Category Archives: regulation

Local Control vs Federal Funding

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Tennessee’s General Assembly is considering a bill that would indemnify teachers and all other employees of public schools and local education agencies against civil liability or “adverse job actions” if they refer to a student by pronouns consistent with his biological sex rather than by his preferred gender pronouns. The General Assembly’s Fiscal Review Committee noted that the bill

could violate Title IX and would put at risk the state’s federal funding, which for the current school year is more than $5 billion.

That’s the important aspect of this bill, and it has much broader implications for all State-level legislative actions. The $5 billion might seem like a lot of money for a State, but it pales against the long-term cost outcomes of a State accepting any Federal funds under any guise: the more money a State accepts from the Federal government, the more control over its own internal affairs the State surrenders to the Federal government.

The Feds are acting entirely legitimately when they attach strings to the money they provide the States, or to any non-State entity. Anyone providing money to anyone or anything else naturally gets to specify the manner and purpose for which the money is to be used. It’s the existence of those strings, not what they require, that should give States pause in the decision to accept any of the Federal government’s money.

In the end, States that want to retain control of their own intra-State affairs should reject Federal funds transfers—and join with other States in efforts across the legal spectrum to end Federal transfers of State tax remissions to other States altogether except in the event of an emergency declaration. Nor should any exceptions to the bar be allowed: once carve-outs are begun, in very short order, the bar will be so exception-ridden as to cease to exist in any meaningful form.

Discrimination

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Recall the California law that requires (required) the boards of directors of California-headquartered public companies to have at least one member of an “underrepresented” race, ethnicity or sexual orientation, and two to three for larger boards. Recall further that California Superior Court Judge

Terry Green judge struck the law for violating California’s constitution.

Now The Wall Street Journal includes a bit of the judge’s reasoning from his opinion.

the judge says no one “appears to have made any effort to identify, define, or survey the qualified talent pool for director positions.”

Oops.

In an associated footnote, the judge went on, with clarity that even a California Progressive-Democrat should be able to discern.

Some of the experts have identified common feeder positions (such as “C-Suite” executive roles) and academic qualifications (such as an MBA), but there appears to be no one single” gatekeeping “qualification that could be used to define the pool in the way that a license might for lawyers and medical professionals, or a credential might for teachers.

Then he drove the point home in his conclusion.

Corporations Code § 301.4 [the board of directors membership law] violates the Equal Protection Clause of the California Constitution on its face. The statute treats similarly situated individuals—qualified potential corporate board members—differently based on their membership (or lack thereof) in certain listed racial, sexual orientation, and gender identity groups. It requires that a certain specific number of board seats be reserved for members of the groups on the list—and necessarily excludes members of other groups from those seats.

It’s hard to get any clearer than that, but if the California Progressive-Democratic Party legislators are true to their history, they’ll work hard to find a way to be confused.

Two Tables

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These two are excerpted from Phil Kerpen’s, Stephen Moore’s, and Casey Mulligan’s A FINAL REPORT CARD ON THE STATES’ RESPONSE TO COVID-19, a working paper published through the National Bureau of Economic Research. The first table identifies the 10 States that performed best during the height of the Wuhan Virus situation, as assessed across three variables: the economy, normalized by State industry composition; education, as measured by lost school days; and mortality, normalized by State population age and the prevalence of obesity and diabetes (leading co-morbidities for Covid deaths).

The second table identifies the 10 States that did worst.

States that opened from lockdowns early in the virus situation did better overall and on education and economic measures, and those same States did as well as (Florida vs California, for instance) or better on health outcomes related to lockdowns.

Oddly, those States that did best are Republican-led, and those States that did worst are Progressive-Democrat-led.

Go figure.

Note: right-click on the tables and select Open Link in a New Tab to get a bigger image.

Some Progress

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The Alabama House of Representatives, on the last day of this year’s legislative session, passed—66-28—a bill that makes felonies out of performing certain essentially irreversible transgender procedures on children. The State’s Senate had passed the bill earlier, so now it goes to Governor Kay Ivey (R) for signature and passage into law.

Among the procedures proscribed by the bill are hormone treatment, puberty blockers, and gender-reassignment surgery.

It’s one thing if adults want to undergo transgender procedures, but it’s quite another for children. Not only are children—from an intellectual and emotional maturation standpoint as well as legally—incapable of making such decisions, they’re incapable of deciding for themselves their underlying desired gender recognition status. That status is determined solely by a child’s parents, and so are the decisions to act on their determination.

Such procedures are irreversible, and neither the parent nor the child can undo them later if either should wish to change his mind or recognize a mistake and wish to correct it. A parent imposing such a decision on the child is as guilty of child abuse as they would be of beatings or genital mutilation.

Ivey has not said whether she would sign the bill, and her office did not respond to a request by the wire service for comment.

It’s unclear why Ivey is hesitating. Protecting children from abuse should be a goal of everyone, including politicians.

Canceling Charter Schools

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The Biden-Harris administration is trying to. His Department of Education Secretary, Miguel Cardona, is proposing a cancelation rule, cynically called, in part, Expanding Opportunity Through Quality Charter Schools Program. The rule provides, among other things:

prov[e] there’s a demand for a new school—e.g., evidence satisfactory to Miguel Cardona that there is “over-enrollment” in existing public schools

Prove to the government’s satisfaction, that is. A government that the teachers unions, recall, heavily influence—lately regarding Wuhan Virus requirements for opening and operating in existing public schools.

show[] how they would ensure diversity

Not how they would ensure a quality education. That’s no longer a factor under this administration or the teachers unions.

limit the degree of control over their own schools that would be allowed outside for-profit companies

Because Big Government Knows Better than actual businessmen and educators how to run a school.

[A]n applicant [for Federal startup seed money] must propose to collaborate with at least one traditional public school or traditional school district

And

In its application, an applicant must provide a letter from each partnering traditional public school or school district demonstrating a commitment to participate in the proposed charter-traditional collaboration.

Under these two requirements, a new charter school functionally must get permission from its competitors—those public schools—even to operate. That permission is granted in part, or withheld entirely, by whether an existing partner school will agree, or not, to “partner” with the supplicant applicant.

The proposed rule goes on like that for over a dozen Federal Register pages, every single one of which is unnecessary, since this…rule…is less than unnecessary, it’s Government overreach.

It’s long past time to put these people out of office.