another problem- when you take the total amount of revenue and divide it by the total number of students, you get a figure of $9,707 per pupil. Strange- a more than $3,000 per pupil difference…

Now the Arizona legislature’s Joint Legislative Budget Board has produced a document regarding expenditure per pupil in the state. Curiouser and curiouser, but it gives a figure of $9,399 per student for the year before the revenue per pupil figure of $9,707.

I had previously said that this meant that Arizona was not 49th, but somewhere in the middle. An ongoing discussion with a progressive blogger in Arizona, however, has led me to realize that I have little confidence in any state’s spending numbers, other than those of Texas, which can easily be double checked.

Jay successfully pushed a method for calculating dropout rates that looked at the size of a student cohort over time. Perhaps we need to do something similar for spending per pupil figures. Let’s keep it simple: add up all the spending, divide by the number of students.

Otherwise, you get a pig’s breakfast where people down in the basement of state education departments decide this type of funding counts, but this kind of funding doesn’t. Some states report a total number, while others report some interpretation of a spending number as rendered by Bureaucrat X.


Mas Joe Biden!

March 4, 2009

(Guest Post by Matthew Ladner)

I’ve seen past this whole act of being just another paternalistic, self-absorbed north-eastern liberal, and grown to appreciate Vice President Joe Biden.  Whatever his other faults, the dude will shoot straight with you, something we Texans appreciate. Just check out this quote from a recent trip to Delaware, where he pleads with the teachers union not to blow the stimulus money:

“I genuinely need your help to make this work because, folks, look at it this way. We’ve been given all the ammunition. If we shoot and miss, if we squander the opportunity, tell me how long you think it’s going to take for another American president to go and ask for more dollars to correct the education system,” Biden said to the Delaware State Education Association members at the Atlantic Sands Hotel & Conference Center in Rehoboth Beach.

<SWISH!!!!!>

The sound you just heard was me turning over a giant hourglass. I’ll try to resist using this quote for a few years, but it isn’t going to be easy. Keep them coming Joe!


Buildingpalooza

February 11, 2009

fancy-church  shack

An underfunded regular public school; a money-draining charter school

(Guest post by Greg Forster)

I can see that school buildings are going to be a big topic for us for the foreseeable future. There’s the feds’ desperate need to blow money on something, anything, in the “recovery” bill (they’re no longer even bothering to call it a “stimulus” bill, apparently). And Jay’s post on school construction last week generated some interesting conversation in the comment thread.

Then last week opponents of the bill had a lot of fun spotlighting its provision of $89 million for school construction in Milwaukee, despite the fact that Milwaukee has had major enrollment declines leading to lots of empty and “underused” buildings, its buildings are deemed to be in good condition, the city has no plans for any construction projects, and just last year it had a major scandal centering around the waste of tens of millions of dollars in construction funding.

But here’s something I don’t think anyone outside Milwaukee has highlighted yet. In the Milwaukee Journal Sentinel’s story on the funding, somebody at the paper (presumably a bemused editor) inserted the following subtitle above a section of the story:

What is “Construction”?

Somebody get Socrates on the line, because it’s a good question. As a commenter pointed out on Jay’s post last week, once money goes into the system, we can’t be sure what it really gets spent on. We know how much money was budgeted for “construction,” but typically there’s nobody checking to see what was actually bought with those “construction” funds.

Sure enough, the Journal Sentinel quotes a state Democratic spokesperson saying that all of that yummy yummy swag for “school construction” could legitimately be spent on “school modernization.”

Next month’s headline: “What is ‘School Modernization’?”

Do these sound like conditions under which the money will be spent wisely? And don’t kid yourself that Milwaukee is somehow a special exception, and the stimulus money is going to be well spent elsewhere.

Suppose you don’t believe the vast mountain of empirical research that Jay cited last week. Let’s just drop all that science into the toilet bowl and flush. Even so, can anyone believe that money will be well used when it’s handed over to a system that has no real transparency, much less effective oversight, never mind accountability for results – and that is run by people who also just happen to derive political power by diverting school funding into an enormous gravy train of featherbedding, pork, etc.?

