accountability – Sheila Kennedy

Universal “Scholarships”

Both the IBJ and the Capital Chronicle have reported on the legislature’s current effort to totally privatize education in Indiana. If passed, Senate Bill 305 would allow any and all parents to get taxpayer money to enroll their children in a private school or home school them.

The legislation would dramatically expand Educational Scholarship Accounts (ESAs)–a more neutral term for the vouchers that–for very good reason– are no longer as popular as they once were.

In 2021, Indiana’s General Assembly approved ESA’s for special education students by burying the proposal in the budget, where it escaped much in the way of sustained scrutiny. SB305 would expand the program to all students, via a universal Education Scholarship Account.

The existing ESAs are limited to students who qualify for special education, and whose families meet income limits. (Not that those limits aren’t generous–a family of four can make up to $154,000 annually. That’s three times the amount required for a student to qualify for the federal free or reduced price lunch program.)

SB 305 would extend the ESA program to all students, regardless of a student’s educational needs or their family’s income level.

So what’s wrong with ESA’s?

As numerous observers point out, there’s a lot wrong. For one thing, the bill lacks any public oversight or measures ensuring accountability. The state would simply give tax dollars to parents who would be trusted to spend it on their children’s education (there doesn’t seem to be any mechanism to ensure that the dollars would actually be used for education) at any school of their choice, or for home schooling and/or educational materials.

Apparently, all a parent needs to do to get some $7500 per student is fill out an online application promising to spend “part of the money” for the study of “reading, grammar, mathematics, social studies or science.” No standards. No requirements for art, music, foreign language or–perish the thought–civics. Not even those pesky criminal background checks required of public school teachers and volunteers.

Interestingly, the program would be managed by the state’s treasurer–not the Department of Education.

Clearly, education isn’t the goal.

Researchers have exhaustively documented the results of current voucher programs, and repeatedly demonstrated that these programs have failed to improve educational outcomes. Over 90% of voucher recipients take them to religious schools that frequently substitute dogma for science and history. My own research confirms that–in Indiana at least– few, if any, include civics instruction. (My personal favorite among the history textbooks most widely used in these religious schools describes slave trade as “sometimes unwilling black immigration.” Ya think?)

As the Capital Chronicle reported,

Indiana has about 87,000 private school students, according to the Indiana Department of Education (IDOE). About 44,000 of those use the state’s Choice Scholarship program — which allows families to receive vouchers to attend private schools. But the remaining 43,000 would be eligible for the grant, which would average around $7,500 statewide.

That would add more than $300 million a year to what the state is already sending to private, mostly religious schools.

The voucher program started similarly with a cap of 7,500 students at a cost of $15 million. The cap doubled the next year and now there is no limit and a current annual cost of $240 million.

As I reminded readers a few days ago, Indiana’s current voucher program classifies families that earn up to $145,000 per year as “poor” enough to have the state pay for their kids to attend private schools. Qualification for state-funded childcare and/or pre-kindergarden is a different matter: families bringing home a mere $27,500 are “too rich” to qualify.

None of this makes sense unless the legislature’s actual goal is to encourage an exodus from the state’s public schools, a goal that furthers other longtime efforts: destroying the teacher’s union, and finding a “work-around” of the First Amendment’s prohibition against funneling tax dollars to religious organizations.

SB 305’s proposed expansion would cost a fortune and fail to deliver educational benefits. Worse, those dollars would come from our already under-resourced public schools. That would especially harm rural Hoosiers who live in areas too sparsely populated to support private alternatives.

Since it is no longer possible to defend vouchers on educational grounds, this misbegotten effort is being sold under the current MAGA banner of “parental choice.”

Whenever I hear these culture warriors utter the word “choice,” I expect a bolt of lightning to strike. They want the “choice” to avoid vaccinations, the “choice” not to have their children learn accurate history, the “choice” to keep “Heather Has Two Mommies” out of the library…

But other people’s choices? (The choice to support sound, secular public education, or terminate a pregnancy, for example?) Not so fast!

If SB 305 passes, it will certainly affect the choices of people who might otherwise be thinking of relocating to Indiana.

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Section 230

These are hard times for free speech advocates. The Internet–with its capacity for mass distribution of lies, misinformation, bigotry and incitement to violence–cries out for reform, but it is not apparent (certainly not to me) what sort of reforms might curb the dangers without also stifling free expression.

