30 March 2020

How to Make Sure an Emergency is Real

Governors need emergency powers betimes because actual emergencies happen. However, it's also an extreme danger to our rights and liberties. There needs to be a serious consequence to any governor who chooses this path and there aren't really. Anyone who's read my blog and seen some of my FB posts and comments knows I am skeptical of the various governors' accumulating power to themselves and their wielding it as a club rather than a rapier. They have to have these powers during emergencies; we shouldn't trust them with it.

Here's my solution:


Model Code 00001: Limitation on Emergency Powers

When a governor declares an emergency or assumes emergency powers without a declaration, that governor shall be subject to the following limitations:

(1) Should the assumption of powers extend beyond 60 days, or 30 days if it is the second assumption in one year, the governor shall cede his office to the lieutenant governor and not be eligible to hold any elected office in or for this State for a period of five years.

(2) Should a third assumption of powers be made in one year, the governor will immediately cede his office to the lieutenant governor and not be eligible to hold any elected office in or for this State for five years.

(3) In no event shall an emergency extend beyond 90 days without the approval, by majority vote, of the State Senate.

(4) In no event shall an emergency extend beyond 120 days without the approval, by majority vote, of both houses of the State Legislature.

(5)  No time period herein shall be subject to any form of tolling and the date used for each declaration of emergency or assumption of powers shall be counted from the first day the emergency is declared or the powers are assumed, whichever is earlier.

(6)  If any portion of a declared emergency or assumption of power, including its last day, falls within a year of the most recent declared emergency or assumption of power it shall be considered within a year.

(7)  A declaration of an emergency or assumption of emergency powers by any official in the executive branch shall be deemed to have been declared by the governor.

(8) Definitions -
     (a) One Year: A 365 day period, starting backward from first day of the most recent declaration of emergency or assumption of powers.
     (b) A Day: One 24 hour period starting at midnight and including any part thereof as if it were the whole.
     (c) Assumption of Powers: Use of or reliance upon any of the powers listed as available to the governor in a declared state of emergency.


As always, I don't claim it's perfect, but if this or something very similar existed in my Commonwealth I'd be much more receptive to the executive orders my governor keeps popping out every two to three days.

Remember, when the press is in an uproar and the public is in a panic there will be tremendous pressure on any politician to act even if the best call is not to act at all. A statute such as that above provides a powerful disincentive to declare an emergency and would make those such as me much less wary.

28 March 2020

Equating Church with a Hardees Drive Through: Insulting Virginia's Faithful and Violating the Constitution

Up until a few minutes ago, I was writing a blog post finessing the religion question, the Virginia Governor's Emergency Order 53, and its requirement that no more than ten people gather. Basically, I'd written a post talking about how none of the violations of "the right of the people to peaceably assemble" specifically included in the order are either about expressive behavior or class based. Therefore, while the order violates both the 1st Amendment of the US Constitution and Article I section 12 of the Virginia Constitution, the courts would let them get away with it under a rational basis test. The courts allow the government to do just about anything under a rational basis test. I opined that this was done intentionally because if the order included infringements on religion, media, or political activity it would be subject to strict scrutiny and as we all learned in law school, Strict in Theory = Fatal in Fact. Assuming the Governor wasn't that stupid, I was going to opine that the order was not meant to bar religious meetings.

Sure, I knew that someone from the governor's office evinced a stunning lack of constitutional knowledge and told a reporter that churches couldn't have more than ten people in a service. I assumed that was a one off from a person shooting from the hip and didn't reflect actual policy. Because there was no way the Governor would be pinned down espousing a position so far over the constitutional line as to be entirely indefensible. But then someone texted me yet another question about whether they will be prosecuted if they come together to worship God and when I said my opinion was that the Governor did not intend to ban them from their religious duties and obligations - surely not during Lent, surely not in the highest, holiest Christian season, surely not with an emergency order that would ban services during the holiest week of the year and Easter, the celebration of the resurrection itself - the person on the other side told me that the Governor had included it specifically in his FAQ about the order.

And here it is:

What about religious services? Can I still go to my church, synagogue, or mosque? 
 Virginians are strongly encouraged to seek alternative means of attending religious services, such as virtually or via “drive-through” worship. Places of worship that do conduct in-person services must limit gatherings to 10 people, to comply with the statewide 10-person ban.
I'll admit it. I lost my cool more than a bit when I read that. Never mind the serious constitutional line it crosses, the level of insult, ignorance, and arrogance in that FAQ is mindblowing. That answer equates going to church, synagogue, and mosque with going to Hardees. You can get all your business done at Hardess through the drive through window in five minutes that should be all you need to worship God, אדוני ,الله, or whatever the divine appellation is in your delusion.

Oh, and hey guys, maybe you can tell me and the rest of the 240,000 Catholics in Virginia how we're supposed to take Holy Communion virtually? Pretty sure the Orthodox Christians out there have the same issue. And, of course, the 200,000 Muslims will be happy to blow off that requirement that men go to the mosque on Friday. They'll be even happier to blow off Ramadan when it starts next month. No sweat. Of course, the Jewish faith allows worship wherever 10 men can gather, so they should be okay as long as they don't bring their wives and kids, because, eh, who needs them, אדוני only cares about men anyway. And Passover next month? I'm sure being denied their right to worship as a group won't cause any issues with that. Of course, we Christians never make all that big a deal over Easter. After all, it's only the day the Lord Jesus rose from the dead after serving as the sacrifice meant to save us from damnation through sin. No biggie. We can skip it when it comes by next month.1 

Look, obviously you don't believe or you have an academic belief that views religion more as social in nature. That's fine. I'd rather see you on board, but I'm far from a perfect Christian, Catholic, or person so I won't point fingers. Nevertheless, your disdain for the religious and inability to comprehend needs to stop at the end of your nose. Try to at least pretend to understand that the faithful have faith. This isn't just something they do to kill time while waiting for football, baseball, soccer, or cricket to come on the television. It's an expression of love for and loyalty to a compassionate Creator and Sustainer without whom there is no meaning in the universe.

It's a matter of vital importance. It's not a trip to Hardees. 

Constitutional Issues

Both the Federal Constitution and the Virginia Constitution recognize the fundamental right to be free from governmental interference in religion. The very first line of the 1st Amendment in the Bill of Rights guarantees that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" and in Virginia "No man . . . shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief." In other words, in the USA there can't be a law prohibiting the exercise of religion and in Virginia a person can't be stopped physically from acting in accord with his religion.

Those are nice words, but how do they play out in reality? The courts have two vectors whence they come to analysis in this sort of thing. The first is the fundamental rights analysis. The second is the specific religious rights analysis.

Fundamental Constitutional Right


When a law treads upon a fundamental constitutional right it is subject to a strict scrutiny standard. Strict scrutiny has a test that is sometimes listed as three prongs and sometimes two. Here's a fairly well stated version from Virginia case law:
Laws that affect fundamental constitutional rights, as we have seen, are subjected to strict judicial scrutiny. In order to satisfy such an examination, the law (1) must be a necessary element for achieving a compelling governmental interest. To be viewed as necessary, (2) the classification or infringement must be the least burdensome means available for attaining the governmental objective in question.  Mahan v. Nat'l Conservative Political Action Comm., 227 Va. 330, 336 (1984) (numbers and bolding added).
The second part is broken in two by some to require the law to be  (2a) "narrowly tailored" and to use the  (2b) "least restrictive means." I've got to admit I've always felt those two were redundant.

