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West Lafayette School Board: About that Audit Report

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Is all of our money gone? No. No it’s not.

“Ok Doug, ” says the voice in my head, “you told me not to panic about the bonds used to finance school improvements. But what about that State Board of Accounts Audit? An audit is pretty bad, right? $7 million off the books?? Lack of internal controls??? School board members are just stuffing wads of bills into their pockets, right?!?!”

Fine, that last one is a complete straw man that I made up. But people are spooked. The short answer is that nobody likes audit findings and there were things that needed to be fixed, but there is no indication that there was any substantive harm to the school because of the issues that needed to be corrected.

The School was audited because every political subdivision is audited all the time.

So, why was the school audited in the first place? Because all political subdivisions are routinely required to be audited. I looked at the SBOA’s audit database and it looks like they issued 43 audit reports for various political subdivisions in the state over the course of two days in October. Point being that every unit of government is being audited by the State pretty much all the time.

$7 million of the total bond proceeds were put into a School construction account; the remaining bond proceeds were put into a Building Corporation construction account. All of the money was used for construction. The School construction account should have been reflected on the School financial statements rather than the Building Corporation financial statements.

What happened to that $7 million? Nothing. It was put in a construction account just like the rest of the bond money in 2017. For reasons I’ll explain in more depth later, $7 million was put in a school construction account and the remainder was put in a building corporation construction account. This was proper. However, the school had the mistaken belief that the $7 million school construction account should show up on the Building Corporation financial statement along with the reset of the bond money. So, disclosure here: I’m getting out in front of my skis a bit. I’m reading the school’s response to the audit report (included in the document linked above) and my own experience with municipal bond issues. I have not talked to anyone at the school about this, and I am not an accountant. Also, this requires some background, so bear with me.

Back in 1836 (not a typo, and yes I’m serious), Indiana adopted the Mammoth Improvement Act. The young State got in way over its head borrowing money for roads, canals, and railroads. Andrew Jackson’s fight with the Bank of the United States helped trigger the Panic of 1837 which wiped out a lot of the economy. Indiana got hit particularly hard. The Mammoth Improvement initiative fell apart, and the finances of Indiana were strained for a generation. The Constitution of 1851 restricted the ability of Indiana to take on debt. However, there was a need to take on debt to build capital assets, so by at least 1920 an artifice had arisen by which the political subdivision itself did not take on the debt. Rather, a municipal building corporation would be created to receive the money and guarantee payment to bond holders. The municipal corporation would own the improvements built with the bond money, and the unit of local government leases the improvements from the municipal corporation. The lease amount is enough to cover the bond payments. The lease payments are funded with real estate taxes. I have no idea if this was considered financial chicanery 100 years ago, but it is absolutely standard operating procedure in Indiana — codified and blessed by the Indiana General Assembly. When the bonds are paid off, the lease agreement concludes and the land and improvements are transferred to the unit of local government.

“Thanks for the history lesson, Poindexter. Do we have any information about the $7 million in our future?” I’m getting there.

So, West Lafayette wants to build a new school. The Building Corporation is going to own the improvements it constructs using the bond money, but until something else happens, the School owns the land underneath and existing improvements where Burtsfield is located. For reasons I can speculate on but don’t know (e.g. the Burtsfield gym was being incorporated into the new improvements?), West Lafayette is going to transfer this land to the Building Corporation so that the Building Corporation owns both the land and the improvements. So, the school gets the land appraised for $7,444,000, and when the $47 million in bond money comes in, $7.4 million of it goes into the name of the School. The rest is deposited in a Building Corporation construction account. I think both of the accounts were placed with Huntington Bank in escrow agreements that were probably identical, and the terms of both escrow accounts (at the demand of the bond issuer, I’m sure) both dictate that all of the money be used for nothing other than construction costs. Construction draws on both of these accounts were handled the same way except that, I presume, the School Board approved draws on the school construction account while the Building Corporation board members approved draws on the building corporation construction account. Ultimately, the question is, how should the $7 million be reflected on the various financial reports? State Board of Accounts said that the School got it wrong.

When responding to the State Board of Accounts audit finding, the School said that it believed that it was required to hold the $7 million in a separate account from other school funds to track it for federal tax purposes. (Municipal bonds get certain tax breaks which come with strings attached.) Because it was being held in a special account and could only be spent in the same way as other construction funds, the School mistakenly believed that these funds had to be reflected on the Building Corporation financial report and not reflected on the School’s financial reports. This caused problems with the School’s books, however, because draws on the School’s account were approved by the school board as part of the monthly Accounts Payable approval.  So, on the School’s end, you have payments approved, but the payments are coming from an account that is not, itself, listed on the School’s financial sheets. (Meanwhile, in a parallel process, the Building Corporation will have draws on its own $40 million construction account approved through its own claim approval processes. I’m guessing they had their own error – with the $7.4 million being drawn down but no corresponding claim being approved by the Building Corporation).

That’s a long way to go, but ultimately, the $7 million should have been reflected on the School’s account and not the Building Corporation account. You can say there are “two sets of books” and be technically accurate, but blame the Mammoth Improvement Act. The two sets of books are there for a reason and it’s not nefarious.

Aside from the construction account issue, the internal control finding had mostly to do with documenting training attendance.

“But you have to have internal controls, right Doug? People are going to rob the school blind without internal controls.”

I mean … yes. But, not all internal control problems are created equally.The State Board of Accounts describes controls as follows:

Control activities are the actions and tools established through policies and procedures that help to detect, prevent, or reduce the identified risks that interfere with the achievement of objectives. Detection activities are designed to identify unfavorable events in a timely manner whereas prevention activities are designed to deter the occurrence of an unfavorable event. Examples of these activities include reconciliations, authorizations, approval processes, performance reviews, and verification processes.

