Category Archives: Education / Youth

Returning To My Civics Preoccupation

A week or so ago, I participated in a panel discussion hosted by the Indiana Philanthropic Association. I’m sharing my remarks, which regular readers will undoubtedly find repetitive. (Yes, I’m riding that horse again…)

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Over the past several years, American political debate has become steadily less civil. Partisanship has overwhelmed sober analysis, and the Internet allows people to choose their news (and increasingly, their preferred realities). 

I’m here today to suggest that an enormous amount of this rancor is a result of civic illiteracy—widespread ignorance of the historical foundations and basic premises of American government.

It matters. Productive civic engagement is based on an accurate understanding of the “rules of the game”– especially but not exclusively the Constitution and Bill of Rights– the documents that frame and constrain policy choices in the American system. 

The American Constitution was a product of the Enlightenment, the 18th Century philosophical movement that gave us science, empirical inquiry, and the “natural rights” and “social contract” theories of government. The Enlightenment did something else: it  changed the definition of individual liberty.  

We’re taught in school that the Puritans and Pilgrims who settled the New World came to America for religious liberty, and that’s true; what we aren’t generally taught is how they defined that liberty.  Puritans saw liberty as “freedom to do the right thing”—freedom to worship and obey the right God in the true church, and their right to use the power of government to make their neighbors did the same. The Enlightenment ushered in a dramatically different definition of liberty. It begins with the belief that fundamental rights aren’t gifts from government; instead, humans are entitled to certain rights just because we’re human– and government has an obligation to respect and protect those inborn, inalienable rights. 

The Bill of Rights wasn’t conceived as a grant of rights—it was intended to protect our inborn rights from an overzealous government. It is essentially a list of things that government is forbidden to do. Government cannot dictate our religious or political beliefs, search us without probable cause, or censor our expression, for example—and it can’t do those things even when popular majorities want it to do so. The Bill of Rights only restrains government; it wasn’t until 1964 that the United States began to pass laws prohibiting discriminatory behavior by private-sector actors. 

I’m constantly amazed by how many Americans don’t understand the difference between constitutional liberties and civil rights, or the anti-majoritarian operation of the Bill of Rights, or– as we are seeing during this pandemic—the legitimate limits of our individual liberties. 

Governments create what lawyers call “rules of general application” to protect the common good. Public officials can properly and constitutionally establish speed limits, ban smoking in public places—even require us to wear clothes when we’re out in public. As Justice Scalia wrote in Employment Division versus Smith, back in 1990, so long as these and hundreds of other laws are generally applicable—so long as they aren’t efforts to unfairly target specific groups—they don’t violate the Constitution. 

Here’s the thing: the U.S. Constitution as amended and construed over the years guarantees citizens an equal right to participate in democratic governance and to have our preferences count at the ballot box. Those guarantees are meaningless in the absence of sustained civic engagement by an informed, civically-literate citizenry. Let me say that a different way: Protection of our constitutional rights ultimately depends upon the existence of a civically-informed electorate. That’s why efforts like Bill Moreau’s Indiana Citizen and the Bar Foundation’s sponsorship of “We the People” are so important.

The consequences of living in a system you don’t understand aren’t just negative for the health and stability of America’s democratic institutions, but for individuals. People who don’t know how government works are at a decided disadvantage when they need to negotiate the system. (Try taking your zoning problem to your Congressman.) Civic ignorance also impedes the ability to cast an informed vote. Especially at times like these—when official actions trigger massive protests– citizens need to know where actual responsibility resides. 

Today, we are all seeing, in real time, the multiple ways in which civic ignorance harms the nation. What we call “political culture” is the most toxic it has been in my lifetime. (And in case you didn’t notice, I’m old.) There are lots of theories about how we got here—from partisan gerrymandering and residential sorting to increasing tribalism to fear generated by rapid social and technological change. But our current inability to engage in productive civic conversation is also an outgrowth of declining trust in our social and political institutions—primarily, although certainly not exclusively, government. Restoring that trust is critically important —but in order to trust government, we have to understand what it is and isn’t supposed to do. We have to understand how the people we elect are supposed to behave. We need a common understanding of what our Constitutional system requires. 

Here’s an analogy: if I say a piece of furniture is a table, and you say no, it’s a chair, we aren’t going to have a very productive discussion about its use.

Now, let me be clear: there are plenty of gray areas in constitutional law—plenty of situations where informed people of good will can come to different conclusions about what the Constitution requires. But by and large, those aren’t the things Americans are arguing about.

