Perspective - May 2016

MAY 2016

OKLAHOMA COUNCIL OF PUBLIC AFFAIRS

A MOSAIC OF OPTIONS OCPA distinguished fellow Andrew Spiropoulos says educational choice can help spur the next great awakening of moral and spiritual belief that is our only chance of stemming our cultural rot.

In Case You Missed It After another illegitimate exercise of judicial power (this one involving workers’ compensation), OCPA distinguished fellow Andrew Spiropoulos says the only way to fix this problem “is to reform our system of judicial selection so that the organized bar doesn’t have an effective veto over who serves on the Supreme Court.”

According to a new SoonerPoll survey, 82 percent of Oklahomans say our public colleges and universities could be run more efficiently.

OCPA’s Trent England says “the real debate is over the direction of the Oklahoma state government: Are we going to have smaller, more efficient government or bigger, more intrusive government?”

OCPA president Jonathan Small wonders if the Tulsa Regional Chamber of Commerce is nothing more than liberalism’s echo chamber.

Despite a state budget crunch, University of Oklahoma president David Boren has asked each dean to hire a “Diversity and Inclusion” officer.

Rather than enact the Boren tax increase, Oklahomans would rather fund teacher pay raises by nixing wind subsidies, according to the results of a new SoonerPoll survey.

ocpa.us/1pxGY4W

ocpa.us/22uEdTU

The survey evidence keeps piling up: Oklahomans support educational choice.

ocpa.us/22Dsuim

ocpa.us/1Rj7Htn

ocpa.us/1MACG1W

ocpa.us/1S4k0tl

Oklahoma’s public education system now employs more nonteachers than teachers.

ocpa.us/22Dslvu

PERSPECTIVE

OCPA trustee Bob Sullivan says it’s time for state lawmakers to give parents choices via education savings accounts (ESAs).

ocpa.us/1Uj3BaA

Brandon Dutcher, Editor Alex Jones , Art Director

OCPA Trustees

OCPA Researchers

Perspective is published monthly by the

Blake Arnold • Oklahoma City

David McLaughlin • Enid

Oklahoma Council of Public Affairs,

Glenn Ashmore • Oklahoma City

Lew Meibergen • Enid

Inc., an independent public policy

Robert D. Avery • Pawhuska

Ronald L. Mercer • Bethany

Lee J. Baxter • Lawton

Lloyd Noble II • Tulsa

Steve W. Beebe • Duncan

Mike O’Neal • Edmond

John A. Brock • Tulsa

Larry Parman • Oklahoma City

David R. Brown, M.D. • Oklahoma City

Bill Price • Oklahoma City

of free enterprise and limited

David Burrage • Atoka

Patrick T. Rooney • Oklahoma City

government. The views expressed

Michael Carnuccio • Yukon

Melissa Sandefer • Norman

in Perspective are those of the author,

Paul A. Cox • Oklahoma City

Thomas Schroedter • Tulsa

and should not be construed as

William Flanagan • Claremore

Greg Slavonic • Oklahoma City

representing any official position of

Josephine Freede • Oklahoma City

Charles M. Sublett • Tulsa

Ann Felton Gilliland • Oklahoma City

Robert Sullivan • Tulsa

John T. Hanes • Oklahoma City

William E. Warnock, Jr. • Tulsa

John A. Henry III • Oklahoma City

Dana Weber • Tulsa

Henry F. Kane • Bartlesville

Daryl Woodard • Tulsa

Robert Kane • Tulsa

Daniel J. Zaloudek • Tulsa

organization. OCPA formulates and promotes public policy research and analysis consistent with the principles

OCPA or its trustees, researchers, or employees.

ocpa.us/1XKUUUi

Gene Love • Lawton Tom H. McCasland III • Duncan

Steven J. Anderson, MBA, CPA Research Fellow Tina Dzurisin Research Associate Trent England, J.D. Dr. David and Ann Brown Distinguished Fellow for the Advancement of Liberty Adam Luck, MPP Research Fellow Jayson Lusk, Ph.D. Samuel Roberts Noble Distinguished Fellow J. Scott Moody, M.A. Research Fellow Andrew C. Spiropoulos, J.D. Milton Friedman Distinguished Fellow Wendy P. Warcholik, Ph.D. Research Fellow

Larry Arnn

Arthur Brooks

William F. Buckley

George W. Bush

Dana Perino May 12 Oklahoma City

Jeb Bush

Dick Cheney

•

For more information, contact Rachel Hays at 405.602.1667 or rachel@ocpathink.org

Dinesh D’Souza

Artur Davis

Jim DeMint

David Horowitz Mike Huckabee

J. Rufus Fears

Steve Forbes

Tommy Franks

Mitch Daniels

John Fund

Newt Gingrich

Jeane Kirkpatrick

Charles Krauthammer

Brit Hume

Laura Ingraham Frank Keating

Russell Moore Stephen Moore Peggy Noonan Marvin Olasky

Art Laffer

Rich Lowry

Ed Meese

Sarah Palin

Star Parker

Michael Reagan

Paul Ryan

Joe Sobran

Thomas Stafford

John Stossel

Cal Thomas

Clarence Thomas

Scott Walker

John Walton

J.C.Watts

Allen West

Walter Williams

Past OCPA speakers are pictured above.