If you have the same person opening the envelopes, recording the deposits, writing the checks and balancing the books, sooner or later you’re going to have a bad time. But, in the case of the $7 million, the School was aware that it was approving claims being drawn on an account reflected on the Building Construction financial sheets. They just thought it was the right thing to do. So, in this case SBOA considered the error to be a problem with internal controls, but I’m not so sure. But I think it’s fair to call it a reporting error.

There was another “internal control” problem having to do with the School not retaining training records in 2019-2020 and not conducting the annual training due to COVID during 2020-2021. The State requires employees to take annual training on the school’s internal control standards. I think these days, that training consists primarily of going through a computer module every year. The School is required to submit a certification to the State that this training has happened and retain proof of the training. For the year 2019-2020, the School reports that during that year, the annual practice was for Central Office to meet with the school secretaries (who presumably handle whatever money goes through at the building level), go over the internal control and policies at the building level including cash management expectations. They have attendees sign a copy of the agenda at the meeting. In 2019-2020, the School apparently didn’t retain the signed sheets and, so, got dinged for the lack of paperwork by SBOA. In 2020-2021, COVID set in, and no such training took place. The school filed the form or checked a box in the State’s system or something saying that the training had happened, so the School got dinged again. Going forward, the School indicates that it is using training software that will track attendance.

[Edited to add: I had intended to add some links to several other SBOA audit reports that cite internal controls. Browsing around the other day, I know I found one for Purdue and think I recall seeing one for TSC. Point being that the concept of internal controls covers such a wide range of potential issues, it is not something uncommon to see. Again, you want to make them stronger. But, this report does not suggest that West Side has internal control problems that are anything like unique.]

There was a contract employee who had a contract indicating that he or she was only supposed to work eight days per month. The employee ended up working more days than that during several months. Finally, there were bookkeeping errors having to do with how certain software recorded transfers between accounts and from the School giving Form 9 (which excludes Clearing Funds) to the Auditors rather than giving the Auditor Form 13 (which includes Clearing Funds.) No, I am not familiar with those forms.

So, now I’ve written upward of 1,700 words that almost none of the voting public will read wading through the minutiae of the State Board of Accounts audit finding. That took time and effort, and the conclusion is – there is some stuff there that had to be fixed, but there’s no money missing, there were people minding the store, and anyone suggesting that the School lost millions of dollars due to poor internal controls is badly misinformed. But it’s so easy to erode trust by carelessly jamming together words like audit, millions, dollars, and internal controls while expressing grave concern. So, be careful out there!

DON’T PANIC (about school finance)!

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One thing you’re looking for in an elected leader is steadiness and the ability to differentiate between a bump in the road and a cliff. If it’s a cliff, maybe you risk steering the car into the ditch to avoid it. If it’s a bump in the road, you’ve just wrecked the car for no good reason. In a complicated world, it’s easy to alarm the public and undermine valuable institutions through careless rhetoric. This is true even where the rhetoric is well-intentioned. Intemperate claims are all the more tempting in the middle of a political campaign or in the quest for clicks and eyeballs.

Should we panic?

Like a Lannister, West Side always pays its debts.

Which leads me, as all things do these days, to the West Lafayette School Board campaign. Claims are being made that West Side is drowning in debt. Its finances are precarious. Every student owes $40,000! We’ve lost $50 million because the school has no financial controls! The more extreme claims are not from candidates themselves, but rather social media reactions from people who have been spooked by less inflammatory but still overheated campaign rhetoric. We have debt to be sure. We built a new elementary school, renovated another elementary school, constructed a science wing, constructed a performing arts center, replaced a failing pool in a way that opened up space in the high school, and constructed a new aquatic center. Turns out those aren’t free. But we aren’t drowning. We’re strong swimmers (I just mentioned the aquatic center).

Overview

The short version is that in the first half of the 2010s, West Side was getting close to retiring bonds for construction from building we did in the 90s. The school developed a priority list of building projects it wanted to complete. Back in 2016, the school corporation’s debt service tax rate of $0.5375 per $100 of assessed value (are you asleep yet) could sustain a debt burden of about $50 million. The old debt was about to be retired, the school corporation had building needs, and the school wanted to do as much as it could while maintaining a steady tax rate. In the years since 2016, West Lafayette’s assessed value has gone up so that the school corporation is able to assume more than $50 million debt without raising the tax rate. Ultimately, the school borrowed quite a bit more than $50 million, kept the tax rate steady, and was able to get deeper into its priority list. The candidates trying to knock out the incumbents are looking to make hay out of the school spending more than $50 million — which is fair game — but they’re doing it by steadfastly ignoring the tax rate and intimating that the school is on the precipice. Not incidentally, this is the same argument made unsuccessfully during the 2020 campaign. (I wrote a blog post addressing many of those issues* as part of my own 2020 campaign — which was also unsuccessful, I’m sad to say.) Back then, as I recall, they were saying that the school was going to run out of money in 2022. The school’s municipal building corporation — something standard in Indiana municipal finance — was characterized as a “shell corporation” which tells you that generating heat was at least as important as generating light with that campaign rhetoric.

In 2016, the Capital Improvement Program had three related but independent variables: Project list, tax rate, and overall price.

I served on the school board for a year or so filling out someone else’s term in 2015-2016 and was part of the vote in 2016 that resulted in the issuance of about $47 million in bonds. Minutes from October 2016, reflect the priority list, the $50 million, and the $0.5375 tax rate. Quote from those minutes:

If bids come in over $50 million, then the administration will set priorities based upon the following criteria:
1) New elementary school at Burtsfield
2) Additional classrooms, internal systems’ improvements (HVAC, plumbing, etc.), media center/cafeteria improvements at Cumberland & Jr/Sr HS (includes Jim Guy Wing)
3) Aquatic center – Jr/Sr HS; external components at Cumberland
4) Performing arts center – Jr/Sr HS; Early Childhood/Kdg. Center – old HH site
5) Straley Field (athletic improvements)
The administration believes that in the coming years WLCSC’s A/V will dramatically increase. So the same debt service tax rate that now generates just under $50 million will generate additional revenue in 2018 without increasing the debt service tax rate. If this holds true, additional bonding can occur without increasing the school district’s tax rate.

