Indiana legislature – Page 2

Listen To My Friend Morton…

As regular readers of this blog know, Morton Marcus (who comments here from time to time) is a longtime friend with whom I co-authored a recent book on women’s rights, “From Property to Partner.”

Morton also writes a statewide newspaper column, primarily focused on data about Indiana, and occasionally comparing the actual activities of our dreadful legislature with his opinions about what that body ought to be doing. A recent column was so on target, I decided to share those recommendations. (Not that our supermajority Republican legislative overlords will pay the slightest bit of attention–they’re too busy micromanaging local government, destroying public education, pandering to the gun lobby, and imposing “Christian” behavioral restrictions on Hoosiers.)

The day before yesterday, you got Gulley, today you get Marcus.

The first of Morton’s recommendations was focused on legislative operations, which is sort of “inside baseball,” but important. He advocates releasing legislators to “act without the discipline of the Caucus. Let’s make the bold assumption that our 150 elected legislators are grownups. They can make their own decisions without the dictates of a repressive party leadership fully inebriated on the power of a super-majority of automatons.”

That will happen when pigs fly–or when we elect actual grownups.

Morton’s second recommendation–passage of independent redistricting– hits at the very center of Indiana’s continuing dysfunctions. Getting rid of gerrymandering would allow voters to choose their representatives; now, as sentient Hoosiers know, those representatives choose their voters. Gerrymandering is an absolutely wonderful mechanism for vote suppression–if your vote isn’t going to count, why cast it?

Morton also points out that an independent redistricting process would “likely rationalize districts such that two adjacent House districts would constitute one Senate district. No House districts would be divided.” As he notes, “Currently the Senate and the House district maps are independent of each other. It affords chaos and cover for the ambitions of individuals who seek lifetime membership in the General Assembly.”

His third recommendation hits on something else I’ve long advocated (there’s a reason we’ve been friends so long; we have similar, albeit not always congruent, views on the issues). He advocates adoption of the Maine Electoral College allocation rules.

Now the winner of the popular vote in Indiana gets all of the electoral votes in a presidential election. Under the system used in Maine, a notoriously left-wing coastal state, the winner of the statewide popular vote gets two electoral votes. The winner of each congressional district gets the one electoral vote of that district. No Constitutional amendment is needed for this move toward a more equitable system.

In 2020, instead of all 11 Indiana electoral votes going to the Repulsive candidate, that person would have received nine electoral votes and two such votes would have gone to the party that is Bidin’ its time.

(My apologies to those unfamiliar with the Gershwin songbook and who know only Taylor Swift lyrics.)

Morton also wants legislative study committees that would consider legislation reducing the number of townships in each county, and the number of counties in the states. (There are 92 counties in Indiana, in case you are wondering; California–somewhat larger– has 58).

Why should Warren, Fountain, Parke and Vermillion not be joined into one or two counties? Perhaps Jasper and Newton counties should be returned to their former singularity. Let’s not neglect Blackford with Jay, Ohio with Dearborn or Switzerland.

I would miss the detailed data on each separate area, but my fetish is not the concern of the state. Likewise, cost cutting should not be the dominant objective, but rather improving service to citizens in line with the structure of society in the 21st century rather than the 19th century.

This last recommendation recalls that of the bipartisan Kernan-Shepard Commission, convened by then-Governor Mitch Daniels, that examined the operations of Indiana government and recommended merging or otherwise eliminating a number of the 1008 townships that each pay township boards and trustees and the expenses of trustee offices–artifacts of a time when reaching the county seat via horseback took half a day. As I wrote back in 2011, the Commission had the temerity to suggest that–in the age of the internet and the absence of virtually all of the other tasks with which those townships had originally been tasked– we should rethink them…

As members of that Commission discovered–and as Morton, a longtime Hoosier, clearly knows–Indiana legislators don’t “re-think.” Most of the time, they don’t really think in the first place.

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Another Day, Another Voucher Study…

Okay–I know it’s just one more time beating that horse (an animal quite probably dead by now…), but I can’t resist. Brookings has just issued yet another study confirming the educational downsides of voucher programs.