I study how Constitutional values apply within our increasingly diverse culture, the ways in which constitutional principles connect people with different backgrounds and beliefs and make us all Americans.  That research has convinced me that widespread civic literacy—by which I mean an accurate, basic understanding of America’s history and philosophy—is absolutely critical to our continued ability to talk to each other, build community and function as Americans, rather than as members of rival tribes competing for power and advantage. Unfortunately, the data shows civic knowledge is in very short supply.

Let me share an illustrative anecdote: When I teach Law and Public Policy, I begin with the constitutional architecture, how that framework limits what laws we can pass, and what legal scholars mean by “original intent.” I usually ask students something like “What do you suppose James Madison thought about porn on the internet?” Usually, they’ll laugh and then we discuss how the Founders’ beliefs about free expression should guide today’s courts when they are faced with efforts to censor media platforms the founders could never have imagined. But a few years ago, when I asked a college junior that question, she looked at me blankly and asked “Who’s James Madison?”

It’s tempting to consider that student an outlier–but let me share with you just a tiny fraction of available research. The Annenberg Center conducts annual surveys measuring what the public knows about the Constitution. Two years ago, 37 percent couldn’t name a single one of the rights guaranteed under the First Amendment, and only 26 percent could name the three branches of government. 

Fewer than half of 12th graders can define federalism. Only 35% of teenagers recognize “We the People” as the first three words of the Constitution. It goes on and on.

And it matters, because Constitutions address the most basic question of any society—how should people live together? What should the rules be, how should they be made, who should get to make them and how should they be enforced? In America, citizenship wasn’t based upon geography, ethnicity or conquest, but on an Idea, a theory of social organization, what Enlightenment philosopher John Locke called a “social contract” and journalist Todd Gitlin has called a “covenant.” The most revolutionary element of the American Idea was that it based citizenship on behavior rather than identity—on how you act rather than who you are. As the ubiquity of cellphone cameras has demonstrated, we’re still struggling with the application of that principle.

The founders of this nation didn’t all speak with one voice, or embrace a single worldview. All of our governing documents were the result of passionate argument, negotiation and eventual compromise. And as remarkable as the founders’ achievement was, we all recognize that the system they established was far from perfect. The great debates between the Federalists and Anti-Federalists were about the proper role of government. We’re still having that debate. The overarching issue is where to strike the balance between government power and individual liberty.

The issue, in other words, is: who decides? Who decides what book you read, what prayer you say, who you marry, whether you procreate, how you use your property? Who decides when the state may justifiably deprive you of liberty—or tell you to wear a mask? 

How would the conversations we are having about “shelter in place” orders and wearing masks change, if parties to those conversations all understood how our Constitution approaches both the rights of individuals and the duties of government?

In our Constitutional system, individuals have the right to make their own political and moral decisions, even when lots of other people believe those decisions are wrong. What they don’t have is the right to harm or endanger others, or the right to deny an equal liberty to people with whom they disagree. Drawing those lines can be difficult; it’s impossible when citizens don’t understand the basic “rules of the game.” We can—and do—argue about what constitutes harm sufficient to justify government intervention in personal decision-making, but what we can’t do is argue that “Freedom is for me, but not for you.” 

When people don’t understand when government can properly impose rules and when it can’t, when they don’t understand the most basic premises of our legal system, our public discourse is impoverished and ultimately unproductive. We’re back to arguing whether a piece of furniture is a table or a chair.

Like all human enterprises, Governments will have their ups and downs. In the United States, the consequences of “down” periods are potentially more serious than in more homogeneous nations, precisely because this is a country based upon an Idea. Americans do not share a single ethnicity, religion or race. Culture warriors to the contrary, we never have.We don’t share a comprehensive worldview. What we do share is a set of values, a set of democratic institutions and cultural norms, a legal system that emphasizes the importance of fair processes–and when we don’t trust that our elected officials are obeying those norms, when we suspect that they are distorting and undermining the underlying mechanics of democratic decision-making, our democracy can’t function properly. 

There will always be disagreements over what government should and shouldn’t do. But there are different kinds of discord, and different kinds of power struggles, and they aren’t all equal. When we argue from within a common understanding of what I call the constitutional culture—when we argue about the proper application of the American Idea to new situations or to previously marginalized populations—we strengthen our bonds, and learn how to bridge our differences. When widespread civic ignorance allows dishonest partisans to rewrite our history, pervert our basic institutions, and ignore the rule of law, we not only undermine the Constitution and the American Idea, we erode the trust needed to make democratic institutions work.

