Redefining Equality

The Supreme Court will finally hear arguments in the Marriage Equality cases this week, and it's about time. If justice delayed is justice denied, than we've had denial of justice for a good part of our population for far too long.

The opponents of marriage equality do not want to talk about civil rights. They don't want to talk about equality. They don't want to talk about gays sharing in society and being fully accepted in American culture. What they want to talk about is redefining marriage, which they say is what these cases are all about. They also want to point to the Bible for their definition, and cite its prohibitions against any homosexual activity. You'll excuse me, but I am tired of having to worry about what a book that also mandates stoning, banishment and ritual murder has to say about people who live in a manner that is really not your business. If religious opponents of marriage equality can pick and choose which parts of the Bible they want to apply here, then I will feel free to ignore the Bible altogether as a remnant of tales, stories and oral histories that provide a fascinating narrative, but are not relevant to the modern world.

But in the end, they are simply redefining equality. And that's wrong.

The main argument against marriage equality is that it would redefine the institution that opponents believe to be the bedrock of any civilization. Once you allow anybody who loves another person to marry them, then you're opening the door to polygamy, incest and child marriage. Here's Brian S. Brown, one of the most active opponents of marriage equality:

“When you knock over a core pillar of society like marriage, and then try to redefine biblical views of marriage as bigotry, there will be consequences,” Mr. Brown warned last August in a fund-raising letter. “Will one of the consequences be a serious push to normalize pedophilia?”

Then there's this audio from the NPR program The Takeaway, where Joseph Backholm, executive director of Family Policy Institute, an anti-marriage equality group, says that not only should gays not be allowed to marry, they shouldn't be able to adopt and raise children, since that right is traditionally reserved for those who can create children.  I guess childless heterosexual couples need not apply either.

This is what the right wing does best: They scare and twist facts so that there's no other choice but to oppose the same things they oppose. But Mr. Brown did more than that. He enlisted African-American clergymen and women to oppose marriage equality because, he said, it was less a civil rights issue than one of religious doctrine. Wasn't this the same argument that segregationists used to fight integration?

Yes it was.

Denying people rights is the same no matter what their station is. Laws that forbid intermarriage were overturned. Laws that forbid certain sexual practices were overturned. Public places were integrated. The long history of our country generally moves in one direction; towards more freedom and more access for all groups. I can't imagine the Supreme Court saying that marriage equality is against the Constitution. It's just a matter of how far they'll go.

The problem, though, is that even if the Court overturns the Defense of Marriage Act, it doesn't mean that gay couples will have an unfettered right to marry or enjoy the same rights and privileges as heterosexual couples. Unless the Court mandates marriage equality throughout the nation, states that don't recognize it can continue to not do so. That will continue to complicate the lives of those couples who are legally married in the eight states that do recognize marriages if they even visit states that do not. That's not equality. More delays. More denials.

Here is a graphic that explains how the court might rule.

I expect that the Court will open the gates to marriage equality in some way, but won't make a sweeping judgement that covers the whole country. I also believe that this will be another John Roberts decision and that he will provide the fifth vote in favor. If Anthony Kennedy comes along, then the tally will be 6-3. I just can't see Scalia, Alito or Thomas signing on to this.

Opponents of marriage equality say that an expansion of marriage rights is not a done deal. I disagree. Many people already have these marriage rights in the states that recognize gay marriage. I cannot imagine that the court would take those rights away. And once they are affirmed, they will become part of the American way of life. Gay couples will be more visible and will ultimately become more accepted. It will take some time and there will be bumps along the way, but it will happen.

Because this is a civil rights issue. Plain and simple.

For more, go to www.facebook.com/WhereDemocracyLives and on Twitter @rigrundfest

The Political Muddle

Imagine that a group of conservatives get together to talk about pressing issues, deliberate about a leader that will take them into the near future and debate their organization's role in world affairs. Of course, I'm talking about the Conservative Political Action Conference. Or the recent conclave of Cardinals. At this point, the two are interchangeable.

That's the problem for conservatives.

As far as the College of Cardinals is concerned, now that we finally have the answer to all of those prayers, we can reveal the Almighty's intentions. The Holy One clearly prefers that a rather old man from Argentina, who is so humble that he names himself after an even more humble saint, run the Church. Adonai, if I can be so informal, also clearly wants the red hats to come back to Rome sooner than later (will Francis make it to 90?) to choose yet another man so the Church can gauge how long it can stall on 1. reforming itself, and 2. including ALL of the world's Catholics in its warm embrace. Until then, enjoy and rejoice as the world celebrates the second most famous Argentinian in the world today (after Lionel Messi).

