Having the Right People Vote: A When They Make Me Tsar© Solution

I suspect I’m not the only one who has managed to allow some important item received in the mail—a bill, a reminder to take the cat to the vet, a jury summons—to find its way to the bottom of the stack of detritus on some table. It happened to me recently: I ended up calling my bank because I hadn’t received my new debit card, and the old one is due to expire this month. The nice woman I talked to suggested I check the stack of mail on the kitchen table (she didn’t know it was the kitchen table, but I did) again before contacting them again if the card wasn’t there. Sure enough, there it was.

This episode becomes relevant because my adopted state of Texas appears to be next in line to purge the voting rolls. And, if the example of Florida holds true, my chances of being disenfranchised increase dramatically because I’m registered as a Democrat. (I’d always registered Independent prior to the last couple of years, but there’s nothing like the Texas Republican Party to turn any sane person into a card-carrying Democrat.) And I was born in New Hampshire, making me a Yankee, which around here is about two steps worse than a Mexican. So I’d better keep my eyes open for that official document that accuses me of being a non-citizen and gives me a month to prove otherwise or I’ll be dropped from the voting list.

As for Florida, well, you can’t tell the players without a scorecard, but amidst all the bluster and the lawsuits and the counter-suits, a few things are clear. First, Governor Rick Scott set a priority on disenfranchising a lot of people who had been voting. A disproportionate number of those people, shock of shocks, were minorities and/or Democrats. Ari Berman of Rolling Stone writes, “Florida Hispanics, who voted 57 percent for Obama in 2008, are only 13 percent of the state's electorate but make up 58 percent of the non-citizens list. Whites, by contrast, account for 68 percent of registered Florida voters but only 13 percent of alleged non-citizens. Democrats outnumber Republicans on the list by two to one.” Scott, in other words, has precisely zero credibility on this issue.

Side note: during the 2008 election, I had exactly two students tell me they had to verify something about their registration status or they’d be stricken from the voting rolls. Both are African-American males; both are registered Democrats. Ours is, for better or worse, a largely Caucasian progam; there were only about five black guys in the department. So we’re talking perhaps 40% of the black male population got this kind of notification. I can’t say that none of the 90+% of our students who are white weren’t notified of some “irregularity” that would have to be fixed before they could vote, but I never heard of any. This happened, of course, in Rick Perry’s Texas. Coincidence? Perhaps. The sample pool is pretty small. But if I were a betting man…

Remember, too, that these procedures are all about red tape. Just as insurance companies wear you down by making you file the same form repeatedly to collect your perfectly justifiable claim, so do bureaucrats make the citizen pay for government corruptness and/or incompetence. One more trip to city hall, one more legalistic form to be filled out and sent in, one more copy of your birth certificate from across the country to be ordered (and paid for)… there comes a time when getting to vote, to be the person who makes the election decided by 114,273 votes instead of 114,272 or 114,274, just doesn’t seem worth it. And there are far too many on the right who think that’s just fine.

That said, the most intriguing sentence in all the coverage I’ve read is this one, from Judd Legum of the reliably leftie Think Progress: “In short, an excess of 20 percent of the voters flagged as “non-citizens” in Miami-Dade are, in fact, citizens.” The article explains that, as of the time of the writing, 385 of 1638 people, or about 23.5%%, of those identified as ineligible to vote because they aren’t citizens have already demonstrated their citizenship. That suggests a completely unacceptable level of governmental sloppiness.

OK, but those numbers could also be interpreted as follows: “over 76% of those challenged have thus far failed to demonstrate American citizenship.” Ay, there’s the rub. I think we can take as given the fact that somewhere in that 76% is someone who just hasn’t yet submitted the appropriate documentation. But it’s not too big of a stretch to suggest that perhaps there are a few folks in that 76% who haven’t submitted proof of citizenship because they can’t. And there are far too many on the left who think that continuing these people on registration lists is perfectly acceptable. James O’Keefe may be a lying weasel, but you may recall, Gentle Reader, that my last piece about him suggested that the real problem with his campaign against voter fraud is that his mendacity obscured the fact that he sort of has a point.

This all boils down to a simple illustration: if someone named Carlos Martinez, a registered Democrat, shows up to vote, too many Republicans want to say “no,” and too many Democrats want to say “yes.” The correct answer, of course, is “yes, if…”: if you’re a citizen, if you’re registered in this district and nowhere else, if you have some sort of reasonable proof that you are who you say you are.

Which brings us to another GOP initiative, requiring a photo ID to vote. Such a hurdle seems to me to fall far short of “suppression,” and the integrity of the democratic system really is important. But it is also true that people without what is now considered sufficient identification, like those removed from the voting lists, are disproportionately poor, urban, and minorities. Funny thing: it’s the GOP who have their collective skivvies in a twist about the need for photo ID. Democrats argue that the number of allegations, let alone convictions, of voter fraud is infinitesimal. They’re right. But this is like the kind of cheating that happens on the SAT: it’s perfectly reasonable to assume that incidents are anything but isolated, even if a specific accusation against a specific person for a specific crime may be difficult to demonstrate.