If we’re dumb enough to hand over the money under those circumstances, why would they not divert it to the gravy train? I’m amazed the schools in the government monopoly system aren’t even worse than they are.

But wait. There’s yet another school building story on the horizon. This one broke out in the edreformblogosphere just yesterday.

stlouisarch

They built it with surplus “school construction” money

Like Milwaukee and pretty much every other city, St. Louis has long-term declining enrollment, but that didn’t stop it from pouring tons of money into school construction over the past few decades. Now St. Louis has a bunch of empty school buildings it needs to unload, so it’s going to sell them off.

But not everyone is allowed to bid on the empty school buildings. Joanne Jacobs puts it succinctly: “The school board has banned sales of buildings to liquor stores, landfills, distilleries, sex shops and charter schools.”

Read that again: Liquor stores, landfills, distilleries, sex shops and charter schools.

Not much more to say, is there? Charters are the one sector of the government-owned education system that is 1) growing fast, 2) willing to take on the most disadvantaged, toughest-to-teach kids, and 3) producing improved results, and they do it with less money – especially less construction money! – than the regular system. But they aren’t allowed to buy – not take for free, but buy, as in purchase at market value, by paying actual money – the city’s empty buildings.

drive-thru-liquorlandfill

distilleryPT006149

Some typical St. Louis charter schools

I’m with Matt – if the system’s defenders don’t realize they’re destroying millions of children’s lives in order to funnel money to a corrupt gravy train, it’s only because they don’t want to know.


Marcus Winters on School Choice Savings

January 21, 2009

savings

(Guest post by Greg Forster)

Since we’re on a money kick this week, let’s combine that theme with education (this blog is still about education, right?) and note that our friend Marcus Winters has an article on NRO today on how vouchers save money.

For those looking to dig deeper, here’s an analysis of the fiscal impact of every school choice program from 1990 through 2006. Every program was at least fiscally neutral, and most saved money.


School Voucher Mythbusters

December 17, 2008

mythbusters_collection3

(Guest post by Greg Forster)

A while back, I posted this to help people find comprehensive lists of the research on various subjects related to school vouchers. It’s a list of lists – in case you’re looking for a list of all the available research on whether vouchers improve education for the kids who use them, or whether they improve public schools, and so forth. Some of the lists are more scholarly and contain a lot of technical information, while some are presented in a more easily accessible format.

Well, here’s a big update on the list-of-lists front: the Friedman Foundation has released a set of “myth buster” guides to the research on the six most common school choice myths. For each myth they’ve provided a brief, handy reference sheet and a slightly longer, more detailed guide to the research. Even the detailed version of each myth buster is still less technical than the other lists on my “meta-list” page, compiled by Jay and other scholars, but it does go over the most important technical issues (how do we distinguish the impact of vouchers from the impact of other factors like family influence?) and provides the references you’ll need to dig further if you wish.

 

Myth: Vouchers hurt public schools and take the best and brightest.

Research: Short version, detailed version.

 

Myth: Private schools aren’t really better than public schools.

Research: Short version, detailed version.

 

Myth: Vouchers will lead to increased segregation.

Research: Short version, detailed version.

 

Myth: Private schools are hostile to tolerance and democratic values.

Research: Short version, detailed version.

 

Myth: Vouchers are costly and drain money from public schools.

Research: Short version, detailed version.

 

Myth: Private schools exclude difficult students.

Research: Short version, detailed version.

 

Take note that these are true comprehensive lists, including all high-quality studies on each of these questions. I’ve noticed that it’s always voucher supporters who are willing to discuss all the evidence, while voucher opponents typically cherry-pick the evidence, mischaracterize the evidence they’ve cherry-picked, and then falsely accuse voucher supporters of cherry-picking evidence.

So I would say Jay’s theory about why school vouchers keep winning against impossible odds is well supported by the empirical evidence – although in this case I haven’t compiled a comprehensive list.

What stronger breastplate than a heart untainted!
Thrice is he armed that hath his quarrel just,
And he but naked, though lock’d up in steel
Whose conscience with injustice is corrupted.

