Voice For Liberty

Tag: Rhonda Holman

  • In Kansas, the Blob is worked up

    In Kansas, the Blob is worked up

    apple-chalkboard-books“Education reformers have a name for the resistance: the education ‘Blob.’ The Blob includes the teachers unions, but also janitors and principals unions, school boards, PTA bureaucrats, local politicians and so on.” (John Stossel, The Blob That Ate Children.)

    In Kansas, we’re seeing the Blob at full activation, vigorously protecting its interests. The source of the Blob’s consternation is a bill in the Kansas Legislature that would add charter schools and tax credit scholarships to the educational landscape in Kansas. (Kansas does have charter schools at present, but the law is so stacked in favor of the Blob’s interests that there are very few charter schools.)

    An example of a prominent spokesperson for the Blob is the Wichita Eagle’s Rhonda Holman. She recently wrote regarding Kansas school funding: “In the Kansas Speaks survey released last fall by the Docking Institute of Public Affairs at Fort Hays State University, two-thirds said they wanted to see more K-12 state funding.”

    I don’t doubt that these results are accurate. The desire for good schools is nearly universal. But when we look at the beliefs of people, we find that they are, largely, uninformed and misinformed about the level of school spending. Kansas Policy Institute commissioned a survey that asked the public a series of questions on schools and spending. (See Citizens generally misinformed on Kansas school spending.) A key finding is that most people think that schools spend much less than actual spending, and by a large margin. Further, most people think spending has declined, when in fact it has risen. These finding are similar to other research commissioned by KPI, and additional surveys by other organizations at the national level.

    Not surprisingly, when citizens and taxpayers learn the true level of school spending, their attitude towards school spending changes. That’s dangerous to school spending advocates — the Blob. It diminishes their most compelling arguments for more school spending — “it’s for the kids.”

    The Eagle editorial board, along with the Kansas City Star, has been instrumental in misinforming Kansans about school spending. These newspapers continually use base state aid per pupil as the measure of schools spending, when in fact this is just a fraction of total spending on schools. (See Here’s why Kansans are misinformed about schools.)

    The survey that Holman relies upon as evidence of the desire for more school spending didn’t ask — as far as I know — questions to see if respondents were informed on the issue. Even worse: Instead of seeking to educate readers on the facts, Holman resorts to demagoguery and demonizing, referring to “education reforms coveted by some conservatives and the American Legislative Exchange Council.” There, the two evils: Conservatives and ALEC, the substance of her argument.

    Reform in Kansas

    There are two reforms being talked about in Kansas that are popular in other states. Popular except with the Blob, that is.

    One is a tax credit scholarship program. This lets corporations make contributions to organizations that would provide scholarships for students to attend private schools. The corporations would then receive credits against their income tax. The Blob opposes programs like this. The Blob says that these programs simply let students that are already in private or church schools have the state pay their tuition.

    But the proposed law in Kansas this year, as in years past, contains these provision: For the scholarship program, students must qualify as “at-risk” students and be attending a school that qualifies as “title I,” a program that applies to schools with many students from low-income families.

    Further, the student must have been enrolled in a public school before seeking a scholarship, unless the student is less than six years old.

    Together these requirements rebut the argument of the Blob: That the scholarships are just a way for children already in private or church schools to get tax funds to pay for their schools. Instead, the law targets these scholarships at students from low-income households.

    Another possible reform is charter schools. These are schools that are public schools and receive public funding, but operate outside the present education establishment and local school boards. The Blob objects to this because they say that without government oversight, charter schools aren’t held accountable. The Blob must forget that charter schools are accountable to parents of children, which is a higher standard than the accountability of government bureaucrats. Also, unlike the regular public schools, the government can’t force children to attend a charter school.

    The Blob criticizes charter schools because they say they “cherry-pick” the best students, leaving public schools with the worst. Here’s what the proposed Kansas law says: “A public charter school shall enroll all students who wish to attend the school.” If more students apply than the school has space, students will be selected via lottery. In most areas that have charter schools, there are many more aspirants than available spaces, and students are chosen by lottery. That would undoubtedly be the case in Kansas.

    The Blob says that charter schools pick only the students they want, and therefore lead to segregation. Here’s the proposed law: “A public charter school shall be subject to all federal and state laws prohibiting discrimination on the basis of disability, race, creed, color, gender, national origin, religion, ancestry or need for special education services.”

    Here’s what the Blob really hates: “A public charter school shall be exempt from all laws and rules and regulations that are otherwise applicable to public schools in this state.” And also this: “Teachers in public charter schools shall be exempt from the teacher certification requirements established by the state board.”

    The Blob values its rules and regulations that make work for its fleets of bureaucrats. Never mind that these regulations probably don’t increase student learning. That’s not the point.

    And the political muscle of the Blob, the teachers unions? Well, charter school teachers usually aren’t unionized. The union is in favor of public schools only if the the teachers are in unions.

    What the Blob won’t tell you

    The Kansas Blob is proud of Kansas schools, partly because of scores on the National Assessment of Educational Progress (NAEP), known as “The Nation’s Report Card.” Kansas ranks pretty high among the states on this test. It’s important, however, to examine the results from a few different angles to make sure we understand the entire situation. An illustrative video is available here.

    Visualization of National Assessment of Educational Progress scores.
    Visualization of National Assessment of Educational Progress scores.
    Data for the 2013 administration of the test was just released. I’ve gathered scores and made them available in a visualization that you can use at wichitaliberty.org. The most widely available NAEP data is for two subjects: reading and math, and for two grades, fourth and eighth. The video presents data for Kansas, Texas, and the average for national public schools. I choose to compare Kansas with Texas because for several reasons, Kansas has been comparing itself with Texas. So let’s look at these test scores and see if the reality matches what Kansas school leaders have said.

