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Law Professor: Barrett’s “Originalism” Is Incoherent

By dianeravitch
October 21, 2020 //
61

Kevin Tobia, an assistant professor of law at Georgetown Law Center, wrote in Salon that Amy Coney Barrett’s “originalist” interpretation of law is incoherent.

Tobia writes:

Many fear that Amy Coney Barrett’s Supreme Court confirmation will erode the established rights of women and LGBTQ+ persons, given Barrett’s private convictions. At last week’s hearings before the Senate Judiciary Committee, Barrett responded clearly: “A judge must apply the law as written, not as the judge wishes it were.” Barrett is an originalist and textualist, who prioritizes “what people understood words to mean at the time that the law was enacted.” In pointing outward to the people, originalism conveys an alluring humility. Originalism is not personal; its conclusions reflect the objective fact of “public meaning.” 

But are originalists right about the facts? I ran experiments to test whether originalism’s tools actually reflect public meaning. The results are surprising and troubling. In a forthcoming article in the Harvard Law Review, I found that the tools originalists rely upon support false conclusions about public meaning — and often conflict with each other. Until originalists like Barrett articulate better methods, Americans have no good reason to believe the theory is succeeding, even on its own terms.

In historical interpretation, originalists rely on tools like dictionary definitions: How was the contested term defined? They also rely on patterns of language usage: What was the most common way to use the term? A “big data” version of this approach called legal corpus linguistics has gained popularity.

I tested whether these tools actually reflect public meaning today, with a simple experiment. Consider a well-known example from legal philosophy: What is the meaning of the term “vehicle”? Three different groups participated in an experiment. The first made judgments about vehicles (e.g., “Is an airplane a vehicle: Yes or no?”). The second made judgments equipped with a dictionary definition of “vehicle” and the third with data from legal corpus linguistics (e.g., data about how the word “vehicle” is most commonly used).

Those groups reached radically different conclusions. For example, about 50% of people today say that a canoe is a vehicle. Yet nearly all participants using a dictionary definition reached that judgment (95%), while nearly all the participants using the corpus linguistics data reached the opposite judgment (only 10% agreed). Similar divergences arose across many different examples, and across groups of ordinary Americans, law school students and United States judges...

A broader problem for originalism concerns the concept of “public meaning” itself. If originalists can identify how the public understood our Constitution in 1787, surely they can identify the “public meaning” of very simple terms today. Justice Brett Kavanaugh, also an originalist, invites us in a recent opinion to consider again the meaning of “vehicle.” Clearly a car is a vehicle, but what about a canoe, an airplane or a baby stroller? Kavanaugh provides straightforward answers: “the word ‘vehicle,’ in its ordinary meaning does not encompass baby strollers.”

Does the American public agree? About 75% of Americans agree that baby strollers are not “vehicles.” But 25% disagree. Other cases are even more difficult. People are divided 70-30 concerning whether airplanes are vehicles, divided 60-40 on bicycles and divided 50-50 on canoes. It’s not obvious what originalists should make of these facts. Is “public meaning” the same as “75% meaning” or “50% meaning”?

What does the Constitution say about computers, the Internet, and data privacy? What does it say about equal rights for African Americans, women, and gay people? What does it say about corporations and their “rights”? What does it say about in vitro fertilization (which Barrett has called “manslaughter”)? These “what ifs” can go on and on and on because the white men who wrote the Constitution lived in a very different world from 2020. They wrote a Constitution for their time and laid out general principles for the future, which subsequent Courts have adjusted to meet the issues of changing times.

It seems like the height of hubris to try to think as if he (certainly not she) could imagine what was in the minds of the Founders.

Of one thing we can be sure: The Founders did not imagine women sitting on the Supreme Court or voting in elections or serving on juries. If they wanted equality between men and women, they would have said so. They didn’t. They would be appalled that Amy Coney Barrett is joining two other women–Justice Sonia Sotomayor and Justice Elena Kagan–on the Supreme Court. A true originalist would immediately recognize that the Founders did not envision women on the Court. And Judge Barrett–if she is true to her philosophy–would decline a seat on the Court.

Categories Justice

Jan Resseger: An “Originalist” Judge Cannot Understand Education

By dianeravitch
October 21, 2020 //
53

Jan Resseger writes here about the misfit between an “originalist” interpretation of the Constitution and the field of education, which has evolved very far from its condition in the 1770s. It is likely that an originalist, as Judge Amy Coney Barrett claims to be, would have nothing to say about contemporary issues in education, since there were no public schools, no Catholic schools, no organized system of education at all in the time that the Constitution was written.

Resseger writes:

For a couple of weeks now, since the publication of Derek Black’s history of the constitutional basis for American public education, this blog has been reflecting on the meaning of constitutional principles in our nation’s founding documents and the 50 state constitutions for defining the role and meaning of our nation’s system of public schools.  (See here, here, and here.)

But this week, Judge Amy Coney Barrett, who defines herself as a constitutional originalist, went through hours of Senate confirmation hearings leading to a Senate vote on her confirmation in the next week or two as President Trump’s latest appointment to the U.S. Supreme Court. All week we have been considering what it means for our society today when members of the U.S. Supreme Court define themselves as originalists who are bound to interpret the constitutionality of today’s laws according to the precise wording of the U.S. Constitution of 1787.