Henry VI, Part II, Act 3, Scene 2


Update on Fiscal Impact of Milwaukee Vouchers

December 15, 2008

(Guest Post by Robert Costrell)

Does the funding formula for the Milwaukee Parental Choice Program (MPCP) adversely affect Milwaukee taxpayers, even as it benefits taxpayers statewide?  The answer I gave in my recent Education Next article is yes, based on data through the 2007-08 school year.  Since publication, some confusion has arisen as to whether this result still holds for the current school year, as reported in the news and opinion columns of the Milwaukee Journal Sentinel (“Fairness is in the Eye of the Beholder,” by Alan J. Borsuk and “Taxpayers, Parents on the Same Side,” by Patrick McIlheran) as well as an early version of Greg Forster’s post, since corrected here.

So let me update my Ed Next figures to the 2008-09 school year (hereafter FY09, for fiscal year).  The answer, in short, is still yes:  the adverse impact of the MPCP formulas on Milwaukee taxpayers continues unabated, even as the statewide benefits grow.  This is true, despite some modest efforts over the last two years by the Wisconsin legislature to address the problem.

First, let’s consider the size of the pie — the net savings available from the voucher program.  These savings derive from the fact that voucher expenses are $6,607 per child, while state and local revenues for MPS are set by the revenue limit at $9,462 per child.   These public savings are partially offset by the voucher expenditures on students who would have attended private schools anyway.  My best estimate is that these students comprise 10 percent of MPCP’s 19,500 students (see my full report for an explanation of this estimate, as well as my evaluation of different estimates).  Under this assumption, the net savings available to taxpayers totaled $37.2 million in FY09, up from $31.9 million in FY08 (the figure given in my Ed Next article).

The problem lies in the distribution of these benefits.  The savings accrue entirely to property taxpayers outside of Milwaukee and to Wisconsin state taxpayers:  Milwaukee property taxpayers do not share in these savings. 

The fiscal impact of MPCP on Milwaukee property taxes is driven by the fact that 45% of voucher expenditures are deducted from MPS aid, even though MPS receives no aid for these students.   As I explain in Ed Next, it certainly made sense to remove MPCP students from MPS enrollment counts when the system was reformed in 2000, but it made no sense to continue to deduct any of the voucher expenses from their remaining aid.  Milwaukee is allowed to raise its property taxes to recoup this deduction (the “choice levy”), and has to do so if it wants to maintain MPS’ per pupil revenues at the level specified by the revenue limit formula.   That is the essence of the “funding flaw.”

This is partially offset by 2 things.  First is that the removal of MPCP students from MPS enrollment counts saves the state aid money and some of that is passed on in statewide property tax relief; Milwaukee receives a small share of this.  The other offset, which began last year, is “high poverty aid,” an ad hoc appropriation to alleviate a portion of Milwaukee’s choice levy.

For FY09, these 3 pieces are $58.0 million (45% of voucher expenditures) minus $3.4 million (my estimate of Milwaukee’s share of statewide property tax relief) minus $9.9 million (“high poverty aid”) equals $44.7 million.  This is the adverse impact on Milwaukee property taxpayers of the voucher funding mechanism. 

It is worth emphasizing that this impact is on property taxpayers, not Milwaukee Public Schools.  Per pupil revenues available to MPS are unaffected by the voucher program, so long as Milwaukee fully utilizes the tax capacity granted to it under the MPCP formulas.   Milwaukee did utilize its tax capacity in FY09 (as it has done in all other recent years, with one exception noted below).

The picture is different for the rest of the state.  For FY09, I estimate the net benefit to property taxpayers outside of Milwaukee at $52.0 million, and the net benefit to state taxpayers at $30.0 million.   (The assumptions underlying these calculations and the basis for them are laid out in my Ed Next piece and my longer report for the School Choice Demonstration Project, along with details of the calculations.)

Taken all together, the net benefit to Wisconsin and Milwaukee taxpayers from the voucher program is $52.0 million (benefit to property taxpayers outside Milwaukee) plus $30.0 million (benefit to state taxpayers) minus $44.7 million (adverse effect on Milwaukee taxpayers) equals $37.2 million.   This is the net savings figure given above.

