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Oklahoma Leaders Should Demand Congress Fix the Supreme Court’s Mess, Not Rush to Strike a Deal with the Tribes

Five lawyers in Washington, D.C. have announced that many of us have been living on Indian reservations all this time, we just didn’t know it. In response, several of our elected state leaders have made noises indicating they are in the process of giving away the store in resulting negotiations with tribal leaders, apparently driven by defeatism and panic. They should get off this losing course, and instead demand that the one body that can fix this mess do so: Congress. First, how we got here. Jimcy McGirt, a revolting human being who was convicted of molesting, raping, and forcibly sodomizing his wife’s four-year-old granddaughter, has been justly rotting away in a cage for some 20 years as part of the 1,000-years-plus-life-in-prison sentence he was mercifully handed by an Oklahoma jury in 1997. McGirt came up with a clever legal theory, though. He claimed the State of Oklahoma never had jurisdiction to prosecute him because he is Indian and his crimes were committed on Creek reservation land. You didn’t realize we have Indian reservations in Oklahoma? Neither did anyone else, including the tribes. We’ll get to that. Under a very old federal law called the Major Crimes Act,...

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Covid-19 Facts and Statistics for the General Public

​The 1889 Institute has published a new webpage on its website explicitly about Covid-19. Its purpose is to provide the best current information for dealing with the pandemic to the general public and policy makers. It also tracks official new daily positive tests and daily deaths, showing trends in the data.It seems like new information, some of it reported out of proper context or highly speculative, is being reported by authorities and researchers every day. Information provided by the Centers for Disease Control is oriented toward health professionals. We wanted to provide good information that is easily digestible.This continues the effort that we promised in an earlier blog post. We hope the information is useful and welcome feedback. Included on the COVID-19 webpage are:   A graphic showing daily positive tests/deaths and 7-day averages, Who is NOT vulnerable, Who IS vulnerable, Information on the relationship between age and COVID-19 vulnerability, How COVID-19 is transmitted from person to person, Information on mask efficacy, The effects of societal lockdowns, Information about herd immunity and its importance, Recommendations for the general public and policymakers....

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One More Suburban Draw: A Black Lives Matter Chapter in Every Oklahoma City School

“You don’t want to live in the Oklahoma City school district.” That was the universal advice I got from everyone I talked to in Oklahoma when I moved from Phoenix with my wife and son, who had a couple of years of high school left to complete. The clear and simple message was that Oklahoma City district schools were pitiful and should be avoided at all costs. You’d think that with a reputation like this, the last thing on the mind of the superintendent of Oklahoma City district schools would be to make sure every school has a Black Lives Matter chapter, but you’d be wrong. I happened to see a recent meeting of the Oklahoma City school board, and that is exactly what the superintendent, Sean McDaniel, said, that he wanted to make sure every campus had a BLM chapter. You’d think that OKC district leaders would be concerned about academics, student motivation, and how to hold both students and educators more accountable for attaining what most people think schools are for – decent educations. Instead, proposed guiding principles for the district, in order, are: Health and Safety; Learning; Social and Emotional Needs; Equity; and Flexible Learning Models. Only two of the five guiding...

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Supreme Court Frees States From Oppressive Blaine Amendments; School Choice Is Within Reach For Legislature

Last week SCOTUS told Montana, and by extension, the other 49 states that they can't exclude religious schools from generally applicable school choice programs simply because they are religious. This should have been the self-evident conclusion of anyone who read the First Amendment through the lens of history. The idea that the founders would have allowed states to discriminate against religious schools is foolish.  At the time of the founding, many states had established religions. It was only the federal government that was prevented from establishing a religion. It was also barred from interfering with states’ establishments. The relevant phrase is “Congress shall make no law respecting and establishment of religion, or prohibiting the free exercise thereof.” (emphasis added) The constitution has since been amended, and most of the rights codified in the Bill of Rights have been applied to or “incorporated against” the states - that is why state police can no longer search a home without a warrant in violation of the Fourth Amendment. But many First Amendment scholars argue that the establishment clause cannot be applied to states, since it was a protection of states’ rights...