EDUCATION

A MOSAIC OF OPTIONS

The Ten Commandments and Educational Choice

By Andrew C. Spiropoulos

[Editor’s note: This article is adapted and updated from a speech given on February 4, 2016, at OCPA.]

e hear a lot of talk these days about popular anger at elites.

This rage has surprised not a few of our leaders. They, including the members of the Oklahoma Supreme Court, were especially shocked by the popular revulsion at the Court’s Ten Commandments decision. We witnessed a genuine “pitchfork” moment, where ordinary people are outraged by policies imposed on them by elites and moved to loudly say so.

Many of us, though, were surprised

4

PERSPECTIVE // May 2016

that it took this long for people to be angry. Do people really not know what has been going on in our courts, both state and federal, for decades? One of the most stunning aspects of the Oklahoma Supreme Court’s decision was that the Court did not need to unearth the controversial and long dormant “Blaine Amendment” provision of our state constitution which, inspired by the antiCatholic animus common in late 19thand early 20th-century America, forbids government from appropriating money

for the support of sectarian institutions.

The Court could have simply relied on the U.S. Supreme Court’s longstanding interpretation of the federal Establishment Clause.

The Naked Public Square

For more than 50 years, the U.S. Supreme Court has held that government cannot endorse religion. Under this doctrine, courts have ordered the dismantling of war memorials and Christmas displays and even the

I can’t think of any other single policy that has a better chance of inspiring the next great awakening of moral and spiritual belief that is our only chance of stemming the cultural rot that is the true source of our social pathologies.

censoring of city seals with religious symbols. Look at what these cases are about—no one is trying to establish a religion or make a state church. The question is whether government merely is allowed to say it prefers religion to non-religion. The courts tell us, contrary to our nation’s history and much of society’s cherished beliefs, that the community is forbidden from taking sides on the question of God. It must remain neutral, even if all that is involved is putting up a monument or commencing a ceremony with a prayer. The judges tell us that the Constitution mandates, as Richard John Neuhaus so famously put it, the “naked public square.”

Keep in mind that no other system of belief is treated this way.

The President can order, after the Supreme Court ruled on same-sex marriage, that the gay rights movement’s rainbow colors adorn the White House, but heaven help a future President who decides to put up a cross on Easter or a nativity scene at Christmas.

As a glance at the leading Establishment Clause cases will tell you, the most important and contested public square is the public school—that’s where the point of the secularist spear is aimed. The goal of the strict separationists is the eradication of all signs or discussion of faith in the public school. Now, to be fair to the U.S. Supreme Court, the law is actually more reasonable than the practice in many schools. The Court, which is more sensitive to public opinion than most people believe, has made it clear that teachers, staff, and students can pray on their own and read their own Bibles, and schools can teach religion as an academic subject (in other words, you can study it, but you can’t say that it is true).

But as those of us who follow these disputes in the news or the law reports know, too many school administrators don’t understand or care about the law. The students in my class on “Religion and the Constitution” are shocked to find out that schools have banned students and teachers from reading the Bible at their desks, censored students who intended to mention Christian beliefs in their graduation speeches, and forbidden coaches and players from voluntarily praying at football games. The assumption is that all signs of religion must be eradicated, lest anyone conclude that the school (and, thus, the state) has endorsed religion.

The argument the strict separationists make is that the school isn’t being hostile toward religion—it is being neutral. We’re not taking sides—we just don’t want anyone to raise the subject of religion at school. We should stick, they argue, to teaching reading, writing, and arithmetic.

No Such Thing as Neutrality

But the naked (or neutral) public square is impossible to

maintain. Something will fill the void. For one thing, schools teach a lot more subjects than reading, writing, and arithmetic. How do you handle the question of faith in biology or physics, for example?

But even more importantly, how do you not talk about the importance of Christianity in American History or European History or any class (like Sociology or Government) that discusses contemporary society?

The Court says you can discuss Christianity, but you have to be careful about how you talk about it. But many schools and teachers decide the safest bet, for both legal and social reasons, is to not talk about it all.

So what kind of education do our children receive? The schools aren’t neutral—they have to have some perspective, some viewpoint. If children can’t be taught from a religious point of view, they have to be taught the secular perspective (or what people used to call secular humanism). In biology, they’re taught only the most extreme form of evolutionary theory—it’s never mentioned that the Catholic Church, for example, accepts a

5

EDUCATION

form of evolution. They’re taught that the American Revolution was only about taxes (it also involved religious freedom) and that the Framers (the vast majority of whom were practicing Christians) were pure rationalists. The central role of religion in the abolitionist and the civil rights movements is airbrushed out. Today’s society is studied and understood only through, they would say, an empirical lens, but we know that it’s really a materialist one. Children are taught that people are motivated by their economic or physical desires, never by matters of the soul.