The pattern of winners and losers is depicted below, in the update of my Ed Next Figure 4.  The loss to Milwaukee property taxpayers is depicted by the blue bars in negative territory; the gains to other property taxpayers and state taxpayers are depicted by the maroon and tan bars in positive territory.

What was the impact of the “high poverty aid” program, enacted last year to alleviate the “funding flaw?”  As the diagram indicates, because of this additional aid, the adverse impact on Milwaukee property taxpayers for FY09 is no worse than in FY07, which is to say it did not grow as it would have without the aid. 

In addition, last year Milwaukee chose, for the first and only time in recent years, not to tax all the way up to the limit allowed by law.  There was $15.1 million of unused tax capacity.   Consequently, the diagram’s blue bar depicting the adverse impact on Milwaukee property taxpayers is shorter than it would otherwise have been for FY08.   This means that MPS received less than the per pupil revenue limit.   The figure attained was $8,978 instead of the revenue limit of $9,141.  The per pupil revenue still exceeded the FY07 figure, but did not increase as much as state law allowed.  In other words, this $15.1 million represents the shortfall for MPS, relative to the per pupil revenue limit.  This is depicted in the figure by the green bar for FY08, in negative territory. 

This year, Milwaukee has resumed its past practice of taxing up to the revenue limit, so the green bar disappears and the blue bar is no longer truncated:  there is no adverse impact on MPS, as the property taxpayers of Milwaukee make good on the full amount of the choice levy.

To summarize: 

(1)  Net savings from the Milwaukee voucher program continues to grow along with MPCP enrollments, and the widening gap between the voucher and the MPS revenue limit.   I estimate the net fiscal benefit at $37.2 million for FY09, up from $31.9 million for FY08.

(2) Milwaukee property taxpayers do not share in these benefits.  I estimate the adverse impact for FY09 to be $44.7 million.   The “high poverty aid” enacted in FY08 has kept the adverse impact from growing beyond its FY07 level, but has not materially reduced it either. 

The “funding flaw” persists.  As I stated in the conclusion of my Ed Next piece, “It remains to be seen whether, as the program grows, this flaw will undermine it or instead lead legislators to complete the reforms … so the benefits can be shared by all.

bob-3

 (Note 1:  the bars depicted for FY08 are revised from those published in Ed Next.  There I assumed Milwaukee taxed up to the revenue limit, as it had for preceding years.   This one-year departure from past practice came to my attention when the article was in press, too late to amend Figure 4.)

(Note 2: Alan Borsuk’s article, “Fairness is in the Eye of the Beholder,” includes a short summary of my Ed Next article, which states that I conclude “MPS is losing money […] on a per-pupil basis.”  My article actually states, “To avoid this result [MPS revenue loss on a per-pupil basis], MPS is still allowed to offset the [voucher] deduction by raising property taxes and it has chosen to do so.”  As the diagram above shows, the loss is for Milwaukee property taxpayers, not MPS, except for FY08, when Milwaukee chose not to offset the entire choice levy.)


Correction on MJS and the “Funding Flaw”

December 12, 2008

white-out

(Guest post by Greg Forster)

Yesterday I posted an analysis of a Milwaukee Journal Sentinel article. The article reported as fact, not opinion, that the Milwaukee voucher program has a “funding flaw” because it fails to pay the Milwaukee public schools to teach students whom the Milwaukee public schools do not teach.

The occasion for the article was a debate over whether it was still true, as it had been in previous years, that the Milwaukee voucher program increases costs for local property taxpayers – this is what people had always meant in the past when they talked about the “funding flaw” in the program.

The claim made by the local voucher movement that the program no longer increased costs for property taxpayers seemed solid to me at the time, and the voucher opponents quoted in the article tacitly accepted it by desperately trying to change the subject. To my knowledge, nobody else had disputed the claim. So I reported the claim as true.

Robert Costrell, who knows more about this than anyone, now says he thinks the claim that vouchers no longer cost extra in local property taxes is incorrect. Apparently it comes down to whether a certain element in the formula varies by enrollment or not.

So I’ve attached a correction to the original post, and I apologize that I didn’t wait longer to hear from more people before reporting the claim as true.

