Wednesday, May 20, 2015

Deliberation and open records

This is a slightly revised version of an earlier post. I tightened up some of the descriptions of the parties' legal positions after taking a closer look at the relevant documents.
This morning I participated in panel on the future of campaign finance reform at the annual meeting of the Eastern District of Wisconsin Bar Association. The panel was a dialogue/debate between me and Brendan Fischer, General Counsel of the Center for Media and Democracy. I may comment on some of what transpired later, but suffice it to say that we see things differently.

CMD was in the news yesterday because it sued the Governor over an open records request. The organization wanted certain documents related to draft legislation (since abandoned) that would have changed the mission statement for the University of Wisconsin. I have written and argued that the controversy on this supposed abandonment of the "Wisconsin Idea" is not very interesting or meaningful. The Wisconsin Idea is a Rohrschach Test of a thing that, to the extent anyone thinks about it, means different things to different people. There are senses of the idea to which the UW is no longer as faithful as it ought to be and other senses of the idea to which it should not be faithful at all. I don't think changing exhortatory language in the statutes would have changed anything - for better or worse.

But I want to focus here on the request for records.

The Governor's office has withheld certain records claiming, among other things, a "deliberative process" privilege that can be inferred from the open records law's requirement that a custodian of public records "balance" the public interest in disclosure against harm that may be caused by disclosure. The Governor's office has argued that disclosing internal deliberations about legislative proposals would have a chilling impact on the free exchange of ideas.

The idea isn't crazy - privileges to protect deliberative processes are not unknown in the law -  but it's wrong under our state law. Ironically, CMD's complaint cites a case that I and my colleagues at the Wisconsin Institute for Law & Liberty won on behalf of the John K. MacIver Institute for Public Policy. Just as ironically, I am inclined to agree with CMD here.

The state's open records law creates an extremely strong presumption that documents generated by government officials are subject to disclosure. The notion that they can be withheld because it might be awkward to expose the government's deliberative processes is not, as I say, a ridiculous idea, but it is one that our state legislature, in enacting the law, has rejected.

So sometimes cats and dogs do lay down together.

Cross posted at Purple Wisconsin

Tuesday, May 19, 2015

Special needs vouchers and federal law

In an article on special needs vouchers in today's Milwaukee Journal Sentinel, reporters Erin Richards and Jason Stein report that the "chief concern" of groups opposing such vouchers is that " [p]rivate schools are not obligated to follow federal disability laws."

While I am sure that critics of vouchers make this claim, it is not, strictly speaking, true. No private schools are subject to requirement that they provide what is known as a "FAPE" - a free and appropriate public education - as required by the Rehabilitation Act of 1973 and the Individuals with Disabilities Education Act (IDEA). That makes sense. They aren't public schools. (They also aren't funded to provide it.)

But private schools may be subject to certain federal anti-discrimination mandates. They are not - although the Civil Rights Division of the U.S. Department of Justice apparently disagrees - subject to Title II of the Americans with Disabilities Act. That law requires public entities to accommodate persons with disabilities unless it would "fundamentally alter" the program offered by that public entity.

However, some private schools are subject to Title III of the ADA which imposes the same standard. Religious schools - which do comprise most schools participating in Wisconsin's school choice programs - are exempted from Title III, but even those schools may find themselves subject to a federal anti-discrimination norm. If they accept federal funds, they may be subject to the requirements imposed by section 504 of the Rehabilitation Act which requires accommodation if it can be achieved with "minor adjustments." The United States Department of Education, moreover, has taken the position that this "minor adjustment" standard applies generally to voucher schools.

Even if those schools accepting students with special needs vouchers were subject to no federal requirements, this does not mean that they would be "unaccountable." One would have to understand applicable state law requirements. It's hard to do that if you haven't seen the bill. "Federal" is not synonymous with "gold standard" or even, for that matter, "useful." Of course, parents would also have the ability to hold schools accountable. I understand that some people in the "helping  professions" may be skeptical of the ability of people to help themselves. (It would be bad for business.) I'm a bit more optimistic.

Cross posted at Purple Wisconsin

Monday, April 27, 2015

If the John Doe doesn't bother you, you aren't paying attention

At Right Wisconsin, I have a post on the indifference of the mainstream liberty to the civil liberties issues raised by the John Doe investigation into conservative advocacy organizations. We can debate the niceties of the prosecutors' legal theories. There are, as I have written in the past, cascading levels of legal difficulty. The prosecutors are, at best, attempting to stretch state law - and both the state and federal constitutions - for all they're worth. But beyond the merits of the investigation, it is profoundly troubling that they have adopted tactics - both in seeking criminal penalties and combining strong-arm searches with John Doe secrecy - that are guaranteed to frighten speakers and deter constitutionally protected expression.

This is why I find the legacy media's relative silence startling. Imagine, for a moment, that this had been done to a newspaper or broadcast operation. Assume an early dawn raid on the Milwaukee Journal Sentinel's offices at Fourth and State in which reporters' files were carried away and editors were told to keep their mouths shut about what had been done to them. (The prosecutors here did contemplate going after broadcast journalists.) Our newspapers and broadcast stations would be apoplectic about the "chilling impact" on freedom of speech that such tactics would have. And rightly so.