In any event, it is clear that practice of one's religion is a fundamental constitutional right and infringement would fall under this standard. As stated above, this standard is almost impossible to meet. The buzz phrase used when I was in law school was "Strict in Theory = Fatal in Fact."2

That's almost certainly true here.  The "least burdensome means available" section of the test is going to wreak merry havoc on the Governor's order. Look at this map of Virginia:

In case you can't read the legend, white = 0 infections and light blue = 5 or less. Shutting down religious services across the entire Commonwealth is far from the least burdensome means available to stop the spread of the disease. Perhaps the Governor might want to concentrate his efforts in Northern Virginia and the Peninsula region? Even if closing churches were somehow to be the answer (it's not), then closing all the churches where there are few or no outbreaks is not the least burdensome means. The least burdensome means would be isolating anyone who showed infection and quarantining those with whom she has had significant contact.


Thus, if the Governor wants his shutting down of religion to stand, he's going to have to go looking in the cases specifically applying to religion and find a standard there. As the Blaine Amendments are being pushed off the board as unconstitutional under the Federal Constitution, the standard that seems to be firming up is that if there is a general law applying to all it applies to the religious and religious organizations as well. Thus, murder is illegal so no matter how important you believe human sacrifice is, you can't carve a person's beating heart out of their chest to honor Huitzilopochtli. Nobody else can commit murder therefore you cannot either. More realistically, things like zoning laws apply equally. If an area is zoned for suburban housing no higher than two stories neither a church nor a Wal-Mart gets to buy up a block and build a ten story building. On the other hand, if there are grants available to build school playgrounds the government cannot exclude qualifying religious schools because they are religious. In the eyes of the constitution a religious organization can neither benefit from nor be denied things simply because it is a church. It must be treated just like anyone else.3

 However, this is problematic as well because the Governor has created favored classes. Emergency Order 53, Directive 5 establishes several places where more than ten people can be. Some of these (grocery stores) are obviously needed. Others (lawn and garden stores and pet stores) are marginal, at best. At least one is either just ridiculous or perhaps predatory behavior on the part of the Governor (liquor stores - all of which are owned by the Commonwealth).

The labeling of non-constitutionally protected businesses as "essential" creates people and locations that are favored while leaving the rest as disfavored. It's not terribly constitutionally problematic in relation to the other retailers. It is massively problematic if the government's policy is favoring other members of society while inhibiting churches and the religious.

The Governor's preferential treatment of certain entities over churches might have more oomph to it if the "essential retail businesses" were actually essential. Even putting aside the exception to the ten person rule for liquor stores, perhaps a third of the listed retailers are not essential: pet stores (buy food for Rover at the grocery), lawn and garden stores (it's not vital to trim your hedges), the retail part of gas stations (do you really need to buy that coke and twinkie?), electronic stores (not vital that you buy an iPhone 12), etc. Arguing that any of these deserve and require preferential treatment is a losing proposition. I have every faith that the consummate professionals in the Attorney General's office could find someone in their ranks who could do it with a straight face in a convincing tone of voice. They'd best pray for a pretty dim or biased judge though, because even if they can gloss over the rest of them, there's no way self dealing by declaring liquor stores "essential" passes muster.

But, you say, the courts can just throw out all of Directive 5 and the playing field becomes even again making the order legit. Most of those businesses could survive if they kept the number of people in their stores at less than 11. 

Nope. Look at Directive 9(c).4 "Nothing in the Order shall limit: (c) the operations of the media." And here we have the Governor specifically favoring one part of the 1st Amendment while disfavoring another. There's no condescending suggestions of drive-up journalism or that they could provide their constitutionally protected activity via YouTube (which they would be better set up to do than a church as it would merely be a variant of the job they do now over cable). Nope, you can have fifty people in the room if that's what it takes to do a press conference or the five o'clock news.

To my mind, that's more damning than the incongruity with the favored businesses. This is an example of the Governor deciding which parts of the Constitution are allowed to be exercised in Virginia. If churches, mosques, and synagogues can't have 11 people then there is absolutely no reason the press can. There is no reason for any press conference assuming Governor Northam has an 18 year old intern to tell him how to film and release statements on YouTube (or Facebook if you're desperate). That way the message would be delivered without putting all those people in one room and endangering them all. The same can be done for the nightly newscast. How many people does it take to live stream a YouTube video? Most of the streamers I've seen do it themselves. The really advanced ones have a guy or two to help out. As well, you don't need more than one announcer. They may need more than ten people to produce a show to put out over cable, but they're not guaranteed a particular medium. One announcer, one person running the streaming computer and maybe a person or two for odds and ends. There's no reason to have eleven people in any room for the announcing of the news to the endangerment of them all.

Ridiculous? Maybe. Is it as ridiculous as the First Church of Hardees the Governor shoved at us above? No.

The Governor is favoring the media and disfavoring religion (by specifically "prohibiting the free exercise thereof"). Could this be cured by removing the media's protections from the order? Maybe. Would any governor have the guts to do it? Unlikely.

What's to be Done?

It'll be interesting to see what happens this weekend when thousands of people go to church in defiance of the Governor's ban. I just don't see local sheriff's deputies going in to issue summons to everybody. And if they did, the courts are closed to non-emergency matters until at least 26 April 2020 so nothing would happen. And next week people will be back. When Easter rolls around there are going to be a lot of people who openly defy this infringement on their religion (probably the same for Passover and Ramadan).

Want to fight it in court? Issuing you a summons for violating the Governor's order is not a emergency and won't end you up in court for at least a couple months. On the other hand, a massive violation of the constitutionally guaranteed fundamental right to practice your religion seems like the kind of thing that screams "EMERGENCY" and therefore should be allowed by your circuit court per the order of the Supreme Court of Virginia. Filing a writ of prohibition to stop enforcement against people exercising their fundamental right to practice their religion might be the best way to go. 

If you go this route, hire the biggest bigwig attorney you can - preferably one with some smarts so he can put this argument together better than I have today on the fly. Expect the AG to send someone good at his job who will try to get your case thrown out or delayed until it bankrupts you or does you no good, or, failing both of those objectives, does the best flim-flam job he can while he tries to sell the judge some constitutional bottom land. They're not going to mess around with this because, as best I can tell, it's the most glaringly wrong thing in all the the orders and they don't want things to start unraveling so that they have to start defending all the *ahem* questionable things in them.


Unconstitutional things happen; they get corrected. I can live with the fact that the Governor has acted unconstitutionally. Heck, I had a blog post pretty much written which navigated around the unconstitutionality. Unconstitutional acts happen sometimes because of error, sometimes because of malice, and sometimes because of different understandings of basic principles. That's all a normal part of the process.

Telling believers that their religion is the equivalent of a Hardees drive through is insulting. Telling believers that they should be satisfied with watching on video is ignorant. Both are signs of arrogant behavior toward the religious people whom you believe are below you. This should never be a part of the process.

Somebody needs to fix this.