Now, some of you may be wondering why it has taken so long for people to perceive the problems of the naked public square. I think the full effects of the secularization of the public school were delayed because, for at least one generation after the Court’s 1962 school prayer decision in Engel v. Vitale, our schools were staffed by teachers and principals who were not raised in a world where any mention or practice of

6

PERSPECTIVE // May 2016

faith was ruthlessly hunted down and eliminated. But in the last three decades, the old generation of teachers has passed away and has been replaced by the products of the politicized, post-1970s universities. Our schools are now run by people who have never known a society in which public schools recognize and endorse community beliefs. They worship at the temple of the “neutral” school, where the only article of faith is that we can only know what we can measure.

They’re not forced to accept the naked public square—they (even if they are people of personal faith) enthusiastically believe in it.

And then we wonder why surveys show a decline of religious belief in the millennial generation. It’s not that our children become atheists—it’s that they’re confused. Even if we try to teach them faith at home or at church, anything we tell them is swamped by what they learn every day at school or from the all-pervasive media. The digital culture, encompassing the Internet,

television, film, and music, is what really influences their peer group, which frequently has more day-to-day influence over our children than we do. And then we wonder why, given the nature of that culture, we see an increase in both highly sexualized behavior (“sexting”) and out-of-wedlock birth rates.

Empower Parents to Choose

Many Oklahomans believe that the solution to this problem is to reform the law. With regard to the Ten Commandments case, for example, we can repeal the Blaine clause the Oklahoma Supreme Court relied upon.

In addition, the U.S. Supreme Court can overrule the line of cases prohibiting the community from endorsing religion.

Before the passing of Justice Antonin Scalia, it appeared that this shift was likely; with his departure, the future of the endorsement doctrine depends on the outcome of the presidential election. But even if the courts permit public schools to allow some forms of expression of the community’s beliefs, I think it is unlikely that the Court will ever allow religion to regain a meaningful presence in the main work of the public schools. We must accept that we can never go back to the days when the public school effectively transmitted the community’s beliefs to its children.

Over the last several decades, our nation has changed too much for the school to serve this function any longer.

Where we once had a powerful social consensus on the core principles of morality, we are now deeply divided.

Our political polarization did not produce itself—it is caused by the conflict between different systems of fundamental beliefs.

The public school, even if it were legally permissible, will not, and probably cannot, choose between society’s diverse points of view. Instead, the public school will continue to empty the public square—which, we know, is not neutral or fair to religion. If we continue on our current path, we will see a further waning of both religious faith and the traditional

morality it sustains.

So what can we do? We have to accept that our principles and traditions cannot be effectively transmitted by the public school, or, with some important exceptions (such as our dedicated homeschooling families), by teaching children at home or at Sunday school— the culture of modernity is too strong for that. Our best hope for passing on our most cherished beliefs is to educate our children at a school that will teach, and not ignore or undermine, what we believe. There is no substitute, particularly in a world in which they are unremittingly bombarded with unhealthy cultural messages, for sending our children to a school that will, at every turn, reinforce what we believe. At my children’s school, as at so many of the schools represented in the school choice movement, the public square is clothed with the values of Christianity and Western civilization. We have a dedicated Bible class and daily chapel, and spiritual values pervade both curricular and extracurricular activities. Parents don’t have to refute what their kids hear at school—the school is an ally, not an obstacle.

So what stops parents from choosing these kinds of schools? Money, pure and simple. We at OCPA, along with other organizations, have commissioned polls that show that, if given the option, parents will use state funds allocated to their child to choose a school that transmits their values. It’s important also to look at the flip side of what they are telling us—if they are forbidden from choosing how their funds should be spent, parents will be economically coerced to send their children to schools they know are not the best institutions to prepare their children for the future. There are thousands of Oklahomans, then, who do not need to be convinced that a private school can help preserve their way of life. They need help to send their children there.

And that, of course, is why education savings accounts (ESAs) are so important.

They will empower parents to not only

seek the best academic environment for their children, but the best moral environment as well. Our children need to learn the principles of good character just as much as the principles of science and mathematics. ESAs will provide parents with a gift that has, up until now, only been bestowed upon the wealthy— the capacity to send your children to the school you know is best for their souls as well as minds.

But they will do even more than that.

By, for the first time, enabling society to satisfy the demand for education that honors and transmits our morals and traditions, ESAs will lead to the creation of many more of these schools. We will build a new, vital sector of education, where, to be sure, some schools will fail, but many others will succeed and become jewels of the community. If we create institutions to satisfy the demand for traditional education we know already exists, these institutions, as they become more numerous and well known, will attract other families who may not have recognized their hunger for an education rooted in moral principle. I can’t think of any other single policy that has a better chance of inspiring the next great awakening of moral and spiritual belief that is our only chance of stemming the cultural rot that is the true source of our social pathologies.

Let me also say a word for those of you who may view the world through a more practical and political lens. We are witnessing the first political cycle in which the conservative movement faces a severe danger of permanent rupture. I have never seen this much anger turned on other conservatives. We need policies that can unite libertarians and traditionalists, economic and social conservatives, Tea Party stalwarts and evangelicals.