One approach is focused on a law that is older than Google: Section 230 of the Communications Decency Act.

What is Section 230? Is it really broken? Can it be fixed without inadvertently doing more damage?

The law is just 26 words that allow online platforms to make rules about what people can or can’t post without being held legally responsible for the content. (There are some exceptions, but not many. )As a recent newsletter on technology put it (sorry, for some reason link doesn’t work),

If I accuse you of murder on Facebook, you might be able to sue me, but you can’t sue Facebook. If you buy a defective toy from a merchant on Amazon, you might be able to take the seller to court, but not Amazon. (There is some legal debate about this, but you get the gist.)

The law created the conditions for Facebook, Yelp and Airbnb to give people a voice without being sued out of existence. But now Republicans and Democrats are asking whether the law gives tech companies either too much power or too little responsibility for what happens under their watch.

Republicans mostly worry that Section 230 gives internet companies too much power to suppress online debate and discussion, while Democrats mostly worry that it lets those companies ignore or even enable dangerous incitements and/or illegal transactions.

The fight over Section 230 is really a fight over the lack of control exercised by Internet giants like Facebook and Twitter. In far too many situations, the law allows people to lie online without consequence–lets face it, that high school kid who is spreading lewd rumors about a girl who turned him down for a date isn’t likely to be sued, no matter how damaging, reprehensible and untrue his posts may be. The recent defamation suits brought by the voting machine manufacturers were salutary and satisfying, but most people harmed by the bigotry and disinformation online are not in a position to pursue such remedies.

The question being debated among techies and lawyers is whether Section 230 is too protective; whether it reduces incentives for platforms like Facebook and Twitter to make and enforce stronger measures that would be more effective in curtailing obviously harmful rhetoric and activities.

Several proposed “fixes” are currently being considered. The Times article described them.

Fix-it Plan 1: Raise the bar. Some lawmakers want online companies to meet certain conditions before they get the legal protections of Section 230.

One example: A congressional proposal would require internet companies to report to law enforcement when they believe people might be plotting violent crimes or drug offenses. If the companies don’t do so, they might lose the legal protections of Section 230 and the floodgates could open to lawsuits.

Facebook this week backed a similar idea, which proposed that it and other big online companies would have to have systems in place for identifying and removing potentially illegal material.

Another proposed bill would require Facebook, Google and others to prove that they hadn’t exhibited political bias in removing a post. Some Republicans say that Section 230 requires websites to be politically neutral. That’s not true.

Fix-it Plan 2: Create more exceptions. One proposal would restrict internet companies from using Section 230 as a defense in legal cases involving activity like civil rights violations, harassment and wrongful death. Another proposes letting people sue internet companies if child sexual abuse imagery is spread on their sites.

Also in this category are legal questions about whether Section 230 applies to the involvement of an internet company’s own computer systems. When Facebook’s algorithms helped circulate propaganda from Hamas, as David detailed in an article, some legal experts and lawmakers said that Section 230 legal protections should not have applied and that the company should have been held complicit in terrorist acts.

Slate has an article describing all of the proposed changes to Section 230.

I don’t have a firm enough grasp of the issues involved–let alone the technology needed to accomplish some of the proposed changes–to have a favored “fix” to Section 230.

I do think that this debate foreshadows others that will arise in a world where massive international companies–online and not– in many cases wield more power than governments. Constraining these powerful entities will require new and very creative approaches.

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Speaking Of Accountability…

Here are a couple of sobering statistics from The Brookings Institution: A Black person is killed about every 40 hours by police, and Black people are 3.5 times more likely than white people to be killed by police when they are not attacking or do not have a weapon.

The research also shows that, typically, police officers aren’t charged in these killings of unarmed Black people, and even when they are, they are almost never convicted.

As the linked report notes,

In policing, people often talk about bad apples. Well, bad apples come from rotten trees, and the rotten trees are law enforcement agencies imbued with structural racism. Standard processes for holding police officers accountable, issuing civil payouts to victims of brutality, and rehiring fired officers are a few of the factors that contribute to the entrenchment of racism and police brutality.

The report outlines some of the reasons for the lack of accountability, and makes two recommendations for improvement. The first recommendation is–or should be–obvious: don’t rehire–or shuffle around– officers who have been fired for misconduct. Those officers should not be able to work in law enforcement again.

