Archives for category: Failure

The Capital Prep Charter chain was created by Dr. Steve Perry. Dr. Perry hates teachers’ unions. He boasts that all the students in his charters graduate and go to college. His chain won the Yass Prize as a semi-finalist for its accomplishments. Jeff Yass is a billionaire in Pennsylvania who supports Trump, opposes abortion, and funds charter schools and vouchers. You may recall that Yass gave Texas Governor Greg Abbott $6 million to pass voucher legislation.

Capital Prep in Harlem is a Perry school that had the partnership and financial support of rapper Sean “Diddy” Combs. Things are not going so well for the students.

Students and families affiliated with Capital Prep, co-founded by Diddy, claim the entertainment mogul’s charter school did a disservice to children who attended.

Diddy co-launched the East Harlem school with Dr. Steve Perry in 2016, and in 2018 pledged $1 million for its expansion into the Bronx. However, last November Capital Prep cut ties with him amid his ongoing sexual assault lawsuits. 

Now adding to the mounting controversy around the Bad Boy Records founder, a new report from The Cut reveals many issues with Capital Prep, including the accusation that Diddy had no involvement with the school beyond photo ops, guest appearances, and the school’s grand opening in 2016.

Fourteen sources told The Cut about alleged frequent violence at Capital Prep, along with “unstable” leadership, and frequent teacher resignation. These issues were most apparent at the height of the pandemic during both virtual learning and when students, including those who were unhoused, returned for in-person classes in 2021. According to The Cut, teachers began to not show up for virtual classes, and by the end of 2020, 80 percent of teachers had left Capital Prep altogether.

When students did return to school after quarantine, some were enrolled in courses they had previously taken, or were “sitting in the cafeteria receiving no instruction for hours.” Dysfunction among teachers reflected on the student body, especially upperclassmen who were unable to transfer their credits or enroll in college due to ineligible transcripts.

“Darnell’s transcripts had classes he’d never taken, passing classes that he never took, failing classes that he was never in,” one parent, Shirley Payne, said about inaccuracies found on her son’s transcripts.

“I thought if Diddy is funding and attaching his name to something, it would be run very tightly, that he was going to give our kids what he didn’t have at that age,” parent Shakemia Harris said. Harris’ daughter Madison was enrolled at Capital Prep as an 11-year-old in 2017.

In addition to the many academic issues, violence during the school day was reportedly ongoing. Fights were rampant when the school nearly doubled in size, expanding to include a tenth grade, and again when Capital Prep relocated to 129th and Madison. Not only was the area more violent than its previous East 104th Street address, but Capital Prep began locking out students who were late, ultimately causing families to protest the disorderly conditions. In addition it violence between students, cops were called on students for things like uniform violations.

Laura Hancock wrote at Cleveland.com about the expansion of Ohio’s voucher program. The state now offers a voucher to everyone, but most vouchers are claimed by students who never attended public schools.

COLUMBUS, Ohio – The number of Cuyahoga County students receiving state-funded scholarships to attend private schools has skyrocketed this year after state lawmakers expanded a voucher program, but state data suggests that doesn’t necessarily mean more kids have opted out of public schools.

Across the county’s 31 districts, the number of students receiving tuition payments in the EdChoice-Expansion scholarship  one of five school voucher programs run by the state, and the one lawmakers expanded over the summer to give at least partial tuition payments to families of all income levels— has increased nearly four-fold, from about 2,500 students last year to nearly 9,200 this year.

Those districts, however, have not seen a corresponding loss in student population, indicating that most of the families newly benefitting from the vouchers were already enrolled in private schools, rather than fleeing a school district besieged by violence or bullying, mediocre test scores or other problems.

The data cut against arguments lawmakers and advocates have made over the years that vouchers are necessary to give families a chance to choose private schools over the public school district where they live.

In Rocky River, EdChoice-Expansion scholarships were nearly 20 times higher on Feb. 1 than last year. In Bay Village, they increased 17 times. Westlake’s increase is 14 times higher, according to an analysis of state data by The Plain Dealer / cleveland.com.

The number of students across Ohio who are attending private schools on state-funded scholarships spiked this year because the legislature — in the two-year budget bill signed by Gov. Mike DeWine — removed income eligibility caps for EdChoice-Expansion. Last year, the cap was 250% of the federal poverty level for a scholarship, or $75,000 for a family of four. Now, there are no income caps, although families only get partial scholarships when they earn above 450% of the poverty level, or above $135,000 for a family of four.

Full scholarship amounts are $6,167 for grades K-8 and $8,407 for grades K-12.

Enrollment losses in Cuyahoga County district classrooms, however, are more modest than the jump in private school vouchers. State data shows that families that live in the boundaries of suburban district schools— some of which are among the best performing in the state — but may have never set foot in a public school now are receiving vouchers.