ESAs fit that bill better than any other policy you can devise. Instead of angering libertarians by using public institutions to inculcate their values, ESAs empower religious and social conservatives to spread their beliefs through private institutions. ESAs, by allowing parents

to spend their funds on a variety of educational services, satisfy the libertarian urge for maximizing choice.

Because ESAs are funded with existing government funds, small-government conservatives can find little fault with them. Even those conservatives who are adamant about preserving public school funding should be satisfied that, because ESAs only take a portion of the funds allocated to each child, a significant percentage of the money remains in public coffers. Everyone wins.

Perhaps most importantly, ESAs provide political leaders with the best answer to the question lately on everyone’s minds: How can we, in a time of economic and fiscal strain, directly improve the lives of middle- and working-class Oklahomans? Tax cuts foster economic growth in the long run, but for those of modest incomes, they don’t provide an easily understood, immediate benefit. The benefit of ESAs, on the other hand, is easy to understand and appreciate—you now have thousands of dollars to spend on the education of your child that you did not have before.

As conservatives, it is an article of our faith that parents will use that money to help their children make more than a good living—they will learn to make a good life. I can’t think of a better definition of what government is for.

Andrew Spiropoulos (M.A., J.D., University of Chicago) is the Robert S. Kerr, Sr. Professor of Constitutional Law at the Oklahoma City University School of Law. He also serves as the Milton Friedman Distinguished Fellow at OCPA. In 2005 and 2006 he served as senior counselor to the Speaker of the Oklahoma House of Representatives, where his duties included serving as chief policy advisor and negotiator.

Spiropoulos previously clerked for Judge Danny Boggs of the United States Court of Appeals for the Sixth Circuit and practiced law with the Chicago firm of Gardner, Carton & Douglas. He has also been a Salvatori Fellow at the Heritage Foundation.

7

EDUCATION

Let Families Grade Schools

By Greg Forster

Want to hurt kids? Put state bureaucrats in charge of evaluating the schools in school choice programs. Recent events in Louisiana show how this undermines schools and hurts kids.

But the education blob in Oklahoma apparently cares more about enforcing the government monopoly than about what delivers a good education to kids who need it.

School choice is on the march in Oklahoma. The state Supreme Court recently gave one of its two choice programs a unanimous thumbs-up. The next day, a bill to create education savings accounts passed out of committee in the state legislature.

No good deed goes unpunished! A bill was introduced to saddle all private schools in all of the state’s school choice programs (current and future) with a new albatross: the Oklahoma School Testing Program. The program includes stateissued A-F school report cards, which would now be given to private schools if the bill passes.

These kinds of requirements are usually defended in the

8

PERSPECTIVE // May 2016

name of “transparency.” People think it can do no harm because schools aren’t officially sanctioned based on the test scores. They only have their scores and corresponding grades published—it’s just information, so what’s the harm?

Tell that to the Louisiana kids whose education was ruined by exactly this kind of “transparency.” Louisiana’s voucher program requires participating private schools to take the state test. Recent research on the effect of this requirement is now rocking the education world; Oklahoma would do well to take note.

Louisiana’s is now the first school choice program ever shown by empirical research to produce worse academic outcomes.

The existence of the program actually hurts kids. And we’re not talking about a small difference; the negative finding is very large. Students’ chance of getting a failing grade went up by 50 percent.

A choice program that actually hurts kids is an amazing

feat. It’s literally one of a kind. Everywhere else in the country, school choice has been a consistent winner for kids. Outside Louisiana, choice has been studied 16 times with randomassignment methods, the gold-standard scientific method used in medical trials. Of those studies, 14 found participating students had better academic outcomes, and the other two found no difference.

That makes perfect sense. Giving families an additional choice helps them. They don’t have to switch schools, but they can if it’s beneficial.

That of course is on top of the other benefits of school choice.

Out of 30 empirical studies, 28 find choice improves academic outcomes at public schools, because the schools can no longer take students for granted. Out of 28 empirical studies, 25 find that school choice saves money for taxpayers. There’s also a strong empirical research consensus that choice improves racial segregation and strengthens civic values and practices like toleration for the rights of others.

So what on earth happened in Louisiana? “Transparency” happened, that’s what.

Tests are not neutral. If you control the test, you control the curriculum. What gets taught is determined by what gets tested.

Allowing the state to test the schools gave politicians power over the schools, and the schools refused to accept it. Private schools don’t like limitations on what students they can take or what they charge, and rightly so. Such limitations damage education. But schools will typically put up with that to participate in a choice program, because they want to serve kids.

However, most schools absolutely will not allow outsiders to tell them what to teach. That’s surrendering the essence of the school. Admittedly, there are exceptions—in Indiana, for example, almost all private schools give the state test, and did so long before the state had any school choice programs. In that state, there is a longstanding tradition of trust that the state won’t abuse that power. Absent such unusual conditions, however, private schools rightly reject the extension of state power into the content of the classroom.