What to do, then, given the fact that the ACLU’s and the Justice Department’s suits against Florida (for violating federal voter registration laws) and Florida’s suit against the Department of Homeland Security (for not cooperating in identifying non-citizens) all probably have merit?

Well, here’s what should happen, independent of what relevant laws say. The following analysis brought to you by When They Make Me Tsar©.

1. We need to establish some system of presumption. You can’t register to vote unless you can prove citizenship; once registered, however, the government must prove you should be removed. None of this reliance on motor vehicle registrations or jury exemption lists: they’re notoriously unreliable. And the presumption rests always with the status quo. Once you’re registered, the burden of proof shifts to the government to demonstrate to a high standard of proof that you shouldn’t be.

2. This does not mean, however, that states should not be diligent. The federal authorities, whoever is in charge, need to cooperate with state authorities, whoever is in charge. It is a reasonable expectation that the federal government should do the majority of the heavy lifting on matters concerning citizenship. So, do it, feds.

3. Penalties for voter fraud need to be severe. Federal felony level severe. Penalties for vote suppression ought to actually happen.

4. A system for establishing the identity and legitimacy of voters needs to be established. With absentee balloting, voting by mail, etc., this becomes more complicated, but it’s not an insurmountable problem. As regards increased demand for appropriate identification, perhaps requiring a photo ID: yes, by all means, if and only if there is a full-scale, well-funded campaign to make sure that prospective voters know not only that the laws have changed, but how they’ve changed, and how to secure, without undue hassle, a legally sufficient, free, identification card. They need to know, too, that (for example) a Social Security card might work in one state, but you need a photo ID in another. Ideally, there would be a federal statute that certain forms of ID are always sufficient: driver’s license, passport, military or Veterans Administration ID, that kind of thing; states could add other means of acceptable identification but must honor those.

Above all, no, you shouldn’t be offered an ID for $28 when you can get one for free (indeed, charging for such an ID would be illegal), and no, you shouldn’t be fired for telling people that they don’t need to pay. Indeed, the person doing the firing in that situation should be the one out of work in a heartbeat.

And as for those who are too willing to disenfranchise legitimate voters or to defend illegitimate ones:

5. A plague o’ both your houses.

The Case of the Disinvited Producer

Dammit.

I was just about to curl up on the couch for a little nap before spending the evening doing some reading for class tomorrow. And then I came across this story, which unquestionably thrusts now-former Ronan, Montana High School principal Tom Stack into the running for a Curmie award. I thought about letting it slide, given that idiot school administrators are pretty thick on the ground across the rest of the country, so the fact that one popped up in Montana isn’t exactly news.

Stories about graduation speeches generally bore me nearly as much as the speeches themselves do. Why I’m writing is simple. Although this story is news to me, it’s been lighting up the right-wing blogosphere, and virtually only the right-wing blogosphere, for several days. And whereas I can’t stop those folks from claiming that no one on the left cares about censorship when it happens to someone on the right, I can at least provide evidence that such a claim isn’t true. So I do need to write this and get it up on the blogsite.

Here’s what happened: Oscar-winning Hollywood producer Gerald Molen was invited to address the seniors at Ronan High. When he arrived at the venue, he was disinvited by Principal Stack. As the graduation ceremony apparently wasn’t until June 4 and Molen was already describing the incident in the past tense on May 26, we can assume that this wasn’t a graduation speech per se, but perhaps a Senior Day activity of some sort. This particular detail doesn’t matter.

Here’s what does: Molen, whose Hollywood credits include the likes of Schindler’s List, the first two Jurassic Park movies, and Twister, had, in his own words, invested “three weeks of preparation, research and re-write after re-write.” He planned a presentation which

…dealt with my hopes for their futures. It was a cheerleading presentation that allowed me to remind them of their individual greatness and opportunities for the future. My intent was to inspire and motivate those looking for an encouraging word and message of hope beyond the walls of the institution they were leaving to the next chapter in their young lives. It spoke to the contributions and greatness of their teachers, administrators, parents and peers but with an emphasis on their ability to conceive, to believe and to achieve. But I guess I was wrong about teachers and/or school administrators.

Since my career had centered around the motion picture industry, I had set out to challenge them with the thought that they might each write their own movie script. A script that would have them as the writer, director, producer and star. A script filled with step-by-step goals of proper preparation and scenes depicting them as lawyers, doctors, captains of industry and/or having careers as they saw themselves in 20 or 30 or 40 years in the future.

Sounds pretty ominous, right? Well, you see, Mr. Molen is a “a right-wing conservative” (this description courtesy of the Department of Redundancy Department), and “some callers” had expressed concerns.

