Lack of leadership on Ferguson

Rudy Giuliani had it right. The reason that we have heavier police presence in some (not all) areas with high concentrations of African Americans is some (not all) of these areas have a lot of crime. The purpose is not to protect white people from black people (most, but not all, violent crime is intraracial, although the matter may not be that simple) but to protect the African American residents of these communities.

That's not only a good thing; it is essential to the development of these communities. If you do not have public safety, you will have nothing else. No amount of social spending can make up for its absence. Complain, if you wish, about overpolicing but without a greater level of police protection in communities that need such protection, life would indeed be nasty, brutish and short.

But the need for heightened police protection is not without its costs. It means that there will be more contact between police and, in particular, young African American men. Sometimes these contacts will result in the use of force and sometimes  things will go wrong, whether by innocent mistake, negligence or even malevolence. Cops are human beings and, therefore, as flawed as the rest of us.

It is not clear to me that use of force is disproportionately directed toward black persons who come in contact with the police. What evidence I have seen suggests that it is not. It is clear to me that there is nothing resembling "open season" on African American males.

But that doesn't mean that each such incident need not be taken seriously. Just as the improvement of underdeveloped communities require safety, it also requires public confidence in the rule of law. I also appreciate that these incidents are going to be viewed through the lens of our racial history. We live in a country that, while it has made great racial progress, still struggles with racial mistrust.

But mistrust - and misunderstanding - run in both directions. It is simply not the case that any of us have special knowledge of racial truth. None of us have special knowledge of what happened in Ferguson because, in the insidious phrase,  we "look like" Michael Brown or Darren Wilson.

But even if that's so - or even if the opposite (police disproportionately target black men) is true, the frequency of police misconduct in all cases does not tell me what happened in any particular case. Even if was "open season" on young black males, knowing that would not help me decide what happened between Michael Brown and Darren Wilson.

The only way I can understand what happened is to carefully assess the testimony of witnesses and the physical evidence.

But that isn't what happens in our public discourse about the case. When, for example, someone writes an article and says only that Michael Brown was shot multiple times and was unarmed, he or she is leaving out almost every fact that is relevant in assessing Officer Wilson's conduct. Being "unarmed" will keep you safe only if you do not attack someone who is. Last night, I actually heard Lawrence O'Donnell argue on MSNBC that, even if Brown charged Wilson, the latter could have "sidestepped" him. That's not a serious argument. It's the kind of thing that you say when you have nothing better.

When someone writes an article and says only that Brown had just robbed a convenience store, he or she is leaving out almost every fact that is relevant in assessing Officer Wilson's conduct. Lots of people rob stores and don't attack the officers who arrest them.

It does no good to say that prosecutors have "disparaged" Brown by suggesting that the evidence does not establish that Wilson acted improperly. It is not "out of the norm," as Al Sharpton says, for a prosecutor to explain that the physical evidence does not support an indictment. It is, in fact, a prosecutor's job.

Based on what I have seen, however, it is not surprising that the grand jury could not return a true bill. The initial narrative about this case fell apart in the face of the physical evidence. There will always be questions and conflicts about what happened but I have yet to see anyone make a persuasive argument - based on the facts that exist rather than the ones they presume - that there is much chance to prove a crime beyond a reasonable doubt.

That's where leadership comes in. It is simply not responsible to say, in response to rioting, only that one "understands" the anger but believes that violence is nevertheless unwarranted. It is unwarranted but more is required. True leadership would point out that this was not an inexplicable outcome. It is also "understandable. "That's why most observers expected it.

Here in Milwaukee, we await a decision on the Dontre Hamilton case. I do not know what should be done. I haven't reviewed the evidence. It does appear that the District Attorney's office does not believe charges are warranted, but is reluctant to say so. The normal crowd of racialists that pass for "leaders" in Milwaukee won't lead. They'll follow the crowd.

Cross posted at Purple Wisconsin.

Washington harasses school choice

In his latest column, George Will* describes the United States Justice Department's wrong-headed "investigation" of Wisconsin's school choice program for "discriminating" against students with disabilities. As we at the Wisconsin Institute for Law & Liberty have explained at length, the DOJ is proceeding on a contrived and erroneous legal theory that blurs the distinction between public and private. Will writes:

DOJ’s perverse but impeccably progressive theory can be called “osmotic transfer.” It is called this by DOJ’s adversary, the Wisconsin Institute for Law & Liberty (WILL), which is defending Wisconsin children against Washington’s aggression. DOJ’s theory is: Contact between a private institution and government, however indirect or attenuated the contact, can permeate the private institution with public aspects, transferring to it, as if by osmosis, the attributes of a government appendage.

Let me extend Mr. Will's remarks. Choice schools cannot discriminate against children with disabilities. Period. Full stop. Common claims to the contrary; suggestions that these schools "won't take" kids with special needs are just false. State law requires that  choice schools must take all comers. If the number of applicants exceeds the spaces available, students must be selected by lottery (with a small exception for sibling preference).

Now people will argue that private schools do not have certain obligations regarding special needs children that federal law imposes on public schools. In their view, this constitutes discrimination. Disabled students may not get the same services or accommodations in a private school that they will get in a public school. This, in their view, constitutes discrimination.

It's not. Public schools get funding to provide these services that is largely unavailable to choice schools. Just as importantly, federal standards for accommodating students with disabilities do not - and ought not - apply wholesale to private schools. The value of school choice is to encourage a multiplicity of approaches. Not all behavioral disabilities should be medicalized in the way typically encouraged by federal standards. Parents ought to be able to choose between alternative approaches for their children.