The other day when Chicago Mayor Lori Lightfoot, trained in the law and formerly a federal prosecutor, was asked whether she is an originalist, Mayor Lightfood replied: “You ask a gay, black woman if she is an originalist? No, ma’am, I am not. The Constitution didn’t consider me a person… because I’m a woman, because I’m black, because I’m gay.  I am not an originalist. I believe in the Constitution. I believe that it is a document that the founders intended to evolve and what they did was set the framework for how our country was going to be different from any other. But originalists say that, ‘Let’s go back to 1776 and whatever was there in the original language, that’s it.’ That language excluded, now, over 50 percent of the country. So, no I’m not an originalist.”

Like Mayor Lightfoot, many people today worry about originalist legal interpretation.  In Linguistics 101, students learn that language changes and evolves over time as particular words become archaic, fall out of common usage, or evolve to mean something different. Dictionaries are descriptive, not prescriptive. We cannot know precisely what the founders intended, but we can be sure that the words they used in 1787 may connote something much broader or narrower today.

Schoolhouse Burning, Derek Black’s new book is, in essence, the history of how the meaning of the guarantee of public education as a right for every child has changed and become more inclusive in the over two hundred years since our nation’s founding. Some people say that because the Constitution itself does not mention public education, public education is not a fundamental right, but Black disagrees because public education is so carefully planned in the Northwest Ordinance, passed as a sort of companion document in the same year as the Constitution.  As Black traces the history of our understanding of the right to public education, it’s clear that Derek Black is certainly not an originalist.  His book is the story of how our history—the civil war, the development of the constitutional principles of the 50 states, Jim Crow, the Civil Rights Movement—has informed and further defined the meaning of the founding principles: “The foregoing principles—the right to an adequate and equal education, making education the state’s absolute and foremost duty, requiring states to exert the necessary effort (financial or otherwise) to provide quality educational access, placing education above normal politics, and expecting courts to serve as a check—are all in the service of something larger: the original idea that education is the foundation of our constitutional democracy.  Education is the means by which citizens preserve their other rights. Education gives citizens the tools they need to hold their political leaders accountable…  Democracy simply does not work well without educated citizens.” (Schoolhouse Burning, p. 224)  Black reminds us, however: “The founders articulated educational goals not with any certainty that they would spring into reality simply by writing them down, but in the hope that we might one day live into them.” (Schoolhouse Burning, p 71)

“Originalist” legal interpretation doesn’t pay much heed to how we have lived into the goals and principles declared all those generations ago. How has the meaning of the constitutional protection of equal education evolved over the history of our country?

Categories Accountability, History, Justice

Steven Singer: An “Originalist” View of Public Schools

By dianeravitch
October 19, 2020 //
83

Steven Singer tries to understand today’s public schools through the eyes of an “original story,” someone who judges court cases based on the original intent of those who wrote the Constitution.

He writes:

Let’s say you went to a restaurant and ordered a big ol’ meat sandwich only to find nothing but straw between two pieces of bread.

“Waiter!” You say, calling over a server.

“What’s wrong, Sir?”

“There’s no meat in my sandwich.”

“Oh, Sir?” He says smiling, examining your plate. “Here at Scalia’s Bar and Grill we adhere to a strict originalist interpretation of language.”

“What does that have to do with my sandwich?”

“Well, Sir, in Old English ‘meat’ meant any solid food, anything other than drink. As in ‘A Journey to the Western Islands of Scotland’ (1775), Samuel Johnson noted, ‘Our guides told us, that the horses could not travel all day without rest or meat.’”

“But that’s not what I ordered!”

“Oh yes it is, Sir. You ordered the meat sandwich. Enjoy your fresh hay and oats.”

In everyday life, you wouldn’t put up with that kind of nonsense.

But for some reason, far right ideologues think it’s exactly the right way to interpret the U.S. Constitution.

The meanings of words change over time.

But ignoring that fact allows disingenuous crackpots to sweep over centuries of judicial precedent in favor of what they pretend to THINK the words meant at the time the law was written.

It’s not even about what the writers of the law SAID it meant. It’s about what today’s justices decide some hypothetical average Joe of the distant past would take certain words to mean.

The most obvious example, according to Pulitzer Prize winning historian Joseph Ellis,is District of Columbia v. Heller, 554 U.S. 570 (2008), which reversed 200 years of precedent on gun regulations.

Before this ruling, the Second Amendment was interpreted to be referring only to service in the militia. The Militia Act of 1792 required each able-bodied male citizen to obtain a firearm (“a good musket or firelock”) so he can participate in the “well regulated militia” the Amendment describes.

It was about the obligation to serve your country, not the right to own a gun. However, Supreme Court Justice Antonin Scalia – the most infamous proponent of judicial originalism – orchestrated the majority opinion in this case changing all that. By doing a thought experiment about what words might have meant in the 1700s, he papered over two centuries of established law. He was so proud of it that he even described it as “my masterpiece.”

THAT’S judicial originalism.