This is in Montana, remember, hardly to be confused with San Francisco. And Mr. Stack is, as Eugene Volokh notes, safe on 1st amendment grounds. But he is certainly as stupid as he is rude. Seriously, if you can’t muster the intestinal fortitude to say no to a couple of “callers” based on the principles of intellectual curiosity you’re supposed to be upholding, if you can’t at least tell Mr. Molen of your decision before he arrives at the end of his 90-minute drive out of common courtesy, if you can’t even look at the text of his speech before making your final decision out of due process, then at least behave professionally because the guy you’re about to insult has the Hollywood Reporter on speed-dial, and your sorry-ass provincialism is going to be national news.

Had Mr. Molen simply not be asked to begin with, of course, there would be no problem. And it is, of course, Mr. Stack’s prerogative to invite or disinvite whomever he chooses. That makes his decisions legal and constitutional. That’s a long way from smart. Finding an excuse for his behavior is impossible; finding an explanation is hard enough. Perhaps in asking Mr. Molen to speak to the students, Stack didn’t know in advance that his guest was (gasp!) a conservative. In other words, he didn’t do his homework. Perhaps he thinks that in Montana, of all places, no one wants to hear a conservative (because he, Stack, doesn’t?). Perhaps one of those complaining callers has compromising photographs of Stack with barnyard animals. Or perhaps, as Jack Marshall has suggested, he “made a cost-benefit analysis: mistreating one Hollywood producer whom he probably would never have anything to do with again, versus angering a group of bigoted, narrow-minded parents who could make his life miserable.”

I see no evidence that Molen said or did anything outrageous between the time he was invited and when he was disinvited, as, for example, when Tom Paulin’s fawning commentary on Slobodan Milošević got him disinvited from a speech at Harvard a few years ago. No, this was just a case of a high school principal who lacked the integrity, the intelligence, the moral courage, and the quotidian politeness to do the right thing.

Gentle Reader, if you’ve followed this blog at all closely for any period of time, you’ve seen me wish fondly that someone on “my side” politically or philosophically wasn’t such an ass. Assuming Mr. Molen’s account to be even generally accurate, I really don’t want the likes of Tom Stack representing me.

Mr. Molen, I doubt that you’ll read these words, but if you do, allow me to apologize on behalf of progressives and educators alike. We aren’t all like that. I promise.

A Few Thoughts on High-Stakes Testing

One of the Facebook pages I “like,” “Wear Red for Ed,” posted a link to this article by Dan DeWitt, “FCAT pressure helps students and teachers to achieve,” published on the website (at least) of the Tampa Bay Times. WRFE asks, quasi-rhetorically, “Anyone care to comment on this article?” Well, yes; yes, I would.

Not that I haven’t done so, in effect, on numerous occasions in the past (in one way or another, I’ve written about one of the various forms of standardized testing here, here, here, here, here, here, and here), but on the day when my alma mater ruined the good news of giving an honorary degree to one of my heroes, Johnny Clegg, by giving one also to Teach for America pseudo-educator Wendy Kopp, another chance to stand up for real education cannot be allowed to pass by.

OK, I’m no authority on Florida’s specific version of high-stakes testing, but I’ve seen enough in other states to have a reasonable understanding of the issues. First, let’s clarify some terms. There are two kinds of high-stakes testing: one kind—the ACT, the AP and the SAT and all their respective variations on the theme—serves a useful purpose, even if the instrument is flawed. As I have said repeatedly in the past, I have a voice in how our departmental scholarship money is spent, and having some idea of how to compare students of fundamentally different backgrounds is very helpful. True, I need to be aware of the fact that scores skew towards students who are affluent, male, white, and go to good schools. I need to know, too, that cheating is far more pervasive than the testing agencies admit. But as a part of an evaluation of a prospective student’s potential, these tests are probably a net positive.

The other kind of high-stakes testing is more insidious. Students prepare all year for a single test, and their ability to pass on to the next grade level is contingent upon a satisfactory score. Worse yet, teachers and school districts are held accountable, not for whether their students actually learned anything this year, but whether they did well on that exam.

Even apart from the expense, the possibility of corruption, the vindictiveness of those who would see public education perish altogether, the tests (wait for it) are at best a partial indicator of a student’s achievement. Discounting an entire year’s work based on a single test score is like criticizing Michael Jordan for missing a single jump-shot.

More importantly, whereas scores have “improved” under FCAT, this is a meaningless statistic in all sorts of ways, not least that, in the words of a Miami Herald headline last month, “After FCAT scores plunge, state quickly lowers the passing grade.” Yeah, see, more people are passing because not enough were, so we decided that the test was too hard. Now more students are passing, so we must be doing great.

