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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...
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...
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 inequity....
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 union...
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...
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...
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...
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...
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, being...
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...
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...
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. Prohibit...
COVID-1984: Have Americans Become Too Complacent in Our Liberties?
Alongside the coronavirus, another pandemic is gripping our country, one that we will feel the consequences of long after we reach herd immunity. I dub this pandemic COVID-1984, and I fear it will rot the roots of the Tree of Liberty. The consequence will be a government emboldened by a passive citizenry. One of the most surprising aspects of our current situation is how willing people have been to report their fellow citizens to authorities for the most minor and meaningless offenses. I used to wonder how people in authoritarian countries like Stalinist Russia and Maoist China went along with those cruel regimes. It turns out a tiny bit of fear is all you need to be a successful dictator. And now it’s all the easier to report your neighbors for reading alone on the beach with tip lines. Even as governors and judges begin to lift stay at home orders, mayors are extending them. A county judge issued a temporary restraining order against Illinois Governor J.B. Pritzker’s stay at home order. Only a day later, Chicago Mayor Lori Lightfoot announced her intention to enforce the stay at home order regardless of court orders. This reminds me of a quote from Andrew Jackson, “John...
The Legislators in Black Robes Strike Again
Once again, the Oklahoma Supreme Court has usurped the Legislature’s constitutional authority. This time, it has legislated new election rules, behind closed doors, on a compressed timetable, and without public input. All with an election looming in which the new rules will apply. On Monday, the Court eliminated the requirement that citizens voting by absentee ballot have their identity verified by a notary. If left unaddressed by the Legislature, absentee voters will be permitted to vote with little more than a pinky-swear promise that they are who they say they are, while in-person voters will still be required to show ID at the polling place. The Court’s decision not only harms the integrity of our election process, but was arrived at through a highly unusual process. The legal challenge to the notarization requirement was launched by a coalition of progressive organizations calling themselves “Let the People Vote.” Their stated reasoning for allowing unverified voting is that voters should not have to risk their health by interacting with a notary in order to cast their vote. Count me skeptical. In addition to launching this legal broadside in a state in which around...
Intellectual Corruption in Public Schools Exposed by COVID-19
Oklahoma is opening up in stages at last, thank goodness. While we have thought, from the beginning, that shutdowns have been a bad idea, what’s done is done. Now is the time to start recovering, and the faster we get fully re-opened (with prudent precautions for the vulnerable, of course), the better off we will be. Luckily, we are in the United States; the economic damage done here by shutdowns will be far less deadly than in poorer nations as global poverty is expected to increase for the first time since 1998 due to imprudent shutdown orders. And speaking of imprudent shutdown orders, none have been more imprudent than closing Oklahoma’s schools for the last 9 weeks (practically a full quarter) of the year. Action on the part of state leaders was so precipitous that, while we could be talking about re-opening schools to salvage at least part of the lost educational time, it is not now possible. And of course, we now know children were at low risk from the virus and that pulling them out of school didn’t affect that risk one iota. We also now know the adults in the system had practically nothing to fear from the children. Not enough questions are being asked of Oklahoma’s...
COVID-19 Exposes TSET’s Uselessness: Let’s Get Rid of It
After more than a month of COVID-19 house arrest, Oklahoma is reopening. However, the government-created economic disaster that shutdown orders have caused will be studied by epidemiologists, economists, and other social scientists for decades to come. In the meantime, we have to deal with the consequences as they occur, everything from a lack of toilet paper on store shelves (hopefully, that’s over) and hair that’s grown too long to what will undoubtedly be a host of bankruptcies. In the meantime, there is a timely question that truly ought to be answered in Oklahoma. Where has TSET (Tobacco Settlement Endowment Trust) been in this time of crisis? Recall that TSET was created as a quasi-independent government by constitutional amendment as part of the 46-state tobacco settlement wherein tobacco companies agreed to pay states as reimbursement for the Medicaid costs of treating tobacco users for tobacco-induced illnesses. Instead of using the money to reduce taxes for Oklahomans, who presumably were the ones who actually suffered the financial impact of treating tobacco users, we got talked into handing a quarter of each year’s payment to the legislature with the rest to pile up...