* Of course, George Will is on the board of the Lynde & Harry Bradley Foundation which provides funding to the Wisconsin Institute for Law & Liberty. I guess he likes what we do. Conservative board member of conservative foundation likes conservative legal organization. Who would have known?

Why public collective bargaining privileges unions

Before the election, I had a column in the Journal Sentinel's Crossroads section reflecting on Scott Walker's historical significance. A reader - someone from Shorewood named James Anello - wrote a letter to the editor completely mischaracterizing my position and that of my "ilk." (If you find yourself said to be part of an 'ilk," it's never a compliment.)

Mr. Anello thinks that I was arguing that negotiating in good faith is bad. Not at all. What I was saying is that to impose a legally enforceable obligation on government to bargain with unions gives them an advantage over everyone else. No one else has a legally enforceable right to make the government bargain in good faith over whatever it is that they want the government to do. Here's is what I wrote, with the part quoted by Mr. Anello in italics:

While it is not often acknowledged, collective bargaining privileges organized public workers over the rest of us. Because it imposes a mandatory obligation to negotiate in good faith, public-sector collective bargaining requires the government to listen to unions. If this bargaining reaches an impasse — if the government says "no" — then disappointed unions often will have recourse to arbitration. 

You and I don't have these rights. If the local school board ignores my request that it adopt merit pay for teachers or devote more money to science and math education, I am out of luck. I can try to elect new school board members, but I can't force the existing board to listen to me. Prior to Act 10, however, if the teachers union wanted tenure or some particular package of benefits, the school board had to listen and respond.

I take the trouble to highlight this here because Mr. Anello's error is a common one. The mistake is to fail to see a collective bargaining as a petition to the government asking it to adopt a certain set of policies. You can argue that government unions should have this advantage, but you can't pretend that is doesn't exist or pretend that government has a legally enforceable obligation to negotiate with everyone who asks it to do something.

Nor, it seems to me, that you can argue that government should have a legally enforceable obligation to negotiate in good faith with everyone. Such a rule would tie up every government action in court with judges expected to apply a pretty amorphous standard - good faith - to uphold or strike down whatever the government has done.

Cross posted at Purple Wisconsin

Nine random thoughts about the election

Because it seems to be a popular number.

1.  After every election defeat, the losing side forms a circular firing squad. No matter which party has lost, the crossfire tends to come from three directions. One, we were cheated. Two, if we had only communicated who we really are, we would have won. Three, whoever was in charge of strategy and tactics screwed up and must be fired. It would be a mistake for the Democrats to believe any of them.

2.  The Democrats weren't cheated.  They didn't lose because of "dark money," "dirty tricks" or "voter suppression." All indications are that they spent as much as - if not more than - the GOP. There were no dirty tricks. Turnout was at record levels for a November gubernatorial election.

3,  The problem wasn't that the voters didn't understand who the Democrats were. While their candidate didn't come across as a true believer (see below), the Democrats conveyed their message. You would have had to be unable to speak or understand English (or Spanish, for that matter) not to understand that the Democrats wanted to spend more money on public schools (but not vouchers) and raise the minimum wage. It was quite clear that the Democrats thought the Republicans were "against" women and minorities and liked "rich" people. The first two were not winning issues while the latter three were simply unbelievable - they have, if you'll permit me, jumped the shark for most voters.

4.  Other than these insipid and hateful themes of the "war on women" and "dog whistle" politics (which I think the Democratic base wanted to see), the Democrats ran a pretty good race in Wisconsin. I would not have expected them to be able to match the recall turnout. Yet they did. But the GOP ran  a good ground game as well. While I think the ads ran by Democrats and their allies often conveyed messages that were toxic and false, they were well executed. The problem may have been the message and not the way it was rolled out.

5.  Mary Burke wasn't a good candidate but she wasn't an awful one. If the Democrats think that someone like Kathleen Vinehout would have done better, they are smoking the stuff that Ray Burke wants to make legal. Walker would have topped 55% against a candidate like that. It is true that another candidate - maybe the reluctant Ron Kind (best they stop waiting for him) or Russ Feingold - may have done better. But those guys weren't on offer.

6.  The Republicans did not win because of gerrymandering. It has nothing to do with the state wide races. While the GOP's share of the legislature will exceed its share of the statewide top of the ticket vote, this will almost always be the case because Democratic voters tend to live in clusters. Take away Dane and Milwaukee Counties (really just the north half of Milwaukee) and Wisconsin is deep red.

7.  While it partially contradicts my absolution of the Democrats' strategic and tactical approach, Last week's results hurt the idea of the stealth candidate.  Part of the attraction of Mary Burke was that she could pretend to be anything because she had been, when it comes to politics, nothing. No record. No body of political expression. There is often a fascination with running candidates who claim to be "non-ideological" or say they are for "whatever works." Think of John Anderson, Ross Perot and, more recently, Jon Huntsman. The problem is that you can't know what "works" until you decide what you want to do. You can't even make judgments about what will work in particular without some set of beliefs about how the world works in general. Those general beliefs are a big part of our ideological differences. (Nevertheless, I do think that the Democrats' ideological preferences were expressed.)

8.  I'm glad Brad Schimel won, but Attorney General should be an appointed office.

9.  To my fellow conservatives, it was a great week to be us. But there are no permanent victories in politics and winning is only worthwhile if we make something of it. Expanded school and parental choice. Regulatory reform. An end to crony capitalism. A fresh approach to strengthening our urban areas. More economic freedom. Reform of the campaign finance laws. An end to John Doe gag orders.

Cross posted at Purple Wisconsin.