    Looking at the data for all students, you can see why Kansas school leaders are proud: The line representing Kansas is almost always the highest.

    NAEP makes data available by ethnic subtypes. If we present a chart showing black students only, something different appears. Now Texas is higher than Kansas in all cases in one, where there is a tie.

    If we consider Hispanic students only: Texas is higher in some cases, and Kansas and Texas are virtually tied in two others. National public schools is higher than Kansas in some cases.

    Considering white students only, Texas is higher than Kansas in three of four cases. In some cases the National public school average beats or ties Kansas.

    So we have what seems to be four contradictory statements, but each is true.

    • When considering all students: Kansas scores higher than Texas.
    • Hispanic students only: Kansas is roughly equal to Texas.
    • Black students only: Kansas scores below Texas.
    • White students only: Kansas scores below Texas in most cases.

    When you hear the Blob trumpet high Kansas test scores, does it also explain the nuances? No, of course not, But you can examine these test scores in an interactive visualization.

    Kansas school standards

    Another problem you won’t hear about from the Blob: Kansas has low standards for its schools. Even worse, at a time when Kansas was spending more on schools due to an order from the Kansas Supreme Court, the state lowered its already low standards for schools.

    Kansas school standards for grade 4 reading compared to other states.
    Kansas school standards for grade 4 reading compared to other states.
    This is the conclusion of the National Center for Education Statistics, based on the most recent version of Mapping State Proficiency Standards Onto the NAEP Scales. NCES is the primary federal entity for collecting and analyzing data related to education in the U.S. and other nations, and is located within the U.S. Department of Education and the Institute of Education Sciences.

    The mapping project establishes a relationship between the tests each state gives to assess its students and the National Assessment of Education Progress, a test that is the same in all states. As explained in Kansas school standards and other states, Kansas standards are relatively low, compared to other states. This video explains. (View below, or click here to view in HD at YouTube.)

    For Kansas, here are some key findings. First, NCES asks this question: “How do Kansas’s NAEP scale equivalent scores of reading standards for proficient performance at grades 4 and 8 in 2009 compare with those estimated for 2005 and 2007?”

    For Kansas, the two answers are this (emphasis added):

    “Although no substantive changes in the reading assessments from 2007 to 2009 were indicated by the state, the NAEP scale equivalent of both its grade 4 and grade 8 standards decreased.”

    Also: “Kansas made substantive changes to its reading grade 8 assessment between 2005 and 2009, and the NAEP scale equivalent of its grade 8 standards decreased. ”

    In other words, NCES judged that Kansas weakened its standards for reading performance.

  • What is the import of the farm bill to Kansas?

    Wheat combine on farmCorrecting the Wichita Eagle’s facts will place the importance of the farm bill to Kansas in proper perspective.

    In criticizing five of the six members of the Kansas congressional delegation for voting against the farm bill, Rhonda Holman of the Wichita Eagle editorialized this: “Five of the six members of the Kansas delegation just voted against a farm bill — a stunning abdication of leadership in a state in which agriculture is 25 percent of the economy.” (Eagle editorial: AWOL on farm bill, Wednesday, February 5, 2014)

    The Eagle editorialist didn’t specify what she meant by “percent of the economy” or where she got these figures. But the most common measure of the size of an economy is gross domestic product (GDP), and it’s easy to find.

    Data from the Bureau of Economic Analysis (part of the U.S. Department of Commerce) for 2012 tells us that the category “Agriculture, forestry, fishing, and hunting” contributed $5,428 million towards the total Kansas GDP of $138,953 million. That means agriculture contributed 3.9 percent to Kansas GDP. The Eagle based its argument on a value of 25 percent, a value that’s 6.4 times the actual value.

    If you included the category “Food and beverage and tobacco product manufacturing” you’d add a few additional percentage points. But you’d still have a number that is just a fraction of what the Eagle editorial board believes to be the contribution of agriculture to the Kansas economy.

    Now that you have the facts that the Wichita Eagle doesn’t have, how important do you think is the farm bill to Kansas?

    Besides this, the Eagle praised former U.S. Senator Bob Dole for his “effort to bind rural and urban interests in agricultural policy by including food stamps in the nation’s safety net for farmers.” In political science this is called logrolling. It’s one of the reasons why government continues to grow faster than our willingness to pay for it. I think the Wichita Eagle likes that.

    It’s for things like this that Dan Mitchell created the “Bob Dole Award” for Misguided Conservatives. It’s for those who fit this description:

    “If you say something about fiscal policy and a statist can respond by saying “I agree, so let’s raise taxes,” then you’ve made the mistake of focusing on red ink rather than the real problem of too much government spending.”

    Mitchell explains the naming of the award:

    Naming the award after Bob Dole also is appropriate since he was never a sincere advocate of limited government. The Kansas lawmaker was a career politician who said in his farewell speech that his three greatest achievements were a) creating the food stamp program, b) increasing payroll taxes, and c) imposing the Americans with Disabilities Act (no wonder I wanted Clinton to win in 1996).

    For all of these reasons, and more, no real conservative should want to win an award linked to Bob Dole.

  • Wichita Eagle editorial board on the truth

    Wichita Eagle Opinion: Brownback Numbers are Suspect

    A recent Wichita Eagle editorial penned by Rhonda Holman took Governor Sam Brownback to task for a mistake made in reporting Kansas spending numbers. (Eagle editorial: Brownback ’s numbers are suspect.)