And now that Scalia fanboy and federal judge for not even three whole years, Amy Coney Barrett, is being rammed through Senate Confirmation Hearings, that preposterous ideology is about to have another proponent on the highest court in the land.

Just imagine if we interpreted everything like people living in the 18th Century!

Please continue reading this excellent post.

Categories History, Justice

How Does ACB’s “Originalism” Connect to 2020 Medical Care?

By dianeravitch
October 15, 2020 //
57

I get many requests for donations in my email daily. Some come from the Committee to protect Medicare.

This was written by Dr. Rob Davidson, executive director of the Committee:

For the past three days, I’ve watched Amy Coney Barrett’s confirmation hearings in the Senate. As a doctor, it’s beyond bizarre to see a potential Supreme Court Justice say she’ll make decisions about health care based on Originalism — what she thinks people in the 1700s would have intended.

How different was medicine back then? 

The first vaccine wasn’t developed until 1799 (smallpox). Does Judge Barrett support Medicaid covering the routine immunization of kids against deadly diseases? Would she oppose Donald Trump providing a coronavirus vaccine to us, even though the founders would be confused? 

 1846 saw the first demonstration of anesthesia in the world. Should Medicare pay for anesthesia for hip replacements or heart bypasses, even though the constitution doesn’t mention anesthesia? 

 To Judge Barrett, would my evaluations of Medicare patients with chest pain be unconstitutional since EKG’s and X-rays weren’t used until 1895?  

This list goes on and on. Nearly every aspect of modern medicine was non-existent in the late 18th century. An “originalist” approach to the government funding of any type of health care today might deem all of them unconstitutional. 

This is personal for me. Amy Coney Barrett’s confirmation is all but certain to doom the Affordable Care Act and rip health care from over 20 million Americans, including over 8,000 people in my poor, red, rural Michigan county of 48,000. Is the ACA just the first step? Is Medicare next on the chopping block?

 If Amy Coney Barrett is confirmed, we need to be able to push twice as hard to reach voters in these final weeks to convey just how high the stakes are for health care. Can you chip in $5, $10, or more today to help us reach voters in swing states and save Medicare in these final 19 days? Click here to chip in now.If you’ve saved your payment information with ActBlue Express, your donation will process automatically:

Express Donate: $5 →Express Donate: $10 →Express Donate: $25 →Express Donate: $50 →Express Donate: $100 →Express Donate: Other → 

Thank you so much for your support,

 Dr. Rob Davidson
Executive Director of Committee to Protect Medicare

Categories Health, Justice, Science

Rhode Island: A Must-Read Court Decision!

By dianeravitch
October 15, 2020 //
10

You are probably not in the habit of reading court decisions. They tend to be dense and filled with citations that slow down the reader.

But you must read the decision issued on October 13 by Judge William Smith of the U.S. District Court of Rhode Island. It is brilliant, fascinating, informative. It is a lesson in civics for all of us.

Students in Rhode Island sued the state of Rhode Island and its governor Gina Raimondo because they did not receive education in civics, which (they said) deprived them of the knowledge and skills they needed to participate in our democracy.

Judge Smith reluctantly dismissed their appeal because no federal court (except for one in Michigan) had ruled that Americans have a “right” to education. He laments that this is the case, and he explains in crisp detail why democracy is in danger in the absence of civic education. He clearly wanted to rule in favor of the students. They will appeal but are likely to run into more roadblocks.

Judge Smith notes that the Brown v. Board of Education decision of 1954 ruled that education was fundamental to citizenship, but the Nixon Court in 1973 ruled that education was not a right guaranteed by the Constitution. Judge Smith laments that fact but can’t overrule it.

Here is the announcement of the decision from the Center for Educational Equity at Teachers College. Michael A. Rebell of the Center is lead counsel for the plaintiffs.

Judge William Smith of the U.S. District Court for Rhode Island, issued his long-awaited decision in Cook v. Raimondo on on October 13,2020. This case was filed by a group of Rhode Island public school students and families who seek to establish a right under the U.S. Constitution to an education adequate to prepare them to participate effectively in their constitutional rights to “voting, serving on a jury, understanding economic, social, and political systems sufficiently to make informed choices, and to participate effectively in civic activities.”

Judge Smith granted the defendants’ motion to dismiss the case, but did so in a manner that eloquently set forth the critical importance of the issues the plaintiffs raised:

This is what it all comes down to: we may choose to survive as a country by respecting our Constitution, the laws and norms of political and civic behavior, and by educating our children on civics, the rule of law, and what it really means to be an American, and what America means. Or, we may ignore these things at our and their peril. Unfortunately, this Court cannot, for the reasons explained below, deliver or dictate the solution — but, in denying that relief, I hope I can at least call out the need for it.

The judge added:

This case does not represent a wild-eyed effort to expand the reach of substantive due process, but rather a cry for help from a generation of young people who are destined to inherit a country which we — the generation currently in charge — are not stewarding well. What these young people seem to recognize is that American democracy is in peril. Its survival, and their ability to reap the benefit of living in a country with robust freedoms and rights, a strong economy, and a moral center protected by the rule of law is something that citizens must cherish, protect, and constantly work for. We would do well to pay attention to their plea.