Ultimately, that’s why civic ignorance matters. 

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Oh, Indiana…..

At the end of each semester, those of us who teach university courses are inundated with research papers; it’s a time I refer to as “grading hell,” because my 30+ graduate students each submit a 20 page paper, analyzing a chosen policy issue.

The grading can be tedious, and at times I’m unpleasantly surprised by a student’s inability to write clearly (or even grammatically) or by conclusions that suggest the student didn’t understand anything we discussed in class. On the other hand, I end up learning a lot from the many excellent students who have chosen to examine policies with which I am unfamiliar.

And then there’s another category: papers that address problems or issues with which I have been engaged, but only superficially, and that provide me with greater detail and background than I previously possessed. This semester, I received a couple of those; especially a paper about Indiana’s regulation of day care facilities from one of my better students.

The paper focused on the reasons that child care “ministries” are treated differently from other day care operations under Indiana law.

The analysis confirmed everything I had previously heard about the influence of Eric Miller and his organization, “Advance America” on the Indiana legislature. Advance America bills itself as Indiana’s largest “pro-family and pro-church organization.” (In Indiana, “pro-family” is code for “anti-LGBTQ, anti-reproductive choice and pro-voucher support for fundamentalist Christian religious schools.)

In 1993, when legislation was moving through the Indiana General Assembly that would have subjected child care ministries to some regulation, including hand washing procedures, Miller rallied his organization to flood legislators with phone calls. Miller explained his opposition to the legislation, as presented in the Indiana House Family and Children Committee, by noting, “this is a public policy debate. Who’s responsible for caring for the children of the state of Indiana? The parents or the state?”

As the paper pointed out,  Indiana’s child care ministries are exempted from most of the rules that apply to other child care providers in the state–there are virtually no regulations they must observe or standards they must meet. Only 11 other states exempt religious-based organizations from some or all child care regulations, mostly southern states like Alabama, Virginia, South Carolina and Florida.

In her paper, my student argued that this lack of regulation, far from being required by the Free Exercise Clause, constitutes a violation of the Establishment Clause of the First Amendment. And she pointed out (and documented) that, in Indiana, this regulatory system that discriminates in favor of religious providers of child care fails to adequately protect children, serve families or prepare children for k-12 education.

While objections to regulation of these “ministries” are couched in religious freedom terms, it’s likely the real reasons are less spiritual: less regulation means lower costs. The ministries can hire fewer workers, need not offer staff training, and needn’t upgrade facilities that government inspectors would find deficient.

(Such ministries also are free of the regulations prohibiting physical punishment. If God wants “youth ministers” to beat the devil out of that three-year-old,, they can follow God’s dictates….)

In 2012, a 22-month old drowned in a baptismal font while in the care of a registered child care ministry in Indianapolis, and there were once again efforts to impose minimal regulations on these facilities.

During the 2013 legislative session, state Rep. Rebecca Kubacki authored legislation that would require day cares (including child care ministries) that accept taxpayer-funded vouchers to run background checks on employees and volunteers… Miller activated his Advance America network by telling them the legislation was “an attack on religious freedom.”  He pressured lawmakers via email, phone calls flooding statehouse offices and direct conversations from legislators’ own ministers. Kubacki didn’t back down, saying, “I’m here to protect these kids, and if I don’t get re-elected, I don’t care.”  In 2014, she lost in the May primary.

Thanks to gerrymandering, Indiana’s legislature has a Republican super-majority. Most members of that super-majority–again thanks to gerrymandering– represent rural areas of the state where Eric Miller and the fundamentalist churches that fund his organization hold considerable political sway– and Miller has a history of threatening and bullying legislators who are insufficiently subservient to his version of “religious freedom.”

“Suffer the little children” assumes a whole new meaning….

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Facts Are So Inconvenient

There’s what we believe, and there’s what is true. Sometimes those two things align; often, unfortunately, they don’t.

Most of us have yet to sink to Trumpian levels–in fact, it never ceases to amaze me that Trump can tweet out some nonsense, or make an idiotic statement at a news conference, then blandly deny that he said any such thing. It takes a certain type of mental illness to forget that there is actual evidence rebutting you.

We may not approach Trumpian levels, but most of us do cling to certain “truths” that we desperately want to believe. I’m no different–it took me a long time, well into adulthood, before I realized that my view of America’s past was seriously deficient–heavy on the Founders’ ideals, light on some of their slaveholding behaviors, and pretty much void of what was done to Native Americans, among other things.