The study was prompted by the recent expansion of voucher programs and “education savings accounts,” (ESAs) which are functionally the same thing–the use of public money to allow parents to send their children to private schools. That expansion has occurred primarily in states that voted for Trump in 2020, which should be a clue that these programs are based on ideology; their proponents simply ignore that pesky inconvenient thing called evidence.

(The Brookings report has multiple links to the previous academic research on each of the following points; I’m not including them, but if you click through, you will be able to easily access them.)

This study confirms a number of the findings of previous research: for example, that after expansion of a voucher program or implementation of an ESA, pop-up schools immediately appear, many of which will close rather quickly, and that existing private schools raise their tuition.

The study notes that a decade of research has confirmed that vouchers reduce student academic achievement. Brookings cites studies from Louisiana and Indiana, among others, that found quite substantial declines in student test scores. (Indiana’s pathetic legislature simply ignored the fact that Indiana’s voucher program had demonstrably failed to perform as promised. In its recent session, the legislature made the program available to virtually all of Indiana’s schoolchildren, and is now promoting it heavily.)

Perhaps because the reality fails to match the rhetoric, exit rates from the private schools accepting vouchers are high; in Indiana, as in several other states, some 20% of students who use a voucher to enroll in a private school depart every year–and interestingly, their return to public schooling improves their academic performance.

The research also notes the high percentage of private schools that are religious, but fails to make a point that I consider pivotal: when students leave public educational institutions where–despite residential segregation–they are more likely to interact with children whose races, cultures and religions differ from their own than in the more racially and religiously segregated voucher schools, their “tribal” identities are strengthened. That lack of diversity not only hampers their later interactions in a diverse society, it fosters precisely the sorts of polarization that bedevil contemporary society.

A problem that was highlighted in the research was the lack of accountability of these private schools, both educational and fiscal. In Arizona, “educational” costs that have been reimbursed under their program have been, shall we say, questionable, and in North Carolina, schools have claimed payment for more vouchers than students actually used. (While this study didn’t mention the problem, others have noted that a lack of public reporting requirements makes it very difficult for parents to determine how well a given private school is really performing. Too often, they end up making a choice based upon surface impressions–or more frequently, PR and marketing.)

As the study concludes, recent expansions of these programs will test prior findings–one of which, interestingly, is that “the larger the program, the worse the results.”

What is so discouraging about the persistent Red state expansions of these voucher programs is that these legislatures utterly ignore credible research, and–rather than applying those millions of tax dollars to the improvement of public education–throw millions of dollars into programs that demonstrably do not improve academic outcomes.

When voucher programs were first introduced, they were promoted as a way to allow poor children to leave failing urban schools. Recent program expansions have given the lie to that original argument; virtually every child in Indiana (and elsewhere) now qualifies to use public money to attend private schools–very much including children who had never attended a public school, and whose parents had previously been paying private school tuition.

Perhaps some of the proponents of vouchers remain unaware of the mountains of evidence and truly believe the hype. But given the other research I’ve cited about the segregating effects of educational “choice,” you’ll forgive me if I am cynical.

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Quality Of Life

In a post a few days ago, I considered the GOP’s current definition of “crime”–noting that, to Republicans, breaking federal rules is no longer criminal, and locally, “crime” only happens in Blue cities and states.

It’s another example of the widening perceptual gap between urban and rural Americans. City folks are increasingly Democratic; rural inhabitants increasingly Republican/MAGA.

Ideally, the decision where to live wouldn’t be viewed as political. Some people like owning tracts of land and being close to nature; others (like your truly) appreciate the energy generated by density and diversity. It is–or should be– simply a matter of individual preference.

Of course, it’s never that simple. Public policies matter.

There are measurable reasons that some places in America attract people, while others are emptying out. (Ironically, Red state culture war policies inflict the most damage on rural areas where residents are most supportive of those policies– anti-abortion laws have accelerated the departure of all doctors, not just ob-gyn practitioners, and educational vouchers hurt public schools in rural areas where thin population cannot support private alternatives).