Plaintiffs in Cook v. Raimondo argue that the U.S. Constitution entitles all students to an education that prepares them to participate fully in a democracy. It alleges that the state of Rhode Island is failing to provide tens of thousands of students throughout the state with the necessary basic education and civic-participation skills. The plaintiffs are 14 high school, middle school, elementary school, and preschool students (or parents on behalf of their children) attending public schools in a variety of school districts throughout the state. An ultimate decision on behalf of plaintiffs in this case would establish a constitutional right to education for students throughout the United States.

Judge Smith rejected the plaintiffs’ equal protection claim, writing that, although the U.S. Supreme Court “left the door open just a crack” for reconsideration of its 1973 decision in San Antonio Ind’t Sch. Dist. v. Rodriguez that education is not a right the U.S. Constitution,  he interpreted that “crack” to allow the courts to consider only a case that alleges that students are receiving no education  whatsoever or an education that is “totally inadequate.”  He also rejected plaintiffs’ “substantive due process” claim that a right to education for citizenship is “deeply rooted in the nation’s history and traditions” because “[p]recedent clearly dictates that, while education as a civic ideal is no doubt deeply rooted in our country’s history, there is no right to civics education in the Constitution.”

Judge Smith’s opinion squarely recognized the federal court’s authority to review the students’ claim on the merits, namely whether a constitutional right to civics education represented the “quantum of education” that might be necessary for students to be prepared for the “meaningful exercise” of their constitutional rights. While Judge Smith found, to his regret, that he was unable to connect the legal dots to support this claim, his opinion articulates what is at stake for our country and our Constitution, leaving the plaintiffs a road map to present their appeal to the First Circuit. 

Plaintiffs have stated that they will appeal this decision to the U.S. Circuit Court of Appeals for the First Circuit. Michael A. Rebell, a professor at Teachers College, Columbia University, who is lead counsel for the plaintiffs, said:

Judge Smith has written the most eloquent and forceful justification I’ve ever read for why America may not “survive as a county” if our students don’t obtain a civic education adequate to allow them to meet the challenges jeopardizing our democracy. The final paragraph to his opinion reads:

Plaintiffs should be commended for bringing this case. It highlights a deep flaw in our national education priorities and policies. The Court cannot provide the remedy Plaintiffs seek, but in denying that relief, the Court adds its voice to Plaintiffs’ in calling attention to their plea. Hopefully, others who have the power to address this need will respond appropriately.

Rebell, and the students and families he represents, believe a strong stance by the court will be necessary to ensure the policymakers and school leaders who have the power to address these issues actually do so. Rebell said, “Judge Smith acknowledged that the U.S.  Supreme Court in Rodriguez left the door open “a crack” for reconsideration aspects of that decision; we hope to convince the Court of Appeals that this open door does, in fact, permit the courts to rule on the critical issues raised by our case.”

Judge Smith’s full decision is linked here.

I urge you to read the decision.

Categories Accountability, Citizenship, Civics, Education Reform, Justice

Report: Barr Undermines Justice and Intelligence Agencies

By dianeravitch
October 8, 2020 //
19

James Hohmann of the Washington Post reviews a report that is soon to be released. It is highly critical of Attorney General William Barr.

He writes:

“A forthcoming report from the Center for Ethics and the Rule of Law at the University of Pennsylvania, prepared in partnership with Citizens for Responsibility and Ethics in Washington, is sharply critical of Attorney General Bill Barr.

“The authors gave me a first look at their 277-page report, which is scheduled for publication next week, and focuses on nine areas, including the misleading summary Barr initially offered of special counsel Bob Mueller’s conclusions; the Justice Department’s handling of the whistleblower complaint related to President Trump’s infamous call with Ukraine’s president; his intervention in politically sensitive prosecutions, such as the cases of former Trump advisers Roger Stone and Michael Flynn; the deployment of federal agents and troops against protestors, including the order to clear Lafayette Square; the firing or reassignment of U.S. attorneys, especially in the Southern District of New York; his role in trying to block the publication of material unflattering to the president, such as former national security adviser John Bolton’s memoir; the politicization of several offices within the department, in particular the Office of Legal Counsel; and his resistance to congressional oversight, including subpoenas.

“The meatiest, and perhaps most timely, chapter focuses on Barr’s support for investigating the origins of the probe into Russian interference in the 2016 election. Several of the authors have backgrounds in national security and intelligence, and they express fear that the ongoing investigation by U.S. Attorney John Durham of Connecticut, ordered up by Barr, could have chilling effects on collecting and disseminating information about potential foreign interference amid the 2020 election.

“There is a grave danger to the Intelligence Community from politicized DOJ investigations, intimidation and potential prosecutions,” the authors argue. “The use of a criminal investigation is ill-suited to examining the process of foreign intelligence analysis, poses unnecessary risks to intelligence sources and methods, intimidates and alienates foreign intelligence analysts, and chills the analytic process in a way likely to undermine the candor essential to producing the best intelligence information for national policymakers. The cumulative effects are likely to increase the attrition of talented intelligence personnel and neutralize the concept of ‘speaking truth to power’ that is essential to the effective use of intelligence in national policy decisions. All of this weakens prospective U.S. intelligence capabilities to the advantage of Russia and other adversaries in competition with the interests and goals of the United States.”

