Archives for category: Health

In recent years, there has been a full-court press to persuade seniors to transfer from traditional Medicare to private, for-profit plans called “Medicare Advantage.” [MA]

MA plans include prescription coverage and lots of bells and whistles. But something is sacrificed to enable the plans to make a profit. What is sacrificed? Your preferred doctor may not be covered, and you may be denied coverage of some procedures.

Two progressive Congressmen—Ro Khanna and Mark Pocan—have introduced legislation to bar private for-profit plans from using the label “Medicare,” because it confuses seniors into thinking it’s a government plan, the one they paid into for many years. It’s not.

The New York Times wrote a scathing article about MA plans, calling them “cash monsters.”

By next year, half of Medicare beneficiaries will have a private Medicare Advantage plan. Most large insurers in the program have been accused in court of fraud.

The health system Kaiser Permanente called doctors in during lunch and after work and urged them to add additional illnesses to the medical records of patients they hadn’t seen in weeks. Doctors who found enough new diagnoses could earn bottles of Champagne, or a bonus in their paycheck.

Anthem, a large insurer now called Elevance Health, paid more to doctors who said their patients were sicker. And executives at UnitedHealth Group, the country’s largest insurer, told their workers to mine old medical records for more illnesses — and when they couldn’t find enough, sent them back to try again.

Each of the strategies — which were described by the Justice Department in lawsuits against the companies — led to diagnoses of serious diseases that might have never existed. But the diagnoses had a lucrative side effect: They let the insurers collect more money from the federal government’s Medicare Advantage program.

Medicare Advantage, a private-sector alternative to traditional Medicare, was designed by Congress two decades ago to encourage health insurers to find innovative ways to provide better care at lower cost. If trends hold, by next year, more than half of Medicare recipients will be in a private plan.

Medicare Advantage is on track to enroll most Medicare beneficiaries by next year….

But a New York Times review of dozens of fraud lawsuits, inspector general audits and investigations by watchdogs shows how major health insurers exploited the program to inflate their profits by billions of dollars.

The government pays Medicare Advantage insurers a set amount for each person who enrolls, with higher rates for sicker patients. And the insurers, among the largest and most prosperous American companies, have developed elaborate systems to make their patients appear as sick as possible, often without providing additional treatment, according to the lawsuits.

As a result, a program devised to help lower health care spending has instead become substantially more costly than the traditional government program it was meant to improve.

Eight of the 10 biggest Medicare Advantage insurers — representing more than two-thirds of the market — have submitted inflated bills, according to the federal audits. And four of the five largest players — UnitedHealth, Humana, Elevance and Kaiser — have faced federal lawsuits alleging that efforts to overdiagnose their customers crossed the line into fraud.

The fifth company, CVS Health, which owns Aetna, told investors its practices were being investigated by the Department of Justice.

Many of the accusations reflect missing documentation rather than any willful attempt to inflate diagnoses, said Mark Hamelburg, an executive at AHIP, an industry trade group. “Professionals can look at the same medical record in different ways,” he said.

The government now spends nearly as much on Medicare Advantage’s 29 million beneficiaries as on the Army and Navycombined. It’s enough money that even a small increase in the average patient’s bill adds up: The additional diagnoses led to $12 billion in overpayments in 2020, according to an estimate from the group that advises Medicare on payment policies — enough to cover hearing and vision care for every American over 65.

Another estimate, from a former top government health official, suggested the overpayments in 2020 were double that, more than $25 billion.

The increased privatization has come as Medicare’s finances have been strained by the aging of baby boomers. But for insurers that already dominate health care for workers, the program is strikingly lucrative: A study from the Kaiser Family Foundation, a research group unaffiliated with the insurer Kaiser, found the companies typically earn twice as much gross profit from their Medicare Advantage plans as from other types of insurance.

For people choosing between traditional Medicare and Medicare Advantage, there are trade-offs. Medicare Advantage plans can limit patients’ choice of doctors, and sometimes require jumping through more hoops before getting certain types of expensive care.

But they often have lower premiums or perks like dental benefits — extras that draw beneficiaries to the programs. The more the plans are overpaid by Medicare, the more generous to customers they can afford to be.

“Medicare Advantage is an important option for America’s seniors, but as Medicare Advantage adds more patients and spends billions of dollars of taxpayer money, aggressive oversight is needed,” said Senator Charles Grassley of Iowa, who has investigated the industry. The efforts to make patients look sicker and other abuses of the program have “resulted in billions of dollars in improper payments,” he said.

Many of the fraud lawsuits were initially brought by former employees under a federal whistle-blower law that allows them to get a percentage of any money repaid to the government if their suits prevail. But most have been joined by the Justice Department, a step the government takes only if it believes the fraud allegations have merit. Last year, the department’s civil division listed Medicare Advantage as one of its top areas of fraud recovery….

In contrast, regulators overseeing the plans at the Centers for Medicare and Medicaid Services, or C.M.S., have been less aggressive, even as the overpayments have been described in inspector general investigations, academic research, Government Accountability Office studies, MedPAC reports and numerous news articles, over the course of four presidential administrations.

Congress gave the agency the power to reduce the insurers’ rates in response to evidence of systematic overbilling, but C.M.S. has never chosen to do so. A regulation proposed in the Trump administration to force the plans to refund the government for more of the incorrect payments has not been finalized four years later. Several top officials have swapped jobs between the industry and the agency….

The popularity of Medicare Advantage plans has helped them avoid legislative reforms. The plans have become popular in urban areas, and have been increasingly embraced by Democrats as well as Republicans. Nearly 80 percent of U.S. House members signed a letter this year saying they were “ready to protect the program from policies that would undermine” its stability.

“You have a powerful insurance lobby, and their lobbyists have built strong support for this in Congress,” said Representative Lloyd Doggett, a Texas Democrat who chairs the House Ways and Means Health subcommittee.

Some critics say the lack of oversight has encouraged the industry to compete over who can most effectively game the system rather than who can provide the best care.

“Even when they’re playing the game legally, we are lining the pockets of very wealthy corporations that are not improving patient care,” said Dr. Donald Berwick, a C.M.S. administrator under the Obama administration, who recently published a series of blog posts on the industry. “When you skate to the edge of the ice, sometimes you’re going to fall in….”

Almost immediately, companies saw ways to exploit that system. The traditional Medicare program provided no financial incentive to doctors to document every diagnosis, so many records were incomplete. Under the new program, insurers began rigorously documenting all of a patient’s health conditions — say depression, or a long-ago stroke — even when they had nothing to do with the patient’s current medical care….

According to the lawsuit, some patients were diagnosed with cancer and heart disease. Nurses were told to especially look for patients with a history of diabetes because it was not “curable,” even if the patient now had normal lab findings or had undergone surgery to treat the condition.

The company declined to comment. “We will vigorously defend our Medicare Advantage business against these allegations,” Cigna said in an earlier statement regarding the lawsuit.

Adding the code for a single diagnosis could yield a substantial payoff. In a 2020 lawsuit, the government said Anthem instructed programmers to scour patient charts for “revenue-generating” codes. One patient was diagnosed with bipolar disorder, although no other doctor reported the condition, and Anthem received an additional $2,693.27, the lawsuit said. Another patient was said to have been coded for “active lung cancer,” despite no evidence of the disease in other records; Anthem was paid an additional $7,080.74. The case is continuing.

The most common allegation against the companies was that they did not correct potentially invalid diagnoses after becoming aware of them. At Anthem, for example, the Justice Department said “thousands” of inaccurate diagnoses were not deleted. According to the lawsuit, a finance executive calculated that eliminating the inaccurate diagnoses would reduce the company’s 2017 earnings from reviewing medical charts by $86 million, or 72 percent….

Kaiser, which both runs a health plan and provides medical care, is often seen as a model system. But its control over providers gave it additional leverage to demand additional diagnoses from the doctors themselves, according to the lawsuit.

“The cash monster was insatiable,” said Dr. James Taylor, a former coding expert at Kaiser who is one of 10 whistle-blowers to accuse the organization of fraud.

Last year, the inspector general’s office noted that one company “stood out” for collecting 40 percent of all Medicare Advantage’s payments from chart reviews and home assessments despite serving only 22 percent of the program’s beneficiaries. It recommended Medicare pay extra attention to the company, which it did not name, but the enrollment figure matched UnitedHealth’s.

A civil trial accusing UnitedHealth of fraudulent overbilling is scheduled for next year. The company’s internal audits found numerous mistakes, according to the lawsuit, which was joined by the Justice Department. Some doctors diagnosed problems like drug and alcohol dependence or severe malnutrition at three times the national rate. But UnitedHealth declined to investigate those patterns, according to the suit…

“Medicare Advantage overpayments are a political third rail,” said Dr. Richard Gilfillan, a former hospital and insurance executive and a former top regulator at Medicare, in an email. “The big health care plans know it’s wrong, and they know how to fix it, but they’re making too much money to stop. Their C.E.O.s should come to the table with Medicare as they did for the Affordable Care Act, end the coding frenzy, and let providers focus on better care, not more dollars for plans.”

Categories Accountability, Health, Hoax, Privatization

Laurence Tribe Reviews the Dobbs Decision Overturning Roe v. Wade

By dianeravitch

October 16, 2022 //

Laurence Tribe of the Harvard Law School is a brilliant constitutional scholar. This article, which appeared in the New York Review of Books, is his analysis of the Dobbs decision, which overturned Roe v. Wade, a fundamental guarantee of women’s reproductive rights. Each state is now permitted to write its own law about access to abortion. Some states protect abortion rights, some totally ban it, some set conditions under which it is legal. Some members of the Republican Party want to pass a national law banning abortion and protecting the right to life of the fetus, beginning at the moment of conception.

I don’t customarily repost entire articles but the New York Review of Books allows the non-scrubber to read one free article. (I am a subscriber.) It is a wonderful publication, and you should consider subscribing because of articles like this one. Pour yourself a cup of coffee and prepare for an important and enlightening read about one of the Supreme Court’s worst decisions. This was the first time the Supreme Court withdrew a right that had been established in prior decisions.