For those who have a choice, the decision where to live often depends upon the perceived “quality of life,” an assessment of the amenities that make a city or state attractive to a majority of potential businesses and individuals.

Michael Hicks recently shared what the data tells us about that question.

Hicks began by noting that most of Indiana (and the Midwest generally) is in economic decline. Projections are that more than 50 Hoosier counties will experience a declining population through 2060.

A dozen counties will be projected to grow faster than the nation through 2060. The remaining 30 or so will be projected to grow more slowly than the national rate—a pattern known as relative decline. Indiana and the Midwest will still be prosperous, in a global sense. But, relative to most of the nation, the coming decades will see us slipping farther away from the nation.

Research has identified the characteristics of places that do continue to attract residents.

Growing places almost always have most of the same positive attributes. Their schools are good and attractive to families, they are safe, their residents are better educated than average, and they have growing housing stock with good public infrastructure. Growing places enjoy recreational options, both private and public. And, there are few barriers to employment or starting a business, such as restrictive occupational licensing or heavy regulatory burdens

Research tells us that–duh!– when people aren’t moving to an area, it’s because they don’t wish to live there.

The primary reason people don’t wish to live in a place is that it doesn’t have the neighborhoods they want. The reasons for not moving to a place are as varied as human interests. But, for the median family, the common factors are that schools aren’t sufficiently good, crime is too high or infrastructure is too decayed.

That research also tells us that policymankers’ preferred emphasis on “economic development”–luring businesses–is misplaced. As Hicks notes,

No matter how successful a community is at luring new factories and warehouses, unless you can attract their highly paid workers to your town, it will have no lasting effect. If your business attraction efforts make your community less desirable for people, it will actually weaken your local economy. It is a costly business with inherent risks.

In the post-COVID world, people are increasingly mobile, making business attraction less important. Here there is some new policies. Some places are trying to attract remote workers through financial incentives. It is possible someone will figure out a magic incentive. However, the evidence I’ve seen suggests that fundamental conditions such as good schools, safe neighborhoods and recreational opportunities trump financial incentives every time.

Hicks stresses the importance of local government. I absolutely agree–in theory. Unfortunately, in Indiana, municipal governments are severely constrained by our retrograde state legislature.

In Indiana, cities and towns don’t have anything remotely like home rule: It took three legislative sessions to get permission to vote on a local tax to fund adequate transit. When Bloomington tried to ban plastic grocery bags, the legislature passed a bill divesting local governments of authority to do so. Education policies are dictated by a General Assembly determined to privatize public education. For years, dollars for street repair have been doled out based on “lane miles,” irrespective of the difference in traffic counts/wear and tear–a lane on a little-used county road gets funded the same as a lane on a traffic-choked Indianapolis thoroughfare. And efforts to address the number of guns on city streets run headlong into the resistance of “Second Amendment” fanatics in the Statehouse.

Those few among our legislative overlords who understand what Hicks is saying don’t care.

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Thank Goodness They Went Home…

Can you stand one more diatribe about the pathetic Indiana legislature that has finally and mercifully departed?

During the past session, I posted several times about the GOP super-majority’s deliberate rejection of evidence about the state’s woeful performance in education. (I could have focused on a large number of other deficits, but who has the time…?)

The GOP’s persistent efforts to privatize education–while ignoring the state’s increasingly critical shortage of the public school teachers who teach 90% of Hoosier children–required legislators to ignore the years of highly credible academic research rebutting justifications for vouchers.

I have previously posted about the many problems with privatized and other forms of “alternative” schools that researchers have identified. Among those numerous problems is the distressingly high percentage of such schools that close within 4 years of their founding. A May 4th article from the Indianapolis Star confirms that Indiana is not exempt from such closures. It appears that a third of charter schools close each year.

