A Corporation is a shield except when it’s not

Initial disclaimer: two different courts, a different legal scenario, and I think the Indiana Court of Appeals probably got it right here. In Meridian North Investments v. Sondhi, decided today, Meridian North was the landlord and Sondhi-Biggs Orthodonics was the tenant. Dr. Sondhi, owner of Sondhi-Biggs, signed the lease on behalf of Sondhi-Biggs. Later, he slipped on some ice and fell, allegedly because Meridian North was negligent in maintaining the premises. The lease contained exculpatory clauses where the tenant said it wouldn’t hold the landlord liable for negligently maintaining the premises. The Court of Appeals said that those clauses didn’t bind Dr. Sondhi because Sondhi-Biggs, and not Dr. Sondhi, was the signatory on the lease. As an agent, he waived liability asserted by Sondhi-Biggs but not himself.

And, yet, under Burwell v. Hobby Lobby, Sondhi-Biggs could assert rights and exemptions from general regulations under the Religious Freedom Restoration Act (and perhaps Indiana’s pending state version) based on Dr. Sondhi’s religious beliefs.

I suppose I’m just taking another opportunity to vent about the inconsistency in how and when we recognize the corporate form. It’s a government created legal fiction designed to limit personal responsibility. It has it’s uses, but that form should be recognized or not consistently.

Education Fight: One Million Kids, Eight Billion Reasons

Indiana’s appropriations for K-12 education is closing in on $8 billion, representing something like 50% of the state budget. Higher ed is another $1.8 billion. That’s a lot of money. For years, educational policy has been in flux due to the work of advocates who use the rhetoric of “choice.” It’s all about the children. But policy makers support kids’ education in much the same way parents often support kids’ sports: loudly, counterproductively, and, quite often, sincerely. And, just as it’s hard to ignore the suspicion that the parent is projecting some childhood dreams of glory on the young athletes, so too is it hard to ignore that big pot of money the policies of choice advocates will redirect to friends, well-wishers, and, quite often, themselves.

From the comfort of my couch, I see three basic fronts for this installment of the education struggle. As an immediate concern, we have the spectacle of ISTEP tests which will test endurance as much as intellect. Short term, we have legislation that will remove the Superintendent of Public Instruction from, what I am told, is a 100 year tenure as chair of the Indiana State Board of Education. Longer term is an effort to make the Superintendent of Public Instruction an appointed position instead of an elected position.

ISTEP Endurance Testing

The ISTEP endurance testing seems to be a product of the requirements of the federal “No Child Left Behind” combined with the recent dithering over Common Core. As you may recall, Indiana abandoned Common Core for reasons that remain unclear to me — other than there was a Tea Party notion that it was a federal imposition and therefore Obama and therefore bad. What the substantive problems with Common Core were, I still don’t know. Indeed, there were complaints from Common Core detractors that the new Indiana standards were too much like Common Core. (From the first link):

When Indiana stopped using Common Core standards last year and wrote its own, we were still required under No Child Left Behind to test our students on whatever standards we used. So the ISTEP+ had to change to reflect the change in standards. Educators have known since last summer that the test would be different, but the shock this week came when schools saw the amount of time the ISTEP+ would take.

And the difference is significant. Last year, a third grader spent a total of five hours and nine minutes doing ISTEP+ testing. This year, that amount jumps to 12 hours and 30 minutes. These increases are for every grade that takes the ISTEP+, not counting stress tests if a school has their students sit to complete those.

The fruits of this slap dash effort to appease Common Core detractors will now be realized by Indiana’s students who have to give the test for these Indiana Standards its shakedown cruise — piloting a lot of the questions. Gov. Pence has attempted to mitigate the political fallout from this through a last minute executive order. Certainly, the headlines he received were favorable — saying in most cases that he was taking action to shorten the test. (See, e.g., “Pence signs executive order to shorten ISTEP”) In reality, his executive order calls for the Office of Management and Budget to hire a consultant which it has done at an expense of $22,000. The first phase, at an expense of $11,000 will be for recommendations on Spring 2015 — though, turning the ISTEP battleship on a dime seems unlikely. (I’m full of mixed nautical metaphors today). The recommendations will come just as the testing is supposed to start. The second half of the consultant’s contract will be for Spring 2016.