Then there were my fond beliefs about America vis a vis other countries. Social mobility. Equality. Rule of law.

I now know–unfortunately–that our once-vaunted social mobility is worse than that of many countries. This helpful infographic shows us 27th--not dead last, but not exactly in bragging rights territory.

In the Age of Orange, I’m not even going to talk about the rule of law; as a concept, it’s  beyond Trump’s limited intellect, and as a principle, it has apparently been abandoned by the Mitch McConnell wing of the Supreme Court.

And then there’s equality.

Now, as I tell my students, there are a lot of different ways to think about equality: genuinely religious people will say that we are all equal in the eyes of God; our constitution  requires government to treat equally-situated people equally, irrespective of the color of their skin or the beliefs they embrace.

And clearly, we don’t come into the world equally talented or beautiful or intelligent…

But about civic equality as a goal: Another visualization I stumbled across recently–this one from Time Magazine– made me aware of just how unequal Americans are. It uses neighborhood data to pinpoint metropolitan areas with high and low levels of equal opportunity, by searching for areas with relatively small gaps between the highest- and lowest-ranked neighborhoods. (It didn’t help my frame of mind that my own city, Indianapolis, was represented by a dark red dot indicating highly unequal neighborhoods.)

As the text explained:

This information is useful because, even when places have the same opportunity level overall, actually living in those cities can be a very different experience. For example, Colorado Springs and Detroit both score an overall opportunity level of 55. But in Colorado Springs, a typical high-opportunity neighborhood scores an 87 and a typical low-opportunity one scores 24. That might seem like a huge gap. But Detroit’s high is 95 and its low is 2: a much less equal city.

The problem was, when we found areas with small gaps between neighborhoods, those cities tended to be racially homogenous. In other words, children in Provo, Utah, and Boise, Idaho, have access to comparatively equal opportunities, regardless of which neighborhoods they live in—but those cities are more than 80% white.

When combined, in all 100 metro areas covered by the study, neighborhoods where white children lived had a median score of 73. The median neighborhood score for Asian children was 72. It was 33 for Hispanic children and 24 for black children. Black and Hispanic kids live with considerably less opportunity than their white and Asian peers almost without exception.

The disparities are especially wide in certain parts of the country. Milwaukee and its surrounding area has the widest racial disparity in the U.S., despite having a high overall opportunity score. A white child there lives in a neighborhood with a median opportunity score of 85. For a black child, the median neighborhood score is 6.

Once this pandemic is over, there is a long “laundry list” of situations in our country requiring attention and repair. That list needs to be based on facts, not beliefs.

Add equalizing children’s prospects to that list–and put it near the top.

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It Isn’t Just WHAT, It’s Also HOW

As conversations prompted by the presidential primary season devolve into name-calling and efforts to excavate every clumsy observation or error in judgment made by the candidates, it may be time to step back and point to some of the very real, very bipartisan problems Americans have understanding the public policy process.

Politically, we Americans really are bipolar: policies are either good or bad, brilliant or stupid, obvious or obviously ridiculous. Shades of gray? Middle ground? Complex? Perish the thought.

Worse still, we fail to recognize the difference between policy prescriptions and the policy process–that is, the difference between setting a goal and having a strategy for achieving that goal–a workable strategy for overcoming the obstacles and getting from wherever it is that we are to the place where we want to be.

Where we want to be and how we get there are very different questions, although listening to American political discourse, you’d never know that.

The problems with our “good vs. bad” approach are especially visible in the current, heated arguments about charter schools. To begin with, too many participants in those arguments conflate charter schools–which are public schools–with the private, mostly religious schools that have benefitted from vouchers. The issues raised by these two approaches are very different, although you’d be hard pressed to find recognition of those differences when reading angry Facebook diatribes.

But simply recognizing that charters and vouchers are different animals is also insufficient.

A while back, Doug Masson–one of Indiana’s most thoughtful bloggers and a member of a public-school board–pointed out that the difference between “what” and “how” is especially relevant to the performance of charter schools.

Advocates and critics of charters alike make a distinction between charters that are for profit and those that are non-profit. (Research suggests to many of us that educational institutions shouldn’t be run by for-profit ventures, for a variety of reasons.) Masson notes that the distinction requires a closer look. If the management company hired by a non-profit is for-profit, the fact that the school itself is non-profit is probably not very meaningful.

Masson then homes in on a very significant “how” question: what sort of regulatory framework is likely to ensure the success of a state’s charter schools?

