Social Promotion in New York Schools

With both an article and an editorial on the subject, lamenting Mayor Bloomberg's effort to end social promotion in the city's public schools, the New York Times takes the position that social promotion should be continued. Perhaps as a result, it is only in the last paragraph of the article on the subject that the following truism is raised:

Mr. Levine, of Teachers College, said both social promotion and holding children back were mistakes. "There is no win here," he said. "If you don't promote the kid, what happens is higher chance of drop-out, and also they're going to get the same instruction they got last time. If you promote them, you have a kid who hasn't mastered the previous material who is now being asked to master more advanced material."

It's easy to complain that social promotion is "necessary" to avoid social stigma and increased drop-out rates, but the New York Times fails to editorialize in favor of the costly intervention necessary to try to bring the failing kids up to grade. Pretending that there is no cost to promoting kids who are likely to end up underperforming throughout their public school careers, is not a solution - it's a variant of the same problem.

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Such a Lonely Word....

What do you do when you have a President who is scared of press conferences and reporters? Apparently, you hire actors, stage some fake press events, and release the video as if it is real.

TV news reports in America that showed President George Bush getting a standing ovation from potential voters have been exposed as fake, it has emerged.

The US government admitted it paid actors to pose as journalists in video news releases sent to TV stations intending to convey support for new laws about health benefits.

The doublespeak term for this type of fakery, apparently, is "Video News Release".

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Bush Administration Silliness

The Bush Administration knows quite well that there are foreign leaders - many foreign leaders, including leaders of long-time allies - who would love to see him go down in flames in the upcoming election. They also know that, not only in the name of good relations but also in the interest of not inspiring trademark Bush Administration retaliation, those leaders are unlikely to publicly endorse Kerry. Yet when Kerry speaks these facts, they try to depict him as a liar?

Here's a suggestion - Bush should simply demand that all foreign leaders publicly endorse him, and see who (other than Tony Blair) takes him up on the offer.

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Homeland Insecurity

The subject of the Madrid bombings has been discussed at considerable length, both through the traditional news media and throughout the so-called blogosphere, but with so many unknowns the analysis hasn't seemed particularly helpful. The central issue for me is less that of whether Al Qaeda was behind the attack, and more a matter of how we prevent attacks of this type and magnitude from occurring. Unfortunately, here and in Spain, the answer so far has been, "We don't try very hard." Here, we step up security at airports, divert most anti-terrorist "homland security" money to rural states where attacks are far less likely, switch the "alert level" back and forth between orange and yellow, and hope that nothing will happen.

When an attack like this happens, some right-wing types invariably announce that it is our own fault for not living in constant fear, and recognizing that we are in a state of perpetual war (and don't forget to reelect George Bush). A more sane response is that, while terrorist incidents are frightening, the terrorists only "win" if we accede to being terrorized. The rationale of terrorism is that, when up against an enemy that is too large or formidable for traditional attack, you commit acts which create fear in the public and attempt to coerce concessions through that public fear. Granted, that particular set of right-wingers aren't arguing that we give concessions to terrorists - they are only asking that we give up our civil liberties (here and in the U.K.) - but in the sense that they ask us to give in to our fear they are asking us to let the terrorists "win". When they express contempt for those who refuse to be terrorized, they are simply revealing their own cluelessness (or, in some cases, duplicity).

It seems like the Madrid bombing is waking Europe up to the fact that a lot more must be done to prevent additional terrorist attacks. Politicians, surely, are also taking note of the fact that the Spanish people, apparently feeling betrayed and perhaps deceived by their Prime Minister in his support for Bush and the war in Iraq, have just implemented a regime change of their own, handing the socialist party an electoral victory. This may be followed by Spain's withdrawal from Iraq.

A question nobody is asking, perhaps because it seems tired, is why the Bush Administration took time out from the "war on terror" to invade Iraq. Oh, sure, there are the stock "answers" which are every bit as tired as the question - leaving aside the deception about Iraq's ties with Al Qaeda and its apocryphal WMD stockpiles, there's the idea that would-be terrorists will be drawn to Iraq instead of attacking western cities, that we will experience cascading democratization and liberalization throughout a corrupt and dictatorial Middle East, that terrorist states will be deterred by seeing the power of the U.S. military... are there others? But none of those answers really speak to the question, and perhaps the media can be faulted for letting the question become so tired without pointing out the fact that it has yet to actually be answered.

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We hold these truths to be self-evident....

Using a number of high-profile issues, Dick Meyer presents an analysis of the Bush Administration's veracity:

What's different is that the Bush administration stands accused of politicizing and bullying processes of the government that are designed to be above the fray of partisanship and ideology, such as intelligence gathering and science policy-making. Put bluntly: they don't much care about facts, science and truth.

He concludes,

Certain functions of government, much like the judicial system, are supposed to be insulated to as much as possible from partisanship and politics. This administration seems to have a pervasive and profound scorn for that idea. In its place, it has an abiding confidence in its own righteousness. And in this, President Bush leads by example.