Chair of the Indiana State Board of Education

The only slightly less immediate issue is HB 1609 which seeks to remove the Superintendent of Public Instruction as chair of the Indiana State Board of Education (SBOE). The Superintendent is a Constitutional Office provided for in Art. 8, Section 8 of the Indiana Constitution. However, the duties of the Superintendent and the manner of selection for the Superintendent are left up to the General Assembly. The Superintendent’s role as chair of the SBOE is specified by IC 20-19-2-2. The Superintendent is the only member of the SBOE not appointed by the governor. As chair of the SBOE, the elected superintendent has something of a check on education policy over a body otherwise dominated by governor’s appointees. When former Superintendent Tony Bennett turned a largely ignored office into something that riled up the voters, they threw him out in favor of the current Superintendent, Glenda Ritz.

With new blood in the Superintendent’s office potentially upsetting the apple cart, the SBOE suddenly couldn’t get along with its chair. Note: this isn’t necessarily a party thing. The Republican Superintendent always seemed to be able to work with the Democratic Governors, and – though Governor appointees, IC 20-19-2-2 specifies that not more than 6 of the 10 appointees can be from the same political party (although the controls on who is in or out of a political party are a little sketchy). There are Democrats who also stand to profit off of the privatization of education. So, I would say this has more to do with conflicting visions of our educational future than with pure party politics. Advocates of traditional public education tend to favor Democrats and advocates of a more privatized vision tend to favor Republicans, but it’s not a 1:1 correlation.

Rep. McMillin’s HB 1609 recently passed by a vote of 58-40. It leaves the State Superintendent as the 11th member of the board but directs the SBOE to elect a chair from its membership in the July meeting. This effectively transfers control of the SBOE to the Governor entirely. The House rejected, by a vote of 69-26, a proposed amendment that would have had the Department of Education submit nominees from a process involving school districts in the area served by the vacant board seat and one that would have provided for direct election of SBOE members. (Another bill, SB 1, alters the composition of the SBOE to include fewer governor appointees and to include four appointees from the House and Senate that would likely consist of two Republicans and two Democrats) as well as stating that the Superintendent is not the automatic chair.)

The cursory explanation for the power grab is that having the Superintendent as the chair of the SBOE is just too dysfunctional. But I think that’s kind of the point of the current structure. Democratic systems of checks and balances are messy. Sometimes they don’t make the trains run on time. If you’re just going to put all of the power into the hands of the Governor and his people anyway, why let the citizens of Indiana have a direct vote on a position having to do with educational policy at all? Which brings us to:

Appointment of Superintendent of Education

Longer term, there is a proposal that would eliminate the Superintendent as an elected office and make it an appointed position. SB 24 would make that effective in the year 2021. (SB 500 has so much jammed into it, that there could be something about the Superintendent in there for all I know.)

Seems to me that, to the extent Republicans pass legislation that concentrates education authority in the hands of the Governor, they are being a little short sighted. Democrats don’t have much luck in statewide elections in Indiana. They have somewhat more luck in Governors races than in down-ticket races. I’m not one to put too much stock in the “messages” being sent by voters — the ballot box is not a very precise tool for communication. But, the fact that Tony Bennett was rejected as Superintendent of Education was probably as close as we get. His position was very specific to education. His tenure was very much about privatizing Indiana’s educational system and otherwise diverting money away from traditional schools. Despite being in a very favorable position (down-ticket, statewide race) in a very favorable year, Tony Bennett lost, receiving 48% of the vote to Ritz’s 52% – the first Republican to lose that race in 40 years. I have nothing against Superintendent Ritz, but I don’t believe the result of this race was so much about embracing her as it was about rejecting Bennett and his policies. Nevertheless, proponents of the policies championed by Bennett will not be dissuaded. They are just that passionate about the children, you see.