Enrollment in Rocky River City School District fell by just 22 students between last year and this year, even though the number of kids receiving vouchers shot up from 16 to 309. In Bay Village City School District, there are 30 fewer students, despite a voucher jump from 13 to 229. Westlake City School District has 19 fewer students; vouchers in the district spiked from 41 to 581.

In the Cleveland Metropolitan School District, the number of kids receiving EdChoice Expansion vouchers increased from nine to 28 this year, a miniscule number compared against its student population of more than 32,000. But students in Cleveland also are eligible for the Cleveland Scholarship, which has no income caps, and is the oldest in the state, having been established in 1995. As of Feb. 26, there were 8,218 students in the Cleveland Scholarship program.

Open the link to finish the article.

Laurence H. Tribe, the eminent professor of constitutional law at Harvard Law School (Democrat), and Judge Michael Luttig, a retired federal judge (Republican), co-authored a lengthy article in The Atlantic, condemning the U.S. Supreme Court’s decision to overrule the Colorado Supreme Court, which removed Trump from the 2024 ballot.

It seemed, after the Court’s decision, that Section 3 of the Fourteenth Amendnent had been excised from the Constitution. But just yesterday the Supreme Court rejected an appeal by a New Mexico man who was convicted for taking part in the January 6 insurrection.

Couy Griffin was convicted for his role as a member of the mob that stormed the U.S. Capitol. Because he previously served as a member of the Otero County board of commissioners, the courts in New Mexico said he was ineligible to hold office ever again. Griffin was a founder of Cowboys for Trump and an outspoken purveyor of lies about election fraud.

The Supreme Court concluded that states could disqualify persons from attempting to hold state offices, but Congress had to enact legislation to implement the disqualification of federal officials.

Since Congress is unlikely to muster a majority of both Houses—or 60 votes in the Senate to avoid a filibuster—oath-breaking insurrectionists will not be barred from seeking or holding federal offices.

One good thing: the Griffin decision implicitly agreed that the mob action of January 6 was an insurrection.

Last week, before the Griffin decision, Tribe and Littig wrote in The Atlantic:

The Supreme Court of the United States did a grave disservice to both the Constitution and the nation in Trump v. Anderson.

In a stunning disfigurement of the Fourteenth Amendment, the Court impressed upon it an ahistorical misinterpretation that defies both its plain text and its original meaning. Despite disagreement within the Court that led to a 5–4 split among the justices over momentous but tangential issues that it had no need to reach in order to resolve the controversy before it, the Court was disappointingly unanimous in permitting oath-breaking insurrectionists, including former President Donald Trump, to return to power. In doing so, all nine justices denied “We the People” the very power that those who wrote and ratified the Fourteenth Amendment presciently secured to us to save the republic from future insurrectionists—reflecting a lesson hard-learned from the devastation wrought by the Civil War.

For a century and a half before the Court’s decision, Section 3 of the Fourteenth Amendment was the Constitution’s safety net for America’s democracy, promising to automatically disqualify from public office all oath-breaking insurrectionists against the Constitution, deeming them too dangerous to entrust with power unless supermajorities of both houses of Congress formally remove their disability. This provision has been mistakenly described by some as “undemocratic” because it limits who may be elected to particular positions of power. But disqualification is not what is antidemocratic; rather, it is the insurrection that is antidemocratic, as the Constitution emphatically tells us.

In any event, all qualifications for office set by the Constitution limit who may be elected to particular positions of power. And no other of these disqualifications requires congressional legislation to become operative, as the Court now insists this one does. To be sure, the other qualifications—age, residence, natural-born citizenship—appear outside the Fourteenth Amendment, whose fifth section specifically makes congressional action to enforce its provisions available. But no such action is needed to enforce the rights secured to individuals by Section 1 of the same amendment, so deeming congressional action necessary to enforce Section 3 creates a constitutional anomaly in this case that the majority could not and did not explain. For that matter, no other provision of the other two Reconstruction amendments requires congressional enforcement either. As the concurring justices explained, the majority “simply [created] a special rule for the insurrection disability in Section 3.”

To read the rest of this brilliant article, open the link or subscribe to The Atlantic.

The Grand Canyon Institute is a nonpartisan nonprofit research organization in Arizona. Its latest report concludes that charter schools are more accountable than vouchers. Vouchers suck up nearly $1 billion a year in public money and are completely unaccountable. Oucher schools are subject to no financial audits, do not have to comply with the state curriculum, and are not audited for academic performance.

Step right up and get your free money, grifters! Courtesy of Arizona taxpayers and GOP legislators!