Professor Tribe writes:

The chaos and cruelty unleashed in late June by the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which wiped out a half-century of constitutional protections for the reproductive rights—and thus the equal citizenship—of women in America, have been well documented. The ruling quickly led to a patchwork quilt of abortion bans differing from state to state and the prospect of new ones throughout the country, transforming what had been hypothetical scenarios into the stuff of nightmares.

They include tragedies like that of the ten-year-old rape victim in Ohio forced to travel across state lines to avoid compelled motherhood. The swarm of lawsuits challenging access to abortion pills by mail. The labyrinth of obstacles confronting those in states where abortion is now banned or heavily restricted who seek safe and legal out-of-state options for terminating pregnancies—for themselves or a patient, friend, or family member—including the knowledge that their travel and medical inquiries might be subject to surveillance and even obstruction or retaliation. The fear of health care professionals and pharmacists that providing treatments to preserve the life of someone undergoing a heartbreaking miscarriage could expose them to criminal prosecution for allegedly terminating a pregnancy. Not to mention the potential crippling of IVF procedures sought by couples who would otherwise remain childless.

As the dissent in the case—written jointly by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan—pointedly observed, some states might “criminalize the woman’s conduct too, incarcerating or fining her for daring to seek or obtain an abortion,” and “as Texas has recently shown, a State can turn neighbor against neighbor, enlisting fellow citizens in the effort to root out anyone who tries to get an abortion, or to assist another in doing so.”

Dobbs was in no way the removal of the final brick in a steadily crumbling wall of protections for reproductive autonomy. The course of the law over the half-century separating Dobbsfrom Roe v. Wade (1973) had witnessed no erosion in the principles of personal liberty and equality that had been embodied in pre-Roedecisions. On the contrary, these principles had been continually extended during those years. Roe had built on decisions like Loving v. Virginia (1967), protecting interracial marriage; Griswold v. Connecticut (1965), affirming the right of married couples to engage in sex without risking procreation; and Eisenstadt v. Baird (1972), extending Griswold from married couples to all individuals, married or single. And Roe had in turn furnished the foundation for decisions like Lawrence v. Texas (2003), upholding the right of consenting adults to have sex with partners of any gender, and Obergefell v. Hodges (2015), affirming the right of people to marry those they love regardless of sex.

Far from the culmination of a gradual trend toward government control over people’s intimate lives, the decision in Dobbs—no less shocking because a draft of it had leaked nearly two months earlier—felt like a bolt from the blue. “To hear the majority tell the tale, Roe and Casey [v. Planned Parenthood, 1992] are aberrations: They came from nowhere, went nowhere—and so are easy to excise from this Nation’s constitutional law,” the dissent said, but as the cases listed above demonstrate, “That is not true.” Observers had to conclude that only the changed composition of the Court during Donald Trump’s one-term presidency and the formation of a five-justice bloc committed to a religiously inflected political agenda could explain the sudden shift. The dissent’s blunt comment is undeniable: “The Court reverses course today for one reason and one reason only: because the composition of this Court has changed…. Today, the proclivities of individuals rule.”

The chaos and cruelty unleashed in late June by the Supreme Court’s decision in Dobbs v.Jackson Women’s Health Organization, which wiped out a half-century of constitutional protections for the reproductive rights—and thus the equal citizenship—of women in America, have been well documented. The ruling quickly led to a patchwork quilt of abortion bans differing from state to state and the prospect of new ones throughout the country, transforming what had been hypothetical scenarios into the stuff of nightmares.

Led by Justices Samuel Alito and Clarence Thomas, both avowed advocates of overturning Roe, the three justices appointed by Trump—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—followed their marching orders, but with anything but precision. They could claim only that, notwithstanding the importance of respecting the Court’s long-settled precedents, Roe had to be overruled because it was, as Alito put it in his majority opinion, “egregiously wrong from the start.”

What made it wrong, however, was far from easy to say. That “the Constitution makes no express reference to a right to obtain an abortion,” a point made as though it were some sort of discovery, in no way establishes that the Fourteenth Amendment’s protection of “liberty” from government deprivation “without due process of law” excludes control over one’s own body, not to mention the course—indeed, continuation—of one’s life. On the contrary, the Ninth Amendment’s explicit instruction that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” rules out any claim that the Constitution’s failure to list the right to bodily integrity among its “enumerated” protections excludes that right from those “retained by the people.”

Although many observers criticized Alito’s leaked draft opinion for failing even to mention the Ninth Amendment, the opinion as finally released was almost defiant in its dismissive treatment of that amendment’s rule of construction. The only thing the Court says about it in Dobbs is that “the abortion right” is not itself “founded…in the Ninth Amendment’s reservation of rights to the people.” But that is a wholly irrelevant observation and confuses the category of “rights” with the category of rules about how to read a text dealing with rights. Nobody has ever seriously claimed that the “abortion right,” or indeed any substantive right, could possibly be “founded” in a rule about how to read the Constitution. The Ninth Amendment is not the “foundation” of any group of rights but a directive about how constitutional decisions about rights are to be made. Searching for rights in it is akin to searching for actual pieces of lumber in a manual on how to build a house.

Were the Court’s method consistently applied and unmentioned rights systematically subjected to a more rigorous test for admission into the constitutional pantheon than those enumerated, any number of the rights we all take for granted would be second-class at best. They include the right to decide how to bring up one’s children (including the choice between public and private school) and the right to become a parent.

How would such second-class rights gain admission? By passing the Alito “test”: whether the right, defined at the most specific level (think “right to obtain an abortion,” not “right to bodily autonomy”), although unmentioned in the Constitution, is nonetheless “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” But as many critics and the dissent made clear, that test is plucked from a 1997 precedent, Washington v. Glucksberg, that the Supreme Court essentially jettisoned six years later in Lawrence. Moreover, Alito’s test is notoriously susceptible to manipulation and is calculated to exclude many rights associated particularly with the bodies and lives of women. It is thus unsurprising, but no less horrifying, to see the Alito opinion cite as precedent, without evident embarrassment, Sir Matthew Hale, a seventeenth-century English jurist who not only insisted that a “husband cannot be guilty of a rape committed by himself upon his lawful wife” but believed in burning women as witches.

Conspicuously absent from Dobbs is any coherent legal analysis—or anything that deserves to be called “analysis” at all—of why someone’s right to avoid compelled pregnancy, involuntary childbirth, and forced parenthood is not an essential part of the “liberty” protected by the Fourteenth Amendment (and perhaps even of the freedom from “involuntary servitude” protected by the Thirteenth). As a result, it’s the Alito opinion in Dobbs, and not Justice Harry Blackmun’s opinion in Roe, that is “not constitutional law and gives almost no sense of an obligation to try to be.” Put simply, Dobbs is a fiat issued by five justices simply “because they could.”

There is one straightforward objection Justice Alito might have made to recognizing reproductive choice as essential to the “liberty” protected by the Fourteenth Amendment. He might have argued, as Justice Thomas did in his Dobbs concurrence, that the Fourteenth Amendment’s Liberty Clause (sometimes called the Due Process Clause) doesn’t protect any “substantive rights”—rights to engage in particular kinds of activity or to be secure from particular sorts of government restriction—but merely ensures that the government will follow fair procedures whenever it deprives persons of “life, liberty, or property.” Purely as a linguistic matter, the answer to that claim has always been that what the Constitution guarantees isn’t “due process” as such, but “due process of law”—with the understanding that government actions aren’t “law” at all if they are in reality just naked power dressed up in legal form.

While taking care not to join Justice Thomas in insisting that there’s no such thing as “substantive due process” that establishes constitutional rights, Justice Alito cites with approval earlier decisions expressing “‘reluctan[ce]’ to recognize [substantive] rights that are not mentioned in the Constitution” and notes how so-called “substantive due process has at times been a treacherous field for this Court.” But his opinion nowhere demonstrates that it has been a more treacherous field than, say, interpreting expressly enumerated First Amendment freedoms like those of speech, press, and religion or Fourth Amendment rights like those “against unreasonable searches and seizures.” He argues that “utmost care” is required whenever the Court is “asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.” But he says nothing to show that this necessary caution supports digging out the ground long built upon by generations of judges, lawyers, and ordinary citizens who have treated reproductive protections and bodily integrity rights as among the most deeply entrenched in our society and culture.

Any argument relegating intimate personal rights to the mercy of political majorities because of their substantive character would have to reject decades of decisions holding that the Liberty Clause does in fact protect at least some substantive rights. Notably, it protects against infringement by the states of most rights enumerated in the Bill of Rights, which cannot be infringed by the federal government, including the current Court’s favorite, the Second Amendment freedom to “keep and bear Arms”—a freedom that Justice Alito, writing for the Court in McDonald v. Chicago a dozen years ago, held was part of the “liberty” to defend oneself.

Only Justice Thomas expressed the view that all those decisions (except, apparently, McDonald, on which he built without acknowledgment in New York State Rifle and Pistol Association v. Bruen, decided the day before Dobbs) were wrong from the start and should be overruled. These included the rulings on contraception, sexual intimacy, and same-sex marriage—though not, it seems, interracial marriage. However, the decisions could, he suggested, possibly be reinstated (in some undetermined way) by an interpretation of the Fourteenth Amendment’s promise that “no State shall make or enforce any law which shall abridge the privileges or immunities” of American citizens.

Explaining why the Liberty Clause should prioritize, say, the freedom of speech or of religion, or the right to bear arms for self-defense, or the right to exclude the military defenders of the nation from one’s home “in time of peace” over the no less basic freedom to determine what is to become of one’s own body would be no mean task. After all, those rights are protected from infringement by the states not because the text of the Constitution requires it. The Bill of Rights restricts only the federal government. The states cannot infringe those rights because the Supreme Court has said they are fundamental rights whose infringement, like the right to abortion before Dobbs, would violate the Fourteenth Amendment’s Liberty Clause.