The hell of all of this is that it’s not doing the kids any good. I know my kids are going to be trading education time for time taking a standardized test. They’ll do fine, but they’d be better off if their teachers were talking to them about history or current events or triangles or just about anything. Heck, they’d be better off running around outside kicking a ball around. And, generally speaking, there isn’t a lot of evidence showing that kids are doing any better in the non-traditional schools parents theoretically get to choose after all is said and done. The 20 years or so of data we have show that voucher schools don’t perform notably better and often perform worse than traditional schools.

There are about a million kids in Indiana’s schools, but more like eight billion reasons for this education fight.

Wealth and Marriage

There is a New York Times article about how married couples are better off financially than their single counterparts.

But, while it did a good job of describing the wealth gap between married and single, it didn’t do a good job of describing the reasons behind it – looking at whether, for example, the relationship was causative (and in which direction) or merely correlated. I imagine there’s a little of everything going on.

People who have money are more likely to get married. People who get married are more likely to save money. And the sorts of habits and abilities that make people able to make money also make them able to enter into and sustain a marriage. I don’t think it’s simply a matter of telling poor people to get married and they’ll wind up wealthier. (See, e.g. the proposal for an “Office of Marriage Promotion”) A lot of the dysfunctions that make people poor would also make their marriages a disaster (and still leave them poor) even assuming they were able to find a willing partner.

ISTEP+: 243% more wasted instructional time thanks to Common Core Opponents

So, because people had an emotional opposition to Common Core and we have a slavish devotion to standardized tests that don’t do much to educate our kids, the State of Indiana is going to use my kids and their instructional time to vet its new test questions. Super.

Claire McInerny at State Impact Indiana explains that the increased duration of the testing has to do with Indiana’s decision to drop Common Core:

Last year, a third grader spent a total of five hours and nine minutes doing ISTEP+ testing. This year, that amount jumps to 12 hours and 30 minutes. These increases are for every grade that takes the ISTEP+, not counting stress tests if a school has their students sit to complete those.
. . .
A reason for the increased testing lengths is that since the test questions are new, and this test will be used in the future, a lot of the questions have to be piloted.

These tests don’t do a thing to educate my kids, and now they will spend more time doing them. I suspect their time would be better spent playing Minecraft.

Rule of thumb on standardized tests – early: help the student / late: test the teacher

A friend shared with me a concept about the timing of standardized tests that I hadn’t appreciated before. If the test is early in the year, it can be used as a tool for the teacher to help the teacher understand a student’s strengths and weaknesses. If the test is late in the year, the state is basically just using my kid as a tool to measure the teacher — based, I might add, on sketchy metrics. (“Don’t worry about what you’re measuring, just give me a number!”)

These tests are a waste of time and money. Finland, one of the world’s best educational systems, takes one externalized, high stakes test at the end of high school. That’s it. It would make some vendors very sad (and much poorer) but we could save my kids a lot of time and our school systems a lot of time if we chucked these tests.

Might even be easier to just ask the teachers how their students are doing — if you trust and respect the teachers as professionals, that is.

Vaccination Debate is a Proxy War about Science and Communal Obligations

The Incidental Economist has a couple of posts about how ridiculing parents who don’t vaccinate their kids is unhelpful:

Aaron Carroll: Could we stop asking politicians gotcha questions about measles please? And anyone else for that matter?

Bill Gardner: Enough hating on anti-vaccination parents, please.

They’re probably right in terms of the narrow question of how best to prevent outbreaks of diseases for which there are vaccinations. The background is a measles outbreak that seems to have been exacerbated by people who believed junk science or ignored science altogether about the relative dangers of vaccines versus real or imagined side effects of the vaccines. Ridicule probably makes such parents entrench themselves and become even more staunchly against vaccination. It’s a form of tribalism.

