The View from Right Field

Are Lawsuits the Way To Improve Public Education?

Back when Ernie Banks was still playing first base for the Cubs and they actually did "play two" every once in a while, I decided to go to Yale Law School. I decided to go to Yale because I had heard they did not just teach law; they taught law from a public policy point of view. That seemed a lot more interesting and fun. So, it was off to New Haven (and the chance to see Bob Cox before he was Bobby).

While I was at Yale and, more so, after I left, I began to question some of what they taught, especially their belief in the use of the court system to solve society’s problems. Before I went to law school, I spent a year as a legislative staff intern in Springfield, working in the Illinois legislature. It was very enjoyable, and I was impressed with many of the legislators I met. In fact, if there was any problem with the legislature, it was that its set up was not conducive to bringing out the best in the legislators. It seemed to me that the quality of the legislature as a whole was, at that time, much lower than the sum of its individual parts. And from what I read about Springfield today, the problem seems to have gotten worse in the last 40 years.

In any case, unlike many of my fellow students at Yale, and unlike most of the professors, I sort of felt then, and definitely feel now, that it is not the job of the judiciary to solve society’s problems (except, of course, for things like protecting real constitutional rights, like the First Amendment). The Yale approach, however, was that, if the political branches couldn’t, or wouldn’t, solve a problem, then the courts should do it. And our job as lawyers was to help the courts solve problems, by bringing lawsuits, etc.

There are, in my opinion, several problems with such a theory. First, are courts and lawsuits, the best way to solve a problem? With courts, things are black and white, yes and no, win and lose. You can’t compromise among groups or balance competing interests in a lawsuit.

Also, do courts really have available to them, in a lawsuit, all of the information they need to make the best decision. Courts know what the parties tell them. Other than that, they don’t know anything. Making decisions with blinders on, which is, to a large extent, what courts do, is not, in my opinion, the best way to come up with the right answer for policy questions.

But mostly, when people say that the courts have to deal with a problem because the legislature can’t or won’t, what they are really saying is that they don’t like what the legislature decided to do (or not do). Maybe the legislature isn’t ignoring the problem. Maybe the legislature decided that the best thing to do is nothing. But part of the Yale approach is that, if the legislature doesn’t do what we think is right, then we need to get the courts to do it.

And so, I recently received an e-mail about a recent "success" at Yale Law School:

"The Education Adequacy Project at Yale Law School won a major victory in the Connecticut Supreme Court on March 22 when the Court ruled in favor of the Connecticut Coalition for Justice in Education Funding in the case, CCJEF v. Rell.

CCJEF, represented by Yale Law students in the EAP clinic, asserted in a complaint back in 2005 that the state’s failure to adequately and equitably fund public schools had irreparably harmed thousands of schoolchildren. In oral arguments before the Court almost two years ago, clinic members, including YLS students David Noah '09 and Neil Weare '08, said Connecticut students had the right to, not just an education, but an adequate one.

In its 4-3 decision, the Court agreed, saying ‘the fundamental right to an education is not an empty linguistic shell’ and that it must meet ‘modern educational standards.’ The Court declared that state education must prepare students to ‘participate in democratic institutions,’ ‘attain productive employment,’ and ‘progress on to higher education.’

‘This is a landmark victory for all schoolchildren in Connecticut and the culmination of years of effort from Yale law students in the Education Adequacy Project,’ said Lindsey Luebchow ’11, co-director of the EAP. ‘From the filing of the complaint, to the oral arguments in front of the Supreme Court, more than 50 law students have worked tirelessly to establish every Connecticut child’s right to a suitable education.’

The clinic will now prepare to go to trial to protect the rights articulated by the Supreme Court in its decision and prove that the State is not meeting its constitutional burden to provide a minimally adequate education.

‘This decision is a significant step in the right direction, and we will keep working tirelessly to ensure that the state provides schoolchildren with the education they deserve,’ said clinic member Sam Berger ’10."

I certainly agree that school children need a quality education, and I think it is great Yale Law School students are concerned about the quality of the education system in Connecticut. I am just not sure that lawsuits like this one are the best way to improve the quality of public education in Connecticut.

First, state governments have incredible financial problems. They have many needs to meet and a limited amount of money to spend. Why should a court be telling the legislature which need or needs are more important than others? What expertise do the Connecticut courts have on the proper balancing of state spending priorities that the legislature doesn’t? Or is the Connecticut Supreme Court going to raise the Connecticut income tax so that it can give more money to the public schools?