Barr’s spokespeople at the Justice Department did not respond to three requests for comment. The attorney general has vigorously defended the propriety of all his actions since taking office early last year. He testified last year that he thinks “spying did occur” on the Trump campaign in 2016 and has repeatedly cast doubt on whether there was proper predication for the investigation. He has said that – as the nation’s chief law enforcement official – he has an obligation to pursue wrongdoing, if there was any. He recently delivered a fiery speech that criticized career prosecutors for the zealousness with which they have pursued certain targets of investigations and defended the politicization of the Justice Department on his watch.

 

The three chairs of the 10-member working group that prepared this document over several months are University of Pennsylvania law professor Claire Finkelstein, the faculty director of the Center for Ethics and the Rule of Law; University of Minnesota law professor Richard Painter, who served as the chief White House ethics lawyer under President George W. Bush; and Noah Bookbinder, the executive director of CREW, a liberal-leaning watchdog group, and a former federal corruption prosecutor.

The bipartisan working group includes several members with significant national security backgrounds, including Elizabeth Rindskopf Parker, who served as general counsel of the National Security Agency and Central Intelligence Agency; George Croner, who oversaw signals intelligence and FISA compliance in the operations division of the NSA’s general counsel’s office; Stuart Gerson, a former acting attorney general who ran the DOJ’s civil division under George H.W. Bush; Richard Meyer,who taught law at West Point after 22 years in the Army, including as a military intelligence specialist; and Shawn Turner,who wascommunications director for the director of national intelligence. Donald Ayer, who was deputy attorney general under Bush and Barr’s boss at one point, was a consultant for the project.

It is unknown whether Durham will issue any findings about his probe before Election Day, but Barr has not ruled out that he would announce something during the homestretch of the campaign. “The Attorney General appears to be determined to use the Durham investigation as a publicity tool in order to justify President Trump’s conduct in the 2016 campaign and to discredit the investigation of Robert Mueller,” the report says. “All signs point toward a politically orchestrated ‘October surprise.’”

Trump signed an executive order last year giving Barr broad authority to declassify government secrets, and the attorney general has used it. The Justice Department recently released a pair of documents that seemed designed to cast fresh doubt on the judgment of senior law enforcement officials who investigated possible links between Russia and the Trump campaign in 2016, showing that one of the FBI case agents thought prosecutors were out to “get Trump” and that a key source of allegations against the president had been previously investigated as a possible Russian asset.

Last month, a senior prosecutor working with Durham on his investigation resigned, raising concern that Barr was pushing the case toward some kind public announcement to benefit Trump ahead of the election. Durham’s investigators have reportedly asked witnesses about how the FBI handled the case after it came to have doubts about the credibility of Christopher Steele, a former British intelligence officer whose work the bureau relied on in part to obtain the secret court order to surveil Page.

The working group says it came to “the reluctant conclusion” that Barr is “using the powers” of the Justice Department to help get Trump reelected and cited several interviews that the attorney general has given to Fox News about the Durham investigation. The authors conclude with a list of 10 recommendations that they say would safeguard the rule of law, including ensuring more independence for future special counsels, requiring recusal of presidential appointees from matters involving his personal financial interests, staggered 10-year terms for U.S. attorneys and inspectors general, more autonomy for career prosecutors, additional independence for members of the intelligence community, more vigorous congressional oversight and requiring all Justice Department attorneys to comply with ethics advice from DOJ ethics officials. 

James Clapper, the former director of national intelligence under President Barack Obama, told the group in an interview quoted in the report that the questioning of intelligence analysts as part of a criminal probe into substantive foreign intelligence analysis issues has been “unprecedented.” Clapper said he could think of no other instance of such an inquiry during his 54 years in the intelligence world, and he complained that this will have a “very chilling effect” on analysts inside the agencies. “That just shouldn’t be,” Clapper said. “The intelligence community is supposed to tell the unvarnished truth as best it can, which is a hard enough job to start with.”

Categories Accountability, Injustice, Justice, Trump

Yohuru Williams: The Words of John Lewis Inspire Creation of Coalition to Get into “Good Trouble”

By dianeravitch
September 19, 2020 //
11

Yohuru Williams is Dean of the College of Arts and Sciences at the University of St. Thomas in St.Paul, Minnesota. He is a noted scholar of Black history. And he also serves on the board of the Network for Public Education.

Dean Williams writes here about the activism for social justice in Minneapolis-St.Paul, inspired by the words of the late Congressman and civil rights icon, John Lewis.

Earlier this September, in Minneapolis and St. Paul, a brave collection of principals and assistant principals banded together to take on the issue of equity and justice in education.

Lewis’s letter, though directed at Black Lives Matter activists in particular, encourages all of us to find ways to get into “good trouble, necessary trouble,” in order to advance the goals of justice.
The members of the alliance, now 159 strong, have branded themselves the “good trouble” coalition after the mantra of the late Congressman John Lewis, who, before passing away in July, wrote a final letter that sought to inspire a passion for activism around racial injustice.