(Emphasis added). Given the actual construction prices for these projects, I don’t think getting through that entire list was realistically on the table for $50 million.  My sense is that, at the time, the folks involved thought we’d be able to get further than we did. But, for example, I don’t think anyone was seriously talking about being able to improve Straley Field back then or being able to build a new early childhood center at Happy Hollow without funding sources other than that original round of debt. There may have been hope that we could get some of the high school renovations done through a combination of lower construction costs and private donations. For my own part, I recall having the sense at the time that I’d be inclined to skip the aquatic center if construction prices forced us to choose. Then I lost the 2016 election and that became someone else’s decision. Also, as it turned out, getting rid of the old pool was part of the plan to open up more academic space, so ultimately the decision was not as simple as “pool or no pool.”

After 2016, the assessed value in the school district grew, allowing the same tax rate to sustain a higher overall price and allowing the school to accomplish more on its project list.

In any case, part of the discussion getting lost in the current election rhetoric is that, even according to the October 2016 minutes, the calculation was that the tax rate would support a debt burden of $50 million but also, the school anticipated that assessed valuation would go up and support additional debt without raising the rate. Since 2016, the school has, in fact, issued additional debt  supported on the $0.5375 debt service rate and, with the additional money, the school worked its way down the priority list. It also bears mentioning that decisions made in 2015 and 2016 are not cast in stone. In the intervening years, we’ve had new elections, new board members, new challenges, and new decisions. Schools, like any other organization, adjust and adapt.There’s nothing inherently wrong about deciding that maintaining the tax rate and getting further down the priority list was more important than sticking to a price point that wouldn’t provide the schools with the facilities they need.

According to a Winter 2021 update from the school, the amount of debt ultimately issued was $83 million. Bonds were issued in 2017 ($47 million), 2018 ($15 million), 2019 ($15 million), and 2020 ($7.5 million). According to that same Winter 2021 update, the new elementary school (grades 4-6) came in at $29 million, renovations to our K-3 facility came in at $15 million, the Aquatic Center and Cafeteria came in at $12 million, James R. Guy Academic Wing (our new STEM area at the high school) came in at $13 million, the Bob Kelly Performing Arts Center came in at $8 million, and stair tower/second floor classrooms at $1 million. That’s $84.5 million in bonds and $78 million in construction. I think there is some bond money left over and there may be other renovations I have missed.

Growth in West Lafayette and Tippecanoe County is strong. The increased assessed value and a steady tax rate are adequate to support West Side’s bond payments.

The school’s September 2022 fiscal plan, reflects that revenues from the existing debt service tax rate will continue to meet bond obligations.The take aways: we spent more than $50 million, the tax rate has remained steady, we are financially stable, and we have good facilities for our students. And let’s not minimize that last point. We got something for our money. Adequate facilities are important to education and to the community. The candidates criticizing the expenditures were doing so at a candidate forum held in a room built with that money.

Predicting the future is fraught, but growth in West Lafayette and Tippecanoe County is strong. All indications are that assessed value will increase in our school district — in part because people want to move here because we have good schools with good facilities — and that rate will generate more revenue than the bond obligations require. Meanwhile, the existing bonds were obtained at favorable rates and, while in recent years, construction costs have escalated, it’s anyone’s guess whether they will decrease any time soon. In other words, the time to act on the improvements that West Side needed was in the past few years. Waiting likely would have made the process more expensive.

Debt Service revenue is not available to pay teachers or fund other operational costs.

The way the tax caps work in Indiana, spending less and reducing the school’s debt service tax rate below $0.5375 probably wouldn’t reduce taxes for most people, at least not on residential property with a 1% cap. (Landlords and owners of more expensive homes may have a beef, however.) For residents with less expensive homes, reducing the school’s debt service rate would mainly just mean that more of the money under the 1% cap would go to the other taxing units in the school district (e.g. city, county, library.)

Finally, the commentariat makes the predictable suggestion that we could spend more on teachers or other operational costs if only we had not wasted so much money on facilities. That’s not how these funding sources work.  The education fund and the debt service fund revenues come from different sources, so money not spent from the debt service fund could not be spent on teachers or other operational costs.

That’s my take on the situation anyway. I took the hint from my last run and am not on the ballot, so you don’t even have to vote for me!

West Lafayette School Board Race: Support for “Transparency” and “Divisive Concepts” Legislation

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I went with the General Assembly image because a picture of a turd in a punch bowl would be gross.

Cast your memory back, gentle reader, to February of 2022. In some ways, it was a simpler time. Reproductive rights were still mostly legal in Indiana. Russia mostly had not invaded Ukraine. And pretty much every person I knew who was involved with the educational system in West Lafayette agreed that HB 1134 concerning “transparency” was a terrible idea.

I know I’ve been critical of the General Assembly for its approach to educational policy over the years, but its really outdoing itself with the fire hose of shit it’s directing at our local schools this year.

The biggest turd in the punch bowl is HB 1134. Let’s start with its “transparency” requirements. (Transparency is good, right? Can’t be against transparency any more than you can be against God, Mom, and Apple Pie!) The new IC 20-30-17 requires school corporations to post a ton of curricular material for classes in the August preceding the school year. I’m not sure you can tell exactly what’s required because, IC 20-30-17-5(b), which really seems like it’s going to be the critical bit of that chapter does not seem to be written in a complete sentence. Not later than August 1 of each year, the school corporation is required to post, in a manner that is disaggregated, in a manner that is accessible, and in a manner that shows bibliographic information, …. something. It’s not clear what. The next subdivision says that a summary of educational activities (which is a broadly defined term) has to be posted as far in advance as possible, but it’s not at all clear what has to be posted by August 1. In any case, this is just another administrative burden heaped on the shoulders of teachers and administrators that is extremely unlikely to have any real world benefits. If a parent has questions about their kids’ education, how about just asking?