What gives this debate more juice, in my opinion, is that it’s not just about vaccinations. It’s about the proper role of science in policy making and about the proper limits of individual liberty in policy making. Anti-intellectualism is nothing new in American politics — a politician won’t go broke championing “common sense” over those eggheads in their ivory tower. What seems a little newer – and this might just be my limited knowledge – is a rhetorical commitment to individual liberty that overwhelms any notion that an individual might owe any sort of duty to the community. An anti-intellectual commitment to liberty at all costs generally squares with what we’ve seen out of the Tea Party movement. But with the anti-vaxxers, there seems to be a twist. These are, often enough, suburban, Oprah-watching moms. A sense that “they ought to know better” might add more intensity to the response.

So, I think what you’re seeing in these responses is not frustration limited to the question of how best to stop the spread of measles. It’s frustration with what seems like a selfish, deliberately obtuse world view that persists even where the evidence is clear and even where the benefit to the community so vastly outweighs the actual risk to the individual. “We had these horrible, horrible diseases licked and you people are screwing it up for everybody for almost no reason at all.”

Update: Talking Points Memo has A Brief History of How People Got Duped by the Anti-Vaccination Myth.

Update 2: This column by Chris Mooney about hostility between climate change camps seems somewhat related. It’s tribal:

The new study, by a group of Australian psychologists and social scientists, examines the clash between climate adherents and so-called “skeptics” as an “intergroup conflict” (a psychological buzzword) driven, in significant part, by anger at those on the other side.

Or to put it another way, the debate is a cultural clash between two groups with divergent social identities who define those identities, in part, by criticizing those on the other side.

“Believers and sceptics [sic] are united, but only insofar as they are united in opposition to each other,” notes the paper, whose lead author is Ana-Maria Bliuc of Monash University in Victoria.
. . .
One key aspect of in-group/out-group behavior is called “outgroup derogation” — negativity towards those who are members of the opposing group — and Postmes sees it here. “People tend to talk badly about the outgroup as a way of expressing solidarity with their own side,” writes Postmes.

Of Trolls and Monkeys

Amy mentioned a This American Life podcast she had heard about an Internet troll who was particularly vicious to Lindy West, digging up information about her dead father, creating a Twitter account with his picture, and using it to harass her. So, I took notice when a related column by Ms. West in the Guardian came across my news feed. The short version is that she wrote a column telling how much that incident had hurt. The troll wrote her an email saying he was sorry and had made a donation in her dad’s name to a cancer foundation. When GamerGate got rolling, she wondered if she could gain insight from him about why men troll women online, and it turned into the This American Life episode.

In the Guardian column, she says:

We talked for two-and-a-half hours. He was shockingly self-aware. He told me that he didn’t hate me because of rape jokes – the timing was just a coincidence – he hated me because, to put it simply, I don’t hate myself. Hearing him explain his choices in his own words, in his own voice, was heartbreaking and fascinating. He said that, at the time, he felt fat, unloved, “passionless” and purposeless. For some reason, he found it “easy” to take that out on women online.

I asked why. What made women easy targets? Why was it so satisfying to hurt us? Why didn’t he automatically see us as human beings? For all his self-reflection, that’s the one thing he never managed to articulate – how anger at one woman translated into hatred of women in general. Why, when men hate themselves, it’s women who take the beatings.

Maybe I’m off base, but I think the dynamic providing an explanation of sorts is described in Robert Heinlein’s Stranger in a Strange Land. The protagonist is a human, Mike, who was raised by Martians. One of the things he doesn’t understand, doesn’t “grok,” is laughter. Then, one day at the zoo, it all becomes clear to him:

When he had first seen a zoo, Mike had been much upset; Jill had been forced to order him to wait and grok, as be had been about to take immediate action to free all the animals. He had conceded presently, under her arguments – that most of these animals could not stay alive free in the climate and environment where he proposed to turn them loose, that a zoo was a nest … of a sort. He had followed this first experience with many hours of withdrawal, after which he never again threatened to remove all the bars and glass and grills. He explained to Jill that the bars were to keep peopIe out at least as much as to keep the animals in, which he had failed to grok at first. After that Mike never missed a zoo wherever they went.

But today even the unmitigated misanthropy of the camels could not shake Mike’s moodiness; he looked at them without smiling. Nor did the monkeys and apes cheer him up. They stood for quite a while in front of a cage containing a large family of capuchins, watching them eat, sleep, court, nurse, groom and swarm aimlessly around the cage, while Jill surreptitiously tossed them peanuts despite “No Feeding” signs.