1  My apologies if I got something wrong about your faith. I've not studied other faiths in depth since I graduated college. My Arabic has deteriorated to pretty bad; my Hebrew is down to almost non-existent (never got much higher than minimally passable in Biblical Hebrew even back in the day - and, yes, I know I used the substitute rather than the name; it felt more respectful). Anyway, this screed relied upon my basic rememberings with quick checks on the web (after I calmed a bit) that seem to confirm them.

2  In fact, the only case I remember being taught in law school that passed strict scrutiny was a case where an African-American officer was denied a job in an undercover position that was to infiltrate a group of white skinheads and he sued.

 3  I've not gotten into the weeds enough to be sure if this is a refinement of or a substitution for the old Lemon test which I recall stated no law could  (a) encourage a religion,  (b) inhibit a religion, or  (c) get too entangled in a religion. I suspect it is a replacement of (a) and (b), per Trinity Lutheran, to a test of whether the religious organization is treated the same as everyone else. I think (c) still remains valid in some form at least inasmuch as the government can't force the religious to violate their core religious principals. Hobby Lobby.

4  As an aside, I find it disturbing to get "Directives" from the government of a Commonwealth with the motto "Sic Semper Tyrannis."

17 March 2020

The Law of Mountain Mumble

We all speak English, but that doesn't mean my poor ears will understand all of it. I've known people were speaking English to me and not been able to understand a word they said. And that's after two or three generations all growing up learning Mid-Atlantic dialect through movies and, in more modern times, Basic Midwestern dialect on TV. I'd hate to think how well my ears would have fared in days of yore when the next county over might not have experienced the vowel shift yours did a century back, much less the folks in the next State over who grew up learning English with Polish pronunciations. Anyway, I still have problems some times. For example:

An attorney and I are listening to an audio recording of his client doing nefarious things. It's not great quality and we've run it three times without understanding much at all.

Defense Attorney: "What's he saying?"

Me: "I don't know. I didn't grow up here. I have a hard time with mountain mumble. You're born and bred. You ought to get this easy."

Defense Attorney: "Look, I didn't grow up in Lower Blue Creek Holler. Nobody who didn't grow up there understands them. You can bet somebody on the jury will though. Play the tape again."

We played that tape multiple times. We pretty much played it word for word until we thought we had a translation. Then we checked our translation against the paperwork filed by the police and it matched. BINGO.

Next case.

15 March 2020

Covid-19: How We Should React and Are

I really stepped in it last week. I started trying to talk sense to people on FB about the coronavirus right as the panic was getting really revved up. I know better than to do these things. It was a moment of stupidity and I regret it. I walked away from it over there, but late in the argument the brighter of those arguing pro-panic actually hit upon something that made superficial sense: a basic chart of logical progression of a communicable disease with and without steps taken to mitigate its spread. They used it to justify the semi-quarantine behavior which has now been imposed by various universities, sports organizations, and governors around the country.

----- THE MODEL -----

If I make my hand-drawn graphics bad enough no one will steal them.

There are a number of these depending on how you want to skew the chart:

What do these varying charts tell us? That while the basic chart is valid and could be applied across the board to anything from the common cold to the bubonic plague, nobody has figures on coronavirus. Therefore, they can fill it in with whatever fantasy figures they want to.

Particularly of interest is the placement of the inelastic medical capacity line. Almost all the graphs I've seen arbitrarily place it above the level of the interdicted course of the disease and much lower than the spike in the natural course. Neither of these are necessarily true. It could be higher than the spike. As well, as is somewhat demonstrated from the last chart, both interdicted and natural course progression of the disease's spread could be above inelastic medical capacity and it's possible that we would be replacing a quick hit with a drawn out beating and suffer approximately the same number of deaths. Remember, the point of interdiction, per this chart if not in our hind brains, is not that we keep people from catching a highly communicable disease - it's to slow the rate of infection and make the course of the infection through the community take longer in order to  allow our near term inelastic medical capacity to deal with it better. Wishing it so does not make it so and without actual numbers to make any of the lines on the chart adapted to the reality of a particular disease we are in the wishing it so zone and have no proof that the imposed interdictions will lead to a total reduced mortality number.

Another point of interest is level and length of quarantine needed to make the curve drop. A number of sports events have been cancelled and schools closed; most of this is short term theater dealing with the perception of risk rather than the reality. In fact, if this is a persistent virus (one that we'll deal with over a period of years) the closing of schools is idiocy as the risk to those under the age of 40 appears to be minimal. This is the lesson we should have learned as far back as polio.1 Catch it young and you're immune when you get older; both you and society are better for it.2

And, assuming the fearmongers are right, it will be persistent. We do not exist in a closed world. China has the disease under control now, but remains on lock down because if it opens its borders the disease will come back from other parts of the world and it still has a huge number of people who have avoided exposure. The same will apply in the US.

Imagine (because that's all we are doing at the moment) a disease that does persist through the Summer or that we realize will come back with a vengeance with the onset of colder weather. Are Harvard, Yale, and Local U. going to close their physical campuses for the foreseeable future (Congratulations, you've been accepted to Harvard. After you pay us a gazillion dollars for tuition, you will now sit in your bedroom and log in to Harvard's streaming lectures on YouTube3). And multi-billionaires with large portions of their fortunes tied up in sports industries are going to say the right words and let their investments bleed millions upon millions of dollars a week for only so long. As well, Americans aren't exactly the most patient of people. Even the media hyping up things can only keep them engaged and fearful for so long. Unless they see the bad they will eventually start ignoring the hype (become inoculated if you will). They're not short term dumb. They can figure out that exposure is just as likely at their local grocery store which is full of people shopping while they constantly pick up and put down items (and other similar activities in their lives). If they don't see the disease spreading around them while locals are engaging in these activities all the warnings in the world about long term potential projections are going to wear thin. Unless the disease becomes much more prevalent, schools and sports are going to open back up with many promises of medical safety and people will go. We're not a totalitarian country. This is almost impossible to prevent and almost assuredly will happen much sooner than the model would state is appropriate. Remember, in order for the model to work there must be a long term interdiction.

Here's the model adjusted for this pattern of behavior:
Keep in mind, I don't have any numbers to work with any more than anybody else does. I don't know how high or long natural course would run. I don't know how long controlled interdiction would take for best effect. I don't know how big the spike would be once control is lost, although it would obviously have some tie to how late it was in the interdiction (because of the number of people left who could be infected). The thing is, I've not seen anything out there that indicates anyone else has the numbers either. Anyone who wants to can fool with the numbers in this model just like they could in the ones above to make it look the best for whatever their position is.


Unless we see significant numbers of hospitalizations (which should happen under either natural course or controlled interdiction because we are early in this disease's course in the US) sometime between the end of March and the middle of April the semi-quarantine behavior will start to fray if not outright breakdown. This turn away from the semi-quarantine could be held off a bit if widespread testing indicates the disease is present in a large way and the media hypes the numbers (the media really, really, badly wants those numbers to splash across your screen). However, if the disease has too large a geographical and population spread to actually quarantine and our hospitals are not being overwhelmed that won't keep the populace and businesses at bay for long. If it doesn't show much of a footprint at all the semi-quarantine will crack even faster.4

Will there be large enough infection reports and large enough hospitalization numbers to forestall the public and billionaires losing money hand over fist? I don't know. Nobody does. The things we're dealing with here are fear and faith: knee-jerk, we're all going to die fear and if we undertake this holy discipline we will all be saved faith. And neither of these things is of necessity in this situation wrong or right.

