The Herald Bulletin published an editorial urging the Indiana General Assembly to stop the school voucher expansion. It notes the measures passed by the House and being considered by the Senate which would double the spending on voucher privatization of our educational system. Their main arguments: 1) it expands the program to subsidize private education for wealthy Hoosiers; and 2) claims that vouchers improve educational outcomes are thin and, at best, studies on the subject provide mixed support for that claim.

There are troubling aspects to the expansion trend.

About 90% of Indiana’s students attend public schools. About half of the 87,000 private school students use the Choice Scholarship program through which families receive vouchers. The House proposal would widen the program to all private school pupils, at an average of around $7,500 each.

Families currently qualify for the program based on income. Families of four making less than 300% of the federal poverty level, up to $154,000, can qualify.

The expansion would expand that to families of four who earn $220,000.

Folks who have followed this debate as it has occupied the General Assembly for the past two decades know that this plea is likely to fall on deaf ears. The original pretext for vouchers was that they would give “choice” to poor students in failing schools. As the policy choices of the General Assembly have revealed, that was never the true motive. That educational outcomes are the same or worse for students who use vouchers has not slowed down their expansion. Limitations requiring students to have actually attended public schools have been lifted. The availability of vouchers is not tied to whether a student is actually in a “failing” school district. And now income limitations are being obliterated.

The goals are and always have been: 1) subsidize religious education; 2) weaken teacher’s unions; and 3) re-direct public school funds to friends and well-wishers of pro-privatization policymakers.

I’ve posted part of this quote many times, but just came across Caleb Mills’ second “One of the People” addresses from 1848, and it bears quoting at length. It remains relevant:

STATE TAX TO SUPPORT SCHOOLS.

Awaken the public mind, and concentrate it on the question, Am I not interested in the proper education of all that are socially and politically connected with me?

There is but one way to secure good schools, and that is to pay for them. There is but one method to induce the youth to frequent them and that is to make them what they ought to be, by such applicances of funds, as will awaken an universal interest in them. Experience has shown that this can be effectually done only by drawing a large share of the funds for their support, directly from the pockets of the people, upon the ad valorem principle of taxation. When we are required to pay a tax for the support of schools, irrespective of the question whether we have children to educate or not, then we shall attend the school meetings, take an interest in having a good school in our several districts by employing competent teachers, furnishing the children with suitable school books, comfortable and convenient school rooms, and visiting them from time to time to ascertain whether teachers and taught are doing their duty. It is vain and idle to suppose they will flourish without the appliance of that motive power of universal action, interest. In no department of human enterprise has this truth been more fully demonstrated than in Education. The best schools, both in this country and Europe, are to be found only in connection with funds raised on the principle above mentioned. Public funds are desirable only to encourage effort, not to supersede the necessity of exertion. This is evident from the character of schools in States where they are sustained almost wholly by public funds, compared with schools sustained by taxes.

Let us shut our eyes no longer to the teachings of experience. Let us have a system based on the broad and republican principle, that it is the duty of the state to furnish the means of primary education to the entire youth within her bounds. Impressed with a just appreciation of the magnitude of the enterprise, the value of the interests at stake, and the obstacles to be overcome, let us not despair of success, assured that intelligent efforts, directed by kindness and perseverance can not fail of ultimate triumph. We must not be discouraged by ignorance and prejudice. To remove the one and correct the other, we need nothing but the combined influence of light and love. All, to a greater or less extent, are aiming at the same object, and they differ only as to the means. Convince the ignorant man that knowledge would increase his happiness, and give him power for good, and you make him a staunch friend of learning. Satisfy the prejudiced man, that he has only misapprehended the best means of securing his own welfare, and the happiness of his children, and you convert him into an unflinching and zealous advocate of common schools. Let us gather up the experience of the past, and bring it to bear upon the subject of popular education, and we shall find in Indiana as cordial friends to the intellectual and moral culture of the rising generation, as in any other State in the Union. Awaken the public mind, and concentrate it on the question, Am I not interested in the proper education of all that are socially and politically connected with me? The bearings of such a question have not been duly considered. It needs to be discussed and examined. We are a shrewd people where dollars and cents are concerned. Many have never taken that view of their duty, and when it has been presented to them have frankly acknowledged that they have never thought of it in that light. Does not the Farmer derive as large a percent upon what he expends in the education of his children, as from any investment he can make of his funds? Does the amount which he pays to sustain a good school for the instruction of all the children in the district or township in which he lives, never find its way back again to him in the improved character of the community for intelligence, enterprise, and morals? Is not real estate in such a community more valuable, capital more productive, and enterprise more intelligent and successful? Would not the general thrift and prosperity caused by this intellectual and moral elevation, lighten public burdens, increase social enjoyments, enhance the value of property, multiply the facilities for its acquisition, and increase the security of its possession? Such cultivation could not fail to diminish pauperism and crime, lessen poverty and suffering, throw around the gardens, orchards, and the products of the field, an inclosure that would never be passed, improve the highways, and materially increase the substantial comforts and conveniences of the house, the farm, and the implements of husbandry.