Liability In the Time of Covid: When Should Businesses Be Sued for the Spread of Infectious Disease?
When businesses reopen, what liability should they face related to the spread of Covid? Can businesses who remained open during the pandemic, or those who were open before the lockdowns began, be held liable if their customers caught the virus within the businesses’ walls? If so, what would a customer-plaintiff need to prove? Defending even a meritless lawsuit can be prohibitively expensive. For this reason, it is important to define ahead of time what harms can lead to successful lawsuits. Limitations on causes of action can reduce unwarranted suits by kicking them out of the legal system earlier in the process. So what should businesses be liable for? There are two distinct categories of business liability that might arise from Covid. The first is products liability. The second is liability for infection spread within a business. Products Liability First, any willful fraud perpetrated in relation to Covid should be severely punished. This would include selling false cures, mislabeling products, and any other situation where the purveyor knows what he is selling isn’t the same as what he’s advertising. Putting an N95 label on a less protective dust mask, or guaranteeing...
More on Why Oklahoma Should Have Already Fully Opened
Governor Stitt has declared that some businesses can open on Friday. By May 1, all enterprises in the state will be able to operate more or less normally. Eventually, at some unspecified date, Oklahoma will be fully operating again. But the question remains, and must be asked, “Was the shutdown and extreme social distancing even necessary?” For several reasons, the answer is a clear and unequivocal “No.” Let’s start with this little gem from a blog by an Oklahoma State University academic. “Harvard University epidemiologists determined that continuing extreme social distancing measures into the summer months could actually result in more COVID-19 deaths than a ‘do nothing from the beginning’ alternative.” Now, it might sound like this only confirms the decision to open up now and not extend the shutdown into the summer. But in fact, the Harvard study has a lot more to say about how this epidemic has been handled than might immediately be obvious. The Harvard study recommends social distancing only be implemented when healthcare-related resources might be overwhelmed, in favor of developing “herd immunity” (a high level of general population immunity) as quickly as possible....
Introducing a New Plan for Public Education: Put Educational Practitioners (Teachers) in Charge
The author, Kent Grusendorf, served as a member of the Texas House of Representatives for 20 years (1987-2007), all but two as a member of Public Education Committee, which he chaired for four years (2003-2007). His prior elected experience was as a member of the Texas State Board of Education for three years (1982-1984). In addition to this blog, Grusendorf is author of an 1889 Institute report also based on his forthcoming book. Saving Public Education: Setting Teachers Free to Teach is the title of my forthcoming book, which explores a potentially new professional opportunity for teachers. Most teachers are in the profession because they love to teach. However, far too many leave the profession due to lack of respect, excessive external pressures, and general frustration. Many teachers stay in the profession, but yearn for greater freedom to just do what they love: Teach. Much of that frustration comes from mandates, and a lack of professional freedom. Well Intentioned, but Wrong-Headed, Reform Well-intentioned education reform advocates (including me) have attempted to reform the American education system for more than half a century. Most of these reform efforts have...
If Data Is Supposed to Be Our Guide, the Great Coronavirus Shutdown of 2020 Should End
According to the most widely cited model projecting the course of the coronavirus outbreak, today is supposed to be Oklahoma’s peak in daily deaths. Now is a good time to go back to the beginning of the Great Coronavirus Shutdown of 2020, review the goal of our policy, and assess our current status. If our policy should be “data-driven,” as we are constantly told, then let’s actually look at the data and determine our next policy steps accordingly. Spoiler alert: according to the terms set out by those advocating for the shutdown policy, the policy’s continuance is no longer justified. The stated goal of the shutdown policy was to “flatten the curve” so as to prevent hospitals from becoming overwhelmed with COVID patients. The fear was that the virus would spread so fast that at its peak, the number of cases would exceed the overall capacity of the healthcare system. If that peak could be stretched out over a longer period of time, lives would be saved. This concept was illustrated through a rather cartoonish graph. There were reasons to be skeptical from the beginning. The curve-flattening graphs rarely had any real numbers attached to them. Instead, a wide...