Second, I really wonder if the solution to the problems of the Connecticut public schools is more money. I am sure the teachers in Connecticut would be happy if the schools get more money; they will be able to get raises. But is that really the most important problem in the Connecticut schools? Many schools districts with lots of money are doing lousy jobs. Other school districts with less money are doing great.

Before they brought the lawsuit, did the students at Yale Law investigate to figure out how to really improve public schools in Connecticut? Or did they just assume, in that typical knee-jerk way, that more money is the solution to the problems of Connecticut schools? What if the bigger problem in Connecticut are contracts with teachers unions that prevent school districts from firing the bad teachers and force them to lay teachers off based on seniority instead of ability?* Are the Yale Law students going to ask the Connecticut courts to change the contracts with the teachers unions? Of course, not. The courts can’t get involved in things like that. But if they can’t do that, why should they get involved in questions of funding?

The students who have been involved in this project so far have spent an enormous amount of time on it, and the students who will be involved in the future, as the lawsuit continues, will spend more. One cannot help but wonder if they might have helped public education in Connecticut more by spending this time tutoring and mentoring students in the public schools of the greater New Haven area.

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* I know of one example personally: An Illinois school district was compelled, by Its contract with the teachers union, to lay off a young teacher – even though he had won a "teacher of the year" award the year before – because he didn’t have as much seniority as other teachers.

Health Care and Barack Obama's "Bullying Pulpit"

When Teddy Roosevelt said the White House was a "bully pulpit," he meant it was a great place from which to promote a policy or position. What we have seen from the Obama administration, however, is a tendency to turn the "bully pulpit" into "bullying pulpit."

Consider this report from Monday’s Wall Street Journal*:

"A fresh fight between insurance companies and the Obama administration is taking shape, this time over how much seniors should pay for their privately run Medicare plans next year. …

Many insurance companies are planning to increase costs for a range of services next year …. Dozens of Medicare Advantage providers plan to cut back vision, dental and prescription benefits. …

Consultants cite two reasons for the cuts [in Medicare Advantage plans]. The rate the government will pay private insurers to run the plans is frozen for 2011 at 2010 levels, while medical costs are expected to increase an average of at least 6%."

This is obviously a concern for the Administration because they talked about how great the new health care plan was going to be and how it would save money and not cut care. So, what did the Administration do:

"In a letter to four insurance-industry executives, Health and Human Services Secretary Kathleen Sebelius warned the companies not to increase premiums and co-payments for seniors.

‘Focus on price and quality rather than asking seniors who need health care the most to pay more for it,’ Ms. Sebelius wrote in a letter sent Friday …."*

In other words, even though medical costs are going up, health insurers aren’t supposed to raise their price or reduce coverage, even around the edges. And if they try to do something to keep their income and costs in line with each other (a concern that the federal government does not have): "Ms. Sebelius warned insurers that she will deny insurers bids if they include excessive price increases, using new powers under the health law."*

This is not unlike what happened back in March when the Administration discovered that the bill they had gotten through Congress actually did not provide the coverage for children with pre-existing conditions that they had said it did. When insurance companies and others pointed this out, the Administration basically said, we don’t care what the law says; this is what we meant it to say and you better do it, or else. (For more detail on this issue, see Tom Maguire at "JustOneMinute". You can start here.)

This approach fits in with the comments President Obama made about BP last Friday (which I commented on here), as well as the President’s approach to the Supreme Court and its decision in the Citizens United case (see here and here).

All in all, it is not a pretty sight when an Administration has to use threats and intimidation to try to do what it can’t get done through reasoned argument and carefully drafted legislation.

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* Janet Adamy, "Medicare Insurers Warned on Rates," The Wall Street Journal, June 7, 2010.

Greece and Estonia: The Difference

Steve Hanke has an article at Globe Asia about the economic situation in Greece compared to that in Estonia: "Greece and Estonia: economic antipodes." Mr. Hanke recounts how Estonia, upon becoming independent, established a currency board and tied its currency, the kroon, to the Deutschmark. When Germany converted to the Euro, Estonia began tracking the Euro. It worked so well, and Estonia has kept its economic house in such good order, even with the global economic crisis, that it looks like Estonia will be officially adopting the Euro next year.

