Tag Archives: privatization

Enlarging The Already-Big Hole In the Wall

The overtly pious Justices placed on today’s Supreme Court by Mitch McConnell aren’t likely to stop imposing their religious beliefs with their decision to overrule Roe v. Wade. Multiple observers have warned that we are dealing with religious zealots intent upon enforcing their vision of Christian Nationalism–a vision that goes well beyond the effort to put women in our “proper” (i.e., subservient) place.

This is a Court that has bent over backwards to elevate religion– especially conservative Christian religion.

If we look at the Court’s “pipeline,” we can see that the hits are likely to continue coming. I’ve posted previously about the case of the public school coach who wants to lead prayer on the fifty-yard line, and the fact that, during oral argument, the Justices seemed inclined to allow him to do so. But that’s not the only vehicle available to a Court intent upon empowering their particular version of Christianity.

As Adam Liptak reported in December,

The Supreme Court on Wednesday seemed ready to take another step in requiring states to pay for religious education, with a majority of the justices indicating that they would not allow Maine to exclude religious schools from a state tuition program.

The court has said that states may choose to provide aid to religious schools along with other private schools. The question in the new case was the opposite: Can states refuse to provide such aid if it is made available to other private schools?

The State of Maine has a number of rural communities that do not have public secondary schools. Maine law requires those communities to send young residents elsewhere for their education, and to do so in one of two ways:’ They can sign contracts with nearby public schools, or they can pay tuition at a private school chosen by the student’s parents so long as it is, “a nonsectarian school in accordance with the First Amendment of the United States Constitution.”

This case arose when two families in Maine challenged that law. The parents want to send  their children to religious schools, and they argue that the state’s refusal to spend tax dollars to allow them to do so violates their right to the free exercise of their faith.

As Liptak noted, religious litigants have found the current court to be very hospitable to their arguments.

Religious people and groups have been on a winning streak at the Supreme Court, which seemed likely to continue in the new case. In recent decisions, the justices have ruled against restrictions on attendance at religious gatherings to address the coronavirus pandemic and Philadelphia’s attempt to bar a Catholic agency that refused to work with same-sex couples from screening potential foster parents.

The court also ruled that the Trump administration could allow employers with religious objections to deny contraception coverage to female workers and that employment discrimination laws do not apply to many teachers at religious schools

The likely precedent for this decision is a case called Espinoza v. Montana Department of Revenue. In that case, the Court found that a provision of the state’s Constitution banning aid to schools run by churches ran afoul of the  Constitution’s Free Exercise Clause, by  discriminating against religious people and schools. Writing for the majority, John Roberts held that a state need not subsidize private education–but that once it decides to do so, “it cannot disqualify some private schools solely because they are religious.”

That is fair enough. It is also why privatization efforts like Indiana’s voucher program–which bleed resources from public education in order to send tax dollars to private schools–are so dangerous and socially divisive. In Indiana, some ninety percent of voucher students attend religious schools (schools that have not, by the way, improved the academic performance of those students.)

Plaintiffs freely acknowledged that the curricula of these religious schools is divisive and discriminatory.

One of the schools at issue in the case, Temple Academy in Waterville, Maine, says it expects its teachers “to integrate biblical principles with their teaching in every subject” and teaches students “to spread the word of Christianity.” The other, Bangor Christian School, says it seeks to develop “within each student a Christian worldview and Christian philosophy of life.”

The two schools “candidly admit that they discriminate against homosexuals, individuals who are transgender and non-Christians,” Maine’s Supreme Court brief said.

Justice Elena Kagan wanted to know why taxpayers should fund “proudly discriminatory” schools. The answer, evidently, is that six judges on this Supreme Court believe that when discrimination is required by Christian theology, it is entitled to special deference.

I somehow doubt that a Satanic school–or even a Muslim or Jewish one– would receive that same deference….

 

 

Religion And Vaccination

Can you stand one more diatribe about vaccination refuseniks?