Moreover, it only stands to reason, DeWitt’s protestations to the contrary notwithstanding, that students will do better on a test when they know what is going to be on it, and what strategy to employ. I recall an incident in my own past: I’m pretty sure I’ve written about this before, so please forgive me if you’ve heard this. I was pretty good at math when I was in high school: good enough that I was one of a handful of students chosen to take some exam distributed by the Mathematical Association of America or some such organization.

I should mention here that there are three fundamental ways of scoring a multiple choice exam: the standard model (your score reflects only how many questions you get right, thereby encouraging guessing), the SAT model (your score is lowered slightly for incorrect answers, meaning that random guessing is discouraged, but if you can narrow the field a little, it’s to your advantage to guess), and the Jeopardy model (you lose as many points for a wrong answer as you get for a right one). So, hypothetically, a student who takes a 50-question test, gets 30 right, 10 wrong, and leaves 10 blank, would get 30, 27, and 20 points, respectively. Of course, this student would be compared to other students who tests were scored the same way, so a 25 on the Jeopardy model might be “better” than a 30 on the standard model.

This test was on the Jeopardy model, up to and including have more points at stake for harder questions. I took the test as a junior. I got a negative score. Yes, a negative score. I had more incorrect answers than correct ones, or at least I had more points worth of wrong responses than of right ones. A year later, having endured about ¾ of a school year with the worst (for me) math teacher I ever had and ¼ of a year with the next-worst, I took the test again. I got the highest score in the history of my school’s participation in the program. Did I know any more math as a senior than I did as a junior? Maybe a little. But what I really learned was how to approach the test: not to guess, to skim over the test to see if there were high-point questions I was confident in my ability to handle, to completely ignore low-point questions I wasn’t absolutely sure about, and so on.

This is the lesson of high-stakes testing, and I consciously employ it in reverse in my freshman-level classes at my university. I know students have been taught to look for keywords like “always” or “never” on exams, figuring that they’re keys to test-taking. Few things are “always” or “never” true, so “usually” or “sometimes” are, in Bubbletestland, nearly always (see?) the correct answer. I therefore am careful to include a question or two for which the right response is indeed “always” or “never.” I also like to go 10 or 15 questions in a row with no C’s, or with 6 B’s in a row, or whatever. It generally doesn’t take too long to convince students that understanding the material is actually a superior strategy to trying to out-think the test.

This is a struggle, however, for students who, increasingly, want to be told the “answer,” not a means of arriving at the truth. I periodically get a course evaluation from an irate student who objects to my asking questions “backward” (not “who was Marlowe?”, but “who was the most important English pre-Shakespearean playwright?”) or that I’d actually expect both a definition and an example of a term.

Corollary to this is the simple fact that test scores measure only test scores, not skills. It is more than a little troubling that when a year’s worth of classes and a day’s worth of test-taking yield different results, we seem to concede the superiority of the test-providers’ commercial product, especially given that the tests are often both written and graded by people who couldn’t get jobs as teachers. So the fact that test scores are going up, even when it’s true (unlike in Florida), means precisely that: test scores are going up. Let’s not pretend it means anything else.

Moreover, be it noted that Advanced Placement tests are an entirely different phenomenon. How many students take them, or how well they do on them, is completely unrelated to basic skills tests. The same do-well-on-the-exam mentality may prevail, but the students taking AP exams aren’t the ones who are fretting about summer school if they don’t pass the Big Scary Test at the end of the year. It’s a good thing if more students are prospering on the AP, but no one who understands education or educational testing sees much of a correlation between that process on the one hand and the FCAT and similar projects on the other, although of course the same person might embrace both strategies.

Finally, there’s the inane argument that “for these tests to have any meaning at all, good scores must be rewarded and poor ones punished. High stakes are the whole point.” Boy, does that sound better in theory than in practice. Yes, it is reasonable to have some sort of standardized testing, and it is reasonable to have scores on those tests count in some appreciable way. Scores could factor into a student’s class rank, could be used internally to compare teachers, etc. But there’s a huge caveat here: there are enormous variations in student competencies even among what would normally be described as the same population, meaning that measuring teachers or districts by student performance on these tests is even more fraught with peril than measuring students by that imperfect yardstick is.

I have occasionally taught two sections of the same class in the same semester. Not infrequently, one class is great and the other horrible, at least in relative terms. Like other universities, we are subject to our own form of legislative meddling, namely “assessment.” I need to compile statistics about how well how many of my students do on certain prescribed tasks and assignments. Compare the results of the assessments from my 2011 and 2010 Play Analysis classes without providing for context, and you’ll think I suddenly learned how to teach (after 30+ years in the classroom). Those scores sure looked a lot better. Of course, as a group, the 2011 classes were comprised of better students: more intelligent, more self-motivated, more engaged… and they came to class more often. Funny thing, they did better. There were, of course, some good students in 2010 and some lesser ones in 2011, but as groups there was no comparison.