That said, the bulk of my post was on another subject (the attempt by some Milwaukee politicians to use the voucher program to fleece state taxpayers, and MJS’s docility in reporting their obviously specious claims as true) and on that subject I stand by everything I wrote. I only hope my carelessness on this other point doesn’t help get MJS off the hook for its irresponsibility.

(Edited to more clearly differentiate Costrell’s thoughts from my own.)

(UPDATE: Bob Costrell’s new analysis is here.)


MJS: Failure to Steal Money Is a “Funding Flaw”

December 11, 2008

pickpocket

“I beg of you, Monsieur, watch yourself. Be on guard. This place is full of vultures . . . vultures everywhere. Everywhere.”

HT mcgady.net

(Guest post by Greg Forster)

Update: Robert Costrell says he thinks the claim that vouchers are now saving money for local taxpayers is incorrect. Apparently it comes down to a question of whether a certain item in the funding formula varies by enrollment or not. Costrell knows this stuff better than anyone, so I’m happy to defer to him.

At the time I wrote this post, I only had the MJS story to go on, and even the school choice opponents quoted in the article (Mayor Barrett and Superintendent Andrekopoulos) weren’t disputing the savings claim. So I wrote the post as though the savings claim had been implicitly accepted by voucher opponents because it had, in fact, been implicitly accepted by them. But I shouldn’t have actually reported the claim as true just because voucher opponents were implicitly accepting it as true, and I apologize for my carelessness.

That said, the MJS story is still amazingly irresponsible and I don’t regret a word of what I said about its complicity in Barrett and Andrekopoulos’s attmept to fleece Wisconsin taxpayers. I only hope that my own carelessness doesn’t help get MJS off the hook for printing this stuff.

(This update has been edited to more clearly differentiate Costrell’s thoughts from my own.)

For years, the Milwaukee voucher program had what the locals call “the funding flaw,” under which some local Milwaukee property tax revenues were diverted for every student who used the voucher. When the program was first enacted in 1990, there was no “funding flaw,” and it saved money for both the state and local Milwaukee taxpayers, just like most voucher programs. But in 1999 the rules were changed, and the program began diverting property taxes; the state profited handsomly at the expense of the city, using the voucher program as an intermediary. As a result, from 1999 until 2007, the program was a drain on local resources. The school choice movement in Milwaukee never supported this practice and worked to help stop it, but of course state politicians were never interested in helping, and the voucher program was always blamed for the local tax drain.

But now things have changed. This year, the program is once again saving local money – the amount the city loses from the program is now down below what it saves in reduced educational costs because it doesn’t have to teach the students in the program. So there is no more “funding flaw.”

Not so fast! Over the weekend, the Milwaukee Journal Sentinel ran a very strange story claiming, not as opinion but as fact, that the “funding flaw” was never just about property taxes. Another, much more serious “funding flaw” has been lurking unnoticed in the bushes for all these years – namely, that the program fails to steal money from state taxpayers and transfer it to Milwaukee public schools.

I’m not sure anyone had ever heard about this “other” funding flaw before now. Call it the super double secret funding flaw.

1) The article begins by citing an argument between voucher proponents and opponents over whether the “funding flaw” still exists. It evenhandedly reports the claims on both sides: on the one hand, the school choice movement has facts and figures showing that voucher kids are now a net gain, not a net drain, for Milwaukee taxpayers. On the other hand, property taxes are going up and the people who run the public school system “associate a lot of that increase” with the voucher program. Facts and figures on one side versus mere assertion on the other – well, obviously there are two equally valid points of view about this controversial question! Who says the media aren’t evenhanded?

 

2) The article then lays out the facts: the “funding flaw” was always that a voucher student cost Milwaukee more than a public school student in property taxes. Now that’s not true anymore. The school choice folks are pointing out this inconvenient truth and saying, reasonably enough, that there’s no more funding flaw.

Then we get this: 

[Milwaukee Mayor Tom] Barrett and MPS Superintendent William Andrekopoulos dismiss that notion, saying the amount of property tax dollars per student illustrated only one part of the flaw. It was the main thing they pointed to because, frankly, it was easier to understand than other aspects. But, they say, the other aspects are actually a bigger deal.