FOR IMMEDIATE RELEASE

Charters are Accountable, Independent Private Schools are Not Yet nearly a billion public dollars flow to unaccountable private schools

Phoenix —On Monday, the State Board for Charter Schools, a public body, voted unanimously to issue a notice of intent to revoke the charter contract for ARCHES Academy, currently located in Apache Junction.


The school appears to have both academic and financial problems and recently addressed an issue with a fire marshal. This action represents the kind of responsible oversight of charter schools that serves to protect the interests of students, parents and taxpayers.


In sharp contrast, independent private schools are required to have no such oversight, even though they currently receive nearly $1 billion in state public funding. That nearly matches the state general fund support for the state university system. Public funds that support private schools come from redirected general fund dollars through tax credit donations to Student Tuition Organizations and by funds from Empowerment Scholarship Accounts (ESA)/vouchers directly from the General Fund. Last year GCI estimates private school tax credits cost $285 million (the formal report is due by March 31) and ESA/vouchers cost $592 million, so, collectively, nearly $900 million in public support for unaccountable private schools (note: this figure includes an amount for ESA homeschooling). 

The table below uses the case of ARCHES Academy to  contrast charter schools (which are privately owned public schools) with private schools that operate independently with the level of oversight and accountability required.

Please open the link to see the table comparing Arches charter school and private schools receiving vouchers.

For more information, contact:

Dave Wells, Ph.D., Research Director

602.595.1025, Ext. 2, dwells@azgci.org

One of my favorite columnists is Fabiola Santiagonof the Miami Herald. She is smart, principled, and fearless. She has stood strong against Governor DeSantis’s mean-spirited, hateful culture wars. And she rejoiced when the state agreed to eviscerate the so-called “Parental Rights in Education” law, better known as “Don’t Say Gay.” DeSantis called it a “victory,” and it was a victory, but not for him.

Santiago wrote:

Take a victory lap, Floridians.

For a change, good news on the culture wars front arrives in Florida by way of successful activism, a less sycophantic Legislature — and a significant court settlement reached in a constitutional challenge to the state’s “Don’t Say Gay law.”

Students and teachers will be able to discuss LGBTQ+ issues in the classroom — as long as it’s not in the lesson plans. New, detailed guidelines from the state Department of Education about what can and can’t be said regarding sexual orientation and gender identity are supposed to be coming soon to school districts. 

One can only hope these spelled-out rules focus on helping kids understand — and respect — all kinds of families that aren’t going away just because religious zealots desire it. And that they leave out the political hysterics of past years.

In other words, the rules need to be useful.

In addition to the court settlement, there were positive developments in the Legislature: Harmful censorship and rights bills infringing on free speech and a free press, and to ban abortion in the state, were left to die on the floor or in committees.

To save face and ego, the discriminatory “Don’t say gay” law’s chief instigator, Gov. Ron DeSantis, claimed the settlement as a victory over “activists and extremists.” As if we’re all blind to the fact that the activists at work spinning rage-provoking misinformation were, among right-wingers, the Moms for Liberty he heralded, a group now losing ground here and all over the country. 

As for the state’s chief extremist, it’s DeSantis himself.

It bears repeating: Gender identity and sexual orientation was never part of the curriculum in kindergarten through third grade in Florida. As the legal challenge made clear, the overblown outrage created by falsehoods and exaggerations about “pornographic” books available to children was circulated by Republicans to set the stage to pass legislation. 

They used the first ban on elementary school-aged kids as the conduit to extend anti-gay laws to prohibit the free speech of mature high school students. The courts saw that for what it was: an attempt to send back to the closet an entire community by silencing it.

Didn’t ‘stay the course’

Voters are tired of dogmatic hogwash hijacking educational institutions.

From the offensively watered-down teaching of Black history to the redefinition of subjects areas like civics — only patriotism allowed — plus, the more recent attempt to wipe out sociology the way diversity, equity and inclusion (DEI) programs were, all these initiatives have brought negative, world-wide attention to Florida.

To add insult to the injury, the free-speech restrictions in public education are happening at a time when a voucher system allows parents to afford whatever private education they choose for their children. But it’s never enough. Republicans want to impose conservative ideology on the rest of us.

“Stay the course,” a buoyant DeSantis urged legislators on the winter session’s opening day.

Some eager-beaver legislators heard him. But key players like Senate President Kathleen Passidomo of Naples and House Speaker Paul Renner of Palm Harbor didn’t follow his mandates this time like bobble-heads.

Perhaps they took their cues from Iowa caucus results: DeSantis pitched his “Make America Florida” — and got a no, thanks.

The adoption of voucher programs has been a boon for religious schools. Schools that were financially troubled are now thriving with public subsidies for their students as well as an influx of new students.