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Refusing Major Surgery = Murder?

As you may have heard, a woman, reportedly mentally ill, has been charged with murder after declining a caesarean section delivery of the twins she was carrying. This is apparently premised upon a warning she received, that one or both twins could suffer brain injury or death if she declined the surgery.

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The Prattle of the Coulter

For some reason, pretty much every columnist these days feels obligated to write about Mel Gibson's "The Passion of the Christ". Ann Coulter just added her two cents - although I am probably overvaluing her contribution.

William Safire, the New York Times' in-house "conservative" – who endorsed Bill Clinton in 1992, like so many conservatives – was sure Mel Gibson's movie "The Passion of the Christ" would incite anti-Semitic violence. Thus far, the pogroms have failed to materialize.

Did you get that, folks? You were kidding yourself all these years if you thought Bill Safire was a conservative.

Coulter's focus seems to be on anti-Semitism - denying that Gibson's film could inflame anti-Semitic attitudes - but her editorial suggests to me something very different. It suggests to me that, beneath a thinly stretched surface of pseudo-Christianity, Ann Coulter has a very low opinion of Judaism. Beyond her comments suggesting Safire doesn't 'get it' (apparently because he's not Christian), she continues,

But again I ask: Does anyone at the Times have the vaguest notion what Christianity is?

How can I interpret that, as a comment about an organization she knows has a heavy Jewish editorial presence, particularly on the heels of her attack on Bill Safire?

Coulter concludes by reaffirming that she hates all Muslims. But I am left with the uneasy feeling that her opinions toward Jews aren't much different.

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Outsourcing Jobs

Thomas Friedman has recently taken up the issue of the loss of American white collar jobs to overseas outsourcing. In his first editorial, through a series of questionable assertions, he assures us that American ingenuity will miraculously make up for any job loss. Today, he tells us that overseas outsourcing involves "good news and bad news":

The good news is that a unique techno-cultural-economic perfect storm came together in the early 1990's to make India a formidable competitor and partner for certain U.S. jobs — and there are not a lot of other Indias out there. The bad news, from a competition point of view, is that there are 555 million Indians under the age of 25, and a lot of them want a piece of "The Great Indian Dream," which is a lot like the American version.

If you're an American worker, I'm not sure how that qualifies as good news.

Don't get me wrong - I'm all for economic development, and am impressed by India's effort to provide opportunity for its people and to lift itself out of horrific poverty. I am also of the opinion that, were the U.S. economy generating jobs, this would not be a significant concern for U.S. workers - we are most concerned about "those people" taking "our jobs", whether the jobs are performed by immigrants or are performed in overseas factories and companies, when the unemployment picture is dire. If people are happy and secure in their employment, they generally aren't concerned that other people, also, are getting good jobs.

As he started with a reference to historic concerns about the auto industry, I had thought that Friedman was going to touch on that fact. But he didn't - perhaps because, despite his confidence in American ingenuity, he can't answer the tough questions people are asking. How will American workers obtain good, secure employment, such that they can count on being paid? How will they obtain benefits such that they can provide health care for their families? How will they save for their kids' college tuition? We aren't even creating enough jobs to keep up with the expanding workforce - how will their kids get jobs when they graduate from college?

No answers, of course, from Friedman's corner.

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Safire Goes "Paleo"

Sometimes Safire betrays the fact that he used to actually be a conservative, as opposed to whatever he is today, as he did with his editorial on privacy:

Terror's threat is real. But as we grudgingly grant government more leeway to guard our lives, we must demand that our protectors be especially careful to safeguard our rights. Officials all too often fail to see both sides of their jobs.

As reported last week by Robert Pear and Eric Lichtblau in The Times, the Justice Department said that medical patients "no longer possess a reasonable expectation that their histories will remain completely confidential."

This abhorrent philosophy underlies a counterattack launched by Justice at doctors who went to court to challenge the federal Partial Birth Abortion Ban Act. Most Americans, including many who are pro-choice, favor that legislation. I think the doctors are mistaken in their constitutional objection. But in defending the law, Attorney General John Ashcroft went overboard.

Meanwhile, the Boston Globe suggests that the Bush Administration's encroachments on our rights are much greater than most recognize.

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Chastity

Rich Lowry today tells us of the glories of chastity, and suggests (based upon statistics which don't really support his thesis) that there is no inevitability to teenage sexual activity.

A couple of observations....

First, "conservatives" like Mr. Lowry never seem to speak from first-hand experience. That is, despite their ostensibly perfect morals and extraordinary self-control, they never assert that they, themselves, were abstinent as teens - let alone that they were abstinent until marriage. In most cases, they were not.

Second, "conservatives" have never had a problem with teen sexuality and teen pregnancy - within the so-called "confines" of marriage. History tells us that this debate is about social control, not about age.

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Osama Captured?

Well, not yet. But, "as a service to readers and nascent conspiracy theorists", the Guardian has published a notice of his capture "several months ahead of schedule".