I know this to be utterly commonplace. I know this, of course, because, unlike Jeb Bush or Dan DeWitt, I am an educator. I know that any assessment of my abilities in the classroom that doesn’t take into account what I’ve got to work with is, by definition, useless at best and counter-productive at worst. I know that a student who performs adequately but only adequately on some assessment tool might be a credit to my pedagogical skills or an indictment of them.

Similarly, a public school teacher who gives a kid a D is probably doing a better job if the kid fails the standardized test than if s/he passes. That teacher has failed to motivate the student whose skill level exceeds his/her grade; conversely, the teacher has accurately measured the commitment, intelligence, focus, etc. of the student who goes down in flames on the standardized test. Yet I know of no organized attempt—I’m sure some competent principals do this on a ad hoc basis—to compare student test scores to how they did in the actual classroom. That’s insane… which means it sounds great to the average state legislator.

There is a veneer of truth to DeWitt’s observations. But it’s only that. If you really want students who are college-ready, take it from someone who has seen three decades' worth of college freshmen: that test-driven model may seem turbo-charged, but when it comes down to the ability to actually think, trust me, there’s a Honda engine in that Porsche… and I’m not sure it isn’t from a lawnmower.

4th Amendment? It was here a minute ago...

A disconcerting number of stories over the past few months concern abuses by police: whether it’s showing up en masse in riot gear and spraying military grade pepper spray against peaceful demonstrators in New York, Chicago, UC-Davis, and elsewhere, or escalating New York City’s stop and frisk policies that generally result in nothing more than completely innocent (89%... and the majority of the arrests that were made were of the rather squishy disturbing the peace variety) non-white (91%) people getting hassled by a collection of euphemistically-termed “peace officers” strutting around showing each other how tough they are, with little if any concern for actually preventing or punishing honest-to-God criminal behavior.

In 2003, about 1 in 266 of these stops resulted in actually finding a gun. That rate of return would lead any sane person to discontinue the policy, even apart from other concerns. New York City Resident Idiot Blowhard Mayor Michael Bloomberg, of course, doubled down, actually encouraging more of the tactic, complete with its attendant constitutional issues and racial overtones. By last year, with over three times as many stops, the “success rate” (if we can call it that) plummeted to 1 in 879.

Bloomberg defends this clearly problematic practice by claiming, disingenuously at best, that some 560,000 murders have been prevented by these goon tactics. To say that this figure is absurdly inflated is, of course, obvious, although one suspects that there has been some positive benefit to creating a situation in which to be young (ages 14-24), male, and black or Hispanic is to be an automatic suspect: people who meet all three of those criteria represent less than 5% of the population, but they account for nearly 42% of stop-and-frisk episodes.

Yes, such people are disproportionately likely to commit crimes, too, but the essence of the American legal system and (wait for it) one of the signature tenets of western conservative philosophy is that individuals ought to be considered as such rather than as representatives of groups: not all urban 18-year-olds named Enrique are criminals, and they shouldn’t be treated as if they are.

More to the point: I. Don’t. Care.

If you search literally everybody without any provocation, chances are pretty good you’ll catch someone with a gun or drugs or an outstanding warrant. But the price is too high except in the McCarthyite universe inhabited by arrogant buffoons like Mike Bloomberg. Really, if the price of “law and order” is a state in which the authorities can do whatever the hell they want, I’ll take a little risk.

We are not yet at a point at which I, as a law-abiding citizen, have more to fear from the police, the TSA, US Immigration and similar agencies than I do from random felons. As long as I’m a good little boy and don’t do something outrageous like exercise my 1st amendment rights, I’m probably OK. But my chances of facing unprovoked hassling from someone in uniform are actually considerably higher now than when I was a long-haired post-adolescent with a draft card I hadn't yet decided what to do about. (Luckily, that decision was made for me.)

In short, the attacks on 4th Amendment injunctions against unreasonable search and seizure are even more profound than those on 1st Amendment guarantees of freedom of assembly. This was never more apparent than a recent case in Aurora, Colorado. Aurora, you may recall, is where they charged a six-year-old with sexual harassment for quoting from the lyrics to a popular song. They do grow ‘em stupid there, apparently.

This time, the police held over 40 people for over two hours because they had information—a “virtual certainty” in the words of Moron in Charge Police Chief Dan Oates—that an armed bank robber was in one of twenty or so vehicles stopped at a red light. So, naturally, the cops stopped everyone. But, as they say in the late-night infomercials, that’s not all. Let Officer Frank Fania tell it: “Most of the adults were handcuffed, then were told what was going on and were asked for permission to search the car. They all granted permission, and once nothing was found in their cars, they were un-handcuffed.”