A similarly misguided effort at transparency or parental input or some other glittering generality would mandate a “Curricular Materials Advisory Committee.” Right out of the gate, it’s clear that the advisory committee has no jurisdiction over standardized tests. That could obviously cut into the College Board’s bottom line, and that just wouldn’t do. The advisory committee is directed to have more parents than educational professionals and to have a majority of people who don’t work for the school corporation. The advisory committee is charged with making sure educational materials “are representative of the community’s interests and aligned with Indiana academic standards.” Most communities have a wide variety of interests that sometimes conflict with one another, so that’s not terribly helpful guidance. They also will make recommendations about how to comply with the incomplete sentence about posting curricular materials.

Then there is the “CRT” inspired provisions that I discussed in an earlier blog post. All sound fairly inoffensive taken on their face (e.g. no one should be taught or forced to embrace the idea that a person can be racist simply by virtue of their race). But it’s more than suspicious that these bills are reactive to efforts to teach, for example, that racism has resulted in structural inequality that persists regardless of anyone’s individual intent. Politically, I think the right has deemed it advantageous to take advantage of a panic among parents that little Johnny might be taught to believe that he should feel guilty about being a racist because he’s a white boy. Regardless of the underlying substance, I’m on record as not liking the General Assembly dictating curriculum. Additionally, there is a provision that would create an incentive to bring suits by awarding attorney’s fees to a prevailing plaintiff (which could be an out of district advocacy group) while not awarding such fees to a school that successfully defends against a suit. (To get fees, the school would have to prove that the out of district advocacy group or whoever was litigating in bad faith — which is a very heavy lift.)

Finally, there are provisions limiting a school’s ability to provide social-emotional support to students. Candidly, I do not understand the nuances of these provisions. I don’t know the support services and recommendations schools are currently providing, how they are objectionable, and what schools would be permitted to do in terms of addressing social emotional problems that are affecting the students’ educational progress if this legislation passed. Friends of mine seem to indicate that this is sparked by questions of sex and gender.

One of our local journalists, Dave Bangert (whose Substack I would recommend to anyone in Tippecanoe County) asked the six candidates for the West Lafayette School Board their opinion.

Question: The Indiana General Assembly debated a pair of bills in spring 2022 that would have provided more oversight of classrooms, including asking teachers to post lesson plans at the start of the year so parents could review them and limiting how schools teach what were termed “divisive concepts.” Do you back those proposals. Why or why not?

Laurence Wang: Those proposals make sense to me. Communication and information sharing are two major ways to improve classroom transparency. Parents are ultimately responsible for their children’s education. When parents are more comfortable with what their children are taught in classroom, they will be more willingly to send their kids to our school. I believe classroom transparency will help WLCSC’s enrollment.

(Emphasis added). Perhaps not incidentally, Wang was also one of those who expressed support for charter schools. So, I differ strongly with him. Also, the idea that West Side’s enrollment is suffering because teachers are not posting their curricular material in August strikes me as not aligning well with the available facts. I’d say our biggest challenge in that regard is that we are landlocked. Unlike, say, our neighboring Tippecanoe School Corporation, there aren’t any cornfields waiting to be turned into subdivisions that will add more students. And, not for nothing, but teachers hated HB 1134 with a white hot passion. If you want to see teacher retention plummet, start embracing those sorts of policies.

West Lafayette Schools: Vote to Re-Elect Karen Springer, Winner of the 2022 Indiana School Board Association “Outstanding Boardsmanship Award”

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Re-Elect Karen Springer to the West Lafayette School Board

Continuing my advocacy for the West Lafayette Schools, a quick post to anyone paying attention that you should vote to re-elect Karen Springer to the board of the West Lafayette Community School Corporation school board.  It was recently announced at the Indiana School Board Association’s Fall Conference that Dr. Springer is the 2022 winner of the ISBA Outstanding Boardsmanship Award. Karen has done great work for the West Lafayette schools, and its fantastic to see her get recognition for that work not just locally, but state wide.

Our district has the best schools in the state. Niches.com released its 2023 rankings. West Lafayette is ranked the number 1 district in the State and number 8 in the nation. It is ranked #1 in the State as a place for teachers.  Karen is part of the reason. She and the school board have hired superintendents and administrators who, in turn, have managed the school in a way that has allowed the school to provide an environment where teachers can teach and students can learn.

As many of the readers here know, I filled a vacant Board seat in 2015 and 2016. During that time, Dr. Springer served as an outstanding mentor, happily and effectively answering any questions I had. Since 2017, I’ve had the opportunity to work with Dr. Springer more closely as a citizen member of the school corporation’s policy review committee. (My utility to the committee had more to do with my legal drafting skills than my policy sensibilities, I think.) Initially, the committee undertook a comprehensive review of all of the school’s policies, which then served as the basis for recommendations to the Board as to amendments. Following that, the committee met periodically to review existing policies as laws changed or the need otherwise arose. Dr. Springer’s institutional knowledge and meticulous attention to detail were and are invaluable. She had been through a similar review process a decade earlier and was able to provide insights from that experience. This is not glamorous work, but it is important work of the type which Dr. Springer performs diligently. And, obviously, that policy review process is just one small slice of the kind of thing that she is called upon to address as a member. Her steady service through the school corporation’s highs and lows has served the corporation well during the last several years which have been more turbulent than usual. During these times of passionate public interest, Dr. Springer has been able to respond in a manner that has been calm, reasoned, informed by experience, patient, and, where necessary, firm.