    Specifically, Holman wrote:

    What’s going on here is clear: Brownback is embracing and repeating numbers that help promote his agenda, including what he sees as the need to push back against a court order for more state funding of public schools.

    But Kansans need to trust that what they hear from their governor, especially again and again, is rooted in truth, not cherry-picked, spun or flat wrong.

    So let’s look at the use of numbers by the Wichita Eagle editorial board. When discussing school spending, the editorialists refer to base state aid per pupil and treat that as though it was the totality of school spending.

    Base state aid per pupil is just part of school spending, and most schools spend much more than that. Specifically, base state aid per pupil for the last school year was $3,780. But the state spent an average of $6,983 per pupil that year, which is an additional $3,203 or 84.7 percent more than base state aid. Overall spending from all sources was $12,656 per pupil. Both of the latter numbers are higher than the previous year.

    Also, base state aid per pupil has declined in recent years. That’s a convenient fact for school spending boosters. They can use a statistic that contains a grain of truth in order to whip up concern among the uninformed over inadequate school spending. They can cite this as an argument for increasing spending, even though spending has been rising.

    (By the way, when citizens in Kansas and across the nation are asked questions about school spending, we learn they are totally uninformed. Even worse, several candidates for the Wichita school board are similarly uninformed. See Wichita school board candidates on spending.)

    Further, citing only base state aid reduces “sticker shock.” Most people are surprised to learn that our schools spend $12,656 per student. It’s much easier to tell taxpayers that only $3,780 was spent. But that’s not a complete picture. In fact, using base state aid as a measure of school spending defines “cherry-picked,” a practice of which Holman accuses the governor.

    Informed readers are left wondering whether the Eagle editorial board is ignorant of these facts, or does it have an agenda to push — just like they accuse Brownback.

    Here’s something else from Holman in the editorial:

    Plus, Brownback has said that “29 percent of Kansas fourth-graders can’t read at a basic level.” That’s a misuse of the results of the 2011 National Assessment of Educational Progress survey, in which Kansas actually ranked 10th best in the nation. The better measure is the state assessment, which found 10.1 percent of fourth-graders failed to meet the state standard in reading that year.

    The high ranking of Kansas on the NAEP can be explained by the demographic composition of Kansas students compared to other states. As I show in Kansas school test scores, in perspective, Kansas students score better than Texas students on the NAEP. This is a fact congruent with Holman’s citing of Kansas’ high ranking among the states.

    But it is also true that Texas white students score better than Kansas white students, Texas black students score better than Kansas black students, and Texas Hispanic students score better than or tie Kansas Hispanic students. The same pattern holds true for other ethnic subgroups. If we examine figures for low-income students, we see a similar pattern.

    How can this be? You have to look more closely at the figures than the Wichita Eagle editorial board is willing or able. But if you do this, you will understand more about Kansas schools.

    As far as relying on Kansas state assessments to gauge our schools’ performance, we need to be careful. When compared to other states, Kansas has low standards, and these standards have declined.

    The U.S. Department of Education’s National Center for Education Statistics (NCES) has analyzed state standards, and we can see that Kansas has standards that are below most states. The table of figures is available at Estimated NAEP scale equivalent scores for state proficiency standards, for reading and mathematics in 2009, by grade and state. An analysis of these tables by the Kansas Policy Institute shows that few states have standards below the Kansas standards.

    The editorial board might also wonder why scores on the Kansas assessments — the ones under control of Kansas education officials — are rising, while NAEP scores are not.

    A reader sent in this comment, which I believe is apt:

    To paraphrase a trusted source:

    “[The Eagle’s] numbers matter because they’re being used by [Democrats] and [government employees’ unions] to guide and justify state spending policy decisions, especially in education. The [Eagle] has used [misleading statistics] to drum up public support for plans to [raise] income taxes and to [support] a recent court decision that found the state isn’t meeting its constitutional mandate to provide adequate funding for schools.”

    I don’t expect a correction anytime soon.

    Wichita Eagle editorial board: When writing that “Kansans need to trust that what they hear from their governor, especially again and again, is rooted in truth, not cherry-picked, spun or flat wrong” please apply this standard to yourself.

  • As lawmakers, Kansas judges should be selected democratically

    Kansas Judicial Center in snowWhile many believe that judges should not “legislate from the bench,” that is, make law themselves, the reality is that lawmaking is a judicial function. In a democracy, lawmakers should be elected under the principle of “one person, one vote.” But Kansas, which uses the Missouri Plan for judicial selection to its two highest courts, violates this principle.

    A recent paper by Kansas University School of Law Professor Stephen J. Ware explains the problem with the process used in Kansas. The paper is titled Originalism, Balanced Legal Realism and Judicial Selection: A Case Study and may be downloaded at no charge. The Kansas courts that use the judicial selection described in the paper are the Kansas Court of Appeals and the Kansas Supreme Court.

    At issue is whether judges are simply arbitrators of the law, or do they actually participate in the lawmaking process. Ware explains: “This realist view that statutory interpretation often involves ‘substantial judicial discretion’ and therefore constitutes ‘judicial lawmaking, not lawfinding,’ had by the 1950s, ‘become deeply rooted.’”

    A “‘balanced realism,’ to use Brian Tamanaha’s appealing label, recognizes both that judges’ policy preferences have little or no influence on many judicial decisions and that judges’ policy preferences have a significant influence on other judicial decisions. Empirical studies tend to support this balanced view.” In other words, there is some role for ideology in making judicial decisions. Politics, therefore, is involved. Ware quotes Charles Gardner Geyh: “In a post-realist age, the ideological orientation of judicial aspirants matters.” And the higher the court, the more this matters.