Proponents of charters and vouchers claim that these closures are a “feature, not a bug”–that the closures are evidence that “the market” is working. Tell that to the distraught parent for whom these closures are disruptive at best. As the article notes, those disruptions create yet another barrier for students who are already vulnerable to low student outcomes, and particularly for students of color.

The Indiana Capital Chronicle took a look at the legislature’s education policy failures during the just-completed session–and published an analysis with which I entirely agree.

As demonstrated by the 2023 session of the Indiana General Assembly, the Republican supermajority is more concerned with creating problems rather than solving them.

If we are not able to attract and retain teachers and education support professionals because of low pay, lack of respect and inadequate funding, it’s the students who lose out.

Too many students are in schools where decision-makers have driven away quality educators by failing to provide competitive salaries and support, disrespecting the profession and placing extraordinary pressure on individual educators to do more and more with less and less.

Additionally, too many potential educators never go into the classroom in part because of appallingly low starting salaries and record wage gaps between teaching and professions that require similar education – gaps that get worse over the course of educators’ careers.

So, what did our elected leaders do to solve these problems?

- They silenced teachers by eliminating a 50-year right to discuss students’ learning conditions with school administrators.
- They threatened educators with a level-six felony and two-and-a-half years in jail if they recommend certain books to kids.
- They trampled on the ability for local schools and educators to work collaboratively with parents addressing individual students’ mental health needs.
- They continued to drain public schools of scarce funding by siphoning a billion dollars to wealthy Hoosiers so their kids can attend private school for free.

As the commentary pointed out, it was Republican lawmakers who ignored testimony from educators and parents, and doubled down on what has become a GOP “anti-woke” obsession. They focused on appeasing the Republican culture warriors who are determined to attack teachers and librarians in our public schools, employing misinformation and lies.

They listened to wealthy corporate donors who gave their campaigns hundreds of thousands of dollars to privatize our schools.

This agenda may benefit their political donors, but it hurts local communities which cherish and rely on their local schools – where 90% of Hoosier kids attend.

It wasn’t just education, of course. The GOP super-majority ignored environmental concerns, thwarted efforts to improve building codes, spit on medical professionals and went to war against trans children–among many, many other things.

To call them “representatives” is to misuse the term.

Poll after poll confirms that Indiana’s legislature does not represent the policy preferences of Hoosier citizens. Thanks primarily to gerrymandering–which is the most effective of the GOP’s various efforts to suppress the votes of rational Hoosiers–Republican members of the General Assembly represent the most extreme elements of the Republican base.

Since the Supreme Court has refused to notice that extreme gerrymandering is inconsistent with democracy and “one person, one vote,” the only way Hoosiers will ever get a truly representative legislative body is by massive turnout. Redistricting lines, after all, are based on turnout numbers from prior elections; if the people who have given up going to the polls because they’re convinced they live in a district that is “safe” for the other party were to vote in sufficient numbers, a lot of those “safe” districts wouldn’t be so safe.

I wish I knew how to get that message across.

I wish we didn’t have a legislative super-majority fixated on making Indiana the peer of a third-world country.

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Sunday Sermon

Today, I will be delivering a talk–shared below– to Danville’s UU Congregation, addressing our legislature’s assault on trans children.

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Let me begin this talk by quoting from the introduction of a recent article in the New York Times:

When the Supreme Court declared a constitutional right to same-sex marriage nearly eight years ago, social conservatives were set adrift.\

The ruling stripped them of an issue they had used to galvanize rank-and-file supporters and big donors. And it left them searching for a cause that — like opposing gay marriage — would rally the base and raise the movement’s profile on the national stage.

“We knew we needed to find an issue that the candidates were comfortable talking about,” said Terry Schilling, the president of American Principles Project, a social conservative advocacy group. “And we threw everything at the wall.”

What stuck to that wall was the issue of transgender identity, particularly that of young people. As the article went on to detail, the effort to restrict transgender rights has supplanted same-sex marriage as an animating issue for social conservatives. It has reinvigorated a network of conservative groups, increased rightwing fund-raising and set the Right’s agenda in school boards and state legislatures, including Indiana’s.