Dr. Springer has helped the school navigate so much — the Batagiannis superintendent drama, the state’s slashing of education funding in 2010, passing 2010 and 2017 local school referendums in response, and hiring quality superintendents, just to name some high profile stuff. Frankly, when a school board is working well, you never hear about the work they are doing. And, I can tell you, when it was time to drum up support for renewal of the referendum in 2017, Karen was there putting in the work to help it succeed. She wasn’t just passing the necessary resolutions for the board, she was helping with canvassing efforts to ensure public support.  She’ll be there again in 2024 when it comes up again.
West Lafayette voters get three votes for school board. If you like our schools, keep a good thing going, and cast one of them for Karen.

West Lafayette’s Karen Springer receiving the 2022 Outstanding Boardsmanship Award from the Indiana School Board Association at its Fall Conference for her work with the West Lafayette School Board.

Learning Loss from School Privatization

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“School choice” was always a pretext in Indiana. Also, it hurts educational outcomes.

The original rationale for “school choice” in Indiana was to empower parents with limited resources to take their kids out of “failing schools” and improve their education by putting them in better schools. Advocates for public funding of alternatives to traditional public schools barely even nod toward those original rationales anymore. Vouchers are available to even families that are relatively well-to-do. There is no requirement that the student has ever been in a public school, failing or otherwise. And, the evidence reflects that, on the whole, student outcomes are worse when they are moved out of the traditional public schools. Steve Hinnefeld has an excellent post on the subject today.

[T]horough evaluations of large-scale voucher programs – in Indiana, Louisiana, Ohio and Washington, D.C. – found overwhelmingly negative effects on learning as measured by test scores.

“We’ve seen some of the biggest drops in test scores that we’ve ever seen in the research community for people who take vouchers and go to private schools,” he said.

The impact on math scores, in some cases, was twice as large as the test-score decline associated with the pandemic, he said. It was on the scale of what New Orleans students lost when Hurricane Katrina shut down schools and forced families from their homes.

“They suffered that badly, in terms of their test scores,” he said. “We’re talking about nine or 10 months loss of learning. It’s massive.”

As always where Steve’s posts are concerned, I recommend reading the whole thing. So, if they’re actively hurting student outcomes, why do we keep throwing money at charters and private school vouchers instead of devoting that money to our public schools? Because, and I’d advise you to sit down dear reader, it was never about helping poor kids get out of failing public schools. “School choice” is about 1) subsidizing religious education, 2) weakening teacher’s unions, and 3) diverting public funds to friends and well-wishers of school choice advocates. Many have suggested that it’s also about re-segregating the public schools. But that wasn’t part of my original big 3, so I’ll just mention it in passing.

Charters can complement traditional public schools with tight regulation like what we’ve seen in Massachusetts. Maybe vouchers can too. But that’s not what Indiana will ever do because that’s not the point of the exercise. From the local level on up to the federal level, it’s important to vote for people who categorically support our traditional public schools. It’s important because there is more to the “public” part of public schools than merely government funding. It denotes a population with a common interest. We are not merely a collection of individuals, workers, consumers, or taxpayers. The concept of citizens and the public are closely aligned. Public education isn’t important merely because it serves the public, it is important because it creates the public. The school’s role as a public institution is something that often gets left out or ignored when the subject of “school choice” and vouchers are brought up. Disregard of the public school’s role in creating the public is a fundamental flaw in the “money-follows-the-child” model of funding education. And, as it turns out, school choice doesn’t help improve educational outcomes in any case.

Satanic Temple Sues Indiana Over Abortion Ban

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Tenet III – One’s body is inviolable, subject to one’s own will alone.
Tenet V – Beliefs should conform to one’s best scientific understanding of the world. One should take care never to distort scientific facts to fit one’s beliefs.

I used to regard the Satanic Temple as sort of the merry pranksters of religious rights activism. They have produced things like the Satanic Children’s Big Book of Activities and a giant statute of kids looking up to a seated Baphomet which they offer to state capitols that seek donations of religious statues. But reading their complaint and the attachment, what they’re doing seems a little less frivolous. With respect to Satan, they say, the Satanic Temple “venerates, but does not worship, the allegorical Satan described in the epic poem Paradise Lost – the defender of personal sovereignty against the dictates of religious authority.” They also cite their Tenets III and V in support what they describe as their “ritual of abortion.” Tenet III says, “One’s body is inviolable, subject to one’s own will alone.” Tenet V says, “Beliefs should conform to one’s best scientific understanding of the world. One should take care never to distort scientific facts to fit one’s beliefs.”

With respect to the “Satanic Abortion Ritual,” the attachment to their complaint says:

The Satanic Abortion Ritual is a destruction ritual that serves as a protective rite. Its purpose is to cast off notions of guilt, shame, and mental discomfort that a patient may be experiencing due to choosing to have a medically safe and legal abortion.

…

This ritual is intended to alleviate some of these stressors and empower the patient to be guided by the Third and Fifth Tenets when pursuing their decision. The purpose of the ritual is not to persuade someone to have an abortion if they are undecided. Instead, the ritual serves to assist in confirming their decision and to ward off the effects of unjust persecution, which can cause one to stray from the paths of scientific reasoning and free will that TST members strive to embody.

The ritual itself is described as consisting of looking at one’s reflection to remind the person of their personhood, reciting the third tenet prior to the abortion and reciting the fifth tenets.

The lawsuit is brought on behalf of unnamed “Involuntarily Pregnant Women” who seek to remain anonymous for fear of violent retribution from domestic terrorists motivated by animosity to proponents of abortion. The complaint describes zygotes, blastocysts, embryos, and fetuses, and clarifies that Indiana law deviates from the medical literature by describing all of these as “fetuses.” It then challenges the law as an unconstitutional taking of the Involuntarily Pregnant Women’s property rights in their uteruses without just compensation.