    Since judges function as lawmakers, they ought to be selected by a democratic process. In the Kansas version of the Missouri Plan, a nominating commission dominated by lawyers selects three candidates to fill an opening on the Kansas Court of Appeals or Kansas Supreme Court. The governor then selects one of the three, and the process is over. A new judge is selected. This process gives members of the state’s bar tremendous power in selecting judges.

    Ware presents eleven examples of judges on the two highest Kansas courts engaging in lawmaking. In one, a workers’ compensation case, the employee would lose his appeal if the “clear” precedent was followed. Justice Carol A. Beier wrote the opinion. Ware explains:

    But this is not, in fact, what Justice Beier and her colleagues on the Kansas Supreme Court did. Rather they did what Kansas Judges Greene and Russell say never happens. Justice Beier and her colleagues engaged in lawmaking. They changed the legal rule from one contrary to their ideologies to one consistent with their ideologies.

    Justice Beier’s opinion doing this started by criticizing the old rule, while acknowledging that it was, in fact, the rule prior to her opinion by which the Supreme Court made new law. Here again is the above quote from Coleman, but now with the formerly omitted words restored and italicized: “The rule is clear, if a bit decrepit and unpopular: An injury from horseplay does not arise out of employment and is not compensable unless the employer was aware of the activity or it had become a habit at the workplace.”

    Who decided that this rule is “decrepit and unpopular” and so should be changed? Was it the Kansas Legislature? No, it was the Kansas Supreme Court. It was judges, not legislators, who decided that this legal rule was bad policy. It was judges, not legislators, who changed the law to bring it in line with what the lawmaking judges thought was good policy.

    Beier wrote in her opinion: “We are clearly convinced here that our old rule should be abandoned. Although appropriate for the time in which it arose, we are persuaded by the overwhelming weight of contrary authority in our sister states and current legal commentary.”

    The result: New Kansas law, made by people selected through an undemocratic process.

    In conclusion, Ware writes:

    Non-lawyers who believe in the principle that lawmakers should be selected democratically need to know that judicial selection is lawmaker selection to be troubled by the Missouri Plan’s violation of this principle. Non-lawyers who do not know that judges inevitably make law may believe that the role of a judge consists only of its professional/technical side and, therefore, believe that judges should be selected entirely on their professional competence and ethics and that assessments of these factors are best left to lawyers. In short, a lawyer who omits lawmaking from a published statement about the judicial role is furthering a misimpression that helps empower lawyers at the expense of non-lawyers, in violation of basic democratic equality, the principle of one-person, one-vote.

    Prospects for Kansas

    In Kansas, the process for selecting judges to the Kansas Court of Appeals is governed by statute, and can be changed by the legislature and governor. Last year the House of Representatives passed a bill to reform the process, but it was blocked by Senate Judiciary Chair Tim Owens. He said “I think this is the first time I did not hear a bill because I thought it was so bad. This is a terrible, terrible bill that’s hated by the courts; it’s an attempt to take over control of the courts.”

    Owens, who ranked as the least friendly senator to economic freedom in the 2012 edition of the Kansas Economic Freedom Index, lost his bid for re-election in the August primary election. Many of the other moderate Republicans who voted against reform also lost their primary election contest.

    Owens, it should be noted, is an attorney, and is therefore a member of the privileged class that has outsize power in selecting judges.

    Sometimes legislators are simply uninformed or misinformed on judicial selection. An example is Jean Schodorf, who lost a re-election bid in August. In an interview, she was quoted as saying “We thwarted changes to judicial selection that would have allowed the governor to have the final say in all judicial selections.”

    The bill that the senate voted on, and the one that Owens killed the year before, called for Court of Appeals judges to be appointed by the governor, with the consent of the senate. It’s actually the senate that has the final say.

    Newspaper editorial writers across Kansas are mostly opposed to judicial selection reform. An example is Rhonda Holman of the Wichita Eagle, who in 2010 wrote: “Some critics may have a beef with past court decisions, perhaps even a legitimate one — which is no surprise, given that judicial decisions pick winners and losers. But they also may be motivated by politics — which is a problem, given that the judiciary is supposed to be fair, impartial and independent. In the absence of a strong case for change, Kansas should stick with what works.”

    With the change in composition of the Kansas Senate, the climate is more favorable for reform for the way judges are selected for the Kansas Court of Appeals. The law governing how judges for the Kansas Supreme Court are selected is in the Kansas Constitution, and would require an amendment to alter the process. Such an amendment requires a two-thirds vote in both chambers of the Kansas Legislature, and then a simple majority vote of the people.

    By the way: For those who criticize the support for judicial selection reform as pure power politics, since Kansas has a conservative governor, remember this: When Professor Ware sounded the need for reform and convinced me of the need, our governor was the liberal Kathleen Sebelius. There was also a liberal senate at that time, one which would undoubtedly have rubberstamped any nominee Sebelius might have sent for confirmation.

    Originalism, Balanced Legal Realism and Judicial Selection: A Case Study
    By Stephen J. Ware

    Abstract: The “balanced realist” view that judging inevitably involves lawmaking is widely accepted, even among originalists, such as Justice Scalia, Randy Barnett and Steven Calabresi. Yet many lawyers are still reluctant to acknowledge publicly the inevitability of judicial lawmaking. This reluctance is especially common in debates over the Missouri Plan, a method of judicial selection that divides the power to appoint judges between the governor and the bar.