Particularly puzzling is Justice Kavanaugh’s insistence, in his separate concurring opinion, that the Court’s decision to let each state decide for itself whether and to what degree to protect the right to end a pregnancy will leave individuals who live in states where abortion is criminalized entirely free to travel to other states to obtain abortions without penalty. How does he know that? Because, he says, of “the constitutional right to interstate travel.” But no such right is expressly mentioned in the Constitution, any more than is the right to control what goes on in one’s own body. Both rights are at best implicit in the Constitution, not enumerated anywhere in its text. This is not to denigrate the existence or significance of the right to interstate travel, a long-settled part of what knits the states into an inseverable Union, or to undermine its protections for those helping women escape the clutches of states that ban abortion and make criminals of all those who facilitate it. It is simply to expose the glaring inconsistency in Justice Kavanaugh’s analysis, without whose vote there would have been no majority to overrule Roe.

To be sure, there are some spheres of activity where American law once insisted, in the Constitution’s name, on a hands-off policy, but that we no longer regard as presumptively off-limits for government regulation. For example, in the early 1900s judicial decisions treated “liberties which derive merely from shifting economic arrangements” involving the legal institutions of property and contract as basically immune from legislation restricting exploitation—primarily minimum-wage and maximum-hour laws.

Since the mid-1930s, however, these decisions have been very widely, if by no means universally, regarded as deeply mistaken. They were gradually eroded and essentially overruled by a series of decisions beginning in 1937 with West Coast Hotel v. Parrish and continuing through the 1950s (Williamson v. Lee Optical Co., 1955) and 1960s (Ferguson v. Skrupa, 1963) right up to the present, although some have noted the stirrings of a retreat from the post-1930s understanding in decisions using the freedom of speech to dismantle campaign finance regulation (Citizens United v. FEC, 2010) and to overturn other attempts at leveling the economic playing field.

The Court in Dobbs lumps the corpus of decisions repudiated as of the mid-1930s under the rubric of “discredited decisions such as Lochner v. New York,” the 1905 ruling striking down the New York law limiting the number of hours bakers could work. As the dissent puts it, the Court treats the rejection of those decisions as somehow justifying the repudiation of “a broad swath of this Court’s precedents,” beginning well before Roe and extending right up to the day Dobbs was decided.

The comparison is inapt. When the Court demoted the contractual freedom treated as foundational in Lochner from a fundamental right to just another interest to be resolved by political forces, it was building on cases decided earlier in the 1930s. These cases, notably Home Building & Loan v. Blaisdell (1934), viewed government’s power to revise contractual arrangements to meet changing social and economic conditions as implicit in every privately negotiated contract. No remotely comparable shift underlay the sudden upheaval in legal understandings and social expectations brought about by Dobbs, which the dissenters eloquently denounced as a radical setback for the equal status of women in America.

To the suggestion that its decision had any implications for the equal protection of the laws for women and men, the Dobbs majority responded with no attention whatever to the importance Roe had come to have in the lives of generations of women. Indeed, the Alito opinion gave the entire matter of gender equality the back of its hand, dismissing its relevance to the rightness or wrongness of Roeand Casey. The Court treated the very idea that rules limiting options for “pregnant persons” might be viewed as forms of “sex-based classification” and thus subject to “heightened scrutiny” as barely worth discussing. Oblivious to the irony, it claimed that the idea was in any event “squarely foreclosed by our precedents,” citing a widely reviled 1974 ruling about discrimination based on pregnancy, and not pausing to explain why that decision was entitled to greater respect than Roe, decided a year earlier, or why the 1974 ruling should not be deemed so “egregiously wrong” from the day it was decided that any respect it might have deserved as precedent was overcome by its manifestly erroneous character.

To support the idea that Roe and the 1992 reaffirmation of its core holding in Casey had no “sound basis in precedent” and could thus be safely overruled without causing damage to the fabric of the law or undoing the web of other decisions on which people had come to rely, the Court in Dobbs simply listed a series of rights, as though it was self-evident that they bore no similarity to the right to decide whether and when to terminate a pregnancy. These included the rights “to marry a person of a different race,…to marry while in prison,…to obtain contraceptives,…to reside with relatives,…to make decisions about the education of one’s children,…not to be sterilized without consent,…and in certain circumstances not to undergo involuntary surgery, forced administration of drugs, or other substantially similar procedures,” as well as the right “to engage in private, consensual sexual acts” and “marry a person of the same sex.”

But merely noting, as the Court did, that those rights did “not concern abortion” obviously fails to establish that they are not analogous to the right to reproductive autonomy. It is thus difficult to take seriously the statement by the Dobbs majority that its repudiation of the right to abortion will not ultimately serve as a precedent to rescind some or all of these seemingly similar rights, especially given the explicit statement in Justice Thomas’s concurrence that they are without foundation and that future litigants should attack them on the basis of Dobbs.

The Alito opinion concedes, as it must, that the majority cannot “pretend to know how our political system or society will respond to [its] decision overruling Roe and Casey.” But the well-organized, heavily funded, decades-old movement that brought about that decision is already turning to the other decisions, like Obergefell, that justices in the Dobbs majority have long denounced as without constitutional basis. We should take their persistence seriously: these are cases that that movement has attacked from the day they were decided. Moreover, insisting that the reasoning underlying Dobbs will not be extended to cases that some view as closely analogous—much as Bush v. Gore (2000) was said to be “limited to the present circumstances”—puts the Dobbsmajority in the awkward position of either being duplicitous or conceding that its overruling of Roe was an arbitrary exercise of power, as the dissent noted: “Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.”

The Court comes closer to explaining itself when it says that none of the other threatened decisions involve the same “critical moral question” as that “posed by abortion.” But that “explanation” merely restates the question. It does nothing to explain why the manifestly controversial and obviously “critical moral questions” that each of those other decisions involved were better suited than abortion to be resolved by courts instead of legislatures—that is, by judicially withdrawing the answers from the “vicissitudes of political controversy” and placing them “beyond the reach of majorities.”

The Court’s final reason for insisting that abortion is critically different bears close examination: “What sharply distinguishes the abortion right” from all those others is that abortion “destroys what [other] decisions call ‘potential life’ and what the [Mississippi] law at issue in this case regards as the life of an ‘unborn human being.’” But given such decisions as Griswold and Eisenstadt, which protect the right to use contraception, it must be not just the involvement of “potential life” but the survival of a particular “potential life” that marks the right protected by Roe as singularly vulnerable to the Court’s analysis. It’s the supposedly unique status of the fertilized ovum, its transformation into what some insist is a new human being, that must account for the Dobbs holding if it is to have the distinctive character that the majority opinion claims for it.

That “the States’ interest in protecting fetal life,” as the Dobbs majority describes it, deserves judicial respect isn’t the issue: both Roe and Casey acknowledged as much in expressly upholding a range of state measures embodying and implementing that pro-life interest. Nor is the question of whether the Constitution “permit[s] the States to regard the destruction of a ‘potential life’ as a matter of any significance.” Of course it does. Nothing in the Constitution prevents states from regarding everything that has the potential to become a specific sentient creature, let alone a particular human being, as worthy of concern and protection—but only up to a point.

The decisive issue is whether that interest in a fetus’s life can properly be made by judicial decree into an interest so absolute that it completely eclipses the undeniably enormous interest of a pregnant woman in what goes on in her own body and what becomes of her own life. The latter is a secular interest that both the states and the federal government are bound to respect as a fundamental right. To deem the interest in “fetal life” as transcendent to the point of being sacrosanct in any jurisdiction that opts to elevate it above all concern for the bodily self-determination of the woman—if it does not demote her to the status of an involuntary vessel entitled to no more respect than other forms of collectively owned property—surely entails a most peculiar mix of the sacred and the profane: sacred in its unavoidable derivation from particular religious traditions, profane (or at least secular) in allowing each state to strike its own balance between the conflicting values of the survival of the fetus and the bodily integrity of the mother.

The Dobbs majority insists that its opinion isn’t based on any “particular theory about when the rights of personhood begin.” Accordingly, it leaves open the possibility that a fetus might not be “entitled to…the rights enjoyed after birth.” What strikes me as most alarming is the Dobbs majority’s insistence that, even if it is not yet deemed a legal “person” for constitutional purposes, the fetus—from the supposed “moment” of its conception—should be given federal judicial recognition as something (one might as well say “someone”) that any state may treat as entitled to more protection than the woman who gestates it.

Whatever anyone might have thought in 1868, when the Fourteenth Amendment was adopted, it has since become clear that “conception,” as I wrote in 1973 when defending Roe v. Wade,is “a complex and continuous process” of cell division followed by chromosomal recombination and in no sense “an objectively definable event”:

Although none [can] deny that the developing fetus, and indeed the unfertilized ovum, represent[s] “potential human life,” and while all [can] agree that the infant at birth [is] fully and independently a human being and entitled to treatment as such, the question of when the mysterious discontinuity [is] crossed—when the embryo or fetus “bec[omes] fully human”—[cannot] be discussed in secular terms at all. In fact, the only bodies of thought that have purported in this century to locate the crucial line between potential and actual life have been those of organized religious doctrine.

The attribution of metaphysical and legal status to a developing embryo from some particular point in time represents not a discovery of an empirical datum about reality but a choice, all but invariably grounded in one or another religious tradition or teaching, about what signals the creation of an individual human soul.

I continue to believe that any liberty as basic to our secular constitutional order as a woman’s right to decide whether to use her body to deliver a new person into the world can be overridden only by countervailing social interests grounded, as John Rawls put it in A Theory of Justice, in secular “ways of reasoning acceptable to all” and resting on “a common knowledge and understanding of the world,” not on any inherently sectarian view. Think of this as part of what differentiates the “Republican Form of Government” guaranteed by Article IV of our Constitution from a theocracy in which divine edicts or biblical injunctions can supply conversation-stopping justifications for government restrictions on basic liberties.

The second-century theologian Tertullian told women: “You are the devil’s gateway: you are the unsealer of the (forbidden) tree,…the first deserter of the divine law;…she who persuaded him whom the devil was not valiant enough to attack.” A parallel theological teaching is that the presence of a new human life transforms a woman’s body from Satan’s gateway into a holy vessel akin to Mary, Mother of Jesus. It is little wonder that justices who view every instance of conception as a holy event would be inclined to treat the “moment” a new life is present in a woman as the moment from which any state is entitled to criminalize the termination of that life. It is but a short step from such a view to the dogma that the “moment of conception” marks the point at which any state may be constitutionally obligated to treat that life’s termination, whatever the reason, as a terrible crime. The Dobbs “compromise” making it a matter for each state to determine is no more consistent and stable than the 1857 Dred Scottcompromise making the status of slaves and their descendants a matter for states to decide.