This article by reporter Holly Meyer on the Associated Press newswire describes the good fortune of religious schools but does not mention the copious research demonstrating the failure of vouchers.

The Miami Archdiocese’s superintendent of schools says Catholic education is increasingly in demand in South Florida, now that all K-12 students regardless of income are allowed to use taxpayer-funded programs to pay for private school tuition.

Against the backdrop of favorable decisions by the conservative-majority U.S. Supreme Court, Florida was among nine states that expanded school voucher programs last year. So many families have signed up for the taxpayer-funded tuition reimbursements, some states are already exceeding their budgets….

The movement gained momentum amid fallout from pandemic-era school restrictions, debates on how transgender students should participate in school life, and wars over books and curriculum related to race and LGBTQ+ issues….

Some long-running religious schools are now planning for a fuller future after the wave of policy wins for the so-called school choice movement. Others hope voucher expansion comes to their state.

“We are moving into growth mode,” said Jim Rigg, superintendent of the Miami Archdiocese’s 64 schools. Accelerated by the state’s private school scholarship program, enrollment has risen for the last four years, reaching its highest peak in over a decade, he said….

Nearly 80% of private school families choose religious ones, according to P. George Tryfiates, public policy and legal affairs vice president for the Association of Christian Schools International. The association represents about 2,200 U.S. schools.

In a statement, he said Christian schools are, among other things, “a refuge from the cultural wars over sexuality.”

Voucher programs do not include accountability measures nor do they ban discrimination. Religious Scholls are not required to comply with federal laws so they may ban students with disabilities and students of religions different from the sponsor.

Most vouchers are used by students already enrolled in religious schools.

The voucher movement is a not subtle way of gutting civil rights protections.

Jan Resseger reports that the wild expansion of vouchers in Ohio has worked as predicted: they confer public money on students who already attend private and religious schools. They do not benefit children who are poor. The claim that they would “help poor children escape failing schools” was a hoax.

Maybe voucher advocates believed it thirty years ago, when no one knew how vouchers would work. But now we know. The evidence from every state with vouchers shows the same result: the overwhelming majority of vouchers are used by students who never attended public schools. The more states expand vouchers, the more they subsidize affluent families. And the poor kids who take vouchers fall behind their peers in public schools.

She writes:

The Cleveland Plain Dealer placed Laura Hancock’s expose about Ohio’s wildly expanded school voucher program on the front page above the fold in Sunday’s paper. It is good to see this dangerous threat to public schooling—inserted into the state budget with minimal public discussion—receiving the attention it deserves.

Hancock’s message? Ohio isn’t helping poor kids in public schools, the original promise of Ohio’s first voucher program in Cleveland in the 1990s. Instead, the new vouchers are a gift to middle income and wealthy families whose children are already enrolled in private and parochial schools:

“The number of Cuyahoga County students (students in greater Cleveland) receiving state-funded scholarships to attend private schools has skyrocketed this year after state lawmakers expanded a voucher program, but state data suggests that doesn’t necessarily mean more kids have opted out of public schools. Across the county’s 31 districts, the number of students receiving tuition payments in the EdChoice-Expansion scholarship… has increased nearly four-fold, from 2,500 students last year to nearly 9,200 this year. Those districts, however, have not seen a corresponding loss in student population, indicating that most of the families newly benefiting from the vouchers were already enrolled in private schools rather than fleeing a school district.”

Hancock profiles, for example, three of Cleveland’s middle and upper income suburbs where the vouchers now serve as a tuition-reimbursement entitlement for families of students already paying private school tuition: “Enrollment in Rocky River City School District fell by just 22 students between last year and this year, even though the number of kids receiving vouchers shot up from 16 to 309. In Bay Village City School District, there are 30 fewer students despite a voucher jump from 13 to 229. Westlake City School District has 19 fewer students; vouchers in the district spiked from 41 to 581.”

Hancock lists the ten Ohio public school districts with the largest growth in students accepting a voucher under Ohio’s huge expansion of school vouchers this year.  Three are exurbs of Cleveland; one is a shared exurb of Cleveland and Akron; one is an exurb of Akron; one is an exurb of Columbus, and four are exurbs of Cincinnati. In every one of these districts, according to data from the Ohio Department of Education, the median income is far above the state’s median of $41,132.59. In Indian Hill, a Cincinnati suburb, the median income is $96,508.50. Median income in Hudson, part of suburban Cleveland and Akron, is $82,183.00, and in Olentangy, a Columbus exurb, median income is $79,892.50.