So all these years they’ve been making a big deal over less important issues while concealing the real problem, but now, at last, they’re prepared to come clean and talk about the real problem.

Did you catch the casual insertion of the word “frankly” in the second sentence? This is the MJS reporter speaking in his own voice rather than quoting – but he’s such a puppet of the system’s defenders that their “frankly” comes out of his mouth. When Barrett stubs his toe, do MJS reporters say “ouch”?

 

 3) Then comes the really amazing part. MJS reports, as fact and not opinion, that the funding flaw always consisted of two problems. The first was the property tax issue, which now favors vouchers rather than public school kids – although when the story gets into the details of this, it never directly admits this as fact; it is reported as a claim being made by school choice proponents, and only sophisticated readers will be able to figure out from the reporter’s convoluted words that what the school choice proponents are saying is, in fact, indisputably true.

The alleged other part of the funding flaw, the super double secret one, is that voucher students are not counted as students being educated in Milwaukee public schools for purposes of setting the funding levels for Milwaukee public schools.

 

Got that? MJS reports as fact, not opinion, that the voucher program is flawed because it fails to force the state to pay Milwaukee public schools to teach kids that Milwaukee public schools do not, in fact, actually teach.

 

But of course the story doesn’t say this as clearly as I’ve just put it, or it would be obvious that this is sophistry in the service of a naked political agenda. A reader who didn’t already know the ins and outs of school finance would never realize from the article that the supposed other “flaw” is that the program doesn’t pay Milwaukee schools to teach students whom they don’t teach.

 

4) The article then goes on to note that fixing the super double secret funding “flaw” would be deeply unpopular because it would take money away from other areas of the state. The unstated implication is that it would be much more sensible to scrap the unworkable voucher program altogether.

Well, no kidding it would be unpopular for MPS to try to use the voucher program as an excuse to take money from state taxpayers to teach students that MPS doesn’t teach. Taking money to do something that you don’t do is called stealing.

What’s really galling is that this attempt to steal from state taxpayers is framed (by MJS as well as by Barrett and Andrekopoulos) as an attempt to “fix” an alleged funding “flaw” – the implication being that money is somehow being unfairly withheld from MPS. So the guy warning you about thieves is in fact the thief. I think that may actually be Andrekopoulos’s picture at the top of this post.

 

5) The article then parades Robert Costrell’s big cost analysis showing that vouchers cost more than they save for local taxpayers. At the very end of the paragraph, it quickly notes that this analysis “does not include figures from this fall.” In other words, the conclusion that the voucher program costs Milwaukee money is out of date because the facts on the ground have changed, and it has no relevance to the story (except by confusing readers who aren’t paying close attention).

 

6) Finally, at the end, the school choice movement is allowed to come back onstage and point out that Milwaukee public school spending and state aid to Milwaukee have both been growing relentlessly for years. Then we get this:

 

Andrekopoulos said in an interview that the main point is that something has to be changed, and the state funding system, including how vouchers are paid for, is the place to turn.

He said that Milwaukee residents are facing a 14.6% tax levy increase this year, even though the actual MPS budget went up less than 2%.

“Doesn’t that seem wrong?” Andrekopoulos said. “Something’s not right.”

This, like the previous claims about the super double secret “other funding flaw,” is sophistry pure and simple. Property taxes pay for much more than just schools, and the MPS budget gets a lot of revenue from sources other than property taxes. So these figures are apples and oranges; you can’t compare the two.

 

It would be like the UAW arguing that Rick Wagoner’s salary costs GM more than the UAW jobs bank, because budget category A (which includes spending on Wagoner’s salary, engine parts, steel bolts, and the company health plan) costs more than budget category B (which includes spending on the jobs bank, tires, car doors, and lunches in GM company cafeterias).

 

Until you break down the categories and look at what the individual components cost, you’re just blowing smoke. And when you break down the categories, vouchers save Milwaukee money – which is exactly what the MJS article established all the way back at the beginning.

I’ve seen a lot of irresponsible journalism, but this article just leaves me dumbfounded.