In his last months of life, Lewis lamented the dangerous and deadly state of affairs in the United States: persistent unjust police violence against African Americans, the failed governmental response to the COVID-19 pandemic, and continued efforts to erode American democratic practice at the highest levels of government.

And Lewis’s letter, though directed at Black Lives Matter activists in particular, encourages all of us to find ways to get into “good trouble, necessary trouble,” in order to advance the goals of justice—especially in tackling the most urgent issues of racial inequality, climate change, mass incarceration, economic disparities, healthcare gaps, and political division.

He also invited young people to consider how they might transform the future through studying history as a means of understanding our enduring struggles to achieve lasting peace and equality.

It is ironic that Cong. Lewis urged young people to study history as a means to “lasting peace and equality,” even as Trump demands a reactionary revision of U.S. history to glorify its “leaders” (no doubt including the Confederates who rallied to preserve white supremacy) and diminish or remove the role of African Americans in that history.

Categories Accountability, Equity, History, Justice, Minneapolis, Racism

An Open Letter to Biden and Harris from Washington State’s Superintendent of Public Instruction

By dianeravitch
August 25, 2020 //
23

Chris Reykdal, state superintendent of public instruction in Washington State, published this excellent letter to the Democratic candidates.

It overflows with wisdom and common sense.

An Open Letter to the Biden-Harris Ticket:

Mr. Vice President and Senator Harris, there is so much at stake with this year’s presidential election, including the very foundation of our country’s democracy – the future of our public education system. Led by Betsy DeVos and fueled by years of education privateers, the U.S. Department of Education (USDOE) has been an utter failure in advancing student learning, racial equity, and gender equity over the last four years. Under DeVos, the USDOE has jeopardized the financial future of too many young adults and actively worked against civil rights protections for our most vulnerable students.
​
As Washington State’s elected Superintendent of Public Instruction, I have worked with leaders across the state to build bipartisan coalitions to improve student achievement, but this same bipartisanship and student-centric approach have been elusive under the DeVos regime. It will take federal leadership working alongside state education policy leaders to move us past an inefficient and deficit-based system.
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What follows are ten critical steps necessary for a Biden/Harris administration to build the foundation for a truly equitable and outstanding American education system.
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1)
Grant a national waiver of all federally mandated tests required under the Every Student Succeeds Act until Congress has an opportunity to amend the law. This will save billions of dollars and allow us to refocus resources on assessments that illuminate student growth and learning, are delivered locally, and are aligned to requirements that are properly situated at the state or local level, not the federal government. The USDOE should review and approve each state’s education assessment framework, but it is time to put the evaluation of learning back in the classroom with meaningful standards, trained professionals, and culturally responsive instructional practices.
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2)
Deliver legislation to Congress to scale up the National Assessment of Educational Progress (NAEP) – a far more cost-effective method of actually determining the overall education progress of states with a real opportunity to finally understand performance differences between the states. This assessment is already funded and supported by the USDOE. It is inefficient and costly to have a federally funded assessment of student progress and have 50 states and territories maintaining their own costly assessments. This proposal would save billions from the current system, and with robust sample sizes, can identify critical supports needed to close opportunity gaps for students furthest from educational justice.
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3)
Invest in the teaching profession by diversifying the workforce, including establishing high-quality residencies for teacher candidates and early career teachers, and providing funds for ongoing meaningful educator training. Additionally, building educator capacity should focus on integration of social-emotional learning into instruction, anti-racist and student-centered teaching practices, and authentic family engagement. It is past time to shift away from destructive federal policies that force schools and educators to dwell on student deficits, as defined by federally mandated tests, instead of lifting up the unique contribution of every learner and every educator.
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4)
Immediately deliver a budget request to Congress that triples the federal budget for the Individuals with Disabilities Education Act (IDEA) from $13 billion to $40 billion. Congress and the USDOE have never fulfilled their obligation to this essential civil rights policy. One in seven students has a qualifying disability and these students deserve every accommodation necessary to fully engage in inclusive and least restrictive learning environments.
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5)
By Executive Order, immediately suspend any federal dollars used to support school voucher programs. Require the USDOE to undertake a national examination of voucher systems, and require each state that uses vouchers to conduct third-party evaluation, with a USDOE review, that examines the effects of school voucher systems on school segregation, specifically the segregation of students of color and students with disabilities.
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6)
Affirm that all federal funds are eligible to support DACA students and all migrant students. Make clear through executive order and USDOE rule that basic education rights for ALL students is a function of their residency, not their citizenship status. U.S. schools should focus on teaching and learning for ALL students, and the administration should ensure authorities overseeing immigration policy and citizenship status are upholding support of DACA and migrant students’ rights.
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7)
Immediately reverse the USDOE’s recent rule change related to Title IX. This rule, promoted by Betsy DeVos, weakens protections for victims of sexual assault and retraumatizes them with forced cross-examinations by their perpetrators.
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8)
Create a 10-year on-ramp with federal financial support to allow every school district in the United States to develop, implement, and evaluate dual-language programs for each of their students. The U.S. is linguistically diverse – this is an asset that should be celebrated, rather than viewed as a deficit! Every dollar spent on assessments for English language proficiency should be invested in high-quality dual language programs. We are losing a global battle for talent, and our students do not compete effectively in a global labor market because they lack bilingualism. Every student in the U.S. should learn two or more languages – as most of the world does – and this begins most effectively in early learning programs and early elementary school.
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9)
Deliver an initial budget request to Congress of $100 billion to close the digital divide and invest in tribal lands by building out broadband connectivity in rural and remote communities. Make K-12 schools, indigenous communities, and reservation lands the highest priorities for “last mile” infrastructure. Our tribal communities are sovereign nations trapped by our failed national infrastructure. Tribal youth experience one of the largest opportunity gaps in the nation, and broadband can play a massive role in this powerful opportunity for equity.
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10)
Provide every United States high school graduate two years of equivalent tuition to a public community or technical college through an education savings account. Students can use these funds for full associate degrees or industry recognized credentials, or use the funds as a universal baseline of financial assistance as they attend four-year colleges and universities.
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Strengthening America’s education system should be the top priority for a Biden/Harris Administration. It does not mean expanding the control or scope of the USDOE, but rather putting the proper budget and policy levers in place that empower states and local school districts to close opportunity gaps, develop diverse pathways to graduation, and once again recognize the needs of individual students, employers, and the larger economy.