The uterus of an Involuntarily Pregnant Woman is a tangible thing in which she has
property rights, including without limitation, the property right to:
A. Have her uterus removed for any purpose, including without limitation, changing
her sex; or
B. Rent it out to a third party as a gestational carrier; or
C. Retain any blastocyst, embryo, or nonviable fetus in her uterus; or
D. Exclude any blastocyst, embryo, or nonviable fetus from her uterus;
E. Remove any blastocyst, embryo, or nonviable fetus from her uterus.

Citing the commercial value of gestational surrogacy, it challenges Indiana’s abortion ban as involuntary servitude in violation of the Thirteenth Amendment.

I don’t expect those property/servitude arguments to fly. But the complaint gets more interesting when it states that Indiana’s abortion ban impermissibly discriminates between those who become pregnant by incest or rape versus those who become pregnant by accident.


73. All women have the fundamental right to use contraception and engage in sex just for the pleasure and intimacy it brings and without any purpose or intent to become pregnant (“Protected Sex”).

74. The Involuntarily Pregnant Women engaged in Protected Sex but became pregnant without their consent due to the failure of their Birth Control.

75. The Indiana Abortion Ban imposes criminal penalties on anyone who provides an abortion to an Involuntarily Pregnant Woman.

76. The Indiana Abortion Ban does not apply to anyone who provides an abortion in the first ten (10) weeks of EGA to a pregnant woman who is pregnant due to rape or incest. Indiana
Code § 16-34-2-1(A)(2)(a).

77. The Indiana Abortion Ban discriminates between two different classes of women who are pregnant without their consent – women who are pregnant by accident and women who are pregnant by rape or incest.

It also challenges the disparate treatment between women who become pregnant by protected sex versus those who are pregnant by in vitro fertilization, citing IC 16-34-1-0.5 as excluding in vitro fertilization from the Indiana Abortion Ban.

Finally, the complaint argues that the state’s abortion ban violates Indiana’s Religious Freedom Restoration Act. (IC 34-13-9). (Unfortunately, later on – in paragraph 96 – they cite something other than the Indiana Code, section 73-401 et seq. A quick Google search suggests that this is a reference to Idaho’s RFRA.) Indiana’s RFRA is worded very broadly. Religious exercise is defined as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” I don’t see that the chapter actually gets around to defining “religion.” I have not done a deep dive, but I don’t think Indiana courts have grappled directly with this question. And, I think federal courts have grappled with it to a degree, but mainly focused on whether the religious belief was “sincerely held.” When you get into it, today’s “religions” are yesterday’s “cults.” And courts have not thought it their place to police whether any particular person is correct about how they are practicing a religion. So, even if the thinkers and the leaders say that Religion X dictates one thing, they aren’t going to dismiss a practitioner who sincerely believes that Religion X dictates a different thing. And even if you can argue that the Satanic Temple started as something of a joke, the longer it sticks around the greater chance that some of the people who support it will be utterly sincere in embracing its tenets.

I’m not optimistic that they’ll win this lawsuit, but it throws a bit more sand in the gears of the Indiana General Assembly’s efforts to take away the reproductive rights of Hoosier women and girls.

Update: People a lot more knowledgeable than me pointed toward an interesting law review article that’s relevant: “Forced Labor, Revisited: The Thirteenth Amendment and Abortion.” (One of the people observed that, “enslaved women were *literally* the means of production of valuable assets, and part of the legislative history of the 13th Amendment is that it covers their forced pregnancies as forced servitude.”) And, look, I get it – the argument that pregnancy is slavery is jarring. But, as the author notes, that’s largely because we view pregnancy through the lens of women who want to be mothers. I doubt the argument that state compelled pregnancy amounts to involuntary servitude will carry the day, but it’s worth reading (if even only to reject it afterward) rather than simply rejecting the argument out of hand.

The author dismisses the argument that women assume the risk of pregnancy by engaging in sex by making the analogy to a worker who is subjected to compulsory service under the guise of a contract. “A contract for service (already a pretty strange characterization of her “consent”) is consistent with the Thirteenth Amendment only if the contractor ‘can elect at any time to break it, and no law or force compels performance or a continuance of the service.'” I was happy to see the author engaged with the critique that family obligations were not the same as economic obligations. He replied, in part, “Child support obligations do not raise Thirteenth Amendment concerns because they do not require specific bodily labor from anyone; one can raise the money any way one likes, just like any other contractual obligation.”

For my part, I see this argument lost in the same morass that makes the rest of the abortion debate challenging: when and why is human life entitled to greater moral consideration than other kinds of life? People can and have written books wrestling with these questions. I’m not even going to scratch the surface with a blog post. The closer the zygote, blastocyst, embryo, or fetus is to a self-sufficient child, the more likely it is that have some moral duty at least not to go out of our way to let it die. This is obviously in conflict with the compelling rights of the individual mother. Whatever you think of the textual grounding of Roe, its practical balancing of these interests on the trimester model was fairly sound.

Indiana Secretary of State: Michael Leppert on Destiny Wells and Commitment to Service

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Michael Leppert has an excellent post on the Indiana Secretary of State race. When I graduated college and went to work at the State House in the mid-90s, I barely knew what the office did. But that was back when we had the luxury of taking our election infrastructure more or less for granted. With Trump enthusiasts attempting to tear down that infrastructure by, among other things, baselessly attacking the results of the 2020 election; election oversight by the Secretary of State’s office becomes much more important.