As for the conservative Republicans, their meeting this week reflects the brawl that was the inevitable result of its losses in November, when only the time-tested strategy of gerrymandering saved their House majority. We've already seen some splintering as nine Republican governors have decided to take ACA Medicaid money, some GOP Senators are ready to discuss compromises on taxes to get a fiscal deal, and one, Rob Portman of Ohio, who has come out (no pun intended) for marriage equality on account of his gay son.

Who came out to him. Two years ago.  No hurry.

Yes, put another nail in the "it's a lifestyle choice" school of determining gayness. I can't imagine the Portman house being anything other that hetero-centric. Maybe the Senator can talk to Dick Cheney about it.

The GOP's problem is that it's out-of-touch with what most Americans want for their future and the future of the country. They scold, seem to be anti-everything, and don't see that adapting to the world in not surrender of your core beliefs. It's called tolerance and respect, and it doesn't matter if it's Mitt Romney or Rick Santorum or Marco Rubio saying it, the message is the same. The messenger will lose in 2016 if they don't change.

Liberals took a hit this week too, as Mayor Bloomberg's soda gambit was snuffed out by the courts although he promises an appeal. And he should. Further, Twinkies will soon be back in stores after Hostess sold the brand for $410 million dollars, so the score stands at Junk Food 2-Health Food 0. Oh, and the new Twinkies will still have the Hostess name on them so as not to confuse anybody.

Meanwhile, President Obama's visit with the Congress produced some positive reviews, but to expect a change of heart among the true believers would require a Providential act. Maybe a trip to Israel is not a bad idea, or is really part of the plan.

For more, go to www.facebook.com/WhereDemocracyLives and on Twitter @rigrundfest

Trenton Math: Where 50-50 Isn't a Tie

Good news for responsible educators was difficult to come by yesterday as the New Jersey State Department of Education released a 104 page document that details the new rules for the teacher evaluation system. All of the anti-reformer's greatest hits are in the new rules including the new guidelines on teacher retention, setting up an evaluation rubric and stating, rather emphatically, that the state sees no employment ramifications from the new rules.

There's a great deal to digest in these new rules, but the key to it all is how teachers are going to be evaluated, rated and either retained, let go or brought up on tenure charges for not adequately performing their jobs. Those regulations were issued separately by the DOE and are contained in this memorandum and summarized in this article.

It is here that we learn that a 50-50 split is actually a loaded proposition that is stacked against effective teaching and learning, and assumes that tests can measure how well an educator is doing their job. It is scary, and it's coming to a school district near you in September.

All public school teachers in New Jersey will be evaluated with a system that divides their performance into two categories: 50% will be based on classroom observations and 50% will be based on student test scores or other measures of student classroom progress. The problem is that these are not equal measures. Quite simply, if all other measures are equal, the test score/student progress half will be used as the tie breaker, which effectively means that whether a teacher keeps their job is more directly related to how well their students perform on tests. I heard Commissioner of Education Christopher Cerf say it in person. I wrote it down.

The further problem is that there is little credible research showing that teacher performance is actually related to how students score on tests. Even Charlotte Danielson, the author of the most widely used evaluation rubric in New Jersey, says so:

I don't think there is a single teacher who says that student achievement is irrelevant in their performance. Any teacher should be able to demonstrate that the children are learning.

The question is the evidence and how to attribute that to any one teacher. And I can say with confidence that nobody yet has figured out how to do that.

It's a serious issue, and there are enormous stakes in us getting it right.

Classroom teachers know that they can gain very valuable information from students when they analyze scores or critical thinking assignments. Teachers can assess content knowledge, skill attainment and progress towards educational objectives. What they also know is that making these measures the tie-breaking metric is folly. You'd get more relevant data by noting which students ate an adequate breakfast the day of the test, or asked parents at drop-off how their marriages are working out, their family income, or when they last went to an AA meeting. That will tell me more about potential student performance on the day of the test than what they might have learned and retained since September.

Given that, the new state testing guidelines, courtesy of the PARCC Consortium, should make every teacher whose students will take them anticipate a shiver up the spine. Here's what's in store:

Third-graders, for example, now spend roughly five hours, spread over four days, on the New Jersey Assessment of Skills and Knowledge or NJ ASK tests. The new exams will take eight hours, but will be split among nine short sessions.

In Grades 4 and above, the new tests will take nine and a half hours total — over nine sessions — up from about six hours now. Some sections will take place after three-quarters of the school year is over, and other sections at the end of the year.

Think about how many days teachers and students will lose from instruction just to administer the tests. Think about the anxiety that many students will feel not only in March, but in May since the tests will be given 75% of the way through the school year and then again 90% of the way through. Then think about the disruptions in the day, because students will take these tests in short time periods, rendering much of the rest of the day's instruction irrelevant.