America’s future rests on its commitment to each and every learner in a high-quality accessible public education system that sees race, language, and individual student interests as strengths and assets upon which we develop the greatest and most innovative nation the world has ever known.

Chris Reykdal, Washington State Superintendent of Public Instruction
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Categories Accountability, Corporate Reformers, Education Industry, Education Reform, Equity, Funding, Justice, Privatization, Testing, Vouchers

Bruce Baker and Preston Green: What Happens After the Espinoza Decision?

By dianeravitch
August 1, 2020 //
20

Two of the nation’s leading education experts ponder the implications of the U.S. Supreme Court’s Espinoza decision. Bruce D. Baker of Rutgers University is a school finance expert. Preston C. Green III of the University of Connecticut specializes in education law.

I confess that I was relieved that the Espinoza decision was limited in scope. I was afraid that the religious zealots on the Court might sweep away all barriers to public funding of religious schools. It did not. But Baker and Green persuade me that I was wrong, that Espinoza was another step towards breaking down the Wall of Separation between church and state and should be viewed with alarm.

I urge you to read their analysis of where we are going, how it involves not only vouchers but charter schools, and what states must do to protect public schools.

Categories Accountability, Charter Schools, Equity, Justice, Religion, School Choice, Separation of church and state, Supporting public schools, Vouchers

John Thompson: Save My Former Student’s Life

By dianeravitch
July 22, 2020 //
6

John Thompson, historian and retired teacher in Oklahoma, makes an urgent appeal to save the life of his former student Julius Jones.

He writes:

I just watched the rebroadcast of ABC’s “20 20” documentary, “The Last Defense,” about my former student, Julius Jones, who is on Death Row even though he’s probably innocent. It was an abridged version that left time to update the case’s developments over the last two years. It refuted the claims at a recent press conference by Oklahoma Attorney General Robert Hunter that the evidence still says that Jones murdered Paul Howell in front of his children, while carjacking his Suburban. (I also appeared in the documentary.)

As I will explain, there is no hard evidence that Jones committed the crime, and there is plenty of evidence that my other former student, Chris “Westside” Jordan shot Mr. Howell. Closing a documentary which revealed glaring miscarriages of justice, the producer, Scott Budrick says, “I don’t think there is anyone … who can say Julius Jones received a fair trial.”

The criminal justice system has always been torn between the ideal that the defendant is “innocent until proven guilty,” and the prosecutors’ real world commitment to winning. Individual district attorneys operate in a system where 90% or more of cases must be settled with a plea bargain. If fairness was the overriding principle, too many defendants would go to trial and the system would be overwhelmed.

The juxtaposition of A.G. Hunter’s attack on the “Justice for Julius” movement and “The Last Defense,” with the outrages revealed in the documentary, leads me back to the belief that district attorneys like the late “Cowboy Bob” Macy are a huge problem. The even bigger problem isn’t the individual prosecutors, but how the system creates a law enforcement culture where winning is the priority.

For instance, A.G. Hunter has been very effective in presenting the case, as it existed in 2002, against Jones. There is nothing wrong with Hunter visiting with the Howell family and, like the defendants repeatedly have, saying that the family’s suffering must be acknowledged. And trial attorneys routinely cross that line with emotional arguments personalizing the case, as opposed to presenting evidence in a balanced manner.

However, Hunter went too far when he told the press conference, “I’m here today as an advocate for the late Paul Howell and his family … They are the victims in this case, make no mistake about it, and the pain of their loss is revisited with each misguided public appeal on Mr. Jones’ behalf.”

Then Hunter skillfully repeated the evidence that was presented to the jury and subsequent appeals judges. As the defense acknowledged, if that was all that was known about the horrific murder, a guilty verdict would be understandable. The problem is that the attorney general, being a loyal team member, ignores the large body of evidence that has been discovered and compiled over the last decade.

Moreover, Hunter released the trial transcript, but he didn’t seek to release the evidence which mattered the most – the prosecution’s trial record file.