The research shows that’s exactly what happened in Louisiana. Amazingly, fewer than one-third of Louisiana private schools chose to participate in the program in its first year. That’s a sharp contrast to every other school choice program, where private schools are eager to participate in order to serve more kids. Survey research finds that fear of “future regulations” was the number one reason cited by private schools choosing not to participate.

The focus on “future regulation” shows what the real problem here is. Once the state has this power over schools, there are no guarantees about how it will be used—even if present circumstances make abuses unlikely in the short term. As Ronald Reagan said: “A bird on a tether, no matter how long the leash, can always be pulled back into the cage.”

The enforcers of the government school monopoly made clear their intention to use this power. John White, Louisiana’s state superintendent of education, issued the vague and arbitrary threat that schools could be suspended if results on state tests “don’t meet expectations.” He also reminded them that schools “are not permitted to accept new scholarship students until their results align with program requirements.”

Schools choosing to join and remain within a choice program in spite of such threats are likely to be the worst-performing schools. Tellingly, one group of researchers note that “survey data show that [voucher] eligible private schools experience rapid enrollment declines prior to entering the program, indicating that the [voucher program] may attract private schools struggling to maintain enrollment.” Where schools have to trade away their very essence in order to participate, only schools that are desperate for cash flow (i.e., the worst schools) can be expected to enter the program.

The proposed Oklahoma law would also submit private schools to the state’s school grading system. (Louisiana did this too, but only for schools with at least 10 voucher students.)

Adding a school grade on top of the test scores creates an additional opportunity for political manipulation of the system.

History shows politicians are not slow to seize this opportunity. In the past, several states have been caught red-handed rewriting the formulas determining what scores earn what grades for political, not educational, reasons. Forcing choice schools to submit to the grading system gives politicians the power to invent a formula for cooking up school grades that will make the private schools look worse.

You’re a fool if you think the government school monopoly wouldn’t try to use that power to hurt private schools—if not now, later. And private school leaders are no fools. Louisiana shows that. And if Louisiana’s private school leaders saw it coming, how much more will Oklahoma’s, given that they have Louisiana before them as an example to learn from?

If private schools in Oklahoma’s school choice programs are required to submit to a state test with state grades, prepare for an exodus of all the good private schools out of the programs. And then you can explain to the kids why they’re not allowed to get a good education any more.

Let families grade schools. Politicians have proven they’re not up to the job.

Greg Forster (Ph.D., Yale University) is a senior fellow with the Friedman Foundation for Educational Choice. He is the author of six books, including John Locke’s Politics of Moral Consensus (Cambridge University Press, 2005) and Joy for the World: How Christianity Lost Its Cultural Influence and Can Begin Rebuilding It (Crossway Books, 2014). He has written numerous articles in peer-reviewed academic journals, as well as in popular publications such as the Washington Post and the Chronicle of Higher Education.

9

CRIMINAL JUSTICE

Criminal Justice and Judicial Selection Reforms Advance

By Trent England

State and local governments are at their most powerful when investigating, trying, and punishing citizens for the commission of crimes. At the time of the American Revolution, criminal punishment generally meant either execution, corporal punishment (usually either branding, whipping, or stocks), or financial restitution. Incarceration— locking people up in jails or prisons after conviction for a crime—was proposed as a way to make punishments more humane and to better reform offenders.

Today, Oklahoma has the second highest incarceration rate—and the highest rate for women—in the United States. While many offenders in Oklahoma prisons present a risk to their communities, others do not. Many are drug or alcohol abusers or people with mental illness. The

10

PERSPECTIVE // May 2016

estimated cost to taxpayers of holding someone in state custody for a year is about $12,000. Other costs are more difficult to calculate, including lost wages and family members left reliant on taxpayer-funded social services.

A number of states, from Georgia to Texas to Hawaii, have spent the last decade working to reduce their prison populations while keeping crime rates low and declining. Oklahoma legislators, with leadership from Gov. Mary Fallin, are now looking to enact reforms. The bills summarized below have all passed in the Oklahoma House of Representatives and are, at press time, awaiting votes in the Senate.

Meanwhile, Oklahomans for Criminal Justice Reform is collecting signatures to put a pair of similar measures on the ballot this fall.

Rep. Pam Peterson, after working closely with Gov.

A number of states, from Georgia to Texas to Hawaii, have spent the last decade working to reduce their prison populations while keeping crime rates low and declining. Oklahoma legislators, with leadership from Gov. Mary Fallin, are now looking to enact reforms.

Fallin, OCPA research fellow Adam Luck, and others last year, introduced a package of reform legislation at the start of this session. House Bill 2472 would give prosecutors discretion to file charges for most non-violent crimes as misdemeanors rather than felonies. This is important because felonies usually come with a minimum sentence of one year in state prison, while misdemeanors come with a maximum sentence of one year that is usually served within a county jail or other local program. A related measure, HB 2751, would raise the threshold for a felony property crime from $500 to $1,000.

HB 2479 would reduce mandatory minimum and maximum sentences for drug possession crimes, cutting the maximum sentence for a first offense from 10 years to five years. HB 2753, which passed unanimously in the House, would make first-time offenders eligible for the state’s drug courts and for community sentencing.