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The Truth About COVID-19: Better Than You Think

As the media turns its attention back to COVID-19, there is a renewed push to shut down the economy. Some states have even begun to scale back reopening plans for their economies; others continue to delay opening. It is essential to look past their catastrophizing and focus on the facts of COVID-19. One fact to consider: while testing has risen 23%, the rate of positive results has only risen 1.3 percentage points to 6.2%. Even as alarmists point to the rise in cases, they still admit that the boost in testing has played a role in the rise in the total number of known cases. Therefore, the total number of positive cases is not of much use in this case, as it only paints a partial picture. The rate of increase in total positive cases is a more meaningful measure, and it has barely increased. Even more important is who is getting infected. The data show that recent cases are primarily younger people. But that’s a good thing; these are precisely the people that are key to building herd immunity, which is the only long-term solution for fighting COVID-19 and is inevitable anyway. While the news readers reporting “surges” of people testing positive for coronavirus renew calls for...

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Filling the Truth Vacuum Regarding COVID-19

With COVID-19 heating up again, and the resumption of societal shutdowns in other states, a pandemic strategy never seen in modern times, it seems appropriate to post facts with appropriate recommendations for action independent of politicized governmental institutions. Providing this information, along with relevant context, is the purpose of the new “COVID-19” webpage on the 1889 Institute’s website.  With the recent widely-reported surge in COVID-19 cases and hospitalizations, the impression created is that the pandemic has spiraled out of control. Therefore, our first factual installment is the following figure, which shows the number of daily new cases and the number of daily new deaths from COVID-19 in Oklahoma. Seven-day moving averages are also illustrated in order to show trends.   Source: The Covid Tracking Project (https://covidtracking.com/data/state/oklahoma), which assembles data daily from the Oklahoma Department of Health (OKDOH). OKDOH does not provide longitudinal data. Note that while the number of new cases trended upward lately, the number of deaths per day have trended downward since April. The Centers for Disease Control and state agencies are notoriously...

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Whether in the Streets or on a Court, Chaos Results when Words Lose Their Meaning

“There’s a sign on the wall, but she wants to be sure, ‘cause you know sometimes words have two meanings.” - Robert Plant Words have meaning. This allows us to communicate with each other. Suppose you and I are having dinner. If I ask you to pass me the salt, meaning the seasoning commonly applied to food, and you have decided to redefine the word “salt” as an explosive device activated by pulling a pin and releasing a handle (or what I would call a hand grenade), it's not difficult to see why you would be very worried, and why I (having asked for a common seasoning) would be surprised by your concern. If words mean whatever the speaker decides in the moment, then we lose even the most basic ability to communicate with each other.  In light of the continued debate over whether "defund" means “end all funding for” or “reduce funding for,” and especially in light of last week’s Supreme Court ruling, I am reminded of Genesis 11's account of the Tower of Babel. The short version is that a group of people decided that they would build a tower to heaven. God, seeing that they would accomplish this goal if they continued to work together, and having His own reasons for not wanting them...

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Think Carefully before Voting on SQ 802

So we vote next week on whether or not to expand Medicaid according to Obamacare’s provisions. A vote “Yes” on State Question 802 would expand Medicaid to able-bodied adults above the poverty line. A vote “No” would keep the status quo, with taxpayers buying health care under Medicaid mainly for poor children and pregnant mothers. But as with just about anything proposed by initiative, State Question 802 is not really that simple. For one thing, it forever entrenches a federal program, which can be changed by Congress at any time, in our state’s constitution, which is not so easily amended. Obviously, the proponents of SQ 802 want to set the terms of the Medicaid expansion permanently, sidestepping our constitutionally instituted legislature, which is supposed to react and adjust to existing circumstances. SQ 802 would take that flexibility away. A consequence of that reduced flexibility will likely be sacrifices in other state-financed programs such as public education, both in the near term and during inevitable future economic downturns. That’s because Medicaid will be an absolute entitlement ensconced in our constitution. Funding for public education, roads, parks, prisons,...