One thing's certain, if this disease is as highly contagious and resistant to Summer months as is being suggested, two weeks or a month or even a couple or three months is not going to stop it. There will still be large swaths of our population that have not been exposed when the semi-quarantine lifts, or more likely is forced open. If the disease is highly contagious this should at the very least lead to the broken control spike shown above and, if it shifts locations, a brand new natural course spike.

The models above probably only work up to the city or county level; they do not work well for an entire State, much less the entire U.S. The correlation between a Covid-19 outbreak in the Seattle-Tacoma area and the possibility of one in the Oroville-Osoyoos area (Washington-Canadian border) could be quite small; it would almost surely be non-existent with the Princeton-Bluefield area of West Virginia. The model breaks down when the area considered is not closely interconnected enough for significant cross-ties such that the virus can spread.

Even if we stomped it out completely within our borders, we do not live in the closed system imagined in models such as those above. Other nations will be going through their flare ups and we are internationally too connected commercially and too many people believe with their hearts, souls, and pocketbooks that our borders should be open to all, to keep it out. Once the semi-quarantine lifts and travel from other nations resumes, a highly contagious disease need only be carried to a couple areas that have not previously had outbreaks and we're right back where we are now.

 ----- CORONAVIRUS -----

Covid-19 isn't our first go around with a coronavirus. Previously, the world has dealt with SARS and MERS (at least these are the ones that have made a big enough media splash that I know of them). They are all cross-over diseases from bats although they can travel through other animals to get to us. SARS was found in a number of creatures although the identified culprit - at least initially - was masked palm civets sold for food. The only secondary animal MERS has been identified as coming from is camels. I don't think they've found the animal through which Covid-19 transferred.


As best I can tell, in its prior incarnations spread of coronavirus has been primarily nodal and spread in large part by health care professionals who were infected without realizing it. Medical professionals in the U.S. being previously alerted to the current virus should not pose this risk, but it stands to reason that a place of higher risk - particularly for those in high risk, medically vulnerable categories - is actually a doctor's office or hospital.5 If Covid-19 is a real threat, visits to medical centers for non-important reasons are contra-indicted. If grandma has to go to the doctor or hospital and it's not an emergency,  (1) waiting in the car until she can go directly to whatever room she's going to be examined in is better than being in a waiting room with a group of people who might be contagious; you can do the paperwork in the room.  (2) Health care professionals (and this means everyone in the office including the person whose sole job is to do the paperwork) should be wearing a mask that covers their nose and mouth when they enter the room. Remember you wearing a mask is of limited use to you (you can still catch the disease by touching your face); the masks stops particulates from passing from the wearer into the air around him and this is what you need to be concerned about.  (3) The first thing the medical professional should do upon entering the room is wash his hands with soap (preferable) or at least use hand sanitizer before touching you or anything else in the room. The EMT's, nurses, check in/paperwork  staff, medical technicians, and doctors you're dealing aren't taking these steps? Unless you are visiting your dietician or psychiatrist, they are passing up steps to insure your safety because they are a pain in the rear, off-putting, and may put a dent in profit flow. When will you know the medical profession as a whole considers this a real and imminent threat, not just a contingent, theoretical threat? When the vast majority of medical professionals start taking steps similar to the ones listed above and start making you sign a sheet saying they did so (to satisfy their insurance provider6).

Mind you, this wouldn't all be on the medical folks. People aren't taking this seriously unless they  (1) don't touch their faces while at the doctor's office or anything else unless they absolutely have to,  (2) in the parking lot before they touch their car clean their hands with sanitizer, and  (3) when they get home immediately get out of their clothes and immediately wash those clothes with soapy water, and at the very least rewash their hands and face with actual soap. The same process should apply if you go anywhere where many people have been or are: the grocery, a restaurant, the bank, the gas station, etc. If you've touched it, leaned on it, sat on it, etc., you must assume other people have too and some of them are contagious. Viruses survive on items for hours and can transfer to your clothes - not just your hands. Medical facilities may be an obvious danger, but others are substantial as well.

What? You're not doing those things? You're not hunkering down at home during the semi-quarantine getting groceries delivered or at least ordering them online or by phone and going to pick them up at your grocer's drive-up service?8 The steps I outline above are patently ridiculous on their face? Please tell me again how much you believe in this terribly, terribly contagious disease.


 The current reactions and patterns of behavior are a panic reaction at worst and an attempted reset at best. Defending against coronaviruses requires nodal tracing and actual quarantines. The fact that we've pushed the button on semi-quarantine and relying on the models above says that our medical establishment, at the very least, is perceived to have failed in its duty to stop this disease so that it has to run its course. I'm not certain that it's true the disease has slipped all containment, but that's really kind of irrelevant since we've already pushed the button.

Here's the model for defending against this disease.9  Remember the Covid-19 has up to a two week period from infection to the appearance of symptoms.

(A)  You start tracing backward from known cases toward the first case. I think cheesy novels and movies would call this person Patient Zero. Although it's more than likely there is more than one source who brought the disease to the US, "Patient Zero" should be traced if possible in the locale of each outbreak. As you move backwards, you also move forward from each person identified to check for further infection. Of course, as you go you involuntarily quarantine each person identified until they are clearly non-contagious.

But, what if the disease has spread beyond 20 people or 100 or 1,000 or . . .

(B)  At a certain point (I'm not sure exactly when), you engage in non-voluntary geographical quarantine. It may be a street. It may be a neighborhood. It may be a section of a city. It may be an entire city. You lock it down. If medically possible, you can allow people to leave through check points where they are checked for the disease and if they are negative have them strip, shower, and hand them new clothes to walk out certified disease free. Nobody goes back in except medical personnel, food trucks, and appropriate escorts. After two months you raise the quarantine unless the doctors tell you it is still spreading in the zone.

Yes, I see the multitude of problems with that just like you do. The larger the quarantined area the more of them present themselves and the less likely that a full on quarantine may be entirely effective. However, the perfect cannot be the enemy of the good and if the disease is highly communicable and has a high mortality rate this may have to happen in order to control the disease enough that you can go back to relying on (A).  It's essential that (A) be effective.

(C)  Put in its best light, the current reaction is an attempt at (B) through voluntary means and we'll have to see how effective it is. Governors keep adding more restrictions which are being accepted for the nonce despite the fact that they may not be within the various governors' powers in their particular States. It's only a matter of time before small and large businesses that are edging toward bankruptcy start resisting. If you're a bar owner in Cincinnati10 and no or few cases are reported in your city before the end of March, you're going to want to open your business back up. Your customers, likewise having seen no or few cases and being Cincinnatians (who believe in two things: BEER and the Catholic Church - leaning more toward the beer), are going to want you to be open (the return of the speakeasy). The Cincinnati Reds and FC Cincinnati aren't going to be eager to keep losing millions because they're closed either. They and their leagues are likely to start fighting back legally. This dynamic is going to start repeating everywhere in large parts of the country where big outbreaks have not occurred. Assuming - as the people pushing the current reactions seem to be doing - that the disease has slipped all possible containment and adding the additional assumption that people will actually spend the next few weeks isolating themselves voluntarily at home (unlikely,11 but let's run with it), the next few weeks will allow the majority of people with the disease to present with symptoms without spreading the infection as much and be removed from the equation (quarantined). Medical professionals can go back to using (A) to root out the disease.