    The Missouri Plan is one of three widely-used methods of selecting state court judges. The other two are: (1) direct election of judges by the citizenry, and (2) appointment of judges by democratically elected officials, typically the governor and legislature, with little or no role for the bar. Each of these two methods of judicial selection respects a democratic society’s basic equality among citizens — the principle of one-person, one-vote. In contrast, the Missouri Plan violates this principle by making a lawyer’s vote worth more than another citizen’s vote.

    This Article provides a case study of the clash between the inevitability of judicial lawmaking and the reluctance of lawyers to acknowledge this inevitability while defending their disproportionate power under the Missouri Plan. The Article documents efforts by lawyers in one state, Kansas, to defend their version of the Missouri Plan by attempting to conceal from the public the fact that Kansas judges, like judges in the other 49 states, inevitably make law. The case study then shows examples of Kansas judges making law. The Article concludes that honesty requires lawyers participating in the debate over judicial selection in the United States to forthrightly acknowledge that judges make law. Lawyers who seek to defend the power advantage the Missouri Plan gives them over other citizens can honestly acknowledge that this is a power advantage in the selection of lawmakers and then explain why they believe a departure from the principle of one-person, one-vote is justified in the selection of these particular lawmakers.

    The complete paper may be downloaded at no charge here.

  • Downtown Wichita issues not appreciated

    Once again, the Wichita Eagle editorial board misses the point regarding downtown Wichita development.

    There may be some that are opposed to downtown simply because it’s downtown, or for other silly reasons. That seems to be the focus of Rhonda Holman’s editorial today.

    But speaking from a perspective of economic freedom and individual liberty, it’s government interventionism in downtown that I object to. This is what harms Wichita, not the fact that people are living and working downtown or anywhere else, for that matter.

    The political cronyism involved in many projects in downtown Wichita is what harms our city. When government takes from one and gives to another, everyone is worse off — other than the recipients. I understand that it’s easy to look at a subsidized project — be it downtown or elsewhere — and see people working at jobs. It’s much more difficult, however, to see the harm that the government intervention causes: Prosperity and jobs are lost due to inefficient government allocation of capital through political, not market, mechanisms. In the whole, we are worse off, not better.

    If you don’t believe this — if you insist that the city government can create jobs and prosperity through its interventions, and that these have no net cost — then you have to ask why the city is not involved in more development.

    It is the principled objection to government involvement that many do not understand, including, I think, the Wichita Eagle editorial board. An example: In September 2011, after I and others started a campaign to overturn a city council decision to award a tax subsidy to the Ambassador Hotel, the hotel’s lead developer asked to meet with me. In the meeting I explained that I would oppose the city’s action if applied to any hotel, located anywhere in Wichita, owned by anyone. He said that he sensed my opposition was based on principle, and I agreed.

    The curious thing is that this seemed to puzzle him — that people would actually apply principles to politics.

    The political allocation of investment capital in Wichita leads to problems of the appearance of impropriety, if not actual impropriety. There is a small group of people that repeatedly receive large amounts of taxpayer subsidy. These people and others associated with their companies regularly contribute to the campaign funds of city council members and candidates. These council members then vote to grant these people taxpayer-funded subsidy, year after year.

    City council members also vote to award them with no-bid contracts. That’s terrible government policy. Especially when one recent contract was later put to competitive bid, and turned out to cost much less than the no-bid price. City council members, all except one, were willing to award their significant campaign contributors with an overpriced no-bid contract at taxpayer expense.

    The company that won the no-bid contract was Key Construction. Its owners and executives were the sole contributors to the campaign fund of Lavonta Williams (district 1, northeast Wichita) in 2012 as she prepared to run for reelection this spring.

    James Clendenin (district 3, southeast and south Wichita), also running for reelection this spring, and also having voted for the no-bid contract for Key, also received many contributions from Key and its executives in 2012. That company, along with person associated with one other company, were the sole source of Clendenin’s campaign funding that year.

    Doesn’t the Wichita Eagle editorial board see a problem here? Doesn’t the newsroom?

    There was a time when newspaper opinion editors crusaded against this type of behavior.

    Newspaper editorial writers ought also to be concerned about how taxpayer funds are spent. The City of Wichita, however, has established non-profit organizations to spend taxpayer funds. The Wichita Downtown Development Corporation, for example, is funded almost exclusively through taxes. Yet, it claims that it is not a public agency as defined in the Kansas Open Records Act, and therefore need not fulfill records requests seeking to bring transparency as to how the agency spends its taxpayer funds. The city, inexplicably, backs WDDC in this interpretation of law that is contrary to the interests of citizens.

    Secrecy of this type regarding taxpayer funds is not good public policy. There was a time when newspaper editors railed against government secrecy like this.

    We need a newspaper editorial board that understands principle vs. political expediency. As a first step, let’s ask for an editorial board that recognizes these abuses of citizens and is willing to talk about them.

  • Dangers of texting while driving: Are laws the solution?

    There’s no doubt that texting while driving is dangerous, as illustrated in this KAKE Television news story. But the government solution — passing laws against texting while driving — haven’t worked, and some states have experienced an increase in crashes after implementing texting bans.

    A news release from the Highway Loss Data Institute summarizes the finding of a study: “It’s illegal to text while driving in most US states. Yet a new study by researchers at the Highway Loss Data Institute (HLDI) finds no reductions in crashes after laws take effect that ban texting by all drivers. In fact, such bans are associated with a slight increase in the frequency of insurance claims filed under collision coverage for damage to vehicles in crashes. This finding is based on comparisons of claims in 4 states before and after texting ban, compared with patterns of claims in nearby states.”