Permission. Yeah, you’ve been handcuffed for no good reason, prior to being told what the hell is going on, by a police force that has just demonstrated that they don’t think they have to follow any rules. You know that you’ve been held up already for two hours while the cops strut their ability to hold ordinary law-abiding citizens without cause. Despite police bungling, you may yet be able to salvage your job, catch your flight, make it to your kid’s concert if you don’t do your shopping first, as you’d planned to do. You’re not really likely to make a reasoned decision about whether to stand on the part of your 4th-amendment rights that haven’t already been violated. You just want this stupidity to end. Notice also that “un-handcuffed” is different from “apologized to and told they were free to go.” A sloppier operation would be difficult to imagine.

When the case first made news, that bizarre quote from Chief Oates caught my attention. How could there be a “virtual certainty” if there was no description of the suspect? In other words, if the suspect is a 45-year-old white male, then I can understand a brief detention of white men who might be 45-ish. But all adults, for two hours? Not a chance.

Later, it came to light that the tip was actually in the form of a tracking device. This, of course, makes the situation even worse. It means that the police could simply have followed the suspect to his destination, which would have almost certainly been less crowded and, by extension, less dangerous for the public.

The smug declaration by police Officer Fania that “The result of the whole ordeal is that it paid off. We have arrested and charged a suspect” misses the point altogether. I don’t know whether Fania is that stupid or that disingenuous, but the fact that no one was hurt and the suspect was apprehended in this case was simply luck, not the product of effective police work.

The constitutional catastrophe, it turns out, was promptly pointed out. Jim Miller, described in the TV piece as a “legal expert” (whatever that means) points out that the “officers… who were involved involved couldn’t point to any of these people they stopped and say, ‘here’s my articulable suspicion for believing that you did something wrong.’”

Justin Marceau, who teaches law at Denver University, amplifies the point, noting that any detention of a person beyond a minute or two means the person has been seized:

What if the tip had been that the robber lived on my block– no other information? Could they detain and handcuff everyone who lives on my block in the hope of catching one bank robber? No, they couldn’t. The Fourth Amendment is pretty clear. I don’t have a problem saying the police violated these people’s Fourth Amendment rights.

Marceau also points out that none of the initial statements from the police expressed any particular interest in public safety. By this observation, neither he nor I, I’m sure, mean to suggest the police weren’t concerned about safety issues, but rather that the detention of dozens of people they knew to be innocent (they just didn’t know which one might not have been) was not prompted by safety concerns. This becomes relevant because it therefore does not allow an exception to normal constitutional protection the way random roadblocks to catch drunk drivers would. (I think that should be illegal, too, but I do see the argument.)

They said they did it to catch a bank robber. If their purpose was to catch a criminal then they need probable cause or reasonable suspicion for each person they detain. If 19 people were detained to catch one, then a one in nineteen chance that a person might be a criminal is not reasonable suspicion. Under settled law, this went way beyond what police are allowed to do.

Of course, the city attorney and “numerous other attorneys” think everything is just peachy. Apparently one becomes city attorney in Aurora when one is too stupid to be an elementary school principal.

Eugene Volokh, the constitutional specialist whose Volokh Conspiracy blog is on my blogroll, also weighed in on this case, noting that “Handcuffing someone generally requires probable cause to believe that they are guilty of a crime, or—in the context of a brief investigative stop—‘particularized suspicion’ to believe that the person is dangerous to the investigators.” He cites legal precedent—Manzanares v. Higdon and Ybarra v. Illinois, for those of you keeping score at home—and concludes

…even if the 5% chance that any particular driver was an armed and dangerous bank robber (1/19, even assuming that the tip was seen as having a 100% chance of being accurate) sufficed to provide enough “individualized suspicion” for a brief investigatory stop—perhaps, depending on the circumstances, including a patdown for weapons—I don’t think it would justify keeping all the innocent people handcuffed for an hour and a half.

It therefore sounds to me like the police might be facing 19 lawsuits (one in which the jury might not be that sympathetic to the plaintiff, and 18 in which they will likely be much more sympathetic), as well as one likely pretty solid suppression-of-evidence motion. I should hope that the police department and its elected superiors will also face some political blowback. Protecting the public from armed bank robbers is certainly very important; but handcuffing dozens of innocent people—in a situation where it was certain that the great bulk of the people were indeed innocent—for over an hour as part of this sort of blanket seizure strikes me as much too high a price to pay for this sort of law enforcement.

Yeah. What he said.

So, anyway, I thought this was going to be the “can you freaking believe this?” episode for the week. Then, between starting and finishing this piece, I read about the guy who had a diabetic seizure on his way home from Bible study, crashed his car, and was pepper-sprayed, clubbed and Tasered by police. To death. If these allegations are proven to be even within hailing distance of the truth, I take back what I said earlier about not yet being at the point where we have more to fear from the police (in the broad sense of that term) than we do from random criminality. We’re there. Enjoy the view.

Thoughts on Wisconsin: What Today Means and What It Doesn't

Today is recall day in Wisconsin. You knew that, though, didn’t you, Gentle Reader?