(A) and (B) are a rational way to handle this situation that concentrates effort where outbreaks are actually occurring.  (C) is a broad approach which damages a lot of things outside the areas that are exposed. It also engenders a lack of belief. People in large parts of this country where there is no, or very limited, outbreak are being trained. I'm already seeing and hearing "Why are we doing this? There's nobody near here that's got it." and seeing people who intellectually agree with (C) continue to do all the same things they would have at stores and restaurants anyway. And this is with us on what, day two or three? Imagine a week without anything happening where I'm at when the initial panic has worn well off. We need to refocus on rationally handling this situation.

----- THE HOPE -----

Remember SARS, Covid-19's more contagious and much more deadly big brother, died off by Summer in 2003. Of course, that's not a guarantee the Covid-19 will. MERS seems to keep going through Summer. However, the background of COVID-19 at least seems superficially more like SARS. I don't know what the probability percentage is, but there seems to be a good chance that the natural barrier of Sun, heat, and fresh Summer air will come to our rescue.

If the Summer kills it off, the newly announced vaccine testing will prove fruitless as they are saying it will take 18 months before the earliest vaccines for the public could be available. Assuming this disease presents the threat we are assuming it is, somebody needs to explain the word "expedite" to the FDA and whatever pharma is creating this.

----- IN SUMMARY -----

Try to remain calm and rational in your behavior. Push those who are making decisions for us all to act rationally as well. Know where your towel is.


1  Way back in the stone ages, I wrote a paper on polio in High School. As I remember it, the disease existed from time immemorial, but only became a problem when improved hygiene stopped kids from catching it. Kids would just shake it off; the older you got the more devastating the results could and were likely to be. And a quick check of that paragon of medical knowledge, Wikipedia, seems to confirm it's still the dominant theory; I'd look on WebMD, but I'm pretty sure all it would tell me is that I've got cancer even if I just asked about the history of polio. Anyway, as best I can tell, we should be bathing our kids in water filled with every bacteria and virus we can cram into it. They'd shake off all the diseases and grow up to be Kryptonians. I AM NOT A DOCTOR AND THAT IS NOT MEDICAL ADVICE. I am a lawyer and that's why I'm paranoid enough that I included a disclaimer over something I wouldn't expect any sane parent to do.

2  Yes, I realize it is not viable to tell parents that they should expose their kids to the latest panic disease for the greater good. Nobody wants their darling to be the 1 in 100,000 who actually suffers so that society will flourish down the road. And God help you if you were the school administrator who spoke the truth about the matter. At the very least you will get clubbed over the head with your words. Job loss and law suits follow. Few people are willing to sacrifice themselves for a long term demonstrable good.

3  Of course, Harvard would overpay some pretentiously named company ("Ivy League Connections", or the same name but in Latin or Greek) to accomplish what YT streaming could do cheaply and efficiently. I wish I'd have had the foresight to see this panic coming; I'd have sunk all my money into one of these companies and be a multi-millionaire by mid-summer.

4  And let's be honest, I'm a "social distancer" by nature, but I had to meet someone at a restaurant this weekend (for business, most of the menu there is currently of limits) and it was packed: parents, kids, old-timers, everybody. I went to two grocery stores to pick up my groceries this weekend (went to the wrong one first) and both of them had normal looking customer levels - and so did the other stores in the shopping centers. People are already ignoring the semi-quarantines or treating them as vacations more than anything else.

5  Been to a hospital lately? I've been twice in the last three months: once through the emergency room which led to an over night observation room and the return was for the (never to be adequately damned) chemical stress test. If a patient came in with a highly communicable disease and it wasn't quickly identified everybody in that place would be exposed in maybe a day - two at the outside. Sure, I'm certain they have protocols for dealing with identified communicable patients, but what happens when little Bobby comes in with a broken arm and is sniffling and crying the entire time it's dealt with? Three days later his parents bring him back and it turns out the sniffling was at least partially caused by a highly contagious, by bodily fluid, new form of yellow fever (THIS DOES NOT EXIST AND TO THE BEST OF MY KNOWLEDGE IS ENTIRELY A CREATION OF MY IMAGINATION - so don't freak out6). Even if the doctors and nurses who dealt with Bobby on day one washed their hands immediately after, how many surfaces did Bobby touch? How many surfaces and pieces of equipment did nurses, technicians, and doctors who touched Bobby touch? Then there's Bobby's parents who are almost surely infected as well and went to the cafeteria everybody in the hospital uses, to the gift shop, and to the administrative offices to sign a promissory note giving Acme Medical (Your Friendly Medical Monopoly) title to everything they and their progeny will ever own. It'd be a miracle if that disease didn't spread through the hospital.

6  Yeah, a footnote inside a footnote. Live with the meta-ness. The Army gave me all sorts of shots, but there are three that stick in my memory. The GG shot was the Army's go to for stopping any infection ahead of time, given out en masse pre-deployment to overseas. It left a lump that was a nuisance for a couple days right where I sat down. Mine wasn't as bad as others. I was well down the line and mine had been out of the fridge long enough to warm up. Those who got them earlier got cold shots (the Army cared about effectiveness, not your comfort) and complained a lot more about them going in, staying hard, and hurting. 

I also got the first of the three shot Bubonic Plague series. It burnt some for a day and I was told I'd get the other two shots in Egypt after deployment. When I went to the medics there, they looked at me like I was stoned and told me they didn't even know such a thing existed and definitely didn't have any. I do not know if getting one shot without the others gave me some immunity to the Plague and I have no interest in finding out. Absolutely none. No, I will not be your test bunny.

HOWEVER, the shot that sticks out most in my mind is the Yellow Fever shot they gave me. It's a live, weakened virus and I got it in the morning. By about eight that night I was on my bed with three blankets wrapped around me convinced the Army had killed me. The next morning I woke up hale and healthy, but that night I was pretty sure I saw some guy in black with a scythe.

7  With the level of alarm currently being expressed by the media and public, there is no way that medical professionals and facilities can claim a lack of notice that their normal operational procedures are inadequate even if they track with industry standards. If someone comes to a doctor's office or a hospital and within the next two weeks gets Covid-19 that facility had best have taken demonstrable steps in the knowledge of potential viral contamination on site. Otherwise there's going to be an interesting couple of years in litigation. Insurance companies know this and I'd bet they are already covering their bets by demanding requesting demonstrable changes in patient interactions. (of course, all this is dependent upon laws which the companies have gotten passed to protect their bottom line make sure their clients are protected from frivolous law suits)

8  This is an amazing service which locally both Krogers and Food City do. I discovered this when I first started having medical problems and was concerned with the idea of walking around a grocery store shopping. Now, I'm a believer. I take ten minutes to place an order before work and on the way home I pick it up on schedule. They bring it out and load it up. It saves me lots of time and I'm pretty sure money - despite the five dollar charge. If I went in, I'd make impulse buys of more than $5 and often enough they waive the fee if there's been any inconvenience.