Now let's factor in the cost and availability of the computers these tests require (though there is a paper version for students whose IEPs require it). The state is recommending one computer per student. Some districts won't have that, and can't afford to buy more. The good news is that districts can schedule the tests in shifts so that all students can be accommodated. The bad news is that the tests will be given at all different times of the day, so possible cheating might be an issue (that one fact negates the idea that these are standardized tests). And what if some of your students don't have sufficient enough keyboarding skills to do well on the tests? The state suggests that this will open up your district's curriculum to teach more keyboarding. Shall we take that time away from Social Studies? Science? Physical Education? Art? We're open to suggestions.

These tests are being hailed as ushering in a new era of education and teacher evaluation in New Jersey, but before we get ahead of ourselves, let's remember two things:

1. The dirty secret behind the new teacher evaluation rules is that only about 20% of New Jersey's schoolteachers will be evaluated using a standardized test, because the state has only set up tests for elementary grades in math and language arts. All other disciplines will have to come up with a classroom measure that shows student progress. Therefore, the tests will only have limited utility.

2. Standardized tests and other student progress data do not measure a teacher's effectiveness. 
 
The bottom line, though, is that the 50% of a teacher's evaluation that uses tests/data will always beat out the 50% based on classroom observations. Always.

If you work in public education in New Jersey, don't ever forget it. 

For more, go to www.facebook.com/WhereDemocracyLives and on Twitter @rigrundfest

On Voting Rights the Court Gets It Wrong

Remember last summer when the media attempted to parse the arguments and meaning of the Supreme Court's sessions on the Affordable Care Act? Wasn't it fun to play the "How will they vote" game? Wasn't it extra fun when Justice Roberts played that big bad joke on Antonin Scalia and sided with the squirrely liberals?  Well, if you liked that, then you have to love last week's arguments in the case surrounding the constitutionality of the Voting Rights Act of 1965. Here is one of the iconic laws of the civil rights era under siege from a hostile conservative majority, with the possible (probable) result that it could be overturned. But really, what's the case all about? And what's the fuss about comments from Justices Scalia and Roberts? if these questions burn in your soul, then you've come to the right place.

Here's the recap for your edification and delight.

The Supreme Court will rule on whether a key part of the Voting Rights Act, Section 5, should stand. The background on Section 5 can be found here, but the basic idea is this: 

Section 5 freezes election practices or procedures in certain states until the new procedures have been subjected to review, either after an administrative review by the United States Attorney General, or after a lawsuit before the United States District Court for the District of Columbia. This means that voting changes in covered jurisdictions may not be used until that review has been obtained.

Application of this formula resulted in the following states becoming, in their entirety, "covered jurisdictions": Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, and Virginia, In addition, certain political subdivisions (usually counties) in four other states (Arizona, Hawaii, Idaho, and North Carolina were covered. It also provided a procedure to terminate this coverage.

Under Section 5, any change with respect to voting in a covered jurisdiction -- or any political subunit within it -- cannot legally be enforced unless and until the jurisdiction first obtains the requisite determination by the United States District Court for the District of Columbia or makes a submission to the Attorney General. This requires proof that the proposed voting change does not deny or abridge the right to vote on account of race, color, or membership in a language minority group. If the jurisdiction is unable to prove the absence of such discrimination, the District Court denies the requested judgment, or in the case of administrative submissions, the Attorney General objects to the change, and it remains legally unenforceable.

What this means is that none of the states listed above can make a change to its voting laws or procedures (changing polling places, hours, method of voting, and so on) without the blessing of the Justice Department. During the 1960s, when the law was passed, many states severely restricted African-American voting rights. The argument today is that almost 50 years later, those restrictions are unnecessary and burdensome.

But there's also a section of the case that has to do with Section 2, as discussed in this article.

The legal issue turns on two main parts of the act: Section Five, which covers jurisdictions with a history of discrimination, and Section Two, which covers the entire country. Both sections outlaw rules that intentionally discriminate against or otherwise disproportionately harm minority voters. Section Two would remain in effect even if the court strikes down Section Five.

But reliance only on Section Two would mean a crucial difference in how hard it may be to block a change in voting rules in an area that is currently covered by Section Five. Those jurisdictions, because of their history of discrimination, must prove that any proposed change would not make minority voters worse off. 

By contrast, under Section Two, the burden of proof is on a plaintiff to demonstrate in court that a change would prevent minorities from having a fair opportunity to elect representatives of their choice. 

“Getting rid of Section Five is not getting rid of voting rights; it would just make voting rights litigation look like normal lawsuits,” said Ilya Shapiro, a legal scholar at the Cato Institute, which filed a friend-of-the-court brief urging the court to strike down Section Five. “It would mean that if the federal government claims people have been harmed, it would have to prove it.” 