(UPDATE: Bob Costrell’s new analysis is here)


The Humpty Dumpty Arkansas Courts

December 7, 2008

Courts claim to be in the business of interpreting the meaning of laws.  But the oddly limited or expansive meanings that are selectively applied to the words in those laws suggest that they are engaged in a completely different enterprise — namely, politics.  The idea that courts are just another political institution has long been held by political scientists, including myself.  We tend not to be hypnotized by the black robes, marble columns,  and Latin jargon into buying the notion that judges are some sort of special priesthood, immune from and indifferent to politics.  

Judges are just regular pols without the typical reelection pressures but also without the typical resources to advance their agenda.  Legislators have the power of the purse while executives have the power of the sword, but judges just have the power of their word.   The limitation on the power of judges is not the constraint of reelection, but the constraint of having to convince the other branches and the public to do what they say.  Cultivating the image of a disinterested priesthood enhances the power of judges to get others to do what they say.  But if the judges demand too much, they undermine their priestly image and erode their future power. 

Judges have been in a particularly strong position to get others to do what they say for the last five decades.  Early in the civil rights struggle our democratic institutions failed us, protecting obviously unjust and illiberal practices.  After initially siding with these illiberal forces (see Dred Scott or Plessy), the Courts detected a shift in elite opinion and joined forces with those elites to consolidate a new, progressive coalition.    The Courts could rightly take credit for having helped rescue us from the failure of our democratic institutions. 

Because they were instrumental in civil rights,  judges accumulated a considerable amount of political capital and popular goodwill.  And they’ve been spending that political capital ever since.   The civil rights era gave the Courts the role as guardians of our liberal virtue.  So, it’s hard to suggest that the Courts have overstepped their bounds, usurped the power of other branches, or arbitrarily interpreted the law without being accused of opposing the liberal virtue that Courts are supposed to protect.  Past critics of over-reach by Court included segregationists, so if you criticize judicial over-reach today on some other topic you must also be a segregationist.

This is especially true in Arkansas, where the memories of desegregation battles at Little Rock’s Central High School are particularly painful.  You cannot criticize Arkansas Courts for over-stepping their bounds or abusing their authority without being accused of being Orval Faubus — and there is no worse political insult in Arkansas.  The problem with immunity from legitimate criticism is that Arkansas Courts are especially unaccountable for judicial over-reach or arbitrariness. 

The most salient recent example of this is the action of the state Supreme Court in the Lake View school funding case.  The state constitution does  say that the state must “maintain a general, suitable and efficient system of free public schools.”  But who knew that general, suitable, and efficient meant that there was a specific dollar amount that had to be spent on every student in Arkansas?  And who knew that that amount had to increase by at least the rate of inflation every year?  I doubt that the authors of the Arkansas Constitution knew that general, suitable, and efficient meant all of these things, but the members of the Arkansas Supreme Court sure did.  And they figured out how much the legislature needed to spend per pupil and for school infrastructure by appointing Special Masters, who convened public meetings, received testimony from interested parties, and wrote a report summarizing their recommendations. 

Of course, there already exists a body for holding public meetings, receiving testimony from interested parties, and deciding upon the appropriate levels of public spending — it’s called the legislature.  With the appointment of Special Masters the Arkansas Supreme Court clearly usurped the legislature’s power.  And the Special Masters showed no restraint in determining spending priorities for the state — a power reserved by the Constitution for the legislature.  They declared: “[School districts] should have the means to meet the challenge if the State remains committed to the all-important practice of funding education first.”  Where in the state Constitution does it say that education has the first priority on resources? 

Some have argued that the responsibility to fund education first is implied by having education as the only policy area specifically mentioned in the Constitution.  I’m sorry to say that these people have never read the Arkansas Constitution.  It also specifically mentions a number of other policy areas, including the need for an agriculture, mining, and manufacturing policy.  Specifically, it says that the legislature must pass laws to “foster and aid the agricultural, mining and manufacturing interests of the State.”  If the Court and its Special Masters see the words general, suitable, and efficient as meaning that education must be supported as the first priority and at a specific, ever-increasing amount of spending, why haven’t they interpreted “foster and aid” to mean that the legislature must provide specific subsidies to agriculture, mining, and manufacturing?