The House also voted unanimously in favor of Rep. Peterson’s HB 2474, which would allow judges to waive the requirement that a person released from jail or prison pay all fines and court costs before obtaining a provisional driver license.

Rep. Mark Lepak sponsored HB 2585 as another way to knock down barriers for former inmates seeking to earn an honest living. His bill would ensure a past felony conviction cannot prevent a person from obtaining an occupational license unless the crime was related to the occupation in some way.

Meanwhile, OCPA experts helped draft two criminal justice reform ballot measures that may appear on the ballot later this year. State Question 780 would reclassify many non-violent crimes from felonies to misdemeanors. Crimes

reclassified would include property crimes that cause less than $1,000 in damage and simple drug possession.

Treating those crimes as misdemeanors would also give local prosecutors more power to direct offenders into rehabilitation or diversion programs.

A companion measure, State Question 781, would capture the savings from putting fewer people in prison and direct the funds to county services, including mental health programs.

Another legal reform issue percolating in the state legislature is the selection of judges. Oklahoma’s current system, sometimes called the Missouri Plan, actually comes from a model devised in the Progressive Era by legal elites at the American Bar Association. House Speaker Jeff Hickman’s HB 3162 would leave in place the Judicial Nominating Commission, but require it to pass along all constitutionally qualified applicants for a judicial vacancy to the Governor, who would then make the appointment with confirmation by a select committee of legislators. Because the measure would amend the Oklahoma Constitution, it would appear on the ballot in the fall for ratification by the voters.

Trent England (J.D., George Mason University) is vice president for strategic initiatives at OCPA, where he also serves as the David and Ann Brown Distinguished Fellow for the Advancement of Liberty. A former legal policy analyst at The Heritage Foundation, England has contributed to two books, The Heritage Guide to the Constitution and One Nation under Arrest: How Crazy Laws, Rogue Prosecutors, and Activist Judges Threaten Your Liberty.

His writings have appeared in The Wall Street Journal, the Christian Science Monitor, and numerous other publications.

Federal Funds Transparency Measures Alive State and local governments are routinely hijacked by conditional federal funding. Some conditions come from Congress, others from federal bureaucrats. Because taxpayers have no choice when it comes to paying federal taxes, politicians and citizens are understandably reluctant to refuse the return of some of those funds.

This is particularly true when federal funding is presented as “free money” from good ol’ Uncle Sam. Transparency—exposing the lie of free federal money—is the first step toward a real conversation about this area of creeping federal power.

Last year, the legislature passed Rep. Tom Newell’s House Bill 1748 to require state agencies to report on their receipt of federal funding, as well as any conditions placed on that funding. Gov. Fallin vetoed that measure; the legislature could still vote to override her veto.

A simpler measure, Sen. Greg Treat’s Senate Bill 1342, would add federal funds to the state spending transparency website maintained by the Oklahoma Office of Management and Enterprise Services. At press time, this bill had passed the Senate and was awaiting a hearing and vote in the House.

—Trent England

11

Tennesseans Debate: Should We Keep Funding the University’s Diversity Office?

By George Leef

The University of Tennessee’s flagship campus in Knoxville has, like nearly all large schools these days, an Office for Diversity and Inclusion (ODI). And like nearly all such offices, it has pushed an agenda that goes well beyond just making sure that “diverse” students aren’t harassed or in any way made to feel unwelcome.

Last year, two incidents in particular raised the ire of Tennessee residents and legislators.

The first occurred in September, when the ODI’s Pride Center published a document urging students and faculty members to abandon conventional English in favor of using “gender neutral” pronouns such as “ze” rather than “he” and “she” and “hir” and “zir” instead of “her” and “him.” Why? Because doing so would be more welcoming to “people who do not identify within the gender binary.”

Many UT alums quickly voiced their disapproval, including Professor Paul Bonicelli of Regent University.

Bonicelli, writing at The Federalist, noted that colleges increasingly push notions like this rather than concentrating on education that actually adds value to society. Referring to the kind of university administrators who fill offices like ODI, Bonicelli says that stories like this “allow us to speculate that these bureaucrats might not have enough to do, or more likely

12

PERSPECTIVE // May 2016

they are eager to get on with the real agenda: to fundamentally transform society via the institutions of higher education.”

Echoing Orwell’s understanding of the importance of controlling the language, Bonicelli continued, “An ideal way to do that is to change the very words and meanings of the English language so as to obliterate tradition and cultural artifacts that offend them.”

Under public pressure, university officials quickly took the gender-neutral document down from the site, but did so defensively. Vice Chancellor Rickey Hall responded, “I don’t understand what the big deal is. We’re trying to make people feel included.”

The next incident came in December when the ODI posted a memo entitled “Best Practices for Inclusive Holiday Celebrations in the Workplace.” It admonished the UT community to “Ensure your holiday party is not a Christmas party in disguise.”

Again, many Tennesseans objected, among them state senator Delores Gresham, who was quoted in the Christian Science Monitor: “By placing a virtual religious test regarding holiday events at this campus, every student who is a Christian is penalized.”