…

[Following a discussion of the principal of ad valorem taxes]

Such a plan would distribute the burdens equitably on all according to their ability to bear them, and according to the pecuniary interests affected by the intellectual and moral elevation of the great mass of the people. Is not the rich land holder interested to the full amount of his property in the moral and intellectual culture of the community in which it is located? Is not its value enhanced by the intelligence and virtue, and lessened by the ignorance and vice of the surrounding neighborhood? Is not the merchant also interested to the full amount of his stock in trade, in the enterprise, intelligence and integrity of the community in which he does business? Would he find so large a share of his profits engulfed in the whirlpool of bad debts, if the people were honest and industrious? Can the manufacturer invest his capital with equal security and hope of success among an ignorant and vicious people that he could in an intelligent and virtuous community? Would a railroad or a telegraph running through a region, whose inhabitants, induced by designing men to believe that such monopolies were hostile to their interests, should obstruct the cars, remove the rails, or cut the wires, be as productive, or the market value of its stock be as high, as it would be, if such an improvement was situated in a section of the country distinguished for its provision for the education of the whole rising generation without distinction?

Then the rich will have no occasion to complain of the burden of a two mill tax, when they consider that their property is not only affected in its value by the character of the immediate community in which it is located, but also by the legislation of the State, where it is vested. It is evident that the vote of a wise man and a sound statesman, will count no more than that given by an ignorant, selfish demagogue. Can it be reasonably expected that the representatives of an ignorant county will be as intelligent and competent to enact wise and judicious laws, or take as enlarged and liberal views of the real interests of the commonwealth, as those chosen by a more intelligent constituency? Their honesty and patriotism may be equal, but their legislative competency may justly be questioned. If this be a sound and correct conclusion, then the man of wealth will find no better investment for the small portion of his funds, which such a law would require, than the object contemplated by the passage of such a bill. His property, as far as affected by legislation, is just as much in the power of the representative of a constituency, one third of whom can neither read nor write, as it is in that of the man who has the honor to represent “Old Wayne,” and who may well be proud of the fact that of his 9349 adult constituency in 1840, only forty-four were unable to read.

Pass such a law, and it would immediately remove two of the most formidable obstacles to the prosperity of our schools—the want of adequate funds, and a proper degree of interest in the school by the great mass of the people.”

All six of Mills’ “One of the People” messages are available here.

Idea: I have opinions and the Internet needs to know about them.

So, yesterday, I had a post talking about the Indiana General Assembly’s requirement that schools expressly designate their teams as male, female, or co-ed; prohibiting people born biologically male from participating on teams designated as female regardless of that person’s gender; and requiring a grievance procedure. I later updated the post to reflect that IPS is under an injunction preventing it from complying with the statutory requirement because the Southern District of Indiana has ruled that doing so would likely violate a student’s Title IX rights. (My present — not thoroughly researched — view is that, until the Seventh Circuit finishes its review of the District Court opinion, schools are in a bit of a pick-your-poison situation.)

