Sunday, May 31, 2015

Has satire become impossible, part I

Here's a teachable moment.

Advocates of school choice - and my colleagues and I are in the inner circle so I know of whence I speak - don't wish to defend bad apples in the program. We don't rally outside lousy private schools and seek to "save them." We regard them as embarrassments and believe that they ought to be held accountable. There is a debate about how that should happen. Some of us favor removal of poor schools from eligibility to participate in the program. Others believe that parents - aided by accurate and meaningful information - should be the ones to decide whether or not to send their children to a particular school. But nobody thinks it's just fine to have schools that don't help kids enrolling voucher students.

So Jim Bender, the President of School Choice Wisconsin, does not call me and suggest we lock arms outside of, say, Ceria M. Travis Academy, an embattled school participating in the Milwaukee Parental Choice Program. But "advocates" of public education - in this case, the Milwaukee teachers union - have done what amounts to the same thing. They rallied around Auer Avenue School calling for it to be "saved" from takeover by the proposed Opportunity Schools Partnership Program.

Absolutely none of the students at Auer are proficient in reading. Not a single one.

The union rallied to "save" Auer because the reorganization of the school under the proposed Opportunity Schools Partnership Program would preclude a role for MTEA. The major obstacle to public education reform is this form of regulatory capture - the assertion of political power by those who run the system and benefit from the status quo. For them, it's may be about the kids, but never at the expense of the employees. You can't be effective that way.

And, yet, it is choice advocates are accused of pandering to "special interests" and "profiteers." The irony is palpable. The inability of people who ought to know better to see that is stunning.

Cross posted at Purple Wisconsin.

Sunday, May 24, 2015

Fear and the prevailing wage

Over at Right Wisconsin, I have a column on the failure of some Republicans to support repeal of Wisconsin's prevailing wage law. My organization released a report this week that says school districts could have saved  between $ 163.2 and 244.8 million over the last five years had school bonding projects been conducted under market wages instead of the so-called "prevailing wage." In an environment in which reductions in state aid to schools are regarded by many as existential or even akin to "rape," one would think that not paying more for public works than we have to would be one of those things that we can all agree on. Even if we don't want to return that money to taxpayers, you'd think that we could agree that it would be better to spend the money on schools or the University of Wisconsin.

But we can't agree. I understand why Democrats oppose reform. Part of it is realpolitik. When unions are a major source of your support, it is difficult to cross them. But they also have a principled, if erroneous, objection. For the most part, Democrats actually believe that there is some kind of Keynesian magic by which money spent by the government turns into more money. In their view, paying more for public works somehow "creates" money.

Keynes believed that there were limited circumstances in which this might be true (although it's not clear that such circumstances have ever existed) and there are certainly things that the government might buy or build that add value. But the notion that government "injects" money into the economy that was not there before is almost always wrong. We should almost never spend tax dollars with the view that the act of spending itself has intrinsic value. The question should always be on the intrinsic value of the particular goods and services that the government is proposing to buy or provide. We should never want to pay more for these things than we have to.

Still, Democrats can at least claim to be acting on principle. (Of course, it's not that simple. Democrats have a powerful incentive to believe as they do because they live on a coalition of people who benefit from government spending. There is a great deal of self interest at work.)

But Republicans presumably know better. So why does a stubborn minority continue to block reform ? There are apparently no good arguments to be made for their position because no good arguments have been made. Opponents of reform have made an uncommonly silly - and flat out dishonest - argument that eliminating prevailing wage will somehow result in the hiring of workers who are in the United States unlawfully. In fact, it would continue to be illegal for employers to do so.

So I have to believe that the opposition of some Republicans is rooted in fear. That's not unusual. Politicians, as a class, are not notable for their courage (and, yes, I understand that courage does not preclude prudence). But who are they afraid of? It can't - or at least it shouldn't - be unions. They are going to oppose vulnerable Republicans no matter what.

They are afraid of politically connected contractors. There is a lesson here.

I often hear people who don't like markets ask how we can "trust" individual businessmen to get things right. The answer, of course, is that we can't - just as we can't "trust" government to do so. But that fact is not a weakness of markets, it's their strength. Markets establish a system of competition by which the talents, ideas and preferences of millions of individual actors can be aggregated. They don't produce perfect outcomes but, in the great run of cases, they tend to produce better outcomes than any individual actor - including the government - could ever manage.

But support for markets is not the same as supporting the desires of individual market participants. Businesses don't necessarily want to compete. Competitions can be lost. The prevailing wage law is a way for contractors to minimize price competition and exclude new entrants.

Republicans need to recognize that they are the party of competition and not individual competitors.

Cross posted at Purple Wisconsin.

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