It is a fair inference from the First Amendment’s ban on “establishment of religion” that the Constitution should not be hijacked by any primarily religious movement or by a political movement that exploits religion as a Trojan Horse. Yet Dobbs followed—and embodies the approach of—a series of Supreme Court decisions systematically eroding the sometimes-maligned “wall” of separation between church and state. The current Court’s unmistakable determination to breach that barrier to government endorsement of particular religious beliefs reached its apex this past term in a ruling that treated a government employee’s “proselytizing on government property during a public school function” as “private, personal and quiet” when it was anything but, and was indeed highly coercive.

The theocratic movement to advance religiously based governance—the antithesis of genuine religious freedom—has installed as the law of the land the essentially unreasoned position advanced in Dobbs, replacing the compromise between life and liberty embodied in Roe and Casey with the absolutist claim that the presence of a potential life instantly and automatically transforms a woman’s body into a vessel that governments are free to regulate as they see fit. This is unlikely to be the final step on the treacherous path the Court has chosen.

Whether or not one sees Dobbs as barely concealed theocracy, what seems plain is that the opinion fails to provide any clear secular support for its conclusion that Roe was wrongly decided, much less that it was so demonstrably wrong that the reliance of generations of Americans on its basic outlines should have been all but entirely disregarded. That degree of certitude and hubris can only contribute to the growing lack of respect for the current Supreme Court and feed the mounting conviction that it is not a body composed of fair-minded jurists to whom we should entrust these kinds of questions.

Our government is one in which the views of the majority are supposed to resolve policy disputes subject only to the antimajoritarian protection of beleaguered minorities and fundamental personal rights. Add to that the fact that three fifths of the far-right Dobbsmajority consists of appointees nominated by a president who lost the national popular vote and confirmed by senators representing distinct minorities of the nation’s population, and a picture emerges of a ruling clique assiduously pursuing a religiously imbued and highly partisan agenda imposing its ideological commitments upon a vast majority who have a very different view of the competing rights and interests involved. At its essence, that is tyranny by the minority.

This pattern, although without its obvious religious roots, was replicated in the Court’s ruling the day before Dobbs in New York State Rifle & Pistol Association v. Bruen. Bruendramatically expanded—as protected by the Fourteenth Amendment’s Liberty Clause, no less—the right to carry concealed firearms of a kind unknown to the Second Amendment’s authors and ratifiers, in the name of a tendentious set of claims about the amendment’s text and its original meaning. Justice Thomas’s majority opinion—which managed to invoke the authority of the infamous Dred Scott decision, of all things—was studiously inattentive to the dangers to public safety posed by the decision, dangers the six-justice majority swatted away as constitutionally irrelevant.

Complaining (without foundation) that the rights of gun owners protected by the Second Amendment had hitherto been relegated to second-class status, the Court gave no reasons for suddenly elevating those rights above all others protected by the Constitution, insisting that no countervailing considerations could be taken into account once a firearms regulation flunked the Court’s new purely historical test for Second Amendment rights. It is a test that automatically invalidates any regulation not closely analogous to one the framing generation supposedly would have deemed consistent with the “right of the people to keep and bear Arms.” But the “Arms” to which the new test applies are, needless to say, analogous to nothing that existed in 1787 or, for that matter, in 1868 (when the Fourteenth Amendment was ratified, resulting in the application of the Second Amendment to the states through the Liberty Clause). Seemingly unnoticed was the surreal nature of finding in the Constitution a fundamental liberty to carry a concealed instrument of mass slaughter in order to defend one’s body from attack, but no such liberty to defend one’s body from involuntary pregnancy.

The same pattern was replicated in the decision a week after Bruen in West Virginia v. Environmental Protection Agency. In that case, the majority held—gratuitously, given the absence of any actual regulation to which its analysis might be concretely applied—that the EPA is powerless to regulate greenhouse gases under the particular provision of the Clean Air Act at issue in the case. According to the majority, the problem wasn’t that the provision Congress enacted in 1970 didn’t literally authorize such regulation (it indisputably did). The problem was that the consequences to the economy of any regulation requiring a change in the mix of fuels the regulated industry used to generate electrical power would be too “major” for a mere administrative agency to impose without more specific (indeed, implausibly prophetic) congressional authorization.

It’s hard not to see this rogues’ gallery of decisions as reflecting little beyond the political party platform of the justices comprising the majority with respect to abortion, religion, guns, climate change, and the administrative state rather than any coherent constitutional philosophy. Indeed, when one juxtaposes the Court’s green light to government intrusions into the most intimate spheres of personal and spiritual life with its red light to government regulation of firearms, the energy industry, and presumably other areas of social life that its majority would prefer to see unregulated, what emerges is a lethal mix of regulation and deregulation that makes the Court’s pre-1937 laissez-faire stance look entirely reasonable by comparison.

At least the Supreme Court’s decisions of the early twentieth century were relatively consistent, including rulings in the 1920s that recognized the unenumerated rights of parents to direct the upbringing of their children, such as what languages to teach them (Meyer v. Nebraska, 1923) and whether to send them to private rather than public schools (Pierce v. Society of Sisters and Oregon v. Hill Military Academy, both 1925). The rulings of that time embracing the now-discarded “liberty of contract” and other doctrines restricting government’s ability to protect workers and consumers from exploitation were at least matched by rulings recognizing a private realm almost entirely beyond the reach of the state. Thus the cloud of judicial doctrine that hung over economic regulation a century ago at least had the silver lining of liberating personal life.

Today’s cloud has no such lining. The Court’s perverse decisions, without a hint of irony, allow government to intrude into the bedroom and invade the integrity of the body while holding government at bay with respect to regulating the boardroom and, for that matter, limiting corporate expenditures to influence political campaigns.

Especially concerning is the degree to which this topsy-turvy judicial approach—arrogantly heedless of the human and environmental consequences of the jurisprudence it so ruthlessly imposes to turn the world upside-down, and seemingly insensitive to the erosion of public respect for its judgments and integrity—has come close to ensuring its self-perpetuation. It has done so through a jurisprudence that recklessly trashes bipartisan federal laws dating to the mid-1960s protecting voting rights, while systematically looking the other way as partisan gerrymandering makes state legislatures less and less representative of their populations as a whole and of minority populations in particular.

And it has amplified the threat to fair representation by announcing, on the final day of its latest term, that it will hear arguments this fall in a case from North Carolina, Moore v. Harper, that invites the Court to embrace a radical and constitutionally dubious theory that would liberate state legislatures from being tethered to their own constitutions by the states’ highest courts. As such prominent conservative jurists as former federal judge J. Michael Luttig have warned, the result would be to transform the already antidemocratic electoral college system into one that essentially invites gerrymandered state legislatures to substitute their preferred presidential candidate for the one chosen by the majority of the state’s people.

If this were to happen—and it would take but one justice in addition to the four (Thomas, Alito, Gorsuch, and Kavanaugh) who have already signaled their acceptance of this theory—future Supreme Court nominees would likely be as reactionary as those of the recent past rather than offering at least the hope of some ideological balance over time. And as the Court continues on the path of replacing long-settled individual rights with religiously inspired mandates, the odds would increase that the rules under which we live will reflect the preferences of ever smaller minorities.

It is this bleak picture that has led me and some others who, like me, participated in the Presidential Commission on the Supreme Court of the United States to see this as a “break the glass” moment. Some of us have reluctantly advocated enlarging the Court from nine to thirteen and appointing four new justices to redress the extreme and seemingly self-perpetuating imbalance resulting from the way it was stacked during the four years of the Trump presidency—a step we realize has little chance of being enacted in the current political environment. But the current political environment might not be permanent. Or at the very least we must not, as the midterm elections approach, treat it as though it were. The unprecedented level of public outrage at recent trends in the Supreme Court’s decisions could upend political expectations in ways none of us can foresee.

A telling example, and perhaps a harbinger of things to come, was the overwhelming rejection on August 2 by the voters of as conservative a state as Kansas of a referendum measure that would have repealed a state constitutional right to bodily integrity that its highest court had interpreted in 2019 as protecting a right to abortion. The contrast between that unanticipated result—which Justice Alito would doubtless insist was wholly consistent with his expressed desire to return the issue to “the people and their elected representatives”—and the barely concealed belief of the majority in Dobbs that they were doing the Lord’s work by protecting unborn human life was impossible to miss.

It came starkly into view when Justice Alito, in a speech to the Notre Dame Religious Liberty Summit in Rome, tastelessly mocked the world leaders and others who had criticized his Dobbsopinion, describing their reactions as proof that Christianity was under assault throughout the world and treating them as evidence that “religious liberty is worth special protection.” It will be interesting to see how much protection he is prepared to give the claims to religious liberty of litigants like the seven Florida clergy members—three Jews, two Christians, one Unitarian Universalist, and one Buddhist—who are arguing in recently filed lawsuits that their ability to practice their faiths is violated by the state’s new abortion ban.

We might dare to hope that a political alignment will emerge that makes it possible for Congress to enact a nationwide codification of Roe and Casey. When such a law is challenged before the Supreme Court, as it no doubt would be, we must hope that one or more of the radical jurists who currently control its decisions—despite their pious insistence that the public’s aversion to their interpretations of the Constitution are of no proper concern to them—will rethink their willingness to ravage the social and legal landscape and wreak carnage on widely shared cultural expectations, lest they invite outright rebellion against their tyrannical rule. Until they do, the Court they steer risks becoming not what Alexander Hamilton in Federalist 78 called our government’s “least dangerous branch,” but the most dangerous.