On the other hand, when Greece joined the Euro in 2001, it promptly got in trouble. It spent more than it could afford and borrowed more than it could pay back (because interest rates were low for Eurozone members, even those countries for which they should not have been low).

But, as I read Mr. Hanke’s discussion of the differences between these two countries and their economies, and as he explains why, in economic terms, Estonia has done so well and Greece has done so poorly, I could not help but wonder if the main reason for the difference is simply that Estonia knows what the alternative is, because less than 20 years ago it was still there.

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Note: For more information on Estonia’s success in dealing with the international financial crisis, see this article from Spiegel Online.

June 6

Let us remember those who stormed the beaches of Normandy 66 years today and the man who made the decision to go – General Ike. Thank you.

President Obama Chooses His Polls Over Our Allies

During the George W. Bush administration, liberals and Democrats frequently criticized President Bush for his "unilateral" foreign policy. We need to cooperate with other nations and work with them, President Bush’s critics said. And Barack Obama said he would do that. Except that now that he is president, President Obama is treating key allies as slightly less important than a mid-range stop on a political tour.

Last March President Obama shortened and then cancelled a trip to Indonesia and Australia because he decided he needed to stay in Washington to get his health care legislation passed. But he promised he would reschedule. He did, but now he has cancelled his trip to these countries again. Why? According to the Associated Press:

"Obama had to weigh the risk of again putting off two allies in a strategic part of the world against the problems of crossing the globe while the devastation from the nation's largest oil spill continued - including the expectation of a political backlash at home.

The domestic agenda proved dominant."

But what exactly is President Obama doing to contain the spill? Is he an engineer? Is he personally cleaning up oil off the beaches or helping oil-covered wildlife? Of course not, and one wouldn’t expect him to do either of those things. There are other people who can do that. The president has other things he needs to do.

But President Obama has apparently decided that, instead of visiting allies like Indonesia and Australia, the most important thing for him to do is to stay home and say things like this:

"‘My understanding is that BP had contracted for $50 million worth of TV advertising to manage their image in the course of this disaster,’ the president said in remarks to reporters. ‘In addition, there are reports that BP will be paying $10.5 billion in dividend payments this quarter.’

‘Now, I don't have a problem with BP fulfilling its legal obligations,’ Obama added. ‘What I don't want to hear is that they're spending that kind of money on shareholders and spending that kind of money on TV advertising, [but] they're nickel-and-diming fishermen or small businesses here in the gulf who are having a hard time.’"

Statements like that are clearly important to getting the problem solved. Without the President going to Louisiana to say things like that for the television cameras, BP wouldn’t be doing anything to try to stop the leak. And neither would the federal government be trying to help. It all depends on President Obama being here and talking tough on TV. (sarcasm intended)

After all, Indonesia is only the biggest Muslim nation in the world and on one side of one of the most important and most constricted shipping lanes in the world, the Strait of Malacca. Nothing important to do there.

And Australia? It only has 1,000 troops in Afghanistan and eleven Australians who died helping in Operation Enduring Freedom. No reason to go there.

In other words, President Obama blew off, once again, two key allies because his standing in the public opinion polls was more important. Is this what then-Senator Obama was talking about back in 2007 when he said our problem was cynicism?

The Enlightenments (French and Scottish) and Their Meaning for Us

Last week David Brooks wrote about the Enlightenment ("Two Theories of Change"), and how the different approaches of the French Enlightenment (which is what most people think of when they hear "Enlightenment") and the Scottish Enlightenment relate to our politics today. Let me comment on a few of the things Mr. Brooks said. (The quotations from Mr. Brooks’ article are indented.)

"When I was in college I took a course in the Enlightenment. In those days, when people spoke of the Enlightenment, they usually meant the French Enlightenment …. Their great model was Descartes. … What Descartes was doing for knowledge, others would do for politics: sweep away the old precedents and write new constitutions based on reason. This was the aim of the French Revolution.

But there wasn’t just one Enlightenment, headquartered in France. There was another, headquartered in Scotland and Britain and led by David Hume, Adam Smith and Edmund Burke. As Gertrude Himmelfarb wrote in her 2004 book, ‘The Roads to Modernity,’ if the members of the French Enlightenment focused on the power of reason, members of the British Enlightenment emphasized its limits."