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New Oklahoma Bar Association Rules Are a Step in the Right Direction for Free Speech

The Oklahoma Bar Association has gone half way towards respecting its members’ First Amendment rights. It should go the rest of the way. Lawyers in Oklahoma are forced to join and pay dues to the OBA in order to keep their license to practice law. The OBA uses that dues money for many things, including political activity like advocating for or against public policy proposals. The result is that lawyers are forced to fund political speech they may disagree with as a condition of continuing to earn a living as a lawyer. This is called a mandatory bar association, and many of us contend that it fundamentally infringes lawyers’ First Amendment rights. The United States Supreme Court agrees. About 30 years ago in a case called Keller v. State Bar of California, the Supreme Court held it unconstitutional for a bar association to use compelled dues from lawyers to engage in political speech without providing meaningful procedures for lawyers to “opt out” of funding the speech. Exactly what type of opt out procedures Keller required, however, was open for debate. The so-called Keller procedures adopted by mandatory bar associations across the country in response to the ruling are largely...

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Lawmakers Foul Out on Occupational Licensing—Again

Oklahoma’s got a bad occupational licensing problem, worse than other states. We don’t just regulate too many occupations (almost as many as Kansas and Missouri combined), we also overregulate; our licensing laws are the 11th most burdensome nationwide. What concerns me most isn’t either of those points, though. It’s that many of our harshest, most suffocating regulations target occupations that no thinking lawmaker should be legislating about in the first place. To illustrate this prevalent and truly bizarre phenomenon, take 1889’s latest report, which examines the Therapeutic Recreation Act. The report finds that the Act, which mandates getting government permission to sell or advertise recreational therapy services, is flagrantly unjustified. The practice targeted by the law simply isn’t dangerous or technical enough to warrant a license, not even close. If any reader is clueless, such as a lawmaker, rec therapy is an allied healthcare profession whose specialists promote the health and overall welfare of patients coping with or recovering from an illness, disability, or injury by helping them enjoy a hobby. Specialists may use games, crafts, animals, music or other fun...

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America’s Public Schools Fail Black Children, School Choice Empowers Them to Overcome

A consistent feature of racists through history is that they have fully understood the power of education, or the lack of education, as a tool of oppression. Extraordinary efforts were taken to keep black slaves illiterate, including killing those who deigned to learn to read. After the Civil War, black schools were frequent targets of attack. It should be no surprise that the longest and hardest fight in the Jim Crow South was over public school segregation. Segregationists worked to keep African Americans from lunch counters and in the back of city buses, but they fought like hell to keep black kids out of white schools. As our nation convulses with discussions of systemic racism, nearly all of the focus has been on questions of policing and the use of force. This is appropriate, of course. But I’d like to highlight a less discussed institution for which a strong case can be made that systemic racism prevails: public education.  An accepted definition of “systemic” or “structural” racism is as follows: “A system in which public policies, institutional practices, cultural representations, and other norms work in various, often reinforcing ways to perpetuate racial group...

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Hey Minnesotans: Come To Oklahoma; Police Disbanders: Get Serious

I’d like to take this opportunity to invite anyone from Minnesota, especially those from Minneapolis, to come to Oklahoma. Here's the thing: you’d better come fast. Once your police force is dismantled, and unless it is immediately replaced by another suitable law enforcement organization, how long do you think will it be before your city will quickly resemble a third world country, a dystopian hellscape, or perhaps the mythical old west? It’s not difficult to imagine, in a city with no police force, a scene from The Dark Knight Rises becoming a reality.  Oklahoma is far from perfect. Our police are far from perfect, just like our citizens. We’re trying to be a top ten state. We haven’t met that goal in all areas yet. But we are also not in danger of declaring the rule of law dead and buried. We realize that lawlessness and anarchy are not better for society than even an imperfect police force, especially one constrained by law and disciplined by courts. Our police have made mistakes. But in Oklahoma, we know that even major reforms do not require disbanding the police entirely.  I could understand if a city felt that their police department was so corrupt or so dominated by...