9  Yes, this model will be very basic. I'm not trying to talk about the intricacies involved. I'm trying to lay out what needs to be done in broad strokes.

10  No reported cases as of 14 October 2019.

11 Dear Diary:
Day One: Stayed at home. No sports except cricket and bowling. Watched some bowling. Cricket's weird.
Day Two: Cleaned garage. Maggie and I worked on giving Little Janie a brother. Twice. :-)
Day Three: Watched reruns. Tried once more for the little brother. Helped Maggie cook supper.
Day Four: Little Janie was a terror today and Maggie wasn't interested in another try. When I offered to help with supper again, she gave me the look and announced to me and Janie that we were going out to eat at Garbinis. The place was packed and I was so glad to get out of that house.
. . . . .
Day Seven: It is so great getting this free vacation. I've been hitting all the stores I can never get to because of work and the guys and I took a round on the course this morning. Paul shot a +1 and was mad about it.

09 March 2020

Bail Reform: We'll Still Need Bondsmen

"It is possible to eliminate cash 'bail' while at the same time increasing the number of persons detained before trial."
Does Bail Reform Increase Crime? An Empirical Assessment of the Public Safety Implications of Bail Reform in Cook County, Illinois
 In fact, if you think it through, it's not only possible, it's a logical probability.

Bail reform comes in two flavors:  (1) Elimination of Bond (not bail), and  (2) Elimination of Holding People in Jail Prior to Trial. These are not necessarily consistent goals.

Bail with the imposition of a bond only really affects one of the two factors to be considered in deciding whether bail should be granted - whether the defendant will appear in court.1  The problem is that bail bondsmen have grown to be such a part of the system that while they are a necessary evil in some set of cases, the precautionary use of bond and its concomitant reliance on bondsmen has led to a system that either unnecessarily financially punishes many of the unconvicted or leaves them in jail.

With many, if not most, States and localities putting pre-trial services units in place, one of the potential or perhaps assumed uses of a bondsman has been superceded. Pre-trial services units take over the bondsman's job of keeping track of defendants prior to trial. This isn't a terribly important function of either because neither can actually stop a defendant from fleeing the jurisdiction and not stopping until he's six States away hiding out in Scottsbluff, Nebraska.

The other, and primary duty, of bondsmen is one the pre-trial services unit does not have: making a defendant come to court. Pre-trial units report to the judge if a defendant drops off the face of the earth; bondsmen send people to bring them back. They do this because if they don't, they are required to pay the court the entire amount of the bond of which the defendant has paid them only 10%.

Currently, at least in Virginia, the two systems overlap, but those pushing bail reform clearly want to eliminate the bond system entirely and momentum seems to be on their side. This would be a mistake. See my high-quality, professionally drawn illustration below.


(1) I said professionally drawn. I didn't say drawn by a professional artist. My profession's the law and with artistic talent like that I think we all know why.

(2) The blue section is where bonds are so low that bondsmen can't make a profit covering them. If a bondsman covers $500 bonds for $50 each it only takes 1 bonded to disappear to eat all his gross profit on 10 people when the court requires him to pay the bond. And since most "bail recovery agents" (bounty hunters) get paid 10% of the bond, it isn't worth their while to spend a week or two hunting down a fugitive for a whole $50. There will be a level below which an economically sane bondsman will not cover a bond. This in turn can lead to a weird situation where a judge can keep a defendant in jail by setting a bond too low. A bondsman who might happily cover a $1,000 bond at a charge of 10% ($100) might never cover one that's less than $750. Thus, if the judge sets the bond at $400 and his family can only put together $250 then the defendant might sit in jail because the bond amount was too low for the bondsman but too high for the family.2  Needless to say, this really shouldn't happen, because if a judge is setting a bond that low she really should be letting the defendant out on bail without a bond. However, I've seen it a few times and I'd wager other criminal law attorneys have as well.

(3) Coming out of the blue, going through the green and somewhere into the yellow we have the people whom bail reform is supposed to help. These are the people who will tend to show up to court at whatever rate is acceptable to the judicial system generally and to the judge making bail decisions in particular. This is where a bondsman makes his money, but provides minimal service for the court; it's his profit center. Bail reform is meant shut this down. If defendant's in the green zone go from 99.999% to 97% likely to show up to court then they shouldn't have to pay someone to not be in jail.

Let's say the yellow zone goes from 96.99% to 70% likely to show for court. Somewhere in there is going to be a point at which the judge decides that no pre-trial services isn't going to be adequate to ensure the defendant returns to court. The exact place on the chart will vary from judge to judge and defendant to defendant, but most every judge I know is going to want something more than the defendant's word if he believes there is a three in ten chance that the defendant won't show for trial.

The orangeish part thru to its transition to red we'll say is 69.99% to 50% likely to show for trial. Somewhere in there the judge just is going to decide there's no way the defendant's getting a bond.

---------- Why We Need Bondsmen ----------

Between the yellow line and the red one is the zone where we need bondsmen. otherwise, as stated at the beginning of this post, more people should remain in detention. That's not to say that removing bond requirements for those to the left of the yellow line is bad. In fact, it's a definite good as long as we don't don't go off the rails with it and do away with bond period or set it so far out of reach (see New York's developing train wreck)3 that it accomplishes nothing.

It would be interesting to see what happened to the bond industry if the easy cash of those in the green zone disappeared. The business becomes much more marginal once it is actually limited to higher risk defendants. And yet, there should be enough sharp and competent bondsmen left to keep the system viable. It should shake out those who are in it for the lazy money and leave the ones who actively monitor, check on, and track their clients.

---------- Suggestions ----------

 My suggestion would be a statute something like this:
Virginia Code 19.2-121.1 Limitations on Setting Bond

A defendant shall be entitled to bail without bond unless the magistrate or judge finds one of the following:

(A)  Another section of this Code sets out a presumption against bond,
(B)  There is reason to believe the defendant is a threat to physically harm himself intentionally or because of mental defect,
(C)  There is reason to believe the defendant is a threat to engage in behavior meant to physically harm or intimidate one or more individuals,
(D)  It is more likely than not that the defendant will continue to violate laws of Virginia that are a class 1 misdemeanor or a felony, or
(E)  The defendant will not appear at trial.

Under subsection (E), if the magistrate or judge finds it is more likely than not that the defendant shall not appear she shall deny the defendant bail of any kind. If the magistrate or judge finds there is a substantial risk the defendant shall not appear she shall require a secure bond which is objectively adequate to ensure the defendant shall return to court as ordered. If the defendant has previously been found in contempt by a court, violated probation, or been found guilty of failing to appear in court there shall be a rebuttable presumption of substantial risk not to appear.

If the defendant has been charged with a class 1 misdemeanor or a felony within six months prior to the act upon which his charge is based and the date of that act is within a month of the defendant's initial appearance before a magistrate or judge there shall be a rebuttable presumption that subsection (D) applies to the defendant.

1  The two factors are  (1) Likelihood of the defendant being a danger to himself or the community, and  (2) Likelihood that the defendant will appear for trial.  It is unlikely that posting a bond will affect violent propensity of the defendant toward herself or others; thus we shan't be discussing that prong of the test today.

2  All the numbers in the example are pulled out of thin air. This is not science and I am not an economist. If you want a painstaking study and analysis I suggest you find someone who knows how to do that and does it for a living. I am sketching out a general example in terms understandable to my limited brain and hopefully yours.