Categories Civil Rights, Health, History, Safety

Jennifer Rubin: Kentucky Women Say Dobbs’ Decision Violates Religious Freedom

By dianeravitch

October 14, 2022 //

Jennifer Rubin is an excellent opinion writer at the Washington Post. In this column, she illustrates the fact that the Dobbs decision reflects the religious views of the majority of justices of the U.S. Supreme Court but violates the religious or non-religious views of others. Thomas Jefferson was wise indeed when he described “a separation of church and state.” The Founders did not want an Established Religion, whose views and values might be imposed on non-believers. There are literally hundreds of different religious groups in this country, as well as atheists. Why should their beliefs be dismissed?

Rubin wrote:

In July I wrote about a lawsuit in Florida challenging the state’s abortion ban on the grounds that it violates the religious beliefs of Jews — and members of other faiths — who do not believe in the Christian dogma that human life begins at conception. Now, three Jewish women from Kentucky have filed a similar suit.

One of the plaintiffs is undergoing in vitro fertilization. Another one is storing nine embryos. And another is “of advanced maternal age and faces many risk factors if she chooses to have a third child,” the complaint explains. It adds, “Individuals of Ashkenazi Jewish ancestry have a heightened risk of passing on genetic anomalies, like Tay-Sachs disease, for which there is no cure and the average life span of those with the condition is four years of age.”

Yet Kentucky’s abortion law, the complaint argues, would arguably make both an abortion after genetic counseling or the destruction of IVF embryos capital murder.

Contrary to the officiousness of the right-wing Supreme Court justices, who seem not to understand that they applied their own religious views in their ruling overturning abortion rights, the complaint explains:
Judaism has never defined life beginning at conception. Jewish views on the beginning of life originate in the Torah. … Millenia of commentary from Jewish scholars has reaffirmed Judaism’s commitment to reproductive rights.Under Jewish law, a fetus does not become a human being or child until birth. Under no circumstances has Jewish law defined a human being or child as the moment that a human spermatozoon fuses with a human ovum.The question of when life begins for a human being is a religious and philosophical question without universal beliefs across different religions.

The last sentence is key. The so-called state interest in preserving “fetal life” depends on the assumption that a fetus deserves the same protection as a toddler. But for Jews, “the necessity of protecting birth givers in the event a pregnancy endangers the woman’s life and causes the mother physical and mental harm” must control. Moreover, “the law forces Plaintiffs to spend exorbitant fees to keep their embryos frozen indefinitely or face potential felony charges.”

For that reason, the complaint alleges that the Kentucky abortion law violates the First Amendment and the state constitutional protection for religious freedom — as well as the state’s Religious Freedom Restoration Act. The latter part of the lawsuit may become moot should Kentucky voters pass a ballot measure that would declare the state constitution does not protect abortion access. But, in any case, forcing others to comply with the religious-based edicts of one sect flies in the face of the constitutional guarantee of free religious expression.

The complaint also alleges that the Kentucky law should be void for vagueness under the 5th and 14th Amendments. As with so many laws triggered by Dobbs v. Jackson Women’s Health Organization that predate modern medicine, it’s not clear whether the law requires preservation of the embryos. Moreover, the complaint argues, Kentucky’s abortion law “does not impose clear standards, rules, or regulations regarding the potential experiences of potential birth givers with regards to their access to reproductive technology.”

Regardless of whether the lawsuit succeeds, it raises three critical issues that apply in legal challenges to abortion bans. First, it pulls back the curtain to reveal that judges are acting on a religious, not scientific, view of personhood. The arrogance in assuming that everyone buys into a specific Christian sectarian viewpoint reveals the degree to which right-wing courts and legislatures ignore or disfavor Americans who are not Christian. It’s critical to force politicians, media, pundits, doctors, researchers and ordinary voters to recognize this.

Second, the lawsuit makes clear the negative impact on IVF, which was not in existence when many state abortion bans were passed in the 19th or early 20th century. The current crop of state lawmakers and Supreme Court justices seems willfully oblivious to the implications for such reproductive care. Do they really want to make a commonly used process for procreation effectively impossible?

Finally, it’s not just the Kentucky law that is vague to the point of unintelligibility. Many state statutes use vague, nonmedical terms to put doctors and patients in untenable positions. Should physicians render care to a pregnant woman experiencing a dangerous pregnancy, risking prosecution under the opaque language of a 19th-century law, or should they let the patient’s condition become so acute that she might fit within an exception for preservation of her life? The uncertainty these laws have imposed seems designed to chill the willingness of doctors to provide care, even if it turns out to be legal.

If the Kentucky lawsuit forces state legislators to wrestle with the real harm and chaos these laws have created, then it will be a success. Good thing that there is an election less than a month away.

Categories Health, Religion, Separation of church and state

Kathryn Joyce: Is Abortion Murder?

By dianeravitch

October 6, 2022 //

Kathryn Joyce, investigative reporter for Salon, reports that Doug Mastriano, Republican candidate for Governor of Pennsylvania, believes that abortion is murder. Mastriano is a far-right MAGA guy. Mastriano is not alone.

In an alarming article, Joyce shows the dangers of a growing movement to criminalize women who get abortions.

She writes:

This week, an old interview surfaced of Republican Pennsylvania gubernatorial nominee Doug Mastriano calling for people who have abortions to be prosecuted for murder. The comments came from a 2019 radio interview in which Mastriano was asked whether a “fetal heartbeat” bill he’d sponsored in the state Senate, which would have banned abortion after six weeks, would mean that anyone who obtained abortion after that point in pregnancy should be charged with murder.

“Let’s go back to the basic question there,” Mastriano replied. “Is that a human being? Is that a little boy or girl? If it is, it deserves equal protection under the law.” When the interviewer asked whether that meant he was calling to prosecute abortion as murder, Mastriano removed all doubt, saying, “Yes, I am…”

That may or may not be true, but Mastriano certainly isn’t the only Republican who’s raised the possibility of charging women who have abortions with murder. And not all those Republicans mirror Mastriano’s far-right track record or his lengthy association with extreme elements of Christian nationalism.

In May, just days after news broke about the Supreme Court draft opinion that would ultimately overturn Roe v. Wade, Republican state legislators in Louisiana advanced a bill out of committee that would have classified abortion as homicide, allowing prosecutors to charge anyone who obtained one with murder. The so-called “Abolition of Abortion” act would have “ensure[d] the right to life and equal protection of the laws to all unborn children from the moment of fertilization by protecting them by the same laws protecting other human beings.” In other words, the laws and criminal penalties that apply to homicide would be extended to fetuses as well….

In the larger national picture, women are already being prosecuted for murder and other felonies, both for abortions and for other pregnancy outcomes, including miscarriages and stillbirths.

“Unfortunately we don’t need to criminalize abortion to charge women,” said Purvaja Kavattur, a research and program associate at National Advocates for Pregnant Women, who said that the success of the “fetal personhood” movement — which holds that embryos and fetuses should have the same rights as “already born” people — has led to a sharp increase in prosecutions related to pregnancy.

The U.S. has the worst prenatal care of any developed nation. The new anti-abortion laws will frighten pregnant women away from medical care.

Categories Civil Rights, Elections, Health, Pennsylvania, Trump

Arnold Hillman: Save the Children of South Carolina!

By dianeravitch

October 6, 2022 //

Sit down and prepare for a long but very important read. You might conclude that the elected officials of South Carolina–Governor Henry McMasters, Senator Lindsay Graham, Senator Tim Scott, and the State Legislature–don’t give a damn about the children of South Carolina. You might be right.

Seven years ago, Arnold Hillman and his wife Carol retired as educators in Pennsylvania and moved to South Carolina. Instead of taking up golf, they became deeply involved in helping high school students in impoverished schools. Having served as volunteers in the schools, Arnold Hillman quickly realized that South Carolina ignores the needs of its children. There is no real system, he says. Charter schools have been a distraction, not a solution. He concludes that the schools of South Carolina need radical change. What are the chances of a deep Red state acting on his proposals? Sadly, not great. South Carolina has a well established record of tolerating neglect of its children, especially those who are impoverished and Black.

Arnold Hillman can be reached at arnold@scorsweb.org

Arnold Hillman writes:

THE NEED FOR RADICALIZATION IN EDUCATION

It’s time for us to look seriously at completely redoing the education system in South Carolina. As Senator Greg Hembree, Chair of the Senate Education Committee of the South Carolina Assembly told Barnett Berry, “ It is time to stop nibbling around the edges of school reform and the teaching profession.”1

No truer words have been spoken about our present education system. In fact, there really is no system. In the long scheme of things, our present way of doing education is a bunch of pile-ons from the original manufacturing design of Frederick Taylor and his scientific management.

While Taylor was creating the assembly line process, Ford was dehumanizing it by considering people as cogs in a great machine. If you don’t see any relationship between these two mammoth names in our economic history, go to your local high school and watch when the bells ring and students change classes.

More specifically, South Carolina ranks low on education state rankings that use multiple variables. They are variously ranked from 40thin the nation to 49th. Education Week gives South Carolina a C- for education quality.2 While the Annie Casey Foundation grades education as 43rd in the nation.3

Each year the legislature and the administration in South Carolina claim that we have a new program that will increase test scores and general education standards. According to the numbers, that just is not so. We may introduce the newest panaceas and claim that they will create higher state, federal and NAEP scores, but that does not usually happen.

This is not a single person’s opinion. In this article in the State Newspaper of August 5, 2022, it declares that “ SC has among worst school systems in US, new ranking shows. Here’s why and what’s being done.”

The problems will continue. The same people will present small ideas that will hold forth for a while. Then these ideas and programs will fade into the distance and new people with other small ideas will approach these problems and fail once more. Take a gander at the history of education in South Carolina over the past 50 or so years.

Click to access History_of_South_Carolina_Schools_Virginia_B_Bartels.pdf

If what you see in our history disturbs you, then you are on the correct path to starting over again and creating a new way of teaching our children.

WHERE DO WE BEGIN ?

Minnesota passed the first Charter School law in 1991. It was followed by Massachusetts in 1993. The basic tenets of the laws were that these were going to be public schools, with independent management. They were also less restricted by state law and could become examples of innovation.5

Public schools would then have a chance to look at these innovations and use them in the regular public schools. That is not what happened. Charter schools became independent entities, sometimes managed by profit making organizations. Their history of innovation is slim. Furthermore, since they were able to disregard state law in many instances, while regular public schools could not copy any of the alleged innovations.