Why are the ten school districts with so many students taking vouchers for the first time all wealthy suburbs? Hancock explains: “because the legislature… removed income eligibility caps for EdChoice-Expansion. Last year, the cap was 250% of the federal poverty level for a scholarship, or $75,000 for a family of four. Now there are no income caps, although families only get partial scholarships when they earn above 450% of the poverty level, or above $135,000 for a family of four.”

Hancock adds that the state is giving away a whole lot of money in each voucher: $6,167 for grades K-8 and $8,407 for grades 9-12. Thomas S. Poetter, a professor at Miami University of Ohio, who recently edited the new Vouch for This!, adds that the vouchers are worth more than the state school funding formula has established as the base cost public schools are expected to spend per student—the amount that includes the state and local contributions required by the school funding formula. Poetter writes: “(T)he fact remains that the state will be spending more per pupil on individual children in private high schools with its voucher program… than it will for individual public school students across the state… That has been the case for nearly the entire life of the EdChoice ‘Scholarship’ program (it’s a voucher program) but it really hits home with the high figures coming at us in the new budget. And just think of all that could be done in our public schools to better our offerings… if we weren’t sending more than $1 billion a year into private hands to be used in ways that none of us would ever approve of in public education….” (Vouch for This!, pp. 130-131)

Hancock quotes Troy McIntosh from the Ohio Christian Education Network and the Center for Christian Virtue enthusing about the new voucher expansion. She quotes Senator Andy Brenner, Chair of the Ohio Senate Education Committee, explaining that families ought to get the vouchers because they are paying taxes and therefore ought to get a personal reward for their children. She adds that after the voucher expansion, “the Catholic Diocese of Columbus is looking to potentially build schools in areas that currently don’t have a Catholic school.”

Hancock’s article omits one urgently important issue with Ohio’s new voucher expansion: over half the state’s counties are rural and entirely lack a private school where students might potentially carry a voucher. The expansion of private school tuition vouchers will shift the distribution of money from the state’s school foundation budget away from the state’s rural school districts because private school tuition vouchers can be used only by students in areas where private schools exist—places with larger and more concentrated populations.  In a report last year for the Ohio League of Women Voters (You should scroll down and then download report.), Susan Kaeser explains: “Most of the public school population is concentrated in Ohio’s 8 largest urban counties, and so is the private school population. The 8 largest counties have 46% of the public school population and 71% of the private school students…  Public education is the only consistently available education choice in Ohio’s 46 small counties, those with less than 8,000 public school students… Private schools across these 46 counties serve a total of only about 7,000 students.” “Rural taxpayers underwrite private choice in the state—but not where they live.”

Hancock reminds readers that “over 130 public school districts… are suing the state over the constitutionality of the vouchers.”  Coincidentally on Sunday, the Plain Dealer also published a commentary by William Phillis, Executive Director of the Ohio Coalition for Equity and Adequacy of School Funding, which is a co-plaintiff with the public school districts in the Vouchers Hurt Ohio lawsuit.  Phillis provides the history, beginning in 1819, of Ohio’s efforts to establish and support public education.  Our system of public common schools, Phillis reminds us, is protected by the language of the 1851 Ohio Constitution in Article VI, section 2: “Convention delegates crafted language that required the legislature to secure, by taxation, a thorough and efficient system of common schools and clarified that religious sects or other sects shall not control any part of school funds of the state.”

The school voucher explosion for the wealthy that was slipped into Ohio’s FY 2024-2025 state budget last summer epitomizes what we were warned about last year in the conclusion to The School Voucher Illusion, edited by experts Kevin Welner, Gary Orfield, and Luis A. Huerta and published by the Teachers College Press: “As currently structured, voucher policies in the United States are unlikely to help the students they claim to support. Instead, these policies have often served as a facade for the far less popular reality of funding relatively advantaged (and largely White) families, many of whom already attended—or would attend—private schools without subsidies. Although vouchers are presented as helping parents choose schools, often the arrangements permit the private schools to do the choosing… Advocacy that began with a focus on equity must not become a justification for increasing inequity. Today’s voucher policies have, by design, created growing financial commitments of taxpayer money to serve a constituency of the relatively advantaged that is redefining their subsidies as rights—often in jurisdictions where neighborhood public schools do not have the resources they need.” (The School Voucher Illusion: Exposing the Pretense of Equity, p. 290)

Robert Hubbell is outraged by the Supreme Court’s latest decision regarding the insurrection clause (Section 3 of the Fourteenth Amendment). The conservative majority on the Court usually claim to be “originalists” who scrutinize the language in the Constitution and divine the intent of those who wrote it.

In this case, the language was crystal clear. Any officer of the federal government who swore an oath to defend the Constitution and then participated in an insurrection against the Constitution was disqualified from running again for office. But the majority said that the official who had engaged in insurrection must first be subject to a Congressional vote; that language is not in the Constitution although there is specific language about the vote needed to remove the disqualification.