3  Actually, it is more fairly argued that the flaw in the NY reform is that it requires the release without bond of people whom the judge and everybody else is aware will go out and commit more crimes or harm people. It categorically requires release of all defendants who fall within a certain criminal set without any distinction at all between the members of that set. This does not fall under the fail to return to court prong of the bail test. It's a failure to rationally apply the danger to self or the community prong. It appears to be a (possibly much) magnified version of the failures of the Chicago bail reform.

08 March 2020

I Don't Give a Dam!

I really don't. Because I don't have any to give.

Interesting non-legal fact of the day. "I don't give a dam" doesn't have anything to do with eternal damnation of a soul. It's about an extremely low worth copper coin out of India called a dam (see the pic). It's about the same as saying "I don't give a half-penny." (Which would also be hard to do since the US stopped making half-penny coins before the War Between the States)

And still it makes so much more sense than it does if it's about damnation.

03 March 2020

Virginia's Strangest CrimLaw Opinion ot the Year: Dicta Wars

Every year I break down the crimlaw cases which have been decided by the Virginian Courts Appellate from March last year to March this year for a CLE I do for the local bar (and later I put them up at KenLammers.com for common use). There always seems to be at least one head scratcher and this year is no exception.

Last year I summarized the Court of Appeals decision in Butcher v. Commonwealth as:
Butcher v. Commonwealth, NOV18, VaApp no. 0974-16-2: (1) A person who runs into another’s vehicle is required to give his information to one of several individuals. (2) The court explains that because the language of the statute has changed the person does not have to report to both the victim and police, he can report to either; Banks v. Commonwealth, 217 Va. 527, 230 S.E.2d 256 (1976) was invalidated when the General Assembly changed the language of the statute. (3) Absent this or another similar circumstance that makes an immediate report impossible or wholly impractical, the statutory command that the report be made “forthwith” requires an immediate report. (4) Absent even a suggestion to the contrary, the factfinder reasonably can infer that, if appellant made a call to law enforcement to report his information, the information would have been provided to the investigating officer. (5) Hit ex-girlfriend’s car.
I remembered this case as the one where the guy ran his car into that of someone who knew who he was and got charged for hit and run anyway because he didn't stop and give his information to someone who knew who he was. The Supreme Court of Virginia sees it differently and here's my breakdown of the Supreme Court's opinion:
Butcher v. Commonwealth, FEB20, VaSCt no. 181608: (1) Overrules the Court of Appeals’ plain reading of the statute that the addition of “or” in place of “and” made the parties to who report of the accident went to subjunctive instead of conjunctive. [why?]
Mind you, the Supreme Court upheld the conviction - it just didn't like the fact that the Court of Appeals had pointed out that it had been legislatively overruled and went out of its way to slap down what was pretty clearly dicta in the Court of Appeals opinion. Baker is guilty of violating the statute under either interpretation; he didn't give his information anybody whether he was required to give it to either the owner or police or both of them. If you want to get technical about it, the decision in each court's opinion is that he's guilty. Everything after that is dicta in both opinions. Et viola, we have dicta slapping down dicta and the rest of us are left scratching our heads about the whole thing.

Somebody's either waaaaaay oversensitive about their court's prerogatives or they let their law clerk, all fresh and shiny out of law school and fired up to quibble about [very important] legal niceties, write their opinion.

I've not done a deep dive into the legislative history or the developed caselaw, but on its face it appears that the Court of Appeals has it right. The pertinent language from the statute requires a driver in an accident to give his information
(a) to the State Police or local law-enforcement agency,  (b) to the person struck and injured if such person appears to be capable of understanding and retaining the information, OR  (c) to the driver or some other occupant of the vehicle collided with or to the custodian of other damaged property.
I added the letters and all-capped the or, but if you want to do the analysis yourself look where the commas are separating the sentence fragments and note that the connector between the fragments is "or" (a subjunctive not a conjunctive). 

In summary, the Court of Appeals was right, the Supreme Court's dicta overruling the Court of Appeals dicta is a slapdown but doesn't change anything because the General Assembly made this change years back, and the rest of us are reading these opinions and wonderinging to ourselves "What the bleep are they doing up there in Richmond?"

01 March 2020

School Choice and Will the Supreme Court Put a Stake in the Heart of Anti-Catholicism?

The ABA has been kind enough to lay out the four different cases that are before the Supreme Court this year that involve religion and I thought I'd grace y'all with this poor sod's opinion on the one that may finally kill the Blaine Amendments:

Espinoza v. Montana Dept. of Revenue - This is all about the Blaine Amendments. For those of you who don't know, Blaine Amendments were anti-Catholic amendments to the majority of State constitutions (one failed to get added to the federal constitution) that were crafted to hit Catholic school systems1. The thought was that Catholic students would then be funneled into the Protestant (public) schools where they would be taught from the King James and made proper (read "Protestant") Americans. As is necessary to pass federal constitutional muster, the language was neutral (Protestantism being assumed in public schools2) and you ended up with things like these:
(1) The legislature, counties, cities, towns, school districts, and public corporations shall not make any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination. (2) This section shall not apply to funds from federal sources provided to the state for the express purpose of distribution to non-public education. Montana Const. Art. X, § 6.

No portion of any fund or tax now existing, or that may hereafter be raised or levied for educational purposes, shall be appropriated to, or used by, or in aid of, any church, sectarian or denominational school.” Kentucky Const. § 189.
I personally have been impacted by the Kentucky Blaine Amendment and only saved by the largesse of Centre College.  Anyway, the very neutrality of the wording has meant that in modern times atheists, secularists, and those who are not Protestant have used the same amendments to shove Christianity out of public schools. This has resulted in various attempts to form alternative schools with a religious bent that weren't Catholic (the Catholic schools persisted despite the government bias). Also, as there is a continual perception that our public school systems are failing or leveling3, there has also been a growing number of private non-religious alternatives to public education and, of course there are the military schools of which, while not as popular as in the past, there continue to be a fairly large number.  

Montana passed a $150 tax credit for anyone who donated that much to a private school. Note that while the law was written neutrally and there are private non-religious schools on Montana (Bozeman Field looks interesting), the excuse for attacking this is that the majority of schools who would benefit from donations would be religious4. And for that specific reason the Montana Supreme Court struck down the law as violative of the Blaine amendment5:
We conclude the Tax Credit Program violates Article X, Section 6, of the Montana Constitution and accordingly reverse the District Court’s order granting Plaintiffs summary judgment.
Here's the thing, this has already been decided in great part (if not entirely) by Trinty Lutheran, in which the Supreme Court ruled that while the government cannot specifically aid a religion it also cannot put barriers in front of religions to prevent them from having access to neutrally available governmental funds. In that case, Missouri's Blaine amendment failed to carry the day when the State denied neutrally available funding to the school to replace the gravel on its playground with rubber6.

It's pretty clear where this case should end up, but the question is how far it will go. The goal of those pursuing this isn't just the righteous disassembling and dis-ratification of an anti-religion né anti-Catholic statute. Their goal is school choice. And, if the statute is written in a neutral fashion so that the funds are disbursed as directed by the parent's choice - not the government's - and can go to any school the parent chooses that will accept her little darling, it should pass constitutional muster. Of course, the government can require certain standards across the board (ie reading, writing, and 'rithmatic) as long as they are neutrally applied and aren't a sort of backhand way of forcing anti-religious Blaineish type things in a more subtle way.