Nothing like fear of a demonized “Other” to gin up the troops….

I was asked to address the legal issues triggered by the Indiana General Assembly’s efforts to keep trans children from receiving appropriate medical care. I will do that—but before I do, I think it is critically important to point out that what we are experiencing in the U.S. right now, not just in Indiana, isn’t just an attack on the autonomy of women and the existence of trans people; it’s a political calculation that is also part of a wholesale attack by MAGA partisans on the Bill of Rights and long-settled principles of American jurisprudence.

The purpose of the Bill of Rights was—in Justice Jackson’s immortal words—”to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and establish them as legal principles to be applied by the courts.” Or, less eloquently, as I used to tell my students, the Bill of Rights answers a deceptively simple question: who decides? Who decides what book you read, what God you worship (or if you do), what politics you endorse, who you choose to marry, whether you choose to procreate…who gets to dictate what philosophers call your telos—the ultimate aims and objectives that you have chosen and that shape your life?

From 1967 to last year, America’s Courts answered that question by upholding a doctrine called substantive due process—often called the individual’s right to privacy or personal autonomy. That doctrine recognizes the existence of an intimate “zone” that governments have no right to enter— a set of personal decisions that must be left up to the individuals involved. That doctrine, first enunciated in Griswold v. Connecticut, recognized the libertarian principle embraced by the nation’s founders.

Those who crafted America’s constituent documents were significantly influenced by the philosophy of the Enlightenment, and its then-new approach to the proper role of the state. That approach rejected notions of monarchy and the “divine right” of kings (in other words, the overwhelming authority of the state) in favor of the principle that Individuals should be free to pursue their own ends–their own life goals–so long as they did not thereby harm the person or property of someone else, and so long as they were willing to accord an equal liberty to their fellow citizens.

When I was much younger, that principle, and the importance of limiting government to areas where collective action was appropriate—keeping the state out of the decisions that individuals and families have the right to make for themselves– was a Republican article of faith. It was basic conservative doctrine. Ironically, the MAGA folks who inaccurately call themselves conservative today insist that government has the right—indeed, the duty– to invade that zone of privacy in order to impose rules reflecting their own particular beliefs and prejudices.

That process requires the use of other inaccurate labels. We’re hearing a lot about “parental rights,” for example—but we sure aren’t hearing about the rights of parents who want to treat their children’s gender dysmorphia or who want their children to have access to a wide range of books, or to be taught accurate history. In MAGA world, parental rights extend only to parents who agree with them. (A more accurate label would be “parental privileges.”)

Indiana’s legislature has now gone home, but before they left, the culture warriors who dominate that legislature passed measures doing irreparable harm to trans children. That same gerrymandered legislature was first in the nation to pass an almost complete ban on abortion after Dobbs was handed down. It was the same legislature that ignored law enforcement warnings and passed “permit-less carry,” and the same legislature that has conducted a years-long effort to destroy public education in Indiana.

I think it’s really important to understand that denying medical care to defenseless trans children isn’t a “stand-alone” position. It’s part of an entire worldview that is anti-choice, pro-gun, anti-immigration, racist, anti-Semitic and homophobic, a worldview that is autocratic and profoundly anti-American. The good news is that it’s a worldview held by a distinct minority of Americans—and that minority has gotten substantially smaller since the recent judicial and legislative assaults on women and LGBTQ+ people. The bad news, of course, is that—thanks to gerrymandering– that minority controls far too many legislative bodies, very much including Indiana’s.)

What is my evidence for the assertion that these are minority positions?

According to a Pew Research Center poll conducted in 2021, before Dobbs, 59% of Americans believed that abortion should be legal in all or most cases, while 39% believed it should be illegal in all or most cases. In a Gallup poll earlier this year—after Dobbs— 35% of Americans said abortion should be legal under anycircumstances, and another 50% said the procedure should be mostly legal, but with some restrictions. Only 13% responded that it should always be illegal. (What’s that old saying? You don’t know what you have until you lose it…)

It isn’t just abortion.