This recommendation is receiving bipartisan support at the federal level. It is part of Trump’s recent Executive Order and the George Floyd Justice in Policing Act that passed in the House of Representatives.

The second recommendation is one I hadn’t previously encountered, and as a former Corporation Counsel who supervised these payments, I can tell you that it makes a lot of sense. It involves the restructuring of compensatory payments. Currently, when a lawsuit is brought alleging misconduct by police, and that lawsuit is either won by the plaintiff or settled, payment of damages comes from the general funds of the city. Brookings advocates moving the source of payment from taxpayer money to police department insurance policies.

We aren’t talking about insignificant funds. As Brookings reports,

Eventually, there will be a large civil payout for the death of George Floyd. The Floyd family’s taxpayer money will be used to pay them for his dehumanization and killing. Due to qualified immunity—the legislation that often prevents officers from facing civil culpability—officers are typically immune from the financial impacts of these civil payouts. Since 2010, St. Louis has paid over $33 million and Baltimore was found liable for about $50 million for police misconduct. Over the past 20 years, Chicago spent over $650 million on police misconduct cases. In one year from period from July 2017 through June 2018, New York City paid out $230 million in about 6,500 misconduct cases. What if this money was used for education and work infrastructure? Research suggests that crime would decrease.

The report cites parallels: In health care, for example, physicians and hospitals carry malpractice insurance. Even if the city uses taxpayer funds to cover the police department’s malpractice insurance premium, there are real benefits to this approach; for one thing, if the city’s malpractice premium goes up, the city will get valuable information about which police officers, like which physicians and which hospitals, are responsible.

These proposals merit consideration. Another big step forward would be the amendment or elimination of the doctrine of qualified immunity, which I wrote about last month.

Thanks to the ubiquity of cellphone cameras, well-meaning Americans can no longer tell themselves that all police officers are “good guys” and anyone reporting brutality or other lawless behavior must have deserved it. We’ve seen too much. On the other hand, it is really important that we restore respect for law enforcement, and for the officers who are following the rules and doing a dangerous job in order to keep communities safe. We won’t restore that respect and encourage co-operation with law enforcement until there are structural changes that remove the “safe harbors” exploited by the bad apples who undeniably exist.

These approaches are worth considering–as are the suggestions for relieving police of duties more logically discharged by social workers and/or medical personnel. (Whoever decided to label that proposed shift of responsibilities “defunding police” should be banned from engaging in any policy debate ever again…)

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Reich’s Rules

What American politicians call privatization has been a focus of much my academic work.(If you go to the “Academic papers” section of this blog and search for privatization, you’ll find a lot of entries.)

I phrase it as “what American politicians call privatization” because–as Morton Marcus pointed out to me years ago– genuine privatization is what Margaret Thatcher did in England. She sold off government-owned assets like railroads and steel mills to the private sector, after which they were private. They paid taxes, and either prospered or failed, but government no longer had much to do with them.

What Americans call “privatization” is very different. The accurate term is “contracting out” –and it refers to the decision by government agencies to provide government services through for-profit or non-profit surrogates. That process should not be confused with procurement–no one expects city hall to manufacture its own computers or the myriad other items it requires in order to function. (Admittedly, the line can get blurry: contracting with a private paving company to fill potholes, for example. But few privatization critics are troubled by those long-standing practices.)

It is important to recognize that when a government agency contracts with a surrogate to provide services that the agency is legally required to provide, government remains legally responsible for the proper delivery of those services.

Robert Reich recently enumerated five rules that should govern these decisions. His rules are very similar to those on my class lecture on the subject. It should be obvious, for example, that government shouldn’t contract out when keeping a service in-house will be more efficient and cost-effective.

Other rules are less obvious, but no less important.

Don’t privatize when the purpose of the service is to bring us together – reinforcing our communities, helping us connect with one another across class and race, linking up Americans who’d otherwise be isolated or marginalized.

This is why we have a public postal service that serves everyone, even small rural communities where for-profit private carriers often won’t go. This is why we value public education and need to be very careful that charter schools and other forms of so-called school choice don’t end up dividing our children and our communities rather than pulling them together.

Don’t privatize when the people who are supposed to get the service have no power to complain when services are poor.

This is why for-profit prison corporations have proven again and again to violate the constitutional rights of prisoners, and why for-profit detention centers for refugee children at the border pose such grave risks.