    The study does not claim that texting while driving is not dangerous. Rather, the realization by drivers that texting is illegal may be altering their behavior in a way that becomes even more dangerous than legal texting. Explains Adrian Lund, president of both HLDI and the Insurance Institute for Highway Safety: “If drivers were disregarding the bans, then the crash patterns should have remained steady. So clearly drivers did respond to the bans somehow, and what they might have been doing was moving their phones down and out of sight when they texted, in recognition that what they were doing was illegal. This could exacerbate the risk of texting by taking drivers’ eyes further from the road and for a longer time.”

    When Kansas passed its texting ban in 2010, newspapers editors praised the legislature and Governor Mark Parkinson for passing the law. In an editorial, the Wichita Eagle’s Rhonda Holman wrote “But it’s nice to know the state finally has a law against this brainless and dangerous practice.” In his written statement, Parkinson said “I am pleased to sign this legislation that will encourage more aware drivers and save Kansas lives.”

    While Kansas was not included in the HLDI study, there’s no reason to think that Kansas will experience anything different from the states that were studied: Kansas drivers may be under greater risk of being in a crash after the passage of this law.

    Paradoxically, higher fines and stricter enforcement of this law will encourage the dangerous law-evading texting behavior.

    Texting while driving will be a subject on the KAKE Television public affairs program This Week in Kansas to be aired Sunday at 9:00 am. Dr. Alex Chaparro of Wichita State University will appear to present his findings on the dangers of texting while driving and what can be done to improve safety.

  • Kansas lawmakers, including judges, should be selected democratically

    While many believe that judges should not “legislate from the bench,” that is, make law themselves, the reality is that lawmaking is a judicial function. In a democracy, lawmakers should be elected under the principle of “one person, one vote.” But Kansas, which uses the Missouri Plan for judicial selection to its two highest courts, violates this principle.

    A recent paper by Kansas University School of Law Professor Stephen J. Ware explains the problem with the process used in Kansas. The paper is titled Originalism, Balanced Legal Realism and Judicial Selection: A Case Study and may be downloaded at no charge. The Kansas courts that use the judicial selection described in the paper are the Kansas Court of Appeals and the Kansas Supreme Court.

    At issue is whether judges are simply arbitrators of the law, or do they actually participate in the lawmaking process. Ware explains: “This realist view that statutory interpretation often involves ‘substantial judicial discretion’ and therefore constitutes ‘judicial lawmaking, not lawfinding,’ had by the 1950s, ‘become deeply rooted.’”

    A “‘balanced realism,’ to use Brian Tamanaha’s appealing label, recognizes both that judges’ policy preferences have little or no influence on many judicial decisions and that judges’ policy preferences have a significant influence on other judicial decisions. Empirical studies tend to support this balanced view.” In other words, there is some role for ideology in making judicial decisions. Politics, therefore, is involved. Ware quotes Charles Gardner Geyh: “In a post-realist age, the ideological orientation of judicial aspirants matters.” And the higher the court, the more this matters.

    Since judges function as lawmakers, they ought to be selected by a democratic process. In the Kansas version of the Missouri Plan, a nominating commission dominated by lawyers selects three candidates to fill an opening on the Kansas Court of Appeals or Kansas Supreme Court. The governor then selects one of the three, and the process is over. A new judge is selected. This process gives members of the state’s bar tremendous power in selecting judges.

    Ware presents eleven examples of judges on the two highest Kansas courts engaging in lawmaking. In one, a workers’ compensation case, the employee would lose his appeal if the “clear” precedent was followed. Justice Carol A. Beier wrote the opinion. Ware explains:

    But this is not, in fact, what Justice Beier and her colleagues on the Kansas Supreme Court did. Rather they did what Kansas Judges Greene and Russell say never happens. Justice Beier and her colleagues engaged in lawmaking. They changed the legal rule from one contrary to their ideologies to one consistent with their ideologies.

    Justice Beier’s opinion doing this started by criticizing the old rule, while acknowledging that it was, in fact, the rule prior to her opinion by which the Supreme Court made new law. Here again is the above quote from Coleman, but now with the formerly omitted words restored and italicized: “The rule is clear, if a bit decrepit and unpopular: An injury from horseplay does not arise out of employment and is not compensable unless the employer was aware of the activity or it had become a habit at the workplace.”

    Who decided that this rule is “decrepit and unpopular” and so should be changed? Was it the Kansas Legislature? No, it was the Kansas Supreme Court. It was judges, not legislators, who decided that this legal rule was bad policy. It was judges, not legislators, who changed the law to bring it in line with what the lawmaking judges thought was good policy.

    Beier wrote in her opinion: “We are clearly convinced here that our old rule should be abandoned. Although appropriate for the time in which it arose, we are persuaded by the overwhelming weight of contrary authority in our sister states and current legal commentary.”

    The result: New Kansas law, made by people selected through an undemocratic process.

    In conclusion, Ware writes:

    Non-lawyers who believe in the principle that lawmakers should be selected democratically need to know that judicial selection is lawmaker selection to be troubled by the Missouri Plan’s violation of this principle. Non-lawyers who do not know that judges inevitably make law may believe that the role of a judge consists only of its professional/technical side and, therefore, believe that judges should be selected entirely on their professional competence and ethics and that assessments of these factors are best left to lawyers. In short, a lawyer who omits lawmaking from a published statement about the judicial role is furthering a misimpression that helps empower lawyers at the expense of non-lawyers, in violation of basic democratic equality, the principle of one-person, one-vote.