Again, the UT administration quietly backed down, removing the message that parties with any religious connection were

an exclusionary taboo. Administration spokeswoman Margie Nichols was quoted as saying that “It just got in the way of things. We had to move forward.”

If UT’s top officials thought they had extinguished the opposition to the ODI, they were proven badly wrong when the state legislature met in January and the Senate Education Committee voted to remove all funding for it. The committee’s amendment would transfer $5 million from diversity funding into other UT programs in its Agricultural Extension Service.

That action was supported by Tennessee Lieutenant Governor Ron Ramsey, who was quoted in the Knoxville News: “I just don’t understand the usefulness of this office. What do they do every day other than liberal feel-good programs without actually accomplishing anything?”

Local columnist and radio host George Korda wanted to find out if the ODI actually accomplishes anything and so invited Vice Chancellor Hall to appear on his “State Your Case” program. But as Korda observed in his February 29 piece, “I’m writing yet another column about the University of Tennessee’s Office of Diversity and Inclusion because the university won’t respond to questions or requests about its Office of Diversity and Inclusion.”

Rather than taking the opportunity to State Their Case, UT officials turned Korda down. The official who responded on behalf of the vice chancellor said that Hall wouldn’t go on the show because Korda “had already made up his mind.” But how could they know that? And even if it were true, shouldn’t academics be prepared—even eager—to explain their reasons to anyone? Good arguments have been known to change minds.

But while UT officials declined to speak with Korda, they’d been glad to speak with a reporter from the Chronicle of Higher Education for a friendly piece. University chancellor Jimmy Cheek, for example, said “I think we need to let our students talk about why it’s important to them to have diversity.”

Perhaps Chancellor Cheek believes that legislators will be persuaded by students talking about their views on diversity, but they ought to be skeptical. Students aren’t necessarily good at knowing what is best for a university. Moreover, many have been led to believe that the only way to “have diversity” is for colleges (and other institutions) to focus on some tiny aspects of human difference.

Each human being is unique, differing in countless ways.

Where our family trees may have begun is one of the least important ways we differ, but it is one that “diversity” offices and programs obsess over. The people who run them would have us believe that a campus couldn’t be a truly good educational environment without their efforts at promoting inclusion.

Whether that is true is the question Tennessee legislators should ask as they continue to work on the budget and decide

whether to keep funding ODI. Objectively, has ODI made the campus better than it was? They should look for evidence and not accept emotional claims.

It’s worth keeping in mind that before the national diversity mania took hold, colleges enrolled students with— unavoidably—a vast array of differences. But instead of fixating on their racial (or any other) differences, schools just insisted that everyone abide by rules of civil behavior. That worked.

In the early 1970s, I attended a liberal arts college and the student body included foreign students, students from various minority populations, raging leftists and furious right-wingers, religious fundamentalists and agnostics, hunting enthusiasts and gun banners, hawks and doves, Packers fans and Bears fans, just to mention some of the diversity on campus.

Despite the lack of any Office for Diversity and Inclusion, the students managed to get along. Everyone came into college aware that the world is full of people who are different (and not just in skin color) and that they’d be expected to act like decent adults. No one needed to be hectored about “diversity” because just about every student had already learned to respect (or at least tolerate) differences.

You can still find lots of small colleges where there isn’t enough money for a campus diversity bureaucracy, and yet you don’t find that their students are unable to cope with our diverse nation. On those campuses, you hardly ever see the kind of antagonism that offices like ODI are presumed necessary to prevent.

On the contrary, a good case can be made that the focus on diversity is not just a waste of money, but actually counterproductive. As Peter Bregman pointed out in Psychology Today, “Diversity training doesn’t extinguish prejudice. It promotes it. … When people divide into categories to illustrate the idea of diversity, it reinforces the idea of the categories.”

What he’s driving at is the way the drumbeat about diversity encourages students to fixate on their group identity and become hypersensitive to any possible slight. It’s impossible not to notice that the colleges that have had the worst trouble recently (most notably Yale and the University of Missouri) were also deeply invested in “diversity” programs.

Apparently, the more a school fusses over the inescapable fact that people are diverse, the more likely that it will experience campus turmoil—turmoil that will then be cited as the justification for still more diversity programs.

Tennesseans are right to question whether ODI produces educational benefits that are worth the cost.

George Leef (J.D., Duke University) is director of research for the John William Pope Center for Higher Education Policy. A regular columnist for Forbes.com, he also writes regularly for National Review Online. He is the author of the 2010 book Free Choice for Workers: A History of the Right to Work Movement.

13

QUICK HITS

Judicial-Selection Reform Needed Once again, Oklahomans are disappointed that the Oklahoma Supreme Court has wrongly invalidated provisions of lawsuit reform bills it dislikes. Once again, as well, the court’s reasoning contravenes well-established principles of American constitutional law and will facilitate the continued illegitimate exercise of judicial power.