Here was a panacea that really had no possible way of succeeding for the overwhelming majority of public school children. Once again, here was an idea that would propel education into the 21st century and improve education for our children. It did not work that way.

As almost all of these panaceas fell by the wayside. It is evident that none of them had any chances of succeeding. The ideas that created these programs never seemed to begin with the children. They were always ideas that were promulgated to somehow enter the system and make things right. Few, if any of them, began with the needs of the children.

In any radicalization of education, students need to come first. All other things are just trimmings that come after. What is evident from all of these efforts to improve public education, is that they have no basis in children’s needs. Whether you agree with Maslow’s Hierarchy of Needs or its revision or not, children have absolute needs when they are in school.5

Proof of these needs has been highlighted recently when mass school shootings have created social and emotional disturbances among children. These children need to feel safe.

We can list children’s needs from pre-school to 12th grade. They will all be familiar to you.

Safe and Stable environment

Proper nutrition

Structure

Sense of belonging

Consistency

Health Care

Emotional Support

Education

There are many more items that could be added to the list. The author has chosen these because of consistent information about South Carolina’s children that appears in public journals and media. Here are some statistics.

One in six (or 178,710) children in South Carolina are food insecure — numbers that are growing due to the pandemic-induced unemployment.

• Over 12,000 students experienced homelessness in 2017-19, and another unidentified 34,000 were estimated to be without a home.

• Over 40 percent of South Carolinians live in childcare deserts — a term used to describe a Census tract of more than 50 children under the age of five where there are no childcare providers.

• In 2019, about 10 percent of the 15,000 children referred to the Department of Juvenile Justice were for status offenses (truancy, curfew violation, etc.) reflecting underlying personal, family, or community problems, not criminal ones.

The simple truth is that many children in our state have few of the basic needs outlined above. This is not just a problem of poor and minority communities. 6

A kindergarten assessment at the beginning of the 2020- 21 school year was modified because of the pandemic. However, the results published by the Westend Corporation, the creator of the assessment, found these numbers statewide:

33% of the 48,000 of the kindergartners tested at the beginning of the year had an Emerging Readiness. This means that they will need significant help to reach readiness.

40% of the children were classified as approaching readiness and would need some kind of intervention.

27% of the children are actually demonstrating readiness.7

During the early days of the pandemic there were contrary opinions about wearing masks and getting vaccinations. Even today cases of Covid variants are spiking in a number of counties in the state, according to the DHEC. The situation is confusing. There is an elected Superintendent of Education who had differing views from those of the administration.

This confusion made life difficult for local decision makers. Who does one listen to, the Governor, the Superintendent of Education or the Department of Health and Environmental Control? Consequently, there was little consistency across the state.

If South Carolina has a system of education, it is not apparent. The funding mechanisms for school districts relies on many layers of bureaucratic meddling. As in most states in the union, school districts are governed by local school boards. At the upper levels of the state government, the Governor, or an appointed official, such as a Chief State School Officer actually operates the system.

Leadership at the local level became a problem when 32 of the 78 school superintendents turned over from March of 2020 to June of 2022. That is 41%.8 This lack of consistency has propelled many school districts into micro-management by school boards. These kinds of happenings are never a positive event for the children.If South Carolina has a system of education, it is not apparent. The funding mechanisms for school districts relies on many layers of bureaucratic meddling. As in most states in the union, school districts are governed by local school boards. At the upper levels of the state government, the Governor, or an appointed official, such as a Chief State School Officer actually operates the system.

South Carolina is one of 12 states that elects its chief state school officer. There are pros and cons to this system. In some cases, it can stimulate cooperative action, while in others it stimulates conflict.In South Carolina, there are a number of bureaucratic layers to school governance. At the local level, there are school boards, superintendents of schools, county councils, and something called a legislative committee whose power is ill defined. It is composed of both state senators and state house members. There is also the Education Oversight Committee (EOC). This is the legislators’ way of keeping on eye on education and how it is performing across the state.

SO WHAT IS THE CONCLUSION ?

Underneath the edujargon and the political palaver, most folks know that education is not doing well in South Carolina. We will not delveinto higher education. This is a concluding thought from many people.

Now, who do you blame? We blame everyone and no one. Many good hearted people of all political stripes have tried to fix things. They have not succeeded. The Covid-19 pandemic has pointed out that our system cannot deal with the realities of our current world. We have left our children to the devices of companies who are producing online products. We have left our teachers out there in the universe of online education with no tools at their disposal. They have tried mightily to do their job. It was mostly a futile attempt.

staff reports | Results from end-of-year examination scores revealed that South Carolina students are struggling in U.S. history, algebra and biology. More than a third of high school students failed algebra last year and 24% got a “D.” They scored even worse in history and biology with a mean of 65% and 66%, respectively.The culprit: Pandemic-related learning loss, education officials suspect.

State Superintendent of Education Molly Spearman said more work needed to be done to help students recover: “Preparing students to meet college and career-readiness standards must not just be an aspiration in our state,” she said, according to published reports. “It’s a responsibility that all of us must play a role in as we pursue meaningful solutions.16

As we get back to in-person education, the children have been besieged with social and emotional problems. Teachers are not able to handle such things by themselves. It is a gross miscalculation that all children are getting the help that they need. In fact, when they do get help, who is it that provides it ?

We are even further behind than we were in March of 2020. Yet, some school districts still seem to shine. In larger school districts, with many schools, there still seem to be those whodo well. They are singularly in the minority. How can we compare a school district with a median household income of $101,284 with one whose income is $26,074?9

Think of the resources that wealthy parents can provide for their child, compared to a child whose parents are just getting by and have no resources for their child, except for love.

O.K. RADICALS, WHAT DO WE DO ABOUT IT?

We begin with the children and the things that they need. We can look at the above-mentioned items as a beginning. As was said, there are many more things that children need. As they mature through the school and life experiences, their needs change. Do we know enough Piaget to list the things that the children need at particular ages. Notice, I did not say grades. As a noted educator and speaker Sam Clemens once said, “ How do you handle a kindergartner who comes into school carrying a New York Times when you also have a little one who walks in and needs to learn his alphabet?

It all begins at birth, or maybe even before. Without proper health care for expectant moms, the chances of a child having a normal entrance into this world is diminished. South Carolina’s infant mortality rate of 6.5% per 1000 live births is higher than the national average of 5.4% per 1000 live births. Pre-natal medical care is most lacking in rural areas of the state.

How does one prevent this kind of statistic? There are a number of ways, if the state is of a mind. One way is a massive public campaign aimed at areas with few physicians and few clinics. The need for medical facilities in these places should become a state priority.

A second, and more accelerated way is for consortia of school districts, local municipalities and hospitals to purchase medical vans. These vans have been in use in many rural and urban areas in the United States. The van could be under the jurisdiction of one of these entities for financial responsibility. The driver would be a staff member of one of these entities.

Medical personnel could be secured with volunteers, dentists, school psychologists, doctors, nurses, PAs and others. The vans could advertise when they would be in a certain area. Pre-natal exams could be a major function, while children from 0-4 could also be seen by some of these specialists.

A third method of securing health care for pre and post-natal care is an outreach program that is run by a local school district. The Appleton, Wisconsin School District has created a birth through five program that focuses on entire community resources to help parents in the community.

85% of the foundation for a child’s intellect, personality and skills is formed by age 5. Appleton Area School District’s Birth-Five Outreach offers an inclusive network of family care services, school information, and community support.Birth–Five Outreach builds positive relationships with families by offering connections to many school and community resources early on.11

A fourth possible method is to establish a 0-5 school building, or community building that will have all of the services needed by families with children from 0-5 and pre-natal care. In the early 1980’s such a school was created by the Titusville School District in Northwestern Pennsylvania.

All of these suggestions are now in effect in the United States of America, but not in South Carolina. These programs are not only helpful to the individual parent and child, but to the community and to the schools that these children will go to.

SO NOW THEY WALK INTO SCHOOL, OR DO THEY?

If we are going to deal with children where they are at, can we still use the old fashioned age requirement for kindergarten. Not only don’t we want to do that, but maybe we don’t even call the first year of school by that old name. There are things attached to the word, that it may be necessary to use some other word or some other description.

So many of the children that walk through those school doors are at variance with what we consider “ready to learn.” The differences between the children is immense. So what do we do? Here are some programs that could exist in a public school, a vocational school or a technical college.

A. Pre and postnatal care

B. Teenage pregnancy

C. Day Care for community members orschool staff

D. Day Care to programming 0-5

E. On site medical care

F. Training for students to learn day care skills

G. Special education programs for children with disabilities

H. Eldercare

I. Job Placement

J. Home for state reps and congress people

K. Psychological services

There are many definitions of what a school or series of schools might be. The origin of the term, “Community School” comes from Stewart Mott’s vision of the Flint community in Michigan in the mid 1930’s. As the head of General Motors, he was able to fund these programs through his Mott Foundation, which still exists today.

A simple definition of the term Community School comes from the NEA.

Community Schools are built with the understanding that students often come to the classroom with challenges that impact their ability to learn, explore, and develop to their greatest potential.

Because learning never happens in isolation, community schools focus on what students in the community truly need to succeed—whether it’s free healthy meals, health care, tutoring, mental health counseling, or other tailored services before, during, and after school. 13

In recent times, here in South Carolina, Professor Barnett Berry has coined the term “ Whole Child,” education.14His thesis is that unless we take care of the complete needs of children, they will not achieve their maximum capabilities. He also believes that “Whole Child” education begins at birth. Although teaching, “The Whole Child” was concept from the 1950’s, Berry’s description of the process of “Whole Child Education” is much wider and includes so much more than just teachers in a classroom.