Somehow the issue of military service has become a dominant theme in the discussion of this race. Destiny Wells, the Democratic candidate, has highlighted her and has unquestionably served. Diego Morales, the Republican candidate, has also touted his military background, but the details of his service are … murky. From Leppert’s post:

All three candidates have military service in their backgrounds, with Democrat Destiny Wells a Lt. Colonel in the Army National Guard, having enlisted 19 years ago while a student at Indiana University. She deployed to Afghanistan in 2016-17.

There’s that word again: service. Wanting to be Indiana’s Secretary of State requires a primary desire to serve, really serve, in that role. And to do it without an eye on the next thing, or any number of other things, is what this time in our history requires also.

Morales has sought public office before, losing in the primary running for Indiana’s CD-4 in 2018. As a candidate for secretary of state, he initially rejected the 2020 presidential election results, calling it a “scam,” according to the Associated Press. He has since said President Biden is the legitimate president.

Wells, who announced her candidacy for secretary of state in January, told the Indiana Capital Chronicle that the 2020 election was not stolen and peddling that theory is a threat to democracy.

Ultimately, Leppert observes, Secretary of State is a position where we need a person who seeks to serve. Serve in a way that builds confidence in our voting systems. Wells’ background and public statements make it pretty clear that she’s better situated to do this.

West Lafayette School Board: Anti-Incumbent Candidates Receptive to Charters

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Charters are bad for traditional public schools in Indiana. Do not vote for candidates who embrace them.

On Thursday night, West Lafayette City Councilman David Sanders hosted a forum for the six candidates running for the West Lafayette School Board. It was not a lengthy affair. Opening, closing, and two questions that all of the candidates answered. One of the questions was fairly anodyne – what do you want to accomplish if you are elected? The second question, however, was a bit of a curve ball. He asked if the candidates supported charter schools. This really should have been a bunny of a question. If you’re running to be on the board of a traditional public school as strong as the West Lafayette Community School Corporation, there is no upside to embracing charters. You should be committed to keeping a good thing going.

The two incumbents, Witt and Springer, are categorically against charters. They’ve been in the trenches for many years and have seen how the Indiana General Assembly has used charters and private school vouchers to undermine the traditional public schools in Indiana. While it may work in other places, it’s a non-starter here. (As I’ve pointed out on this blog, Massachusetts has managed to make some productive use of charters, but it has a regulatory structure that the Indiana General Assembly will never, ever embrace.) A third candidate, George Lyle, seemed to recognize that as well, nodding toward the theory behind charters but not supporting the way they’re implemented here.

On the other side of the fence, we have an anti-incumbent group of three candidates. That this group is receptive to charter schools is a matter of concern. Wang and Mumford said clearly that they support charter schools. Janes who answered the question later in the line up and perhaps sensing the mood of the crowd, hedged quite a bit before ultimately landing on the the position that West Lafayette was not the place for them. [Update 9/26/2022: I’ve received feedback from people who disagree with my characterization of the Janes’ response. My recollection was an answer that spent most of the time allotted speaking to why parents would want charter schools before, as I said, ultimately landing on the position that West Lafayette was not the place for charter schools. I do not recall the opposition to charters being stated in the beginning of the answer or hearing anything that alluded to concerns about how the State has used charters to undermine public education in Indiana. I guess the quibble was with me calling this a “hedge.” Fair enough. If a video of the forum surfaces, I’ll take a look at it to see if my recollection is faulty. Memories being what they are, it’s possible I conflated some of her response with the Mumford answer since the two seem aligned on most issues.]

So, what’s wrong with charter schools? In a Facebook post, one of our teachers said she couldn’t support a candidate who supports charters. A person in the thread respectfully disagreed, arguing that competition is good. Well, what’s wrong with that? Isn’t competition good? Not the way things are set up in Indiana. In the Massachusetts example, the charters are tightly regulated with a lot of good oversight  by its state board of education so that charters and traditional public schools complement each other. In Indiana, on the other hand, it’s the wild west for charters. They don’t “compete” by the same rules. They fracture the school system, divert money from traditional public schools, and there is no evidence that students perform better in those charters — the outcomes are either the same or worse.

In Indiana, recently, the Indiana Virtual School and Indiana Pathway Academy were chartered by the tiny Daleville School corporation which received a fee of 3% of the charter schools’ state funding. The result was that they inflated their numbers to double what they could prove and, according to a State Board of Accounts audit spent more than $85.7 million with vendors who were connected with school officers or employees but failed to provide appropriate paperwork.
It used to be that a school board member’s attitudes about charters was not a matter of direct concern. To be sure, a candidate’s attitudes about charters is a pretty good proxy for their awareness of the challenges faced by traditional schools in Indiana and their level of concern for those challenges. If you think that what the Indiana General Assembly has been doing with charters is just a matter of providing a little “healthy competition,” you either haven’t been paying much attention or the stresses that state policy has put on our local schools isn’t a matter of great concern for you. But recent changes in the law have made this more of a direct concern for schools. Pursuant to IC 20-40-3-5, public schools are authorized to transfer money from referendum tax levies to charter schools operating in the school’s attendance area. West Lafayette’s current referendum tax levy will come up for re-authorization during these school board members’ terms of office. When that happens, we do not need members on the board who are at all sympathetic to charters.

Indiana Trial Court Temporarily Reinstates Reproductive Rights and Enjoins SB 1

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Liberty

“[T]hose who wrote our Indiana Constitution believed that liberty included the opportunity to manage one’s own life except in those areas yielded up to the body politic. The common law, our constitution, and Indiana’s statutes all reflect a commitment to self-determination.”

The Circuit Court Judge for Owen County, sitting as special judge in Owen County, has enjoined the enforcement of Indiana’s recently passed SB 1 which stripped Hoosier girls and women of their reproductive rights. The preliminary injunction was based on the court’s determination that Plaintiffs — a group including the ACLU and Planned Parenthood — were reasonably likely to prevail on the merits of their argument that Article 1, section 1 of the Indiana Constitution protects a right to bodily autonomy that SB 1 violates.