I receive the Sightings newsletter from the Divinity School at the University of Chicago. (I couldn’t find a URL). A recent essay–authored by Laurie Zoloth, a scholar of religion and bioethics–addressed the (mis)use of religion by those wishing to evade vaccination.

She dubbed it “The Great Defiance.”

Zoloth served on a panel that had been convened to review and evaluate exemption requests. After reviewing dozens of such requests, she noted “patterns emerging which revealed much about the way these Americans thought about themselves and their faith.”

Zoloth began with a history of religious and legal authorities’ approaches to vaccination.

 In 1905, in Jacobson v. Massachusetts, the US Supreme Court upheld a Cambridge City Council law mandating vaccination for citizens. 1922, it upheld a similar law for childhood vaccination. Cases about religious refusals for vaccines followed the same logic. The U.S. Third Circuit Court of Appeals’ 2017 decision in Fallon v. Mercy Catholic Medical Center which addresses a religious objection to a flu vaccine for a healthcare worker, rejected the claim that any subjective opinion was protected. As scholar David DeCosse notes, the court ruled against Fallon, establishing three criteria for religious objections. To be “religious” the claims had to address “fundamental and ultimate” questions, consist of a comprehensive belief-system and “not an isolated teaching,” and have “formal and external signs” like clergy, services, or rituals.

Zoloth then ticked off the positions of major American religious traditions, and found that– across the board–they were firmly committed to vaccination.

In Judaism, she found unprecedented agreement. Reform, Conservative, Orthodox, and Reconstructionist rabbis; Chassidic, Haredi, and Modern Orthodox from both the Ashkenazi and Sephardic tradition, agree that “the Torah obligation to preserve our lives and the lives of others requires us to vaccinate for COVID-19 as soon as a vaccine becomes available.”

Pope Francis was equally unequivocal: “Vaccination is a simple but profound way of promoting the common good and caring for each other, especially the most vulnerable.”

Leaders of the Protestant denominations, the Mormons, the Jehovah’s Witnesses, and finally, Christian Scientists, either pulled away from previous hesitancy or actively supported vaccination for their congregants. Both Sunni and Shi‘a imams, Buddhist monks and Hindu leadership wrote in support of vaccination. Only one prominent religion—the Nation of Islam—opposed vaccination.

Why, then, are people characterizing their refusal to be vaccinated  “religious”?

Zoloth writes that “claim after claim” was taken verbatim from the internet, warning of the spiritual danger of vaccines, and displaying “a serious misunderstanding of basic biology.”

A frequent “religious” objection was that COVID vaccines were tested in cultures made from cell lines that included fetal tissue gathered years previously– evidently oblivious to the fact that common drugs like Tylenol, Pepto-Bismol, Tums, Motrin, Benadryl, Sudafed, Preparation H, Claritin, and Prilosec, were similarly tested.

Zoloth concluded with three very potent observations.

First, we live in a society where intuition and feelings have replaced reason as the justification for moral action, where earnestness and sincerity are the stand-in for authenticity, and authenticity has replaced what we mean by “true.” ….When one turns away from central texts, leadership, or traditions to make individual claims about religion—then faith, turned inward, becomes nothing more than a personal preference.

The second problem is that religions, like states and markets, have a polity, and all polities have authority. What is striking about religious refusals of vaccination is how so many reject religious authority as well. When the Pope or the local minister told their followers to get vaccinated, many were prepared to turn to the internet to find an online cleric who would testify to their position. It was often the only testimony they would accept, for religion in this case, like the pandemic itself, had devolved into a set of completely individual, self-involved activities.

The final problem also emerges from within religions themselves: that stubborn insistence in so many faiths on loving the neighbor. Religion is profoundly other-regarding, and the outworking of this principle came to have a precisely defined place in the public square, and it was to live as though your neighbor’s life was as holy as your own. In concrete terms, it meant at least getting vaccinated if you were to live in the world we shared, and certainly, if you were to provide healthcare in a morally responsible way. Yet in example after example, in the America in which we have come to live, this obligation to the other was not mentioned in the letters we scholars were asked to read. At the center of the argument was the self…religious conscience had become entirely privatized, an opinion about what made them unhappy, as if the enormity of their responsibility to the whole of the social world simply did not matter.