Hubbell was furious that Clarence Thomas was allowed to vote in this case since his wife was an active participant in the plot to overturn the election. He should have recused himself but that would require an ethical compass that the justice lacks.

Here is an excerpt from Hubbell’s post. You should open the link and read it in full.

He writes:

The most important lesson from Monday’s disqualification ruling is that the Supreme Court is broken beyond repair. The reactionary majority made that fact abundantly clear by unilaterally amending the Constitution to remove the Insurrection Clause from the 14th Amendment. 

Those sworn to protect the Constitution are dismantling it. The protectors of the Constitution have become its adversary in order to protect a failed insurrectionist who has promised a second effort to overthrow the Constitution. (“I said I want to be a dictator for one day.”)

There are many reasons to ensure that Donald Trump is not elected to the presidency in 2024. Rehabilitating and reforming the Court is chief among them. Sadly, reforming the Court is below the radar for most voters. But the lawless reactionary majority has already denied women the full protection of the liberty clause of the 14th amendment; it is refusing to enforce the clear intent of the 14th to ensure that descendants of enslaved people have a meaningful right to vote and equal protection under law. And the logical force of the Dobbs opinion strongly suggests that the Court will withdraw existing protections for same-sex marriage, contraception, and “inter-racial” marriages.

Monday’s opinion is a clear warning to all Americans that the threat to their liberties is immediate and real. Those who seek to protect existing liberties (and reclaim those already abrogated Court) must vote as if their freedoms depend on the outcome of the 2024 election—because they do! 

The Court has abandoned the Constitution; the last line of defense is the American people exercising their most fundamental right—the right to elect their representatives, who can (in turn) enlarge the Court and limit its jurisdiction.

There is abundant evidence that many Americans are not inspired by either presidential candidate or feel betrayed, forgotten, or ignored by the political process. But one candidate will seek to defend their freedoms by preserving and enforcing the Constitution (in part, by reforming the Court). The other has promised to overturn the Constitution “for one day”—which means “overturn the Constitution” period. The duration of a suspension of the Constitution is irrelevant.

Feelings of anger and upset over Monday’s ruling are understandable and warranted. But the most appropriate response is to redouble our efforts to defeat Trump. Nothing else matters. If we achieve that goal, we can work to advance all other goals. If we do not, we will be at the mercy of a renegade majority on the Court and an out-of-control, aspiring dictator for four years.


What happened?

On Monday, the Court overruled the Colorado Supreme Court’s decision removing Trump from the Colorado primary ballot. The opinion is here: 23-719 Trump v. Anderson (03/04/2024).

The ruling was ostensibly 9-0 with three justices writing a concurring opinion that reads like a dissent and a concurrence by Amy Coney Barrett that criticized the overreach of reactionary majority. In fact, as explained below, the ruling was 5-4, meaning that Justice Thomas’s refusal to recuse himself (as required by statute and rule) was outcome-determinative. Justice Thomas’s corruption saved Donald Trump’s slot on the Colorado ballot.

Distilled to its essence, the US Supreme Court’s ruling in Trump v. Anderson removed the Insurrection Clause from Section 3 of the 14th Amendment.


How did the Court effectively remove the Insurrection Clause from the 14th Amendment?

The 14th Amendment creates a self-executing disqualification for insurrectionists who previously took an oath to support the Constitution. The self-executing nature of that disqualification is consistent with other provisions of the 14th Amendment (equal protection, due process) that are likewise self-executing—as are other qualifications on the presidency (such as age, citizenship, and tenure of residency in the US).

Despite the plain language of the 14th Amendment—which creates a bar to holding federal office based on the conduct of the insurrectionist standing alone—the Court ruled that the Insurrection Clause is ineffective unless Congress affirmatively passes legislation that conforms to narrow prescriptions of the Court’s opinion in Trump v. Anderson.

The reactionary majority ignores that Section 3 of the 14th Amendment speaks to the role of Congress in enforcing the Insurrection Clause. It says that Congress can remove an insurrectionist’s disqualification by a two-thirds vote. But under the Court’s ruling in Trump v. Anderson, Congress can prevent any disqualifications of insurrectionists by simply refusing to pass the enabling legislation prescribed by the reactionary majority.

As Justice Sotomayor wrote in her concurring opinion,

It is hard to understand why the Constitution would require a congressional supermajority to remove a disqualification if a simple majority could nullify Section 3’s operation by . . . declining to pass implementing legislation.

As George Conway noted on Monday on MSNBC, the reactionary majority arrived at its conclusion by simply ignoring the language of the Constitution. The reactionary majority regularly uses the text of the Constitution as a cudgel when they want to deny liberties embraced by the language of the Constitution. But when they seek to ensure that a failed insurrectionist and aspiring dictator remains on the ballot, they act as if the text of the Constitution does not exist.