Article 1, section 1 provides:

WE DECLARE, that all people are created equal; that they are endowed by their CREATOR with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that all power is inherent in the people; and that all free governments are, and of right ought to be, founded on their authority, and instituted for their peace, safety, and well-being. For the advancement of these ends, the people have, at all times, an indefeasible right to alter and reform their government.

The court observes that the right to bodily autonomy had been recognized as judicially enforceable in a pair of 1855 decisions and that whether a right to privacy exists under the Indiana Constitution is an open question. The court further observes that, in 2004, the Indiana Court of Appeals recognized a right to abortion under Art. 1, sec. 1. However, that Court of Appeals decision was vacated when the Indiana Supreme Court took up the case in question. In finally deciding that case, the Indiana Supreme Court specifically declined to weigh in on whether the Indiana Constitution protects reproductive rights. The upshot is that the question remained open.  The trial court in this case has determined that the Indiana Constitution does protect reproductive rights inasmuch as the state constitution has been more protective of individual rights than has the federal rights.

The debates of our Constitutional Convention leading up to ratification of the current Indiana Constitution suggest that those who wrote our Indiana Constitution believed that liberty included the opportunity to manage one’s own life except in those areas yielded up to the body politic. The common law, our constitution, and Indiana’s statutes all reflect a commitment to self-determination.

The Court acknowledges that abortion was not lawful at the time the Indiana Constitution was ratified. However, this does not foreclose the language of Article I, § 1 from being interpreted at this point as protecting bodily autonomy, including a qualified right by women not to carry a pregnancy to term. The significant, then-existing deficits of those who wrote our Constitution particularly as they pertain to the liberty of women and people of color-are readily apparent. As Justice Boehm points out in his Brizzi dissent, “[i]n 1851 we had slavery in many states and Article II, Section 5 of the 1851 Constitution denied the right to vote on the basis of race. Married women had no property rights until they were conferred by statute in 1923. Both of these subjects were debated at length in the 1851 Constitution, but both were left in a state that, by today’s lights, is wholly incompatible with fundamental principles of ordered liberty.” Our analysis here cannot disregard this reality, particularly when considering questions of bodily autonomy.

…

It is without question that the State has an interest in regulating abortion. Plaintiffs concede as much at oral argument. State interests in abortion regulation can include protection of maternal health, preserving fetal life, maintaining societal ethics, promulgating medical ethical standards, and creating bright line rules distinguishing between infanticide and lawful abortion to name a few.

It is also without question that the judicially enforceable liberty rights that are reasonably likely to exist under Article I, § 1 are not unqualified. S.B. 1, however, materially burdens Hoosier women and girls’ right to bodily autonomy by making that autonomy largely contingent upon first experiencing extreme sexual violence or significant loss of physical health or death.

S.B. 1 also materially burdens the bodily autonomy of Indiana’s women and girls by significantly and arbitrarily limiting their access to care. S.B. 1 does so by requiring women and girls to seek treatment at hospitals or ambulatory surgery centers that are majority hospital-owned. The huge majority of abortions are performed in the clinic setting. The evidence supports that the hospitalization requirement is likely to significantly limit the availability of the procedure (even for currently excepted rape and incest victims), will likely significantly increase the cost, and is unlikely to increase the safety of Hoosier women and girls. The Indiana State Health Department’s own reports support the contention that abortion clinics are capable of safely providing the treatment.

(Internal citations omitted, emphasis added).

This is obviously just the initial salvo in the litigation. This being Indiana, I’m not terribly optimistic that the Indiana Supreme Court will ultimately adopt this reasoning. But, it’s definitely a fight worth having. And, the referendum in Kansas suggests that the kinds of draconian restrictions on reproductive liberty adopted by the Indiana General Assembly this summer are not popular, even in red states. So, maybe my pessimism is misplaced.

Nostalgia and Cynicism Masquerading as Wisdom

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I made the mistake of reading the newspaper comment section, and it brought to mind a couple of themes. First is how nostalgia distorts things. The tragedies of today resonate way more than the statistics of yesterday. So, you have people who compare the slings and arrows they are currently experiencing or the fire hose of Bad News from around he world on the one hand with the sepia toned memories of yesteryear, relieved of the clutter, chaos, anxiety, and other negativity that accompanied yesteryear as it was actually happening. It’s like thinking that the music of [pick decade] was so much better than today’s music. You’re comparing every song you’re hearing today against only those songs from the 70s or 80s that survived. Sure, “Billie Jean” was pretty catchy, but 40 years later, it’s not all mixed in with Vandenberg’s “Burning Heart.” The latest murder or robbery is pretty disturbing, especially if it happened in town. And it doesn’t really become less disturbing if I quote statistics telling you that violent crime in the U.S. is about half as prevalent now as it was 30 years ago. Things can *feel* worse even when they are objectively better.

The second was what I call cynicism masquerading as wisdom. Culturally, I think we just regard people who perceive or predict gloom and doom as being more serious than people who point out the good or even the stable and mundane. If you predict dangers that don’t materialize, people mostly don’t remember or care. Better safe than sorry, I guess. If you predict sunshine and rainbows prior to a disaster, people will roast you for it. Also, there’s a certain dog-bites-man quality to things working. It’s just not news. Man-bites-dog, on the other hand, deserves a headline. Given that bias for novelty, it’s easy to get the sense that everything is collapsing.

I don’t know that there’s a lot of help for these things. But, the anxiety associated with thinking you live in Fallen Times compared to the good old days isn’t healthy for us. I think the best we can do is probably to be aware of these dynamics, calibrate for them, and adjust our filters accordingly. Also, take a walk and talk to your friends, family, and other real people.