Over the weekend, the prosecutors upped the ante. It was reported that Governor Walker questioned the constitutionality and the motivation of the prosecutors. In response, Milwaukee County District Attorney John Chisholm implied that Walker might be criminally prosecuted for criticizing the investigation and questioning the motivation of the prosecutors. “As to defamatory remarks,' Chisholm said, "I strongly suspect the Iowa criminal code, like Wisconsin’s, has provisions for intentionally making false statements intended to harm the reputation of others ....”

I am going to repeat that. The elected District Attorney of Milwaukee County actually suggested that someone who criticized him should be charged with a crime.

Let's start with the easy part. This is the type of statement that will get earn a law student a very bad grade in Constitutional Law. The question is not whether Walker was "right" or "wrong." At minimum, one would have to show that Walker made statements of fact (not opinion). At minimum, one would have to show, beyond a reasonable doubt, that he knew the statements were untrue or acted with reckless disregard of their truth and falsity. Even then, there remain serious constitutional questions regarding the criminalization of political speech.There is no way - not in this country - that such a prosecution could ever succeed.

But the problem here is larger than a single lawyer's understanding of constitutional law or appreciation for the First Amendment. Any lawyer who suggests that political speech should be criminally prosecuted might expect to be laughed at. But when that lawyer has the power to invoke the machinery of the criminal law, it is no longer a laughing matter.

Cross posted at Purple Wisconsin

Wednesday, April 22, 2015

Of "time theft" and overkill

Here's a thought experiment.

A recent Ernie On Wisconsin column by Ernie Franzen quite rightly questions the decision of the Bureau of Commissioners of Public Lands to ban its handful of employees from working on global warming while on the clock. I wonder if there's more to the story, but the ban does seem like overkill.

The column suggests that it is silly for the state to crack down on "time theft" in this way. I  agree.  these things ought to be handled in less dramatic ways, but let me suggest an even worse example of overreaction to "time theft."

Sending Kelly Rindfleisch to jail for it.

Rindfleisch was charged with felony misconduct in office, i.e., using her public employment in a manner that is inconsistent with her duties to confer a dishonest advantage on another.  The theory was, since she wasn't supposed to be doing political work on state time, she had improperly used her position to benefit the candidate she was working for. There is a statute prohibiting fundraising from state office buildings or during set work hours - itself a form of criminalizing "time theft" - but she wasn't charged with violating it. That would only have been a misdemeanor. (In fact, this is what Darlene Wink was ultimately charged with.)

There seems to be a dispute over whether anyone at the Bureau was currently working on climate change during office hours. Perhaps some might even argue that climate change is relevant to the Bureau's mission. But let's assume that someone was working on the issue and that this falls outside his or her job responsibilities -the Bureau itself says so.

Couldn't you shoehorn this climate change advocacy into the felony misconduct in office statute? Wouldn't that person be using her office - its space, perhaps its equipment and the wages she is paid (time theft!) in a way that is inconsistent with his or her duties  -she is not supposed to be working on climate change - to confer a dishonest advantage on individuals and organizations engaged in advocacy on global warming.?

One might try to distinguish the Rindfleisch case by arguing that fundraising is specifically prohibited by statute while work on climate change is not, but that may actually weaken the case for using the felony misconduct in office statute in this way. In any event, it would not distinguish the caucus scandal prosecutions. There is simply no express statutory prohibition against public employees doing "political work."

There are still lawyerly distinctions that might be drawn between the caucus and Rindfleisch cases and our climate change hypothetical. But cases seem uncomfortably close.

Don't get me wrong. I don't think that Bureau employees working on climate change should be doing the perp walk. I am using them as a further illustration of why aggressive use of vague statutes to punish political activity is problematic.

I don't know that any of this happened. Even if it did, I would be strongly disposed against using broadly worded statutes to criminalize "time theft."

I think the Bureau's resolution was misguided, but at least it didn't start a John Doe.

Cross posted at Purple Wisconsin

Tuesday, April 21, 2015

On Millennials and downtown, maybe it is just the time of year.

This is the story: Millennials don't like suburbs. They want to live in the city. Millennials don't like cars. They prefer transit. We should embrace the future and quit spending so much on roads. We should, instead, spend more on urban mass transit including projects such a streetcars that, on their face, seem indefensible.

But the story may be wrong. Over at Right Wisconsin, I write about some recent work that changes the story. Millennials like the suburbs. In fact, more of them are leaving the city than our moving in. While the relatively small cohort that is college educated may be more likely to reside in the city than previous generations, it is unclear whether this is a long term preference or an artifact of delayed marriages and family formation.

I find this completely unsurprising. Whenever someone suggests that human beings are about to radically change their behavior, there is a substantial probability that the claim is wrong. We Baby Boomers were so unique that, with Joni Mitchell, we believed our enthusiasms were not just the "time of the year" but the "time of man."

As it turned out, not so much.

Cross posted at Purple Wisconsin.