    Prospects for Kansas

    In Kansas, the process for selecting judges to the Kansas Court of Appeals is governed by statute, and can be changed by the legislature and governor. The House of Representatives has passed a bill to reform the process, but it was blocked by Senate Judiciary Chair Tim Owens. He said “I think this is the first time I did not hear a bill because I thought it was so bad. This is a terrible, terrible bill that’s hated by the courts; it’s an attempt to take over control of the courts.”

    One of the dividing lines between “conservative” and “moderate” Kansas Senate Republicans is their attitude towards judicial selection, as revealed in a vote taken earlier this year. Owens, who ranked as the least friendly senator to economic freedom in the 2012 edition of the Kansas Economic Freedom Index, lost his bid for re-election in the August primary election. Many of the other moderate Republicans who voted against reform also lost their primary election contest.

    Owens, it should be noted, is an attorney, and is therefore a member of the privileged class that has outsize power in selecting judges.

    Sometimes legislators are simply uninformed or misinformed on judicial selection. An example is Jean Schodorf, who lost a re-election bid in August. In an interview, she was quoted as saying “We thwarted changes to judicial selection that would have allowed the governor to have the final say in all judicial selections.”

    The bill that the senate voted on, and the one that Owens killed the year before, called for Court of Appeals judges to be appointed by the governor, with the consent of the senate. It’s actually the senate that has the final say.

    Newspaper editorial writers across Kansas are mostly opposed to judicial selection reform. An example is Rhonda Holman of the Wichita Eagle, who in 2010 wrote: “Some critics may have a beef with past court decisions, perhaps even a legitimate one — which is no surprise, given that judicial decisions pick winners and losers. But they also may be motivated by politics — which is a problem, given that the judiciary is supposed to be fair, impartial and independent. In the absence of a strong case for change, Kansas should stick with what works.”

    With the change in composition of the Kansas Senate next year, the climate is more favorable for reform for the way judges are selected for the Kansas Court of Appeals. The law governing how judges for the Kansas Supreme Court are selected is in the Kansas Constitution, and would require an amendment to alter the process. Such an amendment requires a two-thirds vote in both chambers of the Kansas Legislature, and then a simple majority vote of the people.

    Just last week a federal appeals court ruled that the method Kansas uses to select justices to the Kansas Supreme Court is constitutional.

    The Court’s discussion starts on a promising note: “That citizens have a fundamental right to vote for public officials on equal terms with one another is uncontroversial.”

    But in the end, the Court sided with the present undemocratic Kansas system: “Kansas designed the Commission to favor lawyers in order to limit the influence of politics on the nomination process and ensure the quality of its judicial nominees. Preserving the quality and independence of the judiciary is a legitimate government interest, and having attorneys elect a majority of the Commission’s members is a rational way to accomplish that goal. Attorneys are better equipped than non-attorneys to evaluate the temperament and legal acumen of judicial candidates and more likely to base their votes on factors other than party affiliation. This is owing in part to their training which enables informed judgments about a candidate’s experience — his credentials, his area of expertise, his body of work — and the extent to which it strengthens or weakens his candidacy. ”

    Originalism, Balanced Legal Realism and Judicial Selection: A Case Study
    By Stephen J. Ware

    Abstract: The “balanced realist” view that judging inevitably involves lawmaking is widely accepted, even among originalists, such as Justice Scalia, Randy Barnett and Steven Calabresi. Yet many lawyers are still reluctant to acknowledge publicly the inevitability of judicial lawmaking. This reluctance is especially common in debates over the Missouri Plan, a method of judicial selection that divides the power to appoint judges between the governor and the bar.

    The Missouri Plan is one of three widely-used methods of selecting state court judges. The other two are: (1) direct election of judges by the citizenry, and (2) appointment of judges by democratically elected officials, typically the governor and legislature, with little or no role for the bar. Each of these two methods of judicial selection respects a democratic society’s basic equality among citizens — the principle of one-person, one-vote. In contrast, the Missouri Plan violates this principle by making a lawyer’s vote worth more than another citizen’s vote.

    This Article provides a case study of the clash between the inevitability of judicial lawmaking and the reluctance of lawyers to acknowledge this inevitability while defending their disproportionate power under the Missouri Plan. The Article documents efforts by lawyers in one state, Kansas, to defend their version of the Missouri Plan by attempting to conceal from the public the fact that Kansas judges, like judges in the other 49 states, inevitably make law. The case study then shows examples of Kansas judges making law. The Article concludes that honesty requires lawyers participating in the debate over judicial selection in the United States to forthrightly acknowledge that judges make law. Lawyers who seek to defend the power advantage the Missouri Plan gives them over other citizens can honestly acknowledge that this is a power advantage in the selection of lawmakers and then explain why they believe a departure from the principle of one-person, one-vote is justified in the selection of these particular lawmakers.

    The complete paper may be downloaded at no charge here.

  • Wichita school spending: The grain of truth

    Reporting on USD 259, the Wichita public school district teacher contract negotiations provides another example of how schools are not being truthful regarding school spending.

    According to Wichita Eagle reporting, the district’s attorney used “repeated cuts in state funding” as a reason why the district can’t raise teacher salaries. He also referred to “the state and the cuts that have been made to school finance” and also said “I think it’s the state legislature and all the cuts that have occurred that have put us in this position.”

    These statements contain a grain of truth, but in a wider context, they are not truthful. It’s not just the Wichita school district attorney that makes these claims of large cuts to school funding. So do the Kansas school spending establishment and their allies such as the editorial boards of most Kansas newspapers.