A reader wrote to me after the issuance of the opinion and asked, “What can we do?” My answer is this:

Elect Democrats. Reform the Court. Defend the Constitution. Preserve Democracy.


Pamela Lang, a journalist and graduate student in Arizona, wrote for The Hechinger Report about her futile search for a school that would enroll her son, who has special needs. Despite Arizona’s budget-busting voucher program, she and he were turned away again and again. It’s time for her to check out her local public school, where her son would get the services he needs and he could not be rejected.

Please read her account.

If you live in Arizona, school choice may be coming to your neighborhood soon. As someone who has had more school choice than I know what to do with, I can tell you what may feel like a shocking surprise: Private schools have the power to choose, not parents.

I live in Phoenix, where the nearby town of Paradise Valley is getting ready to offer the privatization movement’s brand of choice to families. The district has indicated that it will likely vote to close four public schools due to insufficient funds. If this happens, other districts will probably follow: The state’s recent universal voucher expansion has predictably accelerated the diversion of money from public to private schools.

Arizona approved use of school choice vouchers, called Empowerment Scholarship Accounts, or ESAs, in 2011 on the promise that they were strictly for children with special needs who were not being adequately served in the public school system. The amount of funds awarded to qualified students was based on a tiered system, according to type of disability.

Over the years, the state incrementally made more students eligible, until full expansion was finally achieved in 2022. For some students, the amount of voucher money they qualify for is only a few thousand dollars, nowhere near enough to cover tuition at a private school. Often, their parents can’t afford to supplement the balance. However, my son, who is autistic, qualified for enough to cover full tuition.

I took him out of public school in 4th grade. Every school I applied to seemed to have the capability to accommodate his intellectual disability needs but lacked the willingness. Eventually, I found a special education school willing to accept him. It was over an hour from our home, but I hoped for the best. Unfortunately, it ultimately was not a good fit.

I then thought Catholic schools would welcome my son, but none of them did. One Catholic school principal who did admit him quickly rescinded the offer after a teacher objected to having him in her class.

The long list of general, special-ed, Catholic and charter schools that turned my son away indicate how little choice actually exists, despite the marketing of ESA proponents.

There was a two-year period where I gave up and he was home without social opportunities. I was not able to homeschool, so a reading tutor and his iPad became his only access to education.

I then tried to enroll him in private schools for students with disabilities.

These schools were almost always located in former office suites in strip malls with no outdoor access. My son’s current school shares space with a dialysis center in a medical building, while a former school was located in a small second-floor suite in a Target plaza.

Once a private school admits your child, they can rescind admission without cause. Private schools are at leisure to act as virtual dictatorships, and special-ed schools in particular are notorious for keeping parents at a distance…

Education is a human right, and public schools, open to all, are the guardians of this right. What privatizers call choice does not really exist.

Please open the link and read the article in full.

Jennifer Rubin is one of my favorite columnists at The Washington Post. She is both a journalist and a lawyer. She cuts to the heart of whatever matter she examines. She was hired to be the conservative commentator on the opinion page; she had Sterling credentials. But Trump pushed her out of the conservative bubble and into the center.

Here she pins the blame for the Hur fiasco where it belongs: on Merrick Garland, who appointed Hur knowing he was a loyal Republican.

She wrote:

Special counsel Robert K. Hur had a single task: determine if President Biden illegally retained sensitive documents after his vice presidency. The answer should not have taken nearly 13 months or a more than 300-page report. Hur also should have avoided trashing “the fundamental ethos of a prosecutor to avoid gratuitous smears,” as former White House ethics czar Norm Eisen told me.

Hur found that “the evidence does not establish Mr. Biden’s guilt beyond a reasonable doubt” and that prosecution was “also unwarranted based on our consideration of the aggravating and mitigating factors.” He seemed to intentionally disguise that conclusion with contradictory and misleading language that “Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen.” He conceded that was not legally provable. (As Just Security pointed out, the media predictably and widely misreported this: “The press incorrectly and repeatedly blast out that the Hur report found Biden willfully retained classified documents, in other words, that Biden committed a felony; with some in the news media further trumpeting that the Special Counsel decided only as a matter of discretion not to recommend charges.”)

Hur acknowledged that Biden’s cooperation, “including by reporting to the government that the Afghanistan documents were in his Delaware garage,” leaves the impression he made “an innocent mistake, rather than acting willfully — that is, with intent to break the law — as the statute requires.” Moreover, Hur conceded that the documents “could have been stored, by mistake and without his knowledge, at his Delaware home since the time he was vice president, as were other classified documents recovered during our investigation.”