Let’s be very clear about this. I wouldn’t vote for incumbent Governor Scott Walker with the proverbial gun at my head. I think his economic policies are disastrous—the numbers actually prove that—and I’m reasonably convinced that he’s somewhere between mendacious buffoon and outright crook. His campaign has been full of falsehoods, both about his own record and about his opponent, Milwaukee mayor Tom Barrett. Whereas we know that PolitiFact shouldn't be taken as gospel, when 80% of their analyses of your statement are a Half True or worse, something is up. There are credible reports of massive vote suppression, if not by Walker himself, then at least by his supporters. About 75% of Walker’s campaign treasury comes from out of state, including a couple million from the Koch brothers. Walker has outspent Barrett by a ratio of (apparently) about 8:1, although I’ve seen even more lop-sided figures. It’s easy to trace this democratic disaster (whether it’s also a Democratic disaster remains to be seen) to Citizens United. The fact is, the problem isn’t in calling corporations “people”; it’s in calling money “speech.” But that’s a rant for another day.

Still, I need to say this, as well: the Barrett campaign (or its supporters) aren’t exactly lily-white, either, with allegations about what Walker did or didn’t do as an undergrad at Marquette—charges that would be meaningless if true, and I suspect that a reasonable percentage of them are not. About 2/3 of PolitiFact’s judgments on Barrett are Half True or worse. Moreover, confirmation bias becomes especially problematic in a case like this. I despise Walker’s politics, which makes it more likely that I’ll believe that he’s dishonest, as well.

What’s interesting about the story to me—apart from the result, which I confess I care rather more about than I do about most elections in jurisdictions in which I do not reside—is the media’s predictable inability to place the recall election in proportion. Even allegedly liberal sites like MSNBC are parroting nonsense about “reform-minded conservatives” against “organized labor.” Bullshit. One could as easily discuss “reform-minded liberals” against “corporate power.” In fact, that strikes me as a far more accurate description, but you won’t see that nomenclature anywhere in the corporate media.

Similarly, there are great prognostications about what the results will mean for November. The correct answer, of course, is “nothing,” or at least the next thing to it. Should Barrett pull off what now would be considered an upset, it wouldn’t mean that Americans in general, or even Wisconsinites, like Barack Obama’s policies more than Mitt Romney’s. It would mean only that 1). Wisconsin voters who sat on their hands when Walker was elected turned up at the polls this time, and/or 2). this particular corrupt politician was just a little too sleazy, even by today’s standards, to be endured, and/or 3). the Barrett campaign’s tactics—good and evil—paid off.

Conversely, if Walker is retained in office, it means that 1). an 8:1 spending advantage matters, and/or 2). enough people bought the reasoning that no one can govern effectively while constantly in election mode, and/or 3). the Walker campaign’s tactics—good and evil—paid off.

Walker is, if nothing else, a remarkably polarizing figure, and the race is likely to be very tight. Both sides are claiming that they have more people on their side if they could only get everyone to the polls. And it is certainly true that polling done by some pretty reputable firms suggests that the percentage of undecided voters is infinitesimal. That’s significant, especially since it really doesn’t matter who the Democratic nominee is. With all due respect to Mayor Barrett, this election is between Scott Walker and Not Scott Walker.

There are interesting other considerations, as well. Just because the notion of a recall is legal doesn’t mean it’s a good idea. On the other hand, just because it’s unorthodox doesn’t mean it’s a bad idea. Is it appropriate to vote to recall a governor (as opposed to voting against him in the next regular election) for having different political views than you? Or are the alleged ethical transgressions sufficiently documented and sufficiently serious that removing the governor from office is a moral imperative?

I’m seeing lots of literature from the left suggesting that the Democrats, unions, etc., have “won” simply by having a recall election at all. That means, in short, they think there’s a good chance they’re going to lose. And the political calculus involved here is intriguing. I’m on the outside, but it would seem to me that in a state like Wisconsin, if you can’t win against the likes of Scott Walker, you’ve committed a terrible mistake in raising the issue and elevating the recall effort to such a magnitude. If you can’t show Wisconsinites, who backed Barack Obama over John McCain by nearly 14 points, that Scott Walker is a crook and an incompetent… well, it’s time to re-calibrate your policies, your message, and/or your delivery system. Or maybe just to shut up.

That is, whereas today’s vote tells us nothing at all about November, it will be treated as if it did. One side will be emboldened. The other side will leave with its tail between its legs, unconvincingly claiming some sort of psychological victory all the while. And the jabbering class will make a far bigger deal out of the results than they merit. All that said, there’s a lot of interest from outside the Land of the Cheeseheads in today’s results. I confess that I’m one of those interested parties. I just wish I could be more optimistic.