One form of “Community School” has been a building that was open 24 hours a day and accommodated an entire community’s needs. The current administration in Washington has increased funding for these kinds of “community schools.” That is not to say that they do not exist already. Here is an example of a school district that has recognized the problems their children bring with them to school and has taken action.

https://inthepublicinterest.org/biden-proposes-increasing-funding-for-community-schools-by-15-times-the-current-level/ 12

The federal government has recently sent out a request for proposals with the intent of distributing the funding to school districts across the country to promulgate or expand community schools. The total of 468 million dollars in the federal budget proposal for 2023 expands the program. It will be distributed to schools that provide medical assistance, nutritional assistance, mental health, tutoring, enrichment and violence prevention services. The schools will have to be those who have been involved in these programs for a decade.

SO WHAT DOES ALL THIS HAVE TO DO WITH SOUTH CAROLINA EDUCATION ?

For the most part, South Carolina’s education system does not work for most of its children. The state has tried a number of changes, but to no avail. There is a feeling among educators and those who view the system, that caring for the students is not the priority that it should be.

A good example of this kind of attitude is the recent return of one billion dollars in taxes, rather than using these funds to upgrade education. The needs are so great in many districts.

The establishment of public education in the 19th century was challenged by churches and by religious organizations across the burgeoning country. In some states, religious leaders imposed their religious beliefs upon these new schools. As one example, in a number states, there were no events in schools on Wednesdays afternoons and evenings. Those times were set aside for religious experiences.

In other states, there were established times when students could be released early to go to religious studies in their churches. Certainly, no sporting events were to be held on Sunday. Bibles were distributed to 6th grade students in many schools across the nation.

These were but a few instances of church actions in public schools. Sometime at the end of the 1960’s, groups of right wing religionists and their acolytes met to try and undo public education in its entirety. Now, some 50 years later, that they are succeeding in their efforts.

There can be no doubt that elite billionaires with a religious bent are moving to destroy public education. The issue of the separation of church and state is dissolving amidst a cacophony of yelps from these right wing relgionists, or faux religionists, that they are being discriminated against.

It is a apparent that these plans are not only to create a side by side educational system, but to allow students, who they feel are not up to par,to remain in public schools.

In the prior administration, billions of dollars were distributed to charter school privateers, religious schools, private schools and others. This Paycheck Protection Plan was to be used for businesses that had not been doing well during the Covid 19 pandemic. Interestingly enough, none of these dollars could go to public schools.15

The history of public education both here and in all parts of our land is the history of our success as a country. The forces that continue to try and dissolve public education have no idea what will come next. Here in an essay by Anya Kamenetz, reporter from NPR, explains the history and a possible future of public education.

END NOTES

1 “ A Whole Child Policy Analysis,” Barnett Berry, University of South Carolina, SC4Ed P. 4 2022

2. Annie Casey Foundation 2022 Kids Count data book

3 “Map A-F Grades Rating States of School Quality”, Education Week Research 2021

4 “Minnesota is the Birthplace of Charter Public Schools” Minnesota Association of Charter Schools

5 “ Maslow’s Hierarchy of Needs” Simply Psychology April 2022

6 1 “ A Whole Child Policy Analysis,” Barnett Berry, University of South Carolina, SC4Ed P. 62022

7 Results of Modified Kindergarten Readiness Assessment 2020-21 Westend Corporation 2021

8 “Superintendent Turnover March 2020 to June 2022,”SCORS research Arnold Hillman 2022

9 Median Houshold Income South Carolina School Districts, U.S. Census 2020

10 “Infant Mortality and selected birth Characteristics” South Carolina Department of Health and Environmental Control 2021

11 https://www.aasd.k12.wi.us/families/birth-five_outreach

12 https://www.mott.org/about/history/

13 NEA statement on Community Schools- https://www.nea.org/student-success/great-public-schools/community-schools

14 “ A Whole Child Policy Analysis,” Barnett Berry, University of South Carolina, SC4Ed P. 4 2022

15 https://wlvr.org/2020/07/some-local-schools-get-paycheck-protection-funding-from-the-federal-government-while-others-dont/#.Yx6FtHbMKM8

16 Staff, StateHouse Report, September 23, 2022

Categories Charter Schools, Childhood, Community Schools, Cruelty, Funding, Health, Ignorance, Inequity, Injustice, Real Education, South Carolina

Jan Resseger: Yes, We Can Reduce Child Poverty!

By dianeravitch

September 30, 2022 //

Jan Resseger, outstanding advocate for children and the common good, argues in this post that we DO know how to reduce child poverty and must pursue that goal. I agreee. When I realized the high correlation between poverty and academic failure, I saw that the best way to improve education is to improve the lives of children. I thank Jan for being one of the people who taught me that crucial lesson.

She writes:

This blog has strongly advocated that Congress should enact legislation to make permanent last year’s temporary expansion of the Child Tax Credit. New research confirms the urgency of Congressional action on the Child Tax Credit this year.

Two weeks ago, the U.S. Census reported* a stunning drop in poverty among U.S. children in 2021, largely thanks to the Biden Administration’s action—temporarily for 2021 alone—to expand the Child Tax Credit and make it fully refundable under the American Rescue (COVID-relief) Act. That expansion of the Child Tax Credit ended in 2022. Now it is apparent that unless Congress acts to restore what was a temporary reform to the Child Tax Credit, millions of American children will fall back into poverty.

The U.S. Census created a new measure of poverty in 2011, the Supplemental Poverty Measure, which reflects how government programs like SNAP, school lunch benefits, and refundable tax credits supplement family income and reduce poverty. The Census Bureau’s new report explains: “The SPM (Supplemental Poverty Measure) extends the official poverty measure by accounting for many of the government programs that are designed to assist low-income families but are not included in the official poverty measure. The SPM also includes federal and state taxes and work and medical expenses… Though the SPM does not replace the official poverty measure, it provides a different metric of economic well-being that includes resources from government programs and tax credits to low income families.”

In their September 13 report, using the SPM measure, U.S. Census Bureau researchers documented an extraordinary reduction in child poverty during 2021: “The SPM child poverty rate fell 46 percent in 2021, from 9.7 percent in 2020 to 5.2 percent in 2021, a 4.5 percentage-point decline. This is the lowest SPM child poverty rate on record.” “The decline in the SPM rate for children was largely driven by stimulus payments and the refundable Child Tax Credit, which led to increased resources for families with children.”

To review: In the American Rescue (COVID-relief) Act passed in the spring of 2021, Congress made several significant changes in the Child Tax Credit: raising the maximum Child Tax Credit from $2,000 to $3,600 per child through age 5, and $3,000 for children age 6-17; allowing families to receive a Child Tax Credit for 17-year-olds; sending the payments monthly instead of once a year, and making the Child Tax Credit fully refundable for the year 2021. Making the Child Tax Credit fully refundable was an extremely significant reform. While, since 1997, families with comfortable incomes have qualified for the full Child Tax Credit, until the American Rescue (COVID-relief) Act, families with such small incomes that they pay little income tax received only a partial credit and not the full amount. Families without any income (who do not pay federal income tax) could not qualify at all for the tax credit. The Center on Budget and Policy Priorities explained in a November 2021 report: “Prior to the Rescue Plan, 27 million children received less than the full Child Tax Credit or no credit at all because their families’ incomes were too low. That included roughly half of all Black and Latino children and half of children who live in rural communities… This upside-down policy gave less help to the children who needed it most. The American Rescue Plan temporarily fixed this policy by making the tax credit fully refundable for 2021.”

When the new Census data came out on September 13, the President of the Center on Budget and Policy Priorities, Sharon Parrott, immediately released a statementinterpreting the significance of the drop in U.S. child poverty: “The data for 2021 show that the nation knows how to reduce poverty, broaden opportunity, and expand coverage. Temporary measures drove progress… The new data show that due chiefly to the Child Tax Credit, child poverty fell sharply in 2021 and reached a record low of 5.2 percent, as measured by the Supplemental Poverty Measure (SPM)…. As recently as 2018, 13.7 percent of children were below the SPM poverty line.”

Parrot scrutinizes the meaning of Congress’s temporary action last year to reduce American child poverty: “The Child Tax Credit expansion drove the large reduction in child poverty between 2020 and 2021…. In the absence of the expansion, child poverty would have fallen to 8.1 percent, rather than 5.2 percent, and some 2.1 million more children would have lived in families with incomes below the poverty line. The year-to-year decline in the child poverty rate was the largest on record (4.5 percentage points). Child poverty rates plunged widely across racial and ethnic groups…. For Black non-Latino children, the poverty rate fell to 8.3 percent in 2021 from 17.2percent in 2020…. This is stunning progress—in 2018 nearly 1 in 4 Black children lived in families with incomes below the poverty line. In 2021, fewer than 1 in 10 did… In 2021, poverty among Latino children fell to 8.4 percent and for American Indian and Alaska Native children it fell to 7.4 percent.”

Washington Post columnists, Paul Waldman and Greg Sargent believeCongressional action permanently to expand the Child Tax Credit would redefine our society morally: “We can choose to make our economic arrangements fairer. We can make collective decisions that children shouldn’t be disadvantaged at a very young age through no fault of their own. Making the choice to alleviate poverty early in people’s lives… puts children on a path to becoming healthier, happier, more fulfilled, more productive adults.”

Please read the rest of this important post. When I am asked what one thing I would do to improve students’ educational success, I invariably answer: “Reduce child poverty.”

Why don’t we?

Categories Accountability, Childhood, Health, Poverty

Heather Cox Richardson: The Origins of Arizona’s Disgraceful Abortion Law

By dianeravitch

September 26, 2022 //

Heather Cox Richardson is a historian who blogs frequently on current events. She is brilliant.

She wrote:

In Arizona, Pima County Superior Court Judge Kellie Johnson has restored a law put into effect by Arizona’s Territorial legislature in 1864 and then reworked in 1901 that has been widely interpreted as a ban on all abortions except to save a woman’s life. Oddly, I know quite a bit about the 1864 Arizona Territorial legislature, and its story matters as we think about the attempt to impose its will in modern America.

In fact, the Civil War era law seems not particularly concerned with women handling their own reproductive care—it actually seems to ignore that practice entirely. The laws for this territory, chaotic and still at war in 1864, appear to reflect the need to rein in a lawless population of men.