I would call it the Scottish (instead of the British) Enlightenment because so many of those who were part of it were located in Edinburgh.

"[Thomas] Paine saw the American and French Revolutions as models for his sort of radical change. In each country, he felt, the revolutionaries deduced certain universal truths about the rights of man and then designed a new society to fit them."

Thomas Paine was wrong about our revolution. The American colonists believed in universal rights, but the colonists already had those rights, both because their governments were based on the British model and because they were so far away from the center of British power. In fact, being so far from London, new rights began to develop in America The colonists had rights; they revolting in order to keep them once Britain started, in their opinion, to take some of them away.

"Burke, a participant in the British Enlightenment, had a different vision of change. He believed that each generation is a small part of a long chain of history. We serve as trustees for the wisdom of the ages and are obliged to pass it down, a little improved, to our descendents. That wisdom fills the gaps in our own reason, as age-old institutions implicitly contain more wisdom than any individual could have."

Instead of the wisdom of the ages "fill[ing] the gaps in our reason," I would say that what we do is merely to try to improve the wisdom of the ages around the edges.

"If you try to re-engineer society on the basis of abstract plans, Burke argued, you’ll end up causing all sorts of fresh difficulties, because the social organism is more complicated than you can possibly know. We could never get things right from scratch."

Here is where I get confused. While Mr. Brooks seems to admire Burke, during the 2008 campaign, Mr. Brooks liked Barack Obama, who is an unreconstructed Paine-ian. Obama apparently talks about Reinhold Niebuhr, but Obama has, in Thomas Sowell’s terms, an "unconstrained" view of what man and government can do. President Obama may, from time to time, talk like, or claim, he is a Burkean, but he is not governing that way. People like Mr. Brooks get so excited about the way Barack Obama talks (after eight years of George W. Bush) that they miss what his actions say.

"We Americans have never figured out whether we are children of the French or the British Enlightenment. Was our founding a radical departure or an act of preservation? This was a bone of contention between Jefferson and Hamilton, and it’s a bone of contention today, both between parties and within each one."

There is no question: We are children of the Scottish Enlightenment. Our founding was a "departure" only in the sense that we were departing from the English king. Abandoning a king had not been done before, at least not often, so it was radical. But it was a radical move to preserve rights the colonists already had, not to gain or create new ones.

"Today, if you look around American politics you see self-described conservative radicals who seek to sweep away 100 years of history and return government to its preindustrial role. You see self-confident Democratic technocrats who have tremendous faith in the power of government officials to use reason to control and reorganize complex systems. You see polemicists of the left and right practicing a highly abstract and ideological Jacobin style of politics."

The difference is that the "self-described conservative radicals" are just one part, a relatively small part, of the Republican Party, while the "self-confident Democratic technocrats" are in control of Democratic Party, the White House, and the Congress.

"The children of the British Enlightenment are in retreat. Yet there is the stubborn fact of human nature. The Scots were right, and the French were wrong. And out of that truth grows a style of change, a style that emphasizes modesty, gradualism and balance."

The children of the Scottish Enlightenment are in retreat, if that is what it is, only because Barack Obama and the others of the French Enlightenment won the last election. But there are many people, whether in the Republican Party, the Democratic Party, the Tea Party or no party at all, who understand this truth. Where Mr. Brooks goes wrong, as he did with Barack Obama, is to look more at how some of these people talk instead of what their beliefs mean in practice.

The Gores’ Separation

I do not mean to pile on with the respect to the decision of Al and Tipper Gore to separate.  It is their decision, and it is public only because they are public.

 

But I did have one comment:  Decisions such as this are a lot easier when you are rich.  But then maybe it is better to not be rich and have such options.

Carlos Zambrano Returns

One has to wonder if Carlos Zambrano is returning to the starting rotation tonight because the Cubs want his arm or because they need his bat.

The key to winning tonight is for Carlos, with the help of Carlos (i.e., Marmol), to give up fewer runs than Zambrano himself drives in.

A homer and a shutout would be nice. Sort of like Juan Pizzaro did against Tom Seaver and the Mets in September of 1971.

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Update (6/3/10 12:55 pm): TheCubs were rained out in Pittsburgh last night.  Carlos's return to the mound (as a starter) and to the lineup will have to wait.