In a 2021 Gallup poll, 56% of Americans said they believe gun laws should be stricter, while 43% said they should remain as they are or be less strict.

In a Pew poll from 2021, 60% of Americans said that immigrants strengthen the country, while 37% said that they burden the country.

In another poll that year, 70% of Americans supported same-sex marriage while only 28% said it should be illegal. That level of support explains why the GOP has shifted its main focus from same-sex marriage to transgender people; the public is less familiar with transgender people, so they can more easily be demonized.

With that background, let me turn to the legal issues. On April 5th, Indiana’s ACLU– joined by the national organization– filed a 47-page complaint challenging the discriminatory and cruel anti-trans measure signed by Governor Holcomb. Let me just read the opening paragraph of that Complaint:

Over the sustained objection and concern of medical professionals, Indiana passed Indiana Senate Enrolled Act 480, effective July 1, 2023, which prohibits transgender minors from receiving what the law labels as “gender transition procedures.” These prohibited interventions are evidence-based and medically necessary medical care essential to the health and well-being of transgender minors who are suffering from gender dysphoria, a serious condition that can lead to depression, anxiety and other serious health consequences when untreated. By denying this medically necessary treatment to minors, the State of Indiana has displaced the judgment of parents, doctors, and adolescents with that of the government. In so doing, the State has intruded on the fundamental rights of parents to care for their minor children by consenting to their receipt of doctor-recommended and necessary care and treatment. This violates due process. Additionally, by singling out for prohibition the care related to “gender transition,” the law creates a facial classification based on sex and transgender status, violating the equal protection rights of transgender adolescents. It also violates their bodily integrity and is fundamentally irrational, which violates due process. And, to the extent that it prohibits the provision of essential services that would otherwise be authorized and reimbursed by Medicaid, the law violates the federal requirements of the Medicaid Act and the Affordable Care Act. It also intrudes on the First Amendment rights of doctors and other practitioners.
Speaking of intrusions on Constitutional rights, the ACLU has also filed two cases challenging Indiana’s abortion ban. The first case argues that the ban violates Indiana’s constitution. In my view, the second case is the really important challenge—it’s based upon religious liberty. Your Unitarian Church—along with several other Christian denominations, the Jewish community, and an assortment of other minority religions– has an extremely important interest in both its argument and outcome.

I’m one of many people who are convinced that abortion bans are prompted by a desire to return women to a subservient status– but those bans are publicly justified by equating a fertilized egg with a human person. As doctors will confirm, that is a religious precept, not a medical one. It’s a belief held by some Christian sects, but it is at odds with doctrinal beliefs held by other Christian denominations and by adherents of other religions. In Judaism, the health of the pregnant woman takes priority over that of the fetus throughout pregnancy, and the fetus does not have equal moral status with the mother until the head emerges from the womb.

If the Indiana Supreme Court upholds the ban, it would be favoring one part of one religion over others—a violation of the First Amendment, and ironically, a violation of Indiana’s version of the Religious Freedom Restoration Act., or RFRA. As you will all recall, that act was passed in order to justify discrimination against LGBTQ+ citizens. (What’s that saying about karma??) I’m relatively optimistic about Indiana’s Supreme Court, since none of its justices appear to be clones of Clarence Thomas or Samuel Alito.

So here we are.

MAGA Republicans are waging culture war against a fundamental premise of American governance—what Justice Brandeis once called “the right to be left alone”—a premise that animates the Bill of Rights and for the past 56 years has been protected by the explicit doctrine of substantive due process—the premise that there are decisions government doesn’t get to make.

I may disagree with your choice of religion or politics or life partner, but my disapproval is irrelevant. Even if a majority of Americans disagree with your choices, in our system, they are yours to make. Absent harm to others, government must “butt out.”

The Indiana legislature’s assaults aren’t just against women or trans people—these assaults should be seen for what they are: an effort to overturn a fundamental principle of American government. And if that effort is successful, it won’t just be trans children who suffer. None of us will have rights that government will be obliged to respect.

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