Not that anyone asked, but what’s my personal view on transgender athlete participation in sports consistent with the athlete’s gender? Don’t the physical effects of testosterone give an advantage to a person born biologically male who is gendered female? (And, my apologies if I’m getting the language wrong here. The discussions around this subject have been fluid, and I’m sure I haven’t kept up.) Isn’t that unfair to the girls born biologically female who didn’t have as much testosterone dumping into their body?

Maybe.

But: a) I think the concern is more theoretical than real; b) In this context, I care a lot more about the rank and file athletes than the tippy-top elite athletes; and c) This would be just one more accident of birth that contributes to athletic ability. Ultimately, I think the costs of excluding transgender athletes outweigh the benefits.

My perspective is that of an average athlete with step-brothers and, for that matter, a step-family who are insanely good athletes. Growing up, I wasn’t exactly bad at sports. I was too skinny, but I had good reflexes and, as I got older, decent coordination. However, my step-dad and his sons were really, really good at sports. I also went to a big high school where only the really good athletes made varsity. So, by comparison, I thought I wasn’t very good. But I liked playing. I still remember first grade, Charles Elementary School, always last picked at kickball. Then one day I caught a kicked ball and got the player out. Brant, one of the very athletic kids, gave me a high five, and I don’t recall being picked last after that. It was glorious. Also, being skinny and having good reflexes made me a pretty fair dodge ball player. I still remember a pretty inspired set of dodges during gym in Mrs. Busick’s fifth grade class … but I digress.

When I became a father, my kids were in a similar position athletically, and we played a lot of rec soccer over the years. We didn’t travel, and they didn’t play varsity. All of this is to say that, when I think sports, I’m thinking more of the mid-level athletes. The junior varsity. The support players. The teams who never win sectionals. The people who find value in sports even if they aren’t grand-champions of the world. Sports are about team, camaraderie, competition, working toward a goal, discipline, joyful movement, anticipation of an outcome, the thrill of success, coping with defeat, and a lot more.

So, in that context, how much good are we doing by excluding a person from competing with members of their own gender due an accident of them being born with a biology inconsistent with that gender? And I know this just sounds like so much mealy-mouthed bullshit to people who think that if you’re born with a penis you’re a male and if you’re born without one, you’re a female, and that’s that. I know because there was a time when I thought like that. Turns out life is more complicated.

I think we’re doing more harm than good. First of all, I think the number of people born biologically male and compete for championships in female sports is going to be a very, very small number. Certainly not a big enough number to justify the moral panic on the issue. The idea that cisgender boys are going to pretend to be girls in order to win championships in girls’ sports strikes me as far fetched. And if we’re not talking about championships; if we’re talking about routine day-to-day competition, I think any biological advantages from testosterone or whatnot is going to be just one of a lot of biological accidents that contribute to athletic success. Even among people born biologically female, there is going to be a difference in testosterone, height, speed, strength and so forth that aren’t governed by “merit” like hard work, training, and studying the sport. Short girls who want to play volleyball still have to deal with the fact that some girls have tall parents, become tall themselves, and end up with an athletic advantage.

My personal experience with transgender kids isn’t extensive or necessarily drawn from a representative sample, but — not to put too fine a point on it, most of the kids I know who fit in this category don’t strike me as gifted athletes.  They’re going to get waxed by most of the other kids who play against them regardless of gender. So, if they want to play sports, what are we gaining by excluding them from athletic teams consistent with their gender? Nothing. We’re doing very real harm. Maybe we’re doing it in service of excluding those transgender kids who are gifted athletes, but like I said, that’s going to be a small number (because overall, transgender or not, the number of gifted athletes is limited.) And I don’t know that, in most cases, the advantages conveyed by having more testosterone at birth are different in principle from other accidents of birth, not related to one’s sex, that contribute athletic advantages.

So, there you have my two cents.

The General Assembly adopted HB 1041 which was vetoed by Governor Holcomb and then subsequently adopted over his veto. It enacted IC 20-33-13 which, among other things, requires schools to adopt anti-trans athletic policies. Specifically, the law requires schools to designate an athletic team as one of: boys, girls, or co-ed. It then prohibits a child who was born biologically male at birth from competing on a team designated as a girls’ team.