We’ve really lost our way.

 

Hollowing Out The Federal Government

A recent article by two notable scholars of government, Don Kettle and Paul Glastris, reminded me of my old preoccupation with what Americans erroneously call “privatization.” I began to research the issue after watching the very uneven results of then-Mayor Goldsmith’s love affair with the concept. (A search for the term “privatization” through the archives of this blog will return a number of detailed posts on the subject.)

My skepticism begins with the misuse of the term;  unlike actual privatization–which would involve selling off government operations and allowing them to sink or swim in the marketplace (a la Margaret Thatcher), Americans use the term to mean government “contracting out” for goods and services. There are obviously times and tasks where contracting makes sense. My concern is that government isn’t a very good judge of when and what those are. Contracts with units of government are qualitatively different from contracts between private actors, and those differences make it far more likely that the contracts ultimately negotiated will be unfavorable to taxpayers.

And of course there’s the predictable “crony capitalism,” contracts rewarding campaign donors with lucrative contracts at taxpayer expense.

A few years ago, I came across data suggesting that the federal government actually pays the salaries of some 17 million full-time contract workers who aren’t technically government employees.

A number of the problems created by extensive federal contracting are the subject of the linked essay, titled (tongue in cheek) “To AOC: Only you can fix the federal government.”

You and other progressive leaders have bold ideas for how government can help people and save the planet. The Green New Deal. Medicare for All. Free college. A massive investment in public housing. We aren’t in full agreement with that agenda, but that’s not our point. Our point is that to achieve your goals, you’re going to need a federal government as robust as your ideas. And right now, you don’t have it.

Instead, the government agencies you’ll need to carry out your policies are a disaster waiting to happen. Like the infrastructure you and others rightly say needs rebuilding, our federal bureaucracies are a patched-together mess that can barely handle the weight of the burdens already placed on them.

The essay pointed to specific examples, including the GOP’s assault on the Internal Revenue Service.

In 2004, George W. Bush’s administration turned the job of collecting the hundreds of billions of dollars that tax scofflaws owed Uncle Sam over to private collectors, with the idea that they could do a better job than federal workers. The private collectors brought in money—but just $86 million, and most of that was from easy-to-collect cases that began running out after just a few months. Then the IRS brought the work back in-house, and its agents collected almost two-thirds more money in just a few months, and it came from the harder cases the private companies had left behind. Relying on private tax collectors actually ended up costing the federal government money.

But the Republicans weren’t done. They slashed 20 percent of the IRS’s budget and 22 percent of its staff from 2010 to 2018. For people making more than $1 million, the number of tax audits dropped by 72 percent—and the money the IRS collects from audits fell by 40 percent.

Government operations stymied by a lack of skilled in-house personnel include–among other things– the government’s inept handling of refugees and the (mis)management of Medicare and Medicaid ($103.6 billion in improper payments in 2019 alone).

The list goes on. Click through and read the litany, if you want to set your hair on fire…

What the essay makes clear is something that far too few citizens recognize: it isn’t enough to have good policies. Passing a law to do X or Y is only the start; the unit of government charged with administering the law or program needs sufficient resources to do so. Those resources include adequate numbers of well-trained employees and skilled supervision– virtually impossible when contractors are providing the bulk of the services.

We’ve long relied on service contractors beyond the point of reason. We now have contractors who do more or less the same work as civil servants, sitting in the same offices, for years on end, typically at far higher cost, often using government email addresses so it’s impossible for anyone on the outside to know whether they’re dealing with a government official or a contractor. We have contractors who oversee contractors, contractors who write policy for government officials, and federal contract managers who are too few in number and too outgunned in skills to manage it all.