Clearly we have a Humpty Dumpty Court.  The words mean what they want them to mean.  General, suitable, and efficient have expansive meanings if it suits their purposes while foster and aid mean essentially nothing.  Only judges, as the special class of high priests, possess the magical glasses that allow them to read between the lines of the Constitution to see that one phrase implies the moon while the other implies bupkis.

And now the Arkansas Supreme Court is at it again.  They are currently hearing arguments on whether a state law exempting state contracts in excess of $5 million from competitive bidding violates the state Constitition.  A plain reading of the text would suggest that it does.  The Constitution states: “All contracts for erecting or repairing public buildings or bridges in any county, or for materials therefor shall be given to the lowest responsible bidder, under such regulations as may be provided by law.” 

But Circuit Judge Jay Moody ruled that the state law did not violate the Constitution because he interpreted the provision as only applying to contracts from county governments — not contracts made by the state government and its agencies.  I’d like you to re-read the constitutional provision and ask yourself whether this is the most reasonable interpretation of the language.  Doesn’t the phrase “in any county” seem to describe the location of public buildings and bridges, emphasizing that the bidding requirement applies in all parts of the state, not the government agency engaging in the contracting?

We don’t know how the state Supreme Court will rule on the matter, but figuring that out requires a political, not a linguistic analysis.  They can and will interpret it in any way the see fit to advance their interests.  The words can mean just about anything they want them to mean.  “The question is which is to be master — that’s all.”

UPDATE:  The Arkansas Supreme Court interpreted the cluase as applying only to county contracts and upheld the state law.  The decision can be found here.


Guess Who Wants A Bailout

November 25, 2008

A major industry has gotten in line to receive a bailout.  It directly employs more than 6 million people.  That’s a lot of people considering that there are a total of 300 million men, women, and children in the US of whom 137 million are currently employed (excluding farmers).  So the workers in this industry constitute about 4% of all workers in the US.

Those 6 million workers directly serve almost 50 million customers.  While recent figures are not available, the industry had revenue of about $536 billion as of 2006 when total US GDP was $13.13 trillion.  So this industry constitutes about 4% of total US GDP.

Despite its size and importance, this industry has a notorious track record of performance.  It fails to complete more than a quarter of the products it starts.  Even among those it does finish, almost 40% fail to meet basic standards for quality.  Quality has not improved a smidge in over three decades despite more than doubling the average cost of production.  And foreign competitors are cleaning our clocks.  In a comparison of 21 industrialized countries, US quality exceeded only that of South Africa and Cyprus.

And this industry has huge and understated pension liabilities that, failing a miraculous improvement in the returns on investments, will inevitably have to be paid by taxpayers.  These “legacy” costs are consuming an increasing share of resources and distorting labor markets, hindering an industry turnaround.  But the unionized workforce continues to press for increased pay and benefits while opposing restructurings that might address quality-control problems.

Despite an unwillingness to correct its structural weaknesses, either controlling costs or improving quality, captains of this industry are appealing to politicians for a bailout.  As one recently said, “‘The most commonly heard solution out of Washington these days is a bailout where the federal government intervenes to safeguard key industries and in the process, the quality of American life.  If that’s the rationale, than I cannot think of a more strategic investment than safeguarding the quality of [our industry].”

Are we talking about the US auto industry?  It sounds like we could be, but I’m sure most of you have guessed that the industry described here is the US K-12 public education industry. 

And who is it that is requesting the bailout on behalf of K-12 public education?  None other than Alberto Carvalho, the superintendent of Miami-Dade schools.  This is the same Alberto Carvalho who manipulated a romantic relationship with a Miami Herald reporter to advance his career.  I guess when he’s not busy with naughty text messaging, he’s making the case for an education bailout: ”The question in my mind is this: At a time when we’re continuing the bailout of key industries, at what point do we have a bailout of public education?”

Watching folks scramble for bailout funds is like watching pigs at the trough.  It’s only a matter of time until Starbucks gets in line.  After all, the US economy needs liquidity.

(edited to note that it is K-12 public education)