There seems to be some evidence that charters can produce positive outcomes under the sorts of tight regulation Massachusetts has. Indiana is absolutely not going to impose that kind of close regulation and I’m guessing the charter advocates aren’t going to be supportive of that sort of regulation going nationwide.

He quotes from the Harvard Political Review:

“It appears that Massachusetts’ charter laws are responsible, at least in large part, for the superior performance of the state’s charter schools. Indeed, Massachusetts prohibits for-profit Education Management Organizations (EMOs), and its process for authorizing charter schools is particularly rigorous. According to Alison Bagg, director of charter schools and school redesign at the Massachusetts Department of Education, Massachusetts is one of the few states in which the Department of Education serves as the sole authorizer of charter schools. “You have some states that have hundreds and hundreds of charters schools, all authorized by these districts or non-profits,” Bagg explained to the HPR. In Massachusetts, by contrast, “it has been historically very difficult to get a charter,” and the state has been recognized by the National Association of Charter School Authorizers as “one of the leaders in charter school authorizing nationwide.”

The charter renewal process is also quite rigorous, according to Bagg. The state monitors charter schools closely and has the ability to close charter schools that have achieved poor results—a practice that is not universal across states.”

Of course, that’s Massachusetts.

In Indiana, by contrast, we get a school corporation like Daleville sponsoring the Indiana Virtual School charter which then takes state money for kids who are dead or have long since moved out of state.

That’s because Hoosiers don’t have a legislature that understands–or cares about– the importance of “how.”

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But What About The Children?

When I was growing up–admittedly, sometime during the Ice Age–children were admonished to tell the truth by being told the story of George Washington and the Cherry Tree.

Granted, it turned out that the story was a fable, but it was widely believed because George Washington was considered an admirable man, an excellent President and an all-around role model for the nation’s children.

Donald John Trump, not so much.

And that’s a problem, because it turns out that Presidential behavior really does encourage imitation. It can normalize ugly behavior, and not just in the already flawed/racist adults that comprise Trump’s base.

A regular reader of this blog recently shared this article with me. After I stopped puking, I decided to share it.

Evidently, it isn’t just Trump’s constant lying, with the implication that “truth” is whatever you want it to be. The article referenced studies that find America’s children using Trumpian rhetoric to bully their classmates–mostly Latino, Muslim and Black classmates.

Children across the US are using Donald Trump’s rhetoric to bully their classmates, a report has found.

The Washington Post reviewed articles throughout Mr Trump’s presidency that reference elementary, middle, or high school bullying and found students using the president’s inflammatory statements, which are often described as racist or xenophobic, to bully.

The newspaper analysed 28,000 articles starting from the beginning of 2016 for its research relating to bullying in the classroom. It found Mr Trump’s words, chants at his campaign rallies, and even his last name were used by students and staff members to harass other people in more than 300 reported incidents.

Of those incidents, 75 per cent showed inflammatory language relating to Mr Trump directed at students who are Hispanic, Muslim or black.

The article recounts incidents in which Latino students were subjected to taunts of “build the wall” and “Make America Great Again.” In one particularly horrific account, last year in New Jersey a 13-year-old boy told his 12-year-old Mexican American classmate that “all Mexicans should go back behind the wall”.

The classmate’s mother approached the bully the next day about his comment and was beaten unconscious by the child.

Buzzfeed also analyzed the impact of Trump’s words and their use to bully other students, and found 50 incidents in 26 states where students who were intimidating or harassing other children used phrases frequently employed by the president.

One incident happened at a high school in Shakopee, Minnesota, where boys in Donald Trump shirts swarmed a black teenage girl and sang The Star-Spangled Banner. But instead of singing the correct lyrics, they replaced the closing line with “and home of the slaves”.

There are multiple reports of native-born white children telling Hispanic or Asian classmates that they will be deported, that they aren’t “real” Americans.

While on a school bus in San Antonio, Texas, a white eighth grader told a Filipino classmate, “You are going to be deported.” A black classmate in Brea, California, was told by a white eighth grader, “Now that Trump won, you’re going to have to go back to Africa, where you belong.”

As incredibly corrupt as he is, as horrible as his policy positions are, and as hurtful to the nation’s most vulnerable children, the emerging research about Trump’s effect on the lessons we want to teach the young about civility, morality and ethics–not to mention racism, sexism and other assorted bigotries– is arguably even more damaging.

Assuming we soundly defeat this crude, ignorant, semi-literate buffoon in November, we will have a lot of remedial work to do. If we don’t, it will be too late to save the children.

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