The hollowing out of government’s management capacity is the result of the GOP’s persistent attacks on the civil servants who work for it.

It has to change.

Private Prisons And The 13th Amendment

If I was compiling a list of policies the next administration needs to change, it would be  truly enormous, and fairness compels me to acknowledge that not all of the entries can be attributed to Trump. Previous administrations got swept up into privatization ideology, and some of the consequences weren’t pretty.

Privatization as practiced in the U.S. wasn’t ever true privatization. In England, for example, Thatcher sold off railroads and steel mills that were then operated as private businesses–they paid taxes, and if they failed, they failed. In the U.S., what we call “privatization” is really “contracting out”–government agencies entering into contracts with private companies or not-for-profit organizations to assume primary responsibility for delivering a government service or performing a government function. Sometimes, that made sense.  Often, however, it has simply been a new form of patronage.

Obviously, there’s a big difference between contracting with a private company for trash removal and authorizing a for-profit company to operate prisons.

Researchers have pointed to the often-horrific consequences of privatizing prisons, so I was interested in a lawsuit that is evidently working its way through the system in Arizona.

The complaint enumerates the issues involved in Arizona’s privatized prisons, pointing out the perverse incentives that govern performance under such contracts. Nothing really new there–the research has long illuminated the extent to which the profit motive is incompatible with proper functioning of penal institutions.

What was new (at least to me) and intriguing was the plaintiff’s assertion of a 13th Amendment claim. The 13th Amendment abolished slavery and involuntary servitude. Here are pertinent portions of the argument from the Complaint.

The amendment prohibits “all forms of involuntary slavery of whatever class or name.” Slaughter-House Cases, 83 U.S. 36, 37 (1872). That means it “denounces a status or condition, irrespective of the manner or authority by which it is created.” Clyatt v. United States, 197 U.S. 207, 216 (1905). The amendment is “a promise of freedom” which includes “freedom to go and come at pleasure and to buy and sell when [one] please[s].” Jones, 392 U.S. at 443 (internal quotation marks omitted). It is certainly not limited to those with African ancestry. “It was a charter of universal civil freedom for all persons, of whatever race, color, or estate, under the flag.” Bailey, 219 U.S. at 240-41.

“The most basic feature of ‘slavery’ or ‘involuntary servitude’” is “the subjugation of one person to another by coercive means.” United States v. Nelson, 277 F.3d 164, 179 (2d Cir. 2002). Professor Akhil Amar uses this definition of “slavery”: “A power relation of domination, degradation, and subservience, in which human beings are treated as chattel, not persons.” Akhil Reed Amar, Child Abuse As Slavery: A Thirteenth Amendment Response to Deshaney, 105 Harv. L. Rev. 1359, 1365 (1992)…

Plaintiffs are being held in cages for the financial benefit of private entities which make billions of dollars in revenue from this captivity.The private prisons receive the “fruits of prisoners’ economic value and labor.” In short: the prisoners have been effectively transformed into property, valued only in terms of their “compensated man-days.” The allegations in the Complaint plausibly state that their status falls within the Thirteenth Amendment’s scope. If holding people in captivity in this way were happening to anyone but prisoners, everyone would call it what it is: slavery. It is at minimum “involuntary servitude.”

This argument gains persuasive power from the national history Americans are only beginning to admit. Books like These Truths by Jill LePore and The New Jim Crow by Michelle Alexander testify to racists’ unremitting efforts to keep African-Americans in servitude. Criminal Justice research supports their recitation of that history, the disproportionate imprisonment of Blacks and poor people, and more recently, the unconscionable behaviors of private prison companies.

Criminals should be jailed. Government clearly has the right  and duty to protect its citizens and to pursue public safety by incarcerating or otherwise sidelining dangerous people. That said, there are few governmental tasks less suited to “privatization” and the pursuit of profit.

Put this reform on our very extensive list.

 

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.