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Breaking the Unjust Shield: Fix Qualified Immunity

The United States has a policing problem. The protests over the death of George Floyd are proof of that. Perhaps qualified immunity, the judicial doctrine that usually prevents police officers acting in the line of duty from being held accountable in court, contributes to the problem.  Qualified immunity is a legal doctrine created by the Supreme Court. It provides protection to government officials who have violated a citizen's constitutional rights unless a “clearly established” right has been violated. To show that a right was “clearly established,” the victim must be able to point to a previously decided case that involves the same “specific context” and “particular conduct” as their current case. If he fails to do so, the offending officer is granted qualified immunity. In George Floyd's case, his family would have to point to a case where a cop suffocated someone with his knee in the street and went to trial for it. If no case like that exists, then Floyd's family cannot recover damages.   In 1871 Congress enacted Section 1983 of the US Code, giving ordinary citizens the right to sue government agents. In the 1967 case, Pierson v. Ray, the Supreme Court created qualified...

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George Floyd versus Union Cops: Is that the Real Story?

No one with a brain can look at the video of the Minneapolis cops putting their weight on George Floyd’s entire body, including a knee to his neck, and see his resulting death as anything but murder. The first autopsy cited pre-existing health conditions as a contributing factor in Floyd’s death. The second autopsy found Floyd’s death to be murder due to his carotid artery being crushed, cutting off blood flow to his brain. The official coroner seems to have come around to the murder conclusion, but regardless, those cops killed a man for passing a counterfeit 20-dollar bill; and because he’s dead, we can’t even find out if Floyd knowingly did so. Were the cops indifferent to Floyd’s pain because of racism? I don’t know, and no one else does, either. The cop with his knee on Floyd’s neck is obviously responsible for Floyd’s death. The other cops, who did nothing to alleviate Floyd’s suffering when he complained that he couldn’t breathe, are at least culpable in the murder. Three of the cops are identified as Caucasian and one is identified as Asian. It seems that the color of the cops is all that many need, apparently with absolute certainty, to know that Floyd’s death was due to...

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Dear GT Bynum, Let the Children Play

I live close to a large City of Tulsa park that has a golf course, walking trail, green spaces, and a couple of playgrounds. My (almost) three-year old son loves the playgrounds, and often begs us during walks in our neighborhood to detour to “for-chun” (LaFortune Park). This seemingly innocent request can become a hassle when we don’t really have time, but we indulge him as much as possible. It’s good for kids to play outside, especially with other kids they might not otherwise come into contact with. But sometimes we have to contend with an upset toddler who doesn’t understand why we can’t go to the playground right this minute. I’m not complaining, every parent of young kids deals with similar stuff. But during the COVID lockdown, we’ve had to contend with an altogether different LaFortune Park situation with our son. As part of the mayor’s shelter-in-place overkill, all city-owned playgrounds were closed “indefinitely.” This wasn’t a guideline or suggestion, the city meant business. They locked gates, hung yellow caution tape over monkey bars, erected orange mesh barriers to entrances and slides, and even took swings off of their poles. All other considerations aside, the...

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Oklahoma Mayors Acted Unlawfully With COVID-19 Orders

In response to COVID-19, the mayors of Oklahoma’s three largest cities subjected their citizens to draconian shelter in place orders, restricting their freedom, damaging them financially, and undermining their constitutional rights. The mayoral decrees were more restrictive than those of the Governor, and in significant ways contradicted his policy. To this day, city-mandated social distancing rules remain in place in Oklahoma City, Tulsa, and Norman that are not required by the state’s reopening plan. The mayors claim that where their rules are more restrictive than the state’s, the city rules apply.   Was any of this unilateral mayoral activity legally valid?   For the reasons examined in my paper published today, An Argument Oklahoma’s Mayors Acted Unlawfully During COVID-19, the short answer is no. (A summary of the paper can be found here.)   A close examination of relevant city ordinances and state laws governing the mayors’ COVID-19 decrees forces the conclusion that the mayors were on extremely shaky—possibly nonexistent—legal ground. This is largely because the mayors issued their orders under city ordinances arising out of a state law intended to combat riots and...