But J. Gerald Hebert, who formerly handled voting rights litigation for the Justice Department and is now in private practice, said that losing Section Five would be “devastating to protecting voting rights” because the costs of a lawsuit are so steep. Jon Greenbaum, the legal director for the Lawyers’ Committee for Civil Rights Under Law, said it would mean that the bulk of changes that now receive automatic scrutiny by the federal government could take effect without any review, eliminating a deterrent against mischief.

In other words, under Section Five, the burden of proof is on the municipality to prove that it's not discriminating by passing a law that affects voting. Under Section Two, the burden of proof is on the plaintiff, and they would have to foot the bill for the lawsuit. Getting rid of Section Five doesn't mean that states can pass discriminatory laws because Section Two, which covers the whole country, would still be in effect. But like most conservative ideas, the economic and legal toll would be on those who are most likely to be affected, who are also the least likely to able to pay to defend their rights.

The case before the court comes from Shelby County, Alabama. Congress routinely re-approved the Voting Rights Act in 1970, 1975, 1982, and in 2006 extended it for 25 years. From NBC News,

Shelby County’s lawyer Bert Rein argued that Section 5 of the Voting Rights Act – which Congress renewed for another 25 years in 2006 – is unconstitutional because the formula used to determine which states are covered is outdated – based on voter turnout and registration data from 1972.

In essence, Shelby County is saying that the law is outdated, is based on obsolete information, and no longer reflects modern southern (and other) politics.

The other side of the argument is that the Voting Rights Act is working, so why get rid of it? There is a plethora of data that shows that the law is still needed, and that taking federal oversight away from places that have histories of discrimination is an invitation to continued mischief.  This chart below graphically illustrates the effects of such laws.



As you can see, states that can do as they please on voting laws, and only have to worry about deep-pocketed plaintiffs challenging them on Section Two, have passed the most restictve voting laws. If the Supreme Court strikes down the Act, it could lead to more Voter ID laws and the suppression of early voting laws that seem to help minority voters in the states that have them. Remember that it's not just the south anymore. Laws that dissuade voters from voting is a national problem.


It shouldn't surprise anyone that during oral arguments, the conservative members of the court seemed to side with Shelby County, saying that the law was outdated and, in Justice Scalia's words,

"very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It's been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.”

Racial entitlement.

There's a reason that there was loud backlash against Scalia for uttering this phrase. Before there was a Voting Rights Act, wasn't the entitlement on the side of whites? And wasn't the remedy to make sure that all people could exercise their rights? How then did the remedy become an entitlement for African and Native Americans? All these people were asking for was the franchise. Now Justice Scalia is reclassifying them as a group that doesn't deserve any more protections.

Further, Chief Justice Roberts went so far as to compare African-American voting patterns in Mississippi, which he said had the best ratio of black turnout to white, to Massachusetts, which he said had the worst ratio. Not only was he wrong on the facts, but does anyone truly believe that Mississippi had, and has, a better record when it comes to open voting than the Bay State?

Massachusetts Secretary of State William Galvin:

“He’s wrong, and in fact what’s truly disturbing is not just the doctrinaire way he presented by the assertion, but when we went searching for an data that could substantiate what he was saying, the only thing we could find was a census survey pulled from 2010 … which speaks of noncitizen blacks,” Galvin said. “We have an immigrant population of black folks and many other folks. Mississippi has no noncitizen blacks, so to reach his conclusion, you have to rely on clearly flawed information.”

By contrast, Justice Breyer referred to voting procedures as a disease, saying,

“It's an old disease, it's gotten a lot better, a lot better, but it's still there,” he said. “So if you had a remedy that really helped it work, but it (discrimination) wasn't totally over, wouldn't you keep that remedy?”

Well, yes, but apparently, he's in the minority.

Although it looks rather grim for keeping the Voting Rights Act intact, please do remember that it looked similar for the fate of the Affordable Care Act this time last year and we know how that worked out. Perhaps Justice Roberts or Kennedy, who also seemed hostile to upholding the Act, will change their tunes in chambers, but I don't expect it. Given that both Florida and Ohio had significant problems with their voting procedures, and also given the love that many Republican Governors have for placing roadblocks to voting for minority communities, I could see an expansion of restrictions from the south to other parts of the country. It would then be up to individual voters to bring suits, but again, they would also have to pay for them.

One of the popular phrases that opponents of the Act use is that we've elected an African-American President twice, proving that we've turned the corner on race and voting. Very true. But the other side of the coin is that we've made history not only because of progress, but in spite of state laws aimed at disenfranchising minority voters who stayed in line well past poll closing time and used social media to publicize their plight. When we no longer have to worry about these shenanigans, then we won't need the Voting Rights Act anymore. But until then, it's clear that we still do.

For more, go to www.facebook.com/WhereDemocracyLives and on Twitter @rigrundfest