She tossed one to a medium sized monkey; before he could eat it a much larger male was on him and not only stole his peanut but gave him a beating, then left. The little fellow made no attempt to pursue his tormentor; be squatted at the scene of the crime, pounded his knuckles against the concrete floor, and chattered his helpless rage. Mike watched it solemnly. Suddenly the mistreated monkey rushed to the side of the cage, picked a monkey still smaller, bowled it over and gave it a drubbing worse than the one he had suffered – after which he seemed quite relaxed. The third monk crawled away, still whimpering, and found shelter in the arm of a female who had a still smaller one, a baby, on her back. The other monkeys paid no attention to any of it.

Mike threw back his head and laughed – went on laughing, loudly and uncontrollably. He gasped for breath, tears came from his eyes; he started to tremble and sink to the floor, still laughing.
. . .
I’ve found out why people laugh. They laugh because it hurts so much … because it’s the only thing that’ll make it stop hurting.”

Jill looked puzzled. “Maybe I’m the one who isn’t people. I don’t understand.”

“Ah, but you are people, little she ape. You grok it so automatically that you don’t have to think about it. Because you grew up with people. But I didn’t. I’ve been like a puppy raised apart from other dogs, who couldn’t be like his masters and had never learned how to be a dog. So I had to be taught. Brother Mahmoud taught me, Jubal taught me, lots of people taught me … and you taught me most of all. Today I got my diploma – and I laughed. That poor little monkey.”

“Which one, dear? I thought that big one was just mean … and the one I flipped the peanut to turned out to be just as mean. There certainly wasn’t anything funny.”

“Jill, Jill my darling! Too much Martian has rubbed off on you. Of course it wasn’t funny – it was tragic. That’s why I had to laugh. I looked at a cage full of monkeys and suddenly I saw all the mean and cruel and utterly unexplainable things I’ve seen and heard and read about in the time I’ve been with my own people, and suddenly it hurt so much I found myself laughing.”

I used to subscribe to Heinlein’s theory of laughter — that it was a response to an observed wrongness (e.g. the pratfall). After having kids and watching them, that’s an incomplete observation about humor. There is also laughter that springs from nothing more than joy. But that’s an aside — the troll picking on women looks a lot to me like the smaller male who got robbed and beaten by the bigger male taking out his frustrations on the smaller monkey. There tends to be a pecking order and, to mix my metaphors, shit rolls down hill. That women are generally perceived by these trolls as being lower in the pecking order highlights the structural inequities between the genders. Some of this is biological — the average woman is physically smaller than the average man; but the majority is probably cultural — the average woman is conditioned not to fight back as much as the average man. (After all, humans are tool using apes — humans have been endlessly innovative at developing tools to harm one another, regardless of relative size and strength.)

Maybe it’s more complicated than that – but I’d say the “why” is primarily misdirected anger. From the Simpsons:

Anger is what makes America great. But you must find a proper outlet for your rage. Fire a weapon at your television screen. Pick a fight with someone weaker than you. Or, write a threatening letter to a celebrity. So when you go out for a drive, remember to leave your murderous anger where it belongs — at home.

Maureen Hayden on LSA

Good to see the Legislative Services Agency getting some love. (H/t Indiana Law Blog). LSA is the non-partisan agency that provides support to the Indiana General Assembly. Among other things, the staff attorneys draft legislation and the fiscal analysts provide analyses of the fiscal impact of legislation.

As Maureen Hayden’s article notes, the hours can be challenging – particularly around the holidays. It was not atypical for a legislator to drop off a bunch of bill requests on his or her way out of town for Christmas vacation so the requests would be ready for the beginning of session at the beginning of January. During the session, late nights and weekend work were not uncommon. One of the things that was most frustrating to me was, during session, Friday mornings were often slow. The House and Senate would adjourn on Thursday and not come back until Monday morning. So, you would have a slow Friday morning then, at 3 pm, you’d get a call from a lobbyist saying that Representative X told him to get in touch with you to have a proposed amendment ready for Monday morning. The ebb and flow of negotiations would manifest in bill and amendment requests at odd hours with quick turn around times and frequent last minute edits.