The body of the report refutes the element of willfulness — noting a variety of factors (e.g., a good-faith belief the Afghanistan memo was no longer classified, presidents’ practice of taking notes with them). Hur also distinguished Biden’s behavior from four-times-indicted former president Donald Trump:

Several material distinctions between Mr. Trump’s case and Mr. Biden’s are clear. Unlike the evidence involving Mr. Biden, the allegations set forth in the indictment of Mr. Trump, if proven, would present serious aggravating facts. Most notably, after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite. According to the indictment, he not only refused to return the documents for many months, but he also obstructed justice by enlisting others to destroy evidence and then to lie about it. In contrast, Mr. Biden turned in classified documents to the National Archives and the Department of Justice, consented to the search of multiple locations including his homes, sat for a voluntary interview, and in other ways cooperated with the investigation.

That should have been the end of the matter.
But it was Hur’s gratuitous smear about Biden’s age and memory — most egregiously, his far-fetched allegation that Biden could not recall the date of his son Beau’s death — that transformed a snide report into a political screed. Speculating about how a jury might have perceived the president years after the incidents took place was entirely irrelevant because the lack of evidence meant there would be no case.

Former prosecutors were almost uniformly outraged. Jeffrey Toobin remarked, “It was outrageous that Hur put in some of that stuff in this report. That had no place in it.” He added, “There is no reason this report had to be 300 pages. There is no reason this fairly straightforward case had to be treated this way. … The job of prosecutors is to put up or shut up.”

Former prosecutor Andrew Weissmann called Hur’s jabs “entirely inappropriate.” He tweeted, “Of course, no crime was committed by Biden, but as anticipated, Hur takes the opportunity to make a gratuitous political swipe at Biden. … [Attorney General Merrick] Garland was right to have appointed a Special Counsel but wrong to pick Hur and to think only a Republican could fit the bill.” (Weissmann analogized to former FBI chief James B. Comey, who exonerated Hillary Clinton of crimes but savaged her conduct just days before the 2016 election.)

Likewise, ethics guru Matthew Seligman told me, “What Hur should have written — and all he should have written — is that there is insufficient evidence to prove beyond a reasonable doubt that President Biden’s level of intent rose to the willfulness standard required by the statute.” Eisen argues that Hur violated the Justice Department’s prosecutorial principles. (“Federal prosecutors should remain sensitive to the privacy and reputation interests of uncharged parties,” the rules say.)
Hur is not solely to blame for going beyond his mandate and introducing smears. Garland erred in appointing and giving free rein to a Republican loyalist. He should have anticipated that a rock-ribbed Republican such as Hur would echo GOP campaign smears attacking Biden’s memory and age. Garland’s lousy judgment wound up sullying and politicizing the Justice Department.

As former prosecutor Shan Wu wrote, “It was Garland’s responsibility to ensure that Hur’s report did not stray from proper Justice Department standards. Garland should have known the risks when he picked Hur — who had clerked for conservative Chief Justice William Rehnquist, served as the top aide to Deputy Attorney General Rod J. Rosenstein, who assisted [Attorney General] Bill Barr’s distortion of the Mueller Report, and who was a Trump-appointed U.S. Attorney.” (Hur also clerked for Judge Alex Kozinski, a right-wing icon on the U.S. Court of Appeals for the 9th Circuit who was forced to resign over accusations of decades-long egregious sexual harassment.) Unlike Barr, Garland did not even release a summary to focus on the salient facts. This blunder, coupled with his unconscionable delay in investigating Trump, bolsters criticism that Garland has been the wrong man for the job.

Finally, the media — which made a spectacle of itself hollering at and interrupting Biden in his news conference after the report was released — certainly amplified the GOP talking point. Many outlets failed to explain that there was insufficient evidence of willfulness. For days, headlines focused on the memory smear rather than on Biden’s exoneration. Worse, Sunday news shows misreported the report.

The Biden-Harris campaign decried the media’s obsession with Biden’s age while virtually ignoring another rambling, incoherent Trump speech in which he insisted Pennsylvania would be renamed if he lost. (In South Carolina on Saturday, he was at it again, inviting Russia to invade NATO countries and insulting Nikki Haley’s deployed husband.) By habitually and artificially leveling the playing field, much of the media enables MAGA propaganda and neglects Trump’s obvious mental and emotional infirmities.

Still, facts matter. Biden acted responsibly and committed no crime. Trump faces multiple felony counts, including intentionally withholding top-secret documents and obstructing an investigation. Three years separate Biden and Trump in age, but the distance between their mental and emotional fitness remains incalculable — as is the chasm between the media we have and the media democracy requires.