The criminal code talks about “miscarriage” in the context of other male misbehavior. It focuses at great length on dueling, for example— making illegal not only the act of dueling (punishable by three years in jail) but also having anything to do with a duel. And then, in the section that became the law now resurrected in Arizona, the law takes on the issue of poisoning.

In that context, the context of punishing those who secretly administer poison to kill someone, it says that anyone who uses poison or instruments “with the intention to procure the miscarriage of any woman then being with child” would face two to five years in jail, “Provided, that no physician shall be affected by the last clause of this section, who in the discharge of his professional duties deems it necessary to produce the miscarriage of any woman in order to save her life.”

The next section warns against cutting out tongues or eyes, slitting noses or lips, or “rendering…useless” someone’s arm or leg.

The law that is currently interpreted to outlaw abortion care seemed designed to keep men in the chaos of the Civil War from inflicting damage on others—including pregnant women—rather than to police women’s reproductive care, which women largely handled on their own or through the help of doctors who used drugs and instruments to remove what they called dangerous blockages of women’s natural cycles in the four to five months before fetal movement became obvious.

Written to police the behavior of men, the code tells a larger story about power and control.

The Arizona Territorial legislature in 1864 had 18 men in the lower House of Representatives and 9 men in the upper house, the Council, for a total of 27 men. They met on September 26, 1864, in Prescott. The session ended about six weeks later, on November 10.

The very first thing the legislators did was to authorize the governor to appoint a commissioner to prepare a code of laws for the territory. But William T. Howell, a judge who had arrived in the territory the previous December, had already written one, which the legislature promptly accepted as a blueprint.

Although they did discuss his laws, the members later thanked Judge Howell for “preparing his excellent and able Code of Laws” and, as a mark of their appreciation, provided that the laws would officially be called “The Howell Code.” (They also paid him a handsome $2500, which was equivalent to at least 5 years’ salary for a workingman in that era.) Judge Howell wrote the territory’s criminal code essentially single-handedly.

The second thing the legislature did was to give a member of the House of Representatives a divorce from his wife.

Then they established a county road near Prescott.

Then they gave a local army surgeon a divorce from his wife.

In a total of 40 laws, the legislature incorporated a number of road companies, railway companies, ferry companies, and mining companies. They appropriated money for schools and incorporated the Arizona Historical Society.

These 27 men constructed a body of laws to bring order to the territory and to jump-start development. But their vision for the territory was a very particular one.

The legislature provided that “No black or mulatto, or Indian, Mongolian, or Asiatic, shall be permitted to [testify in court] against any white person,” thus making it impossible for them to protect their property, their families, or themselves from their white neighbors. It declared that “all marriages between a white person and a [Black person], shall…be absolutely void.”

And it defined the age of consent for sexual intercourse to be just ten years old (even if a younger child had “consented”).

So, in 1864, a legislature of 27 white men created a body of laws that discriminated against Black people and people of color and considered girls as young as 10 able to consent to sex, and they adopted a body of criminal laws written by one single man.

And in 2022, one of those laws is back in force in Arizona.

Categories Arizona, Health, History

Carol Burris: DeVos Blames Teachers’ Unions for “Learning Loss” With Malice But Without Evidence

By dianeravitch

September 18, 2022 //

Carol Burris is the executive director of the Network for Public Education. She recently received a press release from Betsy DeVos’s organization, the ironically-named American Federation for Children, asserting that the drop in test scores during the pandemic was the fault of the unions. The purpose of the “American Federation for Children” is to promote vouchers, especially for religious schools, and it is always eager to criticize public schools and teachers’ unions. AFC much prefers religious schools where children are indoctrinated without apology and where discrimination against unwanted children is common. Maybe they should change their name to the American Federation for Some Children (who share our religious views).

Burris writes:

Walter Blanks, the Press Secretary of the American Federation for Children, got on the rickety old soapbox of Betsy De Vos to blame teacher unions for the recent drop in student performance on NAEP. Moms for Liberty then jumped on calling for parents to “fire teacher unions.”

Did children suffer a decline in learning progress during the pandemic? Of course. Anyone who has ever taught in a school, unlike Mr. Blanks, could have predicted a drop.

As a former teacher and principal, I know that the relationship between a student and teacher and the relationship among students is critical for learning. And I also remember all those students who, without my cajoling and watchful eye, would have been content to put their heads down or look out the window instead of at their books. That’s kids. The warm smile directed at them, the subtle tap on the desk, you can’t do that over the internet.

But are unions the culprit for the NAEP score drop? There is no evidence of that.

First, if union influence in keeping remote learning were to blame, we would expect to see a larger drop in city scores than suburban scores. Suburban schools, with or without unions, were far more likely to open. However, suburban scores dropped significantly more in Reading for both low and high achievers than for city students, whose scores barely budged. In Math, the point drop for high achievers was the same; suburban low achievers lost more ground than their counterparts in cities.

Second, we would expect regional differences depending on the influence of unions.

But there is only one point difference in the scores’ drops between the union-heavy northeast and the right-to-work dominated south. And western states, where unions are prevalent in the most populous states, saw much smaller score drops than the south.

Not content to blame unions in general, Walter Blanks singles out Randi Weingarten as a national villain. Ms. Weingarten, a woman and strong leader, married to Rabbi Sharon Kleinbaum, has become a prime target for the misogynist right. But the facts do not bear out his accusations. Even as Weingarten was listening to her members concerned with their own family and student health, she was quietly working behind the scenes to get schools safely opened.

As a New York City public school grandma, I know it. And I am thankful for those efforts. My granddaughter returned to in-person learning in the fall of 2020 as New York City public schools opened. There were bumps and starts, but they opened. Even so, the majority of NYC parents still kept their children remote.

Will Mr. Blanks blame those parents and hundreds of thousands like them who were fearful of sending their children back to school?

Covid 19 was a national tragedy. Over one million Americans died horrible deaths. We will feel the pain and ramifications for years to come. And yes, our children deserve all our efforts to repair the academic and emotional damage of the pandemic. But using that tragedy to push an anti-union agenda does not help repair the damage. It continues to enflame the anger of parents still reeling from the pandemic themselves.

Blanks ends his essay by touting how school choice is the answer. I am scratching my head to reconcile that with the American Federation for Children’s stalwart support for low-quality online virtual schools and homeschools. You can’t blame learning loss on a lack of in-person learning and then support virtual learning solutions. Will AFC now advocate for the closure of online charters and homeschools? Don’t hold your breath.

Categories Betsy DeVos, Bigotry, Education Industry, Health, Lies, Privatization, Propaganda, Unions

Jan Resseger: NAEP Scores Show the Toll of the Pandemic—But It’s Temporary

By dianeravitch

September 12, 2022 //

Jan Resseger is consistently the voice of wisdom on anything related to children and young people. In this post, she explains why we should not be panicked by the decline of NAEP scores. The scores reflected the toll that the pandemic exacted. But now that children are back in school, we can expect learning to proceed without major disruption.

She writes:

I think this year’s NAEP scores—considerably lower than pre-pandemic scores—should be understood as a marker that helps us define the magnitude of the disruption for our children during this time of COVID. The losses are academic, emotional, and social, and they all make learning harder….

Education Week’s Sarah Schwartz asked Stanford University professor Sean Reardon (whose research tracks the connection of poverty and race to educational achievement) whether “it will take another 20 years to raise scores once again.” Reardon responded: “That’s the wrong question…. The question is: What’s going to happen for these (9-year-old) kids over the next years of their lives.” Schwartz describes more of Reardon’s response: “Children born now will, hopefully, attend school without the kinds of major, national disruptions that children who were in school during the pandemic faced. Most likely, scores for 9-year-olds, will be back to normal relatively soon, Reardon said. Instead, he said, we should look to future scores for 13-year-olds, which will present a better sense of how much ground these current students have gained.”

Categories Accountability, Education Reform, Health, NAEP, Testing

Breaking News: Michigan Supreme Court Rules that Referendum on Abortion Will Be on the Ballot

By dianeravitch

September 8, 2022 //

Late today, the Michigan Supreme Court ruled that voters would be able to vote on a referendum to protect abortion rights.

Supporters of reproduction rights gathered 750,000 signatures for the referendum, far more than was required. However, when the petition was presented to the Board of State Canvassers, the two Republicans on the board said the petition was invalid because of spacing between words. The two Democrats wanted the referendum to proceed.

The petitioners appealed to the Supreme Court, which ruled in favor of the referendum.

CNN REPORTED:

The Michigan Supreme Court ordered Thursday that a citizen-initiative ballot measure seeking to enshrine abortion rights in the state constitution be added to the November ballot.

The court’s 5-2 ruling was issued the day before Michigan’s ballot needs to be finalized on Friday.

The order directs the Board of State Canvassers to certify the Reproductive Freedom for All petition as sufficient and eligible for placement on the ballot. This comes after the board had deadlocked on a 2-2 party-line vote on whether to certify the ballot initiative last week, leading Reproductive Freedom for All to ask the Supreme Court to intervene.

Without the referendum, a 1931 law banning abortions in all cases except to save the life of the mother, would have gone into effect.

Republicans will do whatever they can to prevent popular votes on abortion, because most people support abortion rights, as the Kansas referendum showed. The conservative state overwhelmingly voted to keep abortion rights in the state constitution.

Categories Democracy, Health, Michigan

Beware of “Medicare Advantage”—The “Cash Monsters”

Laurence Tribe Reviews the Dobbs Decision Overturning Roe v. Wade

Jennifer Rubin: Kentucky Women Say Dobbs’ Decision Violates Religious Freedom

Kathryn Joyce: Is Abortion Murder?

Arnold Hillman: Save the Children of South Carolina!

Jan Resseger: Yes, We Can Reduce Child Poverty!

Heather Cox Richardson: The Origins of Arizona’s Disgraceful Abortion Law

Carol Burris: DeVos Blames Teachers’ Unions for “Learning Loss” With Malice But Without Evidence

Jan Resseger: NAEP Scores Show the Toll of the Pandemic—But It’s Temporary

Breaking News: Michigan Supreme Court Rules that Referendum on Abortion Will Be on the Ballot

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