On top of dictating the legislature’s policy on school sports, it requires schools to establish a grievance procedure for a student or student’s parent if they want to complain about another student’s biology. Specifically, the legislation provides:

  Sec. 5. (a) A student or parent of a student may submit a grievance to a school corporation, public school, nonpublic school, or association for a violation of section 4 [the section forbidding children born biologically male from participating on a girls’ team] of this chapter.

(b) Each school corporation, public school, nonpublic school, and association described in section 4 of this chapter shall:

(1) establish and maintain a grievance procedure; or

(2) maintain a grievance or protest procedure that the school corporation, public school, nonpublic school, or association established before July 1, 2022;

for the resolution of a grievance submitted under this section.

(emphasis added). If a school violates the chapter — either permitting the child to participate on a forbidden team or failing to adopt a grievance procedure — the school is on the hook for attorneys fees, actual damages, and an extra $1,000 in liquidated damages. Honestly, the attorney’s fees are the big ticket item for something like this. These kind of fees really have a way of adding up quickly when someone other than a client is footing the bill.

The reason I was prompted to write this post is because the West Lafayette school board introduced a policy that would prohibit what the statute requires the school to prohibit and would implement the required grievance procedure. The Lafayette Journal and Courier ran a story that was pretty clear about the State mandating that the school do this. Nevertheless, the comment section (why do I go to the comment section?) reflected a sense by at least a couple of readers that the School was pursuing the policy on its own initiative. That’s simply not the case.

Edited to add: The Southern District of Indiana has issued an injunction at least to one particular case in Indianapolis. I guess I’m not entirely sure where that leaves schools on a statewide basis.

The Indiana Court of Appeals has ruled in favor of the State of Indiana and against several school corporations, Lake Ridge School Corporation, School City of Hammond, and West Lafayette, in their suit against the State. The suit challenges a statutory provision requiring them to sell school property not used for class room purposes to charter schools for $1. The Court of Appeals held that schools can’t sue the state for taking without just compensation because municipalities are just divisions of the State. Under this rationale, the State is just taking from itself.

The Court of Appeals opinion did not discuss the fact that these buildings were built with local tax dollars. In West Lafayette’s case, the citizens of the community invested in what has recently been appraised as a $6 million asset. Under this opinion, there is no recourse if the State commandeers that asset for the benefit of the State generally. The Court of Appeals only considered federal opinions that held that there was no claim under the Fifth and Fourteenth Amendments by a municipality against state government. It declined to conduct a separate analysis under the takings clause in the State Constitution: Article 1, section 21. The opinion does not grapple with Board of Commissioners of Tippecanoe County v. Lucas, 93 U.S. 108 (1876) ( “the legislature of a state possesses the power to direct a restitution to taxpayers of a county or other municipal corporation of property exacted from them by taxation, into whatever form the property may be changed, so long as it remains in possession of the municipality.” (emphasis added)

If there is no recourse under either takings clause, my position has been that this is a violation of Art. 10, §1 of the Indiana Constitution which provides requires the General Assembly provide a “uniform and equal rate of property assessment and taxation.” Happy Hollow was paid for by property taxes that were not “uniform” to those that you would find in, say, unincorporated Tippecanoe County. That non-uniform taxation is appropriate insofar as it is used to benefit the school district. It is inappropriate to use taxes peculiar to the District to benefit the State at large.  See City of Richmond v. Scott, 48 Ind. 568, 572-73 (Ind. 1874) (determining that unequal rates of municipal taxation do not violate Art. 10, §1 because “taxes for corporate purposes cannot be equal. The wants and necessities of towns and cities cannot be equal. Some require a higher and some a lower rate of taxation.) I don’t know that this issue was raised to the court. I assume this will be appealed to the Indiana Supreme Court. If the Justices say that there is no recourse under the takings clause because the State is merely taking from itself (because municipalities are merely subdivisions of the State), then perhaps subsequent litigation could challenge the $1 sale requirement based on the uniform taxation requirement.