This time around, the Supreme Court invalidated a section of the 2013 comprehensive workers’ compensation reform that provides that claims alleging a disabling injury caused by the combined effect of repetitive physical activities over time can be brought only by individuals who have held the job for a minimum of 180 days. …

Now, reasonable people can disagree about the merits of this provision. … But, for nearly 80 years, the U.S. Supreme Court has held that it is illegitimate for judges to take sides on these kinds of questions. The court has repeatedly stated that as long as there is any conceivable legitimate basis for the statute and the law is not patently arbitrary and irrational, courts must defer to the judgment of the legislature even if they believe the law is unjust. The U.S. Supreme Court has consistently applied this rule for decades—no one doubts how it would have resolved the challenge to the cumulative trauma law.

The Oklahoma Supreme Court, on the other hand, in striking down the law, employed exactly the kinds of arguments that the federal judiciary rejected long ago. … The truth is that the court’s disdain for the Legislature’s policy agenda led it to embrace a longrepudiated doctrine that conveniently enables judges to void laws with which they disagree.

I don’t think these wrong-headed judgments are caused by political partisanship. The judges don’t rule this way because they’re biased in favor of Democrats. They do it because they are biased in favor of lawyers and the legal status quo. The only way to fix this problem is to reform our system of judicial selection so that the organized bar doesn’t have an effective veto over who serves on the Supreme Court.

—Andrew Spiropoulos, OCPA’s Milton Friedman Distinguished Fellow, writing March 10 in The Journal Record. To read the entire article, go to ocpa.us/JudicialPower.

Funneling Money to Crony Capitalists We need to think seriously about how and why our leaders have engendered so much rage and disgust.

Here’s one example. We are tired of being told by our state leaders that we don’t understand how the political world works and that government is too complicated to be run efficiently and effectively. People aren’t naïve or stupid—they know that, when it comes to management and tough negotiation, government has more in common with business than our elites want to admit.

They understand, even if our leaders don’t, what President Calvin Coolidge knew. He warned his successor Herbert Hoover that nine out of 10 of the people who walk into the president’s office want something they shouldn’t have.

We aren’t particularly angry or outraged that companies, bureaucrats, or individuals want to enrich themselves at our expense— it’s the way of the world. What makes us mad is our leaders’ serial inability or refusal to face down the pork seekers, expose their arguments, and stand up for the people. In the six years they have run the state, conservatives have announced repeated efforts to reform the tax preferences that sap funding from core government services and funnel it to crony capitalists. Whenever we begin to scrutinize these gimmicks, never mind repeal them, the affected industries threaten to kill deals and send jobs elsewhere. Of course that’s what they’re going to say—they’re trying to extract every last dime out of us.

The real question is why, whenever these threats are made, our leaders cry like little children and insist we have to give the bullies what they want. We never seem to consider either calling their bluff or deciding to let other states make foolish, desperate deals to pay too much for a handful of jobs.

—Andrew Spiropoulos, OCPA’s Milton Friedman Distinguished Fellow, writing March 3 in The Journal Record. To read the entire article, go to ocpa.us/Crony_Capitalists.

14

PERSPECTIVE // May 2016

1

2

3

4

@OCPAthink 1. OCPA’s Trent England is pictured here in the broadcast studio at OCPA. Listen to Trent weekday mornings from 7:00 to 10:00 on AM 1640 The Eagle or online at ocpa.us/MGradio.

2. Economist Benjamin Scafidi discusses Oklahoma’s recent non-teaching staffing surge at a March 3 event at OCPA. Oklahoma’s public education system now employs more non-teachers than teachers.

3. On the CBS affiliate in Oklahoma City, journalist Patrick McGuigan (right) discusses Oklahoma’s non-teaching staffing surge with Alex Cameron.

4. OCPA’s Estela Hernandez addresses the crowd at the recent Oklahoma GOP state committee meeting.

15

QUOTE UNQUOTE “When you continue to see these revenues decline, it’s a real indication of what’s going on around the kitchen tables across our state. That’s the real story and the real concern. People who are out of work or have had their salaries reduced significantly and are trying to figure out how to pay their children’s college tuition, or make the mortgage payment or the car payment or keep food on the table.”

House Speaker Jeff Hickman

“But if Oklahoma is aiming to scale up its production of college graduates, it’s valid to ask whether the state’s geographically broad, politically driven model of higher

“In case you ever labored under the delusion that things like bar exams are there to protect consumers . . .”

University of Tennessee law professor Glenn Reynolds, discussing the Oklahoma Supreme Court’s decision to lower bar-exam standards due to declining pass rates

education organization is sufficiently bureaucratically streamlined and fiscally affordable to meet the challenge.”

Wayne Greene, editorial pages editor of the Tulsa World

“I believe the argument about school choice is not about the future of our schools, it is about the future of our children. School leaders might argue to keep more money and control so they can make education

“$267,000” The amount of money the State of Oklahoma will save for every $1 million it spends on an Education Savings Account program, according to a fiscal analysis performed by the Friedman Foundation

improvements, but children in the school do not have time for hoped-for future improvements, they need help today. Why would we ever tell a parent to sacrifice their child’s future so we can protect a school today?”

U.S. Sen. James Lankford