Occasionally a legislator asks you if you think whatever the proposal might be is a good idea. But, mostly they don’t; and that’s not really your role as a member of LSA. The snarky tone you see on this blog from time to time is probably a fair reflection of the behind closed door grousing you’d hear from time to time among LSA staffers. But it was studiously equal opportunity — you didn’t burden the legislators with those opinions; and you tried to produce a good product regardless of how flawed you thought the underlying policy goals might be.

It was probably those years of bottling up my opinion that made me so eager to share them here. Also, just an aside, but I wonder if it’s just coincidence that two of the longest running blogs about Indiana law/policy/politics (my own and the Indiana Law Blog) come from people with LSA backgrounds.

Interim Committee on Commerce Focuses on Tax Breaks for Biomedical Device Industry

The Interim Committee on Commerce and Economic Development seems to have focused almost entirely on the biomedical device industry during their interim meetings. See, this draft final report of the committee. That was the task assigned to it by the Legislative Council. I’m not sure whether they have discretion to go beyond legislative council assignments. They produced this draft resolution urging tax breaks for the biomedical device manufacturers. Specifically, the resolution expresses grumpiness about the federal medical device excise tax. To counter this, the resolution suggests reworking of the patent income tax exemption and the venture capital income tax credit as well as passing a “new markets jobs act providing for a state income tax credit” available to the medical device and biomedical industry.

None of this is necessarily bad policy (maybe it is – I’m just not informed enough to know) or nefarious, but it does give an example of how money begets money. You use your economic influence to get law and policymakers to focus on the well being of your economic interests in a way that’s not available to those with fewer resources.

Shawshank and Privilege

With Ferguson over the last couple of months and the 2014 Isla Vista killings several months before that, white male privilege (as compared to the experiences of women and racial minorities) has been brought more under the microscope — at least over social media. I’m going to walk on eggshells here. As an upper middle-class white guy, there is mostly only downside if I offer opinions on questions of race and privilege. Where I see nuance in those questions, others might see me as offering self-serving qualifications that justify or blind me to my privilege. “Shut up and listen” probably isn’t bad advice. I’m pretty good at listening, but shutting up has long been a problem for me.

Maybe it shows I’m too steeped in pop culture, but at some point during my musings about the race and privilege question, The Shawshank Redemption came to mind. Seems to me that Andy Dufresne could be excused for thinking that he had it pretty rough. He was cheated on, unjustly charged with and convicted of murdering his wife, served twenty years in jail, and only made it to a better place through patience, industriousness, and crawling through “a river of shit” before coming out clean on the other side. So, you can imagine he might be skeptical if told that he owed his life on the beach in Mexico to his privileged status as a white man.

And, yet, it’s true. Certainly Andy’s (fictional) path was not easy, and he prevailed in the end because of admirable personal qualities and actions. But the fact is that Andy prevailed in ways that simply would not have been available to his black friend, Red. For example, the education and social connections that leads to Andy becoming a banker never would have been available to Red back then (and would be much, much less likely even today). Red (even if he had the tax background), unlike Andy, probably gets thrown off the roof before Hadley settles down and takes his tax advice. The warden probably never lets a black guy near the books for the illegal accounts. Even with a suit & tie, Red probably can’t just waltz into the bank and withdraw large sums of money without drawing suspicion.

From Andy’s perspective, he went through hell to get to that beach in Mexico. He has reason to feel like he earned every bit of what he has, and having someone attribute it to white, male privilege may well provoke a negative reaction. And, still, without white, male privilege, he would probably be dead or in jail. He had and took advantage of opportunities not available to Red.

I see this movie-as-metaphor to be more descriptive than proscriptive. It may be a trite example in any case. I’m not presuming to advise anyone to act or feel differently on this issue than they do. But, for my part, I felt like the metaphor offered me some insights into the dynamics involved.