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The Bravery of Those Who Died to Defend Us Highlights Our Cowardice

Memorial Day commemorates those who died in military service to our country. These people died not for a chunk of land, for the natural resources available on that chunk of land, nor for any such simple material possession. They died for an idea, a way of life, as well as for each other. We used to be the Land of the Free, and the Home of the Brave. Now we're the land of the lockdown and the home of the trepidatious.    The bravery of heroes past has been replaced by dirty looks for those who dare to go outside without a mask - even in their own cars – where mask wearing, at best, can only be justified as a sign of solidarity. But solidarity for what? Certainly not freedom. That solidarity happens when people stand shoulder to shoulder against the jackboots who would take someone to jail for what now appears to be the shocking desire to earn a living to feed a family.   What follows are three stories of heroism, and four contrasting acts of cowardice. May the deeds of the past awaken in us a spirit of true courage, or at least help us to remember where our spines are located.    During the American Revolution, everyone who fought was risking not only death in war, but worse,...

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Hypocrisy Exposed by Mindless Bureaucracy in COVID-19 Responses and the Quality Adjusted Life Years Methodology

Life or death circumstances can bring out the best in people or the worst in people. They definitely expose the hypocrisy in people. The COVID-19 crisis has done this in spades. And we have an example playing out in Oklahoma right now with a bill that has gone to Governor Stitt for signature.   That bill, HB 2587, would require implementation of safeguards against state health agencies that would use purely economic calculations to justify withholding life-sustaining or quality-of-life-improving care from the old and profoundly disabled. It’s a response to a methodology called Quality Adjusted Life Years in which the cost of medication is compared to supposed benefit for patients. Since older people have fewer years to live, and might not even be apparently productive, this methodology would deny such individuals at least some medications.   Quality Adjusted Life Years is the sort of methodology described in the Obamacare Act that gave rise to the claim of some opponents that Obamacare created “death panels.” It is a fact that we spend a lot of money in this country, much of it through Medicare, using extraordinary measures to keep people near life’s end alive for a few more...

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Even If Pandemic Models Were Right, Were Covid Lockdowns Wrong?

1889 has been quite critical of pandemic modeling that government officials have relied on for their Covid-19 response. We have also criticized shutdown orders in light of flaws in the models. But let’s assume for a moment that the worst predictions really would have come true if nothing was done. Even in those worst case scenarios, it’s fair to ask if our governments did the right thing. Were involuntary shutdowns justified, or would people have found a way to both limit the contagion and maintain some level of productivity? Was putting healthy citizens under house arrest acceptable even if they were willing to risk infection?    While large groups of people are often compared to herd animals, we are not sheep. We don’t behave like animals. We can, have, and will step up when our communities are in danger. When government and journalists give incomplete or false information, people will act irrationally. Depending on the situation, some will blindly follow the first authoritative (or authoritarian) voice they hear. Others will reflexively rebel, simply because they sense they are not being told the truth. But when people are given good information - or at least not misled by bad...

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Education Reforms that Would Do Some Good

Several months ago, 1889 Institute published Education Reforms to Make a Difference in which six fundamental institutional reforms to public education in Oklahoma were suggested. Now we publish More Education Reforms to Make a Difference, which suggests six more reforms.   It’s clear that anything other than relatively fundamental institutional reform in public education is only the equivalent of rearranging deck chairs on the Titanic. That ship had some fundamental flaws in its metallurgy, and there were flaws in the incentives of how it was handled. Were these flaws not present, 1,200 people might not have prematurely perished. Were some fundamental changes to Oklahoma’s education system enacted, incentives would fundamentally change, and the system would operate to do a better job of producing well-educated high school graduates.    Only by weakening public education’s iron triangle (elected officials, union/trade associations, and government bureaucrats) will we get anything like real, positive change in public education that leads to more knowledgeable students graduating from high school ready to succeed in other educational endeavors and the careers of tomorrow.   ...

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