Don’t privatize when those who are getting the service have no way to know they’re receiving poor quality.

The marketers of for-profit colleges, for example, have every incentive to exploit young people and their parents because the value of the degrees they’re offering can’t easily be known. Which is why non-profit colleges and universities have proven far more trustworthy.

Don’t privatize where for-profit corporations face insufficient competition to keep prices under control.

Giant for-profit defense contractors with power over how contracts are awarded generate notorious cost overruns because they’re accountable mainly to their shareholders, not to the public.

Perhaps the most troubling contracting practices involve the military; contract soldiers are uncomfortably similar to mercenaries, and the growing use of private companies in America’s various wars and military actions generates a number of very thorny issues, a topic I’ve explored elsewhere.

One of America’s many overdue conversations should address what services we expect our various levels of government to provide and the nature and extent of the evidence needed to support a decision to outsource service delivery.

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Limiting Power

Credit where credit is due: not only has the Trump administration rekindled civic engagement (scholars tell us that the number of people on the streets protesting exceeds the number who protested the Vietnam War), but his accidental ascension to the Presidency has highlighted the need to revisit constitutional provisions that no longer serve their intended purposes.

The problem, of course, is that We the People are too divided and too historically and civically illiterate to be trusted with the task of constitutional revision.

When–and if–the time ever comes that we are capable of making careful revisions to our foundational document, there are a number of issues to consider. The most obvious, of course, is the Electoral College, but there are also several aspects of federalism that should be reconsidered in light of contemporary technology and transportation. For example, there is no reason elections should continue to be administered by the states. A national, nonpartisan agency could maintain a national registration database, ensure standardized procedures and hours, and dramatically curtail partisan game-playing of the sort we’ve seen in Georgia and the incompetence Hoosiers experienced in Porter County, Indiana.

There is an even more significant assumption that we need to re-think.

The American Constitution limits the power of the state. It was written at a time when governments were the entities wielding the most power, and focusing on the state made sense because constraining power was the whole point. The protection of personal autonomy–our individual right to direct our own lives, so long as we don’t harm the person or property of others and so long as we are willing to let others do the same–was the goal, and it required restraints on power.

I thought about that when I read this article from Common Dreams. Today, many governments are less powerful than multi-national corporations.

As corporations in the United States and around the world continue to reap record profits thanks to enormous tax cuts, widespread tax avoidance schemes, and business-friendly trade and investment policies, an analysis by Global Justice Now (GJN) published Wednesday found that the world’s most profitable companies are raking in revenue “far in excess of most governments,” giving them unprecedented power to influence policy in their favor and skirt accountability.

Measured by 2017 revenue, 69 of the top 100 economic entities in the world are corporations, GJN found in its report, which was released as part of an effort to pressure the U.K. government to advance a binding United Nations treaty that would hold transnational corporations to account for human rights violations.

“When it comes to the top 200 entities, the gap between corporations and governments gets even more pronounced: 157 are corporations,” GJN notes. “Walmart, Apple, and Shell all accrued more wealth than even fairly rich countries like Russia, Belgium, Sweden.”

As difficult as it can be to subject governments to the rule of law, constitutions and legal systems do provide mechanisms to hold them accountable. By contrast, it is incredibly difficult for citizens to hold powerful corporations to account. Increasingly, as the article notes, trade and investment deals allow corporations to demand that governments do their bidding rather than the other way around.

“From a coal mine in Bangladesh that threatens to destroy one of the world’s largest mangrove ecosystems to hundreds of people at risk of displacement from a mega-sugar plantation in Sri Lanka, corporations and big business are often implicated in human rights abuses across Asia” and the world, Friends of the Earth Asia Pacific noted in a blog post on Wednesday, describing the U.N. treaty as a potential “game-changer.”

“Companies are able to evade responsibility by operating between different national jurisdictions and taking advantage of corruption in local legal systems, not to mention the fact that many corporations are richer and more powerful than the states that seek to regulate them,” Friends of the Earth concluded. “We must right this wrong.”

The question, of course, is how?

It is becoming increasingly clear that massive reforms to global law and governance will be required if human liberty is to survive the changes that increasingly confront us. Given the numbers of people who have an overwhelming fear of change and who respond by embracing tribalism and autocracy, the odds of a successful “reboot” look pretty daunting.

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