Standing Up to Bullies Is Not Allowed in Umatilla High School: And Don't You Forget It

Usually, when a school administration starts being noised about as a Curmie contender, it’s for creating and enforcing stupid rules: that you can’t walk at graduation if you have more than x-number of absences, even if any rational person would excuse most of those “truancies”; that you can’t go to prom alone or with someone of the same sex; that your skirt was a half-inch too short, even though other girls’ outfits were far more risqué and they weren’t punished at all; that you can’t quote the lyrics to a popular song to a classmate without getting charged with sexual harassment, even if you’re six.

Authorities at Umatilla High School in Florida have created a whole new category, however. This time, the specific rule in question is actually fine. (It actually over-reaches considerably, but that encroaching nanny-statism is not directly relevant to this discussion.) Unfortunately, it is being enforced by idiots who’d have to take a step up in class to achieve the intellect of a prune danish.

Anyway, the folks in the Lake County school system purport to take bullying pretty seriously. Here’s the relevant section from their Code of Student Conduct:

The School Board of Lake County, Florida, is committed to providing a safe, positive, productive, and nurturing educational environment for all of its students. The Board encourages the promotion of positive interpersonal relations between members of the school community. Aggressive behavior, bullying, harassment, and similar acts toward a student, whether by other students, staff, or third parties is strictly prohibited and will not be tolerated.

There’s more, including both a detailed definition and the aforementioned over-reaching, but you get the idea. The intro to the policy manual is also clear:

Each student must obey district rules while on school grounds; while being transported to or from school at public expense; and during school-sponsored events, field trips, athletic functions, and similar activities. During such times, all students are subject to the immediate control and direction of teachers, staff members, or bus drivers to whom such responsibility has been assigned by the principal.

But the school’s pious proclamations don’t hold up so well when it comes to… you know… actually doing something. Here’s the story. An 18-year-old senior named Stormy Rich (shown at left) had enough credits to not take a 1st-period class, so she was granted permission to ride the later bus to the nearby middle school.

Also on that bus was a mentally-challenged girl who was subjected to abuse by a gaggle of middle-school girls. As Rich explained to local TV reporter Jennifer Bisram,

Just because she doesn’t understand doesn’t mean this should be happening to her…. They would just be mean to her, tell her she couldn’t sit in certain spots on the bus. They were giving her food that they had put in their mouth. I had to tell her to actually spit it out, because she didn’t understand.

Rich told the bullies to stop. That worked for a while, but not for long. She then complained to the bus driver, who did nothing. Then she went to school officials, who, likewise, did nothing. She reported the abuse again. And again. And again. The girls threatened her. She went to school authorities yet again. Nothing. Out of frustration, she told the bullying brats that if the school wouldn’t do something, she would. Ah… now school officials woke up… and rescinded her right to ride on that bus. You see, she was “displaying bullying behavior.”

Yes, Gentle Reader, they really are that stupid, that incompetent, that recto-cranially inverted. The unidentified school spokesperson presumably said “two wrongs don’t make a right,” apparently too dim-witted to understand that this constitutes a tacit admission that Rich’s allegations are in fact true, and that the school did bupkes about it. You see, the victim, whom you will recall is incapable of understanding her own victimhood, didn’t report the abuse herself. Of course, there’s a school policy that states that “Lake County busses [sic.] are equipped with video/audio cameras for security purposes. Students are being taped during their ride. These tapes may be used to determine violations of the Code of Student Conduct.” In other words, there’s documentation. If the school believes Rich’s claims are disproved by the video evidence, say so. More likely, the tapes show that she’s exactly right, and that the bus driver is complicit in the bullying—by inaction and denial, at the very least.

True, being denied access to a school bus that doesn’t even go to your school isn’t exactly like getting sent to the Gulag, but the fact remains that Rich should be praised for her efforts, not punished, even a little bit. More importantly, what’s happening here is an all-too-familiar tactic by people who lack leadership skills but are nonetheless placed in positions of authority: the situation is resolved not by actually solving the underlying problem, but by silencing the witness. The school says there have been no incidents since Stormy Rich was removed from the bus. That may be true… but I wouldn’t bet the rent. My suspicion is that all that’s happened is that no one else wants to be kicked off the bus.

I’m reminded of the furor a few years ago when then-Vice President Cheney got his skivvies in a twist about the New York Times’ coverage of warrantless wiretaps that went well beyond any legitimate national security justification. You see, the threat to world peace wasn’t the fact that the spying itself was a violation of both international law and the U.S. Constitution; it was that we knew about it. The bullying of one mentally-challenged teen-ager by a pack of mean girls isn’t on that scale, of course. But it is the thin edge of the wedge: the harbinger of more criminality unpunished, more whistle-blowing suppressed, and more sanctimonious posturing by unethical buffoons paraded for our delectation.

Ms. Rich: if things don’t work out for you at Daytona State, you’re welcome in my classroom. Umatilla High officials: enjoy your Curmie nomination.