    The grain of truth is base state aid per pupil, which is the starting point for the Kansas school finance formula. It has been cut, as shown in this chart that the school spending establishment uses.

    Kansas school spending, as presented by the Wichita public school district.

    Focusing on base state aid misses the larger picture. As an example, for the 2010-2011 school year, base state aid was $3,937. Yet the Wichita school district received $7,092 per pupil from the state, 80 percent more than base aid. Focusing only on base state aid per pupil also misses the federal and local sources of revenue to schools. For this year the Wichita district received $2,132 per pupil from the federal government, and $3,855 per pupil from local taxpayers, for a total of $13,069 per pupil. The same figure for the previous year was $12,526.

    As it turns out, when you consider all sources of funding, the Wichita school district has been able to spend more money each year for many years, despite the claims of cuts. What cuts have been made to base state aid per pupil have been more than compensated for by weighted state spending, federal aid, and local aid, as shown in the following chart.

    Wichita school spending, as reported by Kansas State Department of Education.

    Why do school spending supporters focus only on base state aid? Its decline provides the grain of truth for their larger and false argument about school spending. As explained in Kansas school spending: the deception this grain of truth enables school spending advocates like Mark Desetti (Director of Legislative and Political Advocacy at Kansas National Education Association (KNEA), our state’s teachers union) to be accurate and deceptive, all at the same time.

    We expect this behavior from union officials. Their job — as advocates for a special interest group — is to direct more spending to schools, without regard to need or cost to taxpayers.

    Newspaper editorial writers, however, ought to be held to a higher standard. But: A recent Lawrence Journal-World editorial contained “In the last four years, per-pupil state funding for public schools has declined by about 14 percent, from $4,400 per student to $3,780.” And writing in the Wichita Eagle, Rhonda Holman complained of “several years of cuts totaling $653 per pupil.” (Reason to be wary, December 16 Wichita Eagle) Actual facts do not support these claims.

    Similarly, we ought to expect more truth from school districts and school officials regarding school finance. Then, we can ask for truth on Kansas school test scores.

  • Kansans uninformed on school spending

    As the Kansas Legislature debates spending on schools, we have to hope that legislators are more knowledgeable about school spending than the average Kansan. Surveys have found that few Kansans have accurate information regarding school spending. Surprisingly, those with children in the public school system are even more likely to be uninformed regarding accurate figures. But when presented with accurate information about changes in school spending, few Kansans are willing to pay increased taxes to support more school spending.

    These are some of the findings of a 2010 survey commissioned by Kansas Policy Institute.

    Not only did Kansans underestimate school spending levels, they did so for the state portion of school funding, and again for the total of all funding sources — state, federal, and local.

    Many people greatly underestimated school funding. For all sources of funding on a per-student basis, 43% of poll respondents chose a number that is less than half the actual number.

    On a question asking about the change in Kansas school funding over the past five years, 64% thought that funding had declined. Only 6% knew that funding had increased by over 15% during that period. The five year time period is significant, as it was in 2005 that the Kansas Supreme Court ordered additional school spending as a result of the Montoy case.

    When asked about their willingness to pay higher taxes to support mores school funding, 51% said they would, if per-pupil funding was down from five years ago. But when asked whether they would pay more taxes in per-pupil funding had gone up by over 20%, only 11% said yes. According to the Kansas State Department of Education, total funding per pupil increased by 26% over this period.

    The survey was conducted by The Research Partnership, Inc., a Wichita-based market research firm. The complete results may be viewed at the Kansas Reporter website at K-12 Public Opinion Survey, or here.

    Survey participants were asked if they would like to make comments regarding funding of Kansas public schools. There are 17 pages of these comments.

    Analysis

    The results of this Kansas poll are similar to recent nationwide results discovered by EducationNext, a project of the Harvard Kennedy School of Government. That study is summarized at Americans uninformed about school spending, study finds. Another study with similar findings is at Kansas school spending: citizens again are uninformed.

    It’s not surprising that Kansans are misinformed about the level of school spending and its changes. Even members of the Kansas House of Representatives and the Wichita School Board are sometimes uninformed, misinformed. It’s either that or we have to conclude they are lying to us.

    The school spending lobby in Kansas focuses on only one measure of school spending, base state aid per pupil. That number is approximately one-third of total school spending, and it has declined. As this study shows, it is in the best interests of the Kansas school establishment for average Kansans to be uninformed about the true levels of school spending. When presented with accurate information about school spending, Kansans are not willing to pay higher taxes.

    We can understand the motivation of schools to lobby for increased spending. But they should be truthful. It’s even worse when newspaper editorial writers don’t recognize the truth. An example is a recent Wichita Eagle editorial written by Rhonda Holman. She repeated the meme of the school spending lobby, writing: “… despite state per-pupil base aid having been slashed to 1999 levels.” Most people don’t know that “base aid” is only one component of Kansas school spending. It’s the starting point for the Kansas school finance formula. After weightings are applied, most school districts receive much more funding than the base aid figure. The Wichita school district, for example, received $6,511 per pupil from the state at a time when base state aid was $4,012. Also, look at the total spending picture: From 1999 to last year, Wichita school spending jumped from $336 million to over $604 million. State aid to this district increased from $200 million to $328 million over the same time.

    It’s also likely that the current school year will see record spending on schools in Kansas.

    So why don’t Holman and the Wichita Eagle use the total spending figures, or even the total state aid numbers? Focusing on one component of Kansas school finance that is not representative of the entire picture is a disservice to Wichita Eagle readers.