You can find plenty of fairly obviously anti-choice sources looking at school choice around the world. They find and report exactly what their confirmation bias sent them looking for: choice doesn't cause much change in academic achievement; "no improvement" are the words I've seen the most (which is a slant on the fact of no ups or downs). Some places have had dips, but with some tweaking brought things back in line (Chile). And, of course, you ain't gonna hear American academics besmirching the good people of England and Wales over their immemorial use of school choice. So, if the movement to parental choice schools is academically neutral what is the harm? If you are Jewish  and your kid will come out just as smart from JFK Public High and Maimonides College Prep why wouldn't you send him to the place where he also gets a solid grounding in Judaism?

Look, there always going to be people who oppose for disingenuous reasons (claiming it's for the kids), because they have another agenda. There are some who are actively anti-religious who will oppose what they cannot defeat through their reasoned arguments about flying spaghetti monsters. There are those who will oppose for financial reasons because their members might have fewer jobs if schooling switches from unionized public schools to non-union private ones. There could be any number of other self-interested reasons that have nothing to do with the constitutionality and viability of school choice.

Nevertheless, there are some solid reasons to be concerned abut it.

The Worst Get Worse: If every family has a voucher for their kid and there are two high schools in town, Oppenheimer Academy which sent a quarter of its students to the Ivy League last year and PS-856 which sent sent the top ten percent of its kids to Fourth Tier U., which one do you think is going to see parents beating down its doors for their kids? 

Of course, it won't usually be that stark, but sorting will occur; there will be top, mid-level, and low level schools - particularly in places like cities where there might be six or eight schools within driving distance (or by public transportation). The schools at the bottom will be left with the kids who couldn't get into a better school or whose parents didn't give enough of a hoot about them to even try.

Pandering:  A mid-level school can't distinguish itself from the six other mid-level schools within 25 miles. They need students so they can pay the staff and keep the lights on. Suddenly, all the students start getting no lower than B's in all their classes (Better known as American College Syndrome). Every kid gets to spend a couple hours of his school day in a club of some sort and gets and A+ for community participation. Lunches become free McDonalds or White Castle meals. Applications skyrocket (until the other schools copy the method).

Poor Parental Priorities:  Dad doesn't give a snickerdoodle about education. He just wants his six foot five inch boy to play on the best football team in the city so he (the father) can bask in the glory of it. People try to tell him that Gridiron High doesn't graduate kids who can count higher than 10 without taking their shoes off, but he doesn't care because Gridiron has built the best football program in the state.

Doctrine of Non-Learning:  The Church of the Holy Hand Grenade doesn't believe in educating anybody because the rapture is coming in the next week or so (it's been coming in the next week or so for the last 18 years). Never mind arguments about whether to teach creationism and/or evolution, they don't see the need for reading and ciphering. All school consists of is a 6 hour sermon/lecture by Brother Green or one of his deacons.

These are the nightmare scenarios of the potentialities for school choice. Of course, they all already occur to some extent. Sorting happens all the time. What do you think is going on when families check the local schools before buying a house? Kids in the public school system get the education available in the place their parents can afford to live. Pandering has been going on for a while. Why do you think school give kids 5 or 6 points on a 4 point grading scale? Why do some schools give no grade lower than 50% even if the kid entirely failed to even try to do any work? Parental priorities - particularly around sports - have always been nuts. I can remember being in elementary school and knowing that kids had been held back a grade by their parents so they would be bigger and older when they went to play football in high school. And try shutting down the broken down high school in small town USA so you can build a consolidated, state of the art county school. Parents will come out swinging because there might not be a spot for their boy to play football or basketball if four small schools consolidate into one big one. You won't hear the word "academics" out of them once. Finally, the religious choice not to educate is already available. You probably already know the Amish only educate their kids to an eighth grade level, but did you know Virginia allows people to not send their kids to school for religious reasons? Va Code § 22.1-25(B)(1). If you've been anywhere near a juvenile court in Virginia you've probably seen some parent abusing that (In front of a judge because your kid hasn't been to school? Declare that your religion requires him to stay home.)

What's the right answer? I lean toward this: Whether school choice is good or bad policy, it's unconstitutional to put barriers in front of it solely because of the religious nature of many private schools (as long as the statutes are neutral in their application). However, that doesn't mean school choice has to happen. Fight the policy battles where they're supposed to be fought: in your school boards and your State legislatures.

And try to make the arguments in favor or against about the best interest of the greatest number of kids.


 1  I've seen statements that they were meant to hit Jewish schools as well, but I put that somewhere about where I do that the statements that Socialists supported the amendments to get religion out of schools period. Potentially true, but not particularly relevant. Catholic schools were becoming widespread and pervasive. They were the perceived threat and the majority of people pushing the amendments were concerned about halting that.

2  I've heard my dad, who grew up Protestant, call the Cincinnati public schools he went to "the Protestant school system." Personally, I remember being taught in public schools that America was great because of the Protestant work ethic (which later morphed into the Christian and then Judeo-Christian work ethic).

3  It is the conundrum a public school system must face. Impoverished areas have poorer school systems. Parents who care and perceive their kids as superior and deserving every break they can get (the way every good parent should think) want to get their children out of these schools and private schools look awful tempting if they can get into them (usually - in the absence of a voucher system - through some sort of scholarship).  Of course, this siphons off the best students in these systems and makes them even worse. And yet, if public school systems try to shift resources to the impoverished areas, middle class parents and higher - a great number of whom have the money to transfer their kids to private schooling - will react. They are fighting to ensure their kids have the skills to maintain their position in society and possibly rise higher. Allocate resources away from their children and they will either (a) somehow force them back, or (b) take steps to help their children compete - including moving them to private schools. The problem is that these people have enough influence with legislatures that where they go thus goes their tax money thru tax credits, or neutralizing of funding, or vouchers. This is where the rubber meets the road. People will say all sorts of high principled things and believe they mean them right up until you start doing things they perceive as harming their children. Then they become remarkably intransigent and provincial.

4  Personally, I think that governmental funding that went to private schools (by whatever means) might well be a boon to private non-religious schools. Currently, religious based schools have external means of funding and thus can survive better without even the neutrally available funds they could get without governmental barriers. Non-religious schools do not and therefore, logically, have a higher chance of failure from lack of funding.

5  In fairness to the Montana Supreme Court, every appellate court works under some sort of presumption that its statutes and State constitution are valid under the federal constitution and this decision is a fair application of the Montana State constitution if you assume that the Blaine amendment isn't anti-Catholic in purpose and anti-religious in affect.

6  And more power to them. While I worry about the heat that rubber might gather, the gravel underneath playground equipment sucks. It's there to keep the ground from getting muddy and it's a trade off with kids getting cuts and scratches instead of getting their clothes messy. I remember a particularly nasty misadventure in my own misbegotten youth (second grade, Northern Elementary) involving a slide, gravel at the bottom, and the slathering of iodine on my knee in the Principal's office. I'm not sure which hurt worse, the gravel or the iodine.