And that leads to the reason why Jones is on Death Row. The high-profile investigation was guided by two police informants, who were both facing long sentences for other crimes.

The experienced prosecutors skillfully appealed to the jurors’ emotions. I doubt the district attorney’s office was surprised to hear the jury foreman tell “20 20” that, in a case like that one, you “go with your heart more than anything else.” The juror trusted “what you felt in your gut.” When delivering the verdict, the juror “felt right.”

Jones and his attorneys had always admitted that he had not been perfect, and he had committed nonviolent offences. But Hunter said that Jones’ “criminal history was replete with the use and threat of violence: armed robbery, carjackings, assault.”

Jones had not been charged with such crimes, and the D.A. never proved these cases against Jones in court. Instead, they were brought up in the sentencing phase where the state can simply say that Jones did this, he did that, without proof. This is because such claims do not need to have been proven. It is a typical tactic that prosecutors use to frighten juries into imposing the death penalty. If the State had the evidence of violent offenses, the defense asks, why didn’t it file charges back in 1999? Twenty-one years later the A.G. is throwing this out there, trying to make it stick.

The State eventually agreed to a DNA test of a bandanna that was found wrapped around the apparent murder weapon in the Jones’ family home. A.G. Hunter argues that “the major component of the DNA profile matched Jones.” But, Dr. Eli Shapiro did a more complete and nuanced analysis. Seven of the 21 genetic markers were found to be consistent with Jones’ DNA. The Jones defense notes that the finding doesn’t “constitute a match under law enforcement standards.” Moreover, no saliva DNA was found on the bandanna, as would be expected after the gunman shouted into it as the eyewitness testified to at trial.

The biggest problem with the State’s claim is that Jordan came by the Jones’ house the day after the murder, said he was locked out of his grandmother’s house, and spent the night sleeping upstairs where he could have easily planted the bandanna and the gun. And when the police searched the Jones’ house, Jordan was in a police car outside, so he could direct them toward the evidence.

In other words, had all of this DNA evidence been presented at trial, it would not have incriminated Jones in a trial where he was considered “innocent until proven guilty.”

“The Last Defense” includes statements by his public defender, who was inexperienced in murder trials and who acknowledged that he did a “terrible job” of cross examining Chris Jordan, who repeatedly contradicted himself when fingering Julius as the murderer.

The jury did not hear statements by two inmates who said that co-defendant Jordan bragged about the killing and the deal he made to get out of prison in 15 years. Jordon, in fact, was released 15 years into his 30 year sentence.

Neither did the defense attorney call Jones’ family to the stand even though they would have testified that he was visiting their home until about 9:30, the time when the murder was committed in Edmond. His current attorneys explain:

Julius’s trial lawyers claim in sworn affidavits in 2004 that they delegated the investigation of the alibi to an investigator who was untrained and unqualified. This investigator never provided written or taped notes of his supposed alibi investigation

Neither did the Jones defense do an adequate job of distinguishing between Jones, who was photographed just before and just after the murder with close-cropped hair. The witness, Megan Tobey, testified that the shooter had “a half an inch to an inch” of hair sticking out of the bandanna. This is crucial because Jones had close-cropped hair that didn’t fit such a description. Hunter indicates that the defense claimed that the witness said the shooter had “cornrows.” But the Jones defense position is:

She did not testify, as the AG’s Statement misrepresents, that the shooter did not have braids or corn rows. Ms. Tobey also specifically affirmed that the shooter had hair sticking out from both sides and about a half an inch.

Moreover, the defense attorney did not stress the point of how important that testimony was in terms of incriminating Jordan, not Jones.

Finally, at least one juror heard a fellow juror say, “Well, they should just take that n—– out back, shoot him and bury him under the jail.” The juror told the judge about the comments the following day, but the juror was not removed, supposedly because the judge was not told that the N-word was used.

As I rethink the Julius Jones case, and the district attorney’s response, I recall the 1980s when I was a legal historian and when violence in Oklahoma City was so much worse than we could imagine today. Back then, I was one of many who was cautiously optimistic when Bob Macy took office.

My research had focused on Oklahoma County from the 1960s to the 1990s. Clearly, the War on Drugs undermined the progress which I had witnessed. Despite my intense involvement with the inner city, and seeing many abuses of power, it never occurred to me that law enforcement in 1999 could resemble the brutality of 1969. I’m now shocked that today’s prosecutors, who in my experience want to distance themselves from the corrupt violence of Jim Crow Oklahoma, are still refusing to break with the system of the past which deprived Julius Jones of a fair trial.

During either era, however, the publicity that accompanies capital crimes means that death penalty cases bring out the worst in the system. But, this is not 1999 or 2002 when Jones faced trial. We now know far more about the facts regarding that horrible murder and biased prosecution. Because of longstanding practices and the 1980s and 1990s “reforms,” designed to get tougher on crime by undermining defendants’ rights, no jurors, and few or no judges, have looked at the whole story. Julius Jones’ life now depends on the Pardon and Parole Board and the Governor, and whether a majority will commit to justice for Julius, taking a step toward a criminal justice system worthy of our democracy.

Categories Justice, Oklahoma
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