Monday, April 20, 2015

Of discrimination, indoctrination and school choice

Writing in the Journal Sentinel, Barbara Miner says that private schools participating in the choice program can "ignore" Wisconsin laws prohibiting discrimination.  She then goes on to bemoan the fact that her tax dollars are being used to indoctrinate children in ways that do not meet her approval.

She makes clear that her concern is about Catholic and more traditional religious schools, singling out schools that might teach that " homosexuality is wrong, sex outside of marriage is a sin and artificial birth control is contrary to the law of God."  In a jaw dropping statement, she suggests that, in her youth, the Catholic Church was more concerned about social justice than human sexuality. Ms. Miner is older than I am, but I went to Catholic school long enough ago to have attended the Tridentine Mass. I am pretty sure that there was not some "golden era" where the Church was "cool" about premarital sex, sexual orientation and abortion or contraception. In fact, based on my son's experience in Catholic school, I'd  guess that sexual matters are less emphasized today that when Sister Maria Immaculata was in charge

In any event, Miner is wrong about the reach of anti-discrimination laws. While there are certainly laws addressing discrimination that do not apply to private schools, there are specific prohibitions of discrimination that apply to the voucher program. Schools cannot discriminate in the selection of students. As to those voucher students attending private religious schools, state law expressly provides that these schools "may not require [a voucher student] to participate in any religious activity" if his or her parent or guardian requests in writing that they be exempt. Sec. 118.60(7)(c); 119.60(7)(c)
To be sure, religious schools may teach willing students things that Ms. Miner thinks are wrong. But, every day, public schools teach children things that religious traditionalists believe to be wrong. Absolute neutrality is simply impossible and "public policy" in a diverse society ought to focus on respecting different points of view rather than enforcing orthodoxy.

Miner is wrong about one more thing. She says that test scores for students participating in the voucher program are "no better" than for children attending public schools. When properly evaluated, this is not true. But even on the flawed measure that Miner is using (comparing an annual snapshot of average WKCE stores among schools), a recent report by the Wisconsin Institute for Law & Liberty found that the test scores for voucher students in Catholic and Lutheran schools (many of which are run by the conservative Wisconsin and Missouri synods)  are higher than those for comparable student populations in Milwaukee. In other words,  the very religious schools that Miner objects to seem to do a very good job of educating poor children. 

Cross posted at Purple Wisconsin

Sunday, April 12, 2015

Acting Anew?

In the Milwaukee Journal Sentinel, Todd Robert Murphy writes that America is divided. He believes that we must act "anew" although he does not explain what that means. In this space, I recently wrote about tolerating speech with which we disagree. I do not suggest that we all need to agree, but it would help if we didn't automatically assume that the other guy is a bastard.

Murphy refers to the reaction to police shootings in which the victim is black and the officer is not. I have been astonished at the extent to which the facts don't matter in the aftermath of these events. Otherwise intelligent people claim that there is some kind of "open season" on black males when the statistics simply don't support that. In fact, they suggest the opposite. People who ought to know better hang on to narratives - "hands up, don't shoot" - long after they have been discredited.

This is an odd thing. There are reasons to be concerned about the police that have nothing to do with race. Giving people guns and exposing them to people at their worst can lead to bad things. (This is why police cameras are probably a good idea.) But it should not be hard for any of us to understand that each of these cases is different and that guilt and innocence depends on the facts and not which narrative - racist cop or young thug - feels right to us. Perhaps this is one way that we might "act anew."

We often hear calls for a dialogue about race - generally from people who want anything but that. A dialogue is not a lecture. It is not limited to confession and the prescription of penance. a conversation about race would certainly be uncomfortable, but that discomfort would be shared all round.

Roger Clegg wanted to have a dialogue about race. Roger is General Counsel of the Center for Equal Opportunity. He is fiercely intelligent but gentle-mannered; one of the nicer people I know. CEO had done a study that demonstrated just how strongly the University of Wisconsin prefers African-American applicants over similarly situated whites, Asians and even Hispanics. (The preference still doesn't result in a large black enrollment at Madison.) When he came to Madison to discuss the report, he was accosted by screaming hordes whose idea of a dialogue is shouting over what you don't want to hear.

Maybe being willing to listen to what we don't want to hear - even when, in the end, we think it is wrong - is another way that we might "act anew."

A large part of our intelligentsia has come to believe that traditional Christian, Jewish and Islamic views on human sexuality are not only wrong, but manifestations of hate. Those who hold them are bigots or psychologically maladjusted ("phobic") and must not be permitted to act on - or even to express - their views without legal sanction (for the former) and social ostracism (for the latter). They believe, like the Medieval Church, that error has no rights.

On the merits, I am closer to the new received wisdom than I am to the religious traditionalists. But it strikes me as arrogant to dismiss the latter as bigots and inconsistent with the very idea of a free society to deny them a space to live in accordance with their consciences. (Analogies to race are, I think, inappropriate but that's a subject for another day.)

Perhaps finding more room to tolerate not what only those people we believe have been historically ostracized, but those we believe to be wrong is another way to "act anew."

Cross posted at Purple Wisconsin