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Same Sex Schools

The Bush Administration is now in favor of same sex schools. I wonder to what extent this would affect students' dating preferences....

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The "War"

It is interesting to read columnists like George Will suggest that it is somehow a failing of the American public, or a testament to the great victories of Bush, that we don't perceive ourselves as first and foremost a nation "at war".

In February the president said he is running as a "war president." But the country decreasingly feels at war. That is a tribute to the president's defense of America since Sept. 11, 2001 -- perhaps the most successful 30 months of national security policy in American history. But it also is a political problem for the president. In December, McInturff found that among voter concerns, "affordable health care" ranked as high as "terrorism and national security" and well behind "the economy and jobs."

As I recall, Bush's advice to the people of America on how they could support the war effort boiled down to, "Pretend nothing is different and go shopping". Somehow, I find a stark contrast between this and what was suggested during prior periods of war, particularly those periods when the American people felt that they had great war Presidents.

Let's be honest for a second - the only reason Bush wants to be a "war president", and why pundits like Will want him to be treated as a "war president", is that various public opinion polls suggest that the American public trusts Republicans more than Democrats with matters of national security. If the polls said something different, Bush might be talking about what a great "peace president" he is - and his nascent "Pax Americana".

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Well How About That....

Nicholas Kristof has finally noticed that corporate executives are typically paid in gross disproportion to the work they perform, without regard to the quality of their management or the effect on stock value, and without regard for the market value of their labor.

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Spell-Checking Only Goes So Far....

The New York Times describes a federal magistrate's displeasure with a lawyer's pleadings, a sample of which follows:

Had the defendants not tired to paper plaintiff's counsel to death, some type would not have occurred. Furthermore, there have been omissions by the defendants, thus they should not case stones.

The magistrate reduced the lawyer's request for fees on the basis of the errors.

In one letter, Mr. Puricelli had given the magistrate's first name as Jacon, not Jacob.

"I appreciate the elevation to what sounds like a character in `The Lord of the Rings,' " Magistrate Hart wrote, "but, alas, I am only a judge."

Almost simultaneously, according to the same article, a federal appeals judge scolded a lawyer for his composition skills:

"While I appreciate a zealous advocate as much as anyone, such techniques, which really amount to a written form of shouting, are simply inappropriate in an appellate brief," Judge Orme continued. "It is counterproductive for counsel to litter his brief with burdensome material such as "WRONG! WRONG ANALYSIS! WRONG RESULT! WRONG! WRONG! WRONG!"

But at $150 or more per hour, what can you really expect.... (Seriously, though, some of us lawyer types write pretty well.)

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Autopsies

The New York Times today discusses the importance of autopsies at hospitals, suggesting that they can help us better understand the human body and its diseases. The editorial notes that one of the reasons for the diminished number of autopsies is fear of malpractice litigation - when an autopsy reveals clear medical error, as historically has often been the case, there is a potential that the autopsy results will inspire or strengthen a malpractice action against the hospital or its doctors.

With all due respect to fear of litigation, please note that the concern is not about frivolous litigation but is about well-founded litigation premised upon the unbiased findings of a medical examiner. I am certainly not one to argue that autopsies should be performed to help malpractice lawyers, but I will argue that they should not be avoided in order to protect doctors and hospitals from their culpable errors. If the medical professions did a better job of policing themselves, and of keeping their less competent peers from treating patients, we would probably see an overall decrease in the cost of malpractice litigation and the cost of malpractice insurance. Hiding from the facts permits the medical professions to avoid some unpleasant internal confrontations, but it can only serve to hurt the patient.

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Drug Policy

Imagine a world where the government had complete control over all channels into the country - air, land, water, everything. Where all incoming and outgoing mail is monitored. Where computer access, and moreso Internet access, is largely unavailable to prevent inappropriate communication. Where police seem omnipresent, and failing to immediately heed their orders will result in sanction and perhaps in severe penalty. Where the state tells you when to get up in the morning, what you will do during the day, what you will wear, when to eat, what you will eat, and when to go to bed - even when you can shower. Even when and under what conditions you can see your spouse or children. Where the state controls what you watch on TV, and doesn't permit access to programs, movies, or reading materials that may be "disruptive to order". Where the genders are kept segregated, and where a gathering of four or more persons is likely to be quickly broken up by the police (with participants in the gathering subject to being charged with gang activity).

Not North Korea - I am describing the restrictions on liberty imposed by a typical prison in the United States. But if you speak with a prisoner, you will learn that despite this level of state control, drugs are freely available in prisons. Often of a higher quality than on the streets, and usually at a lower price.

If we can't win "the war on drugs" in prisons, who are we fooling with the notion that our present drug policies make any sense at all?

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Public Relations

According to Reuters,

A group of Israelis has joined a court challenge against their government's West Bank barrier for the first time out of concern it could turn their good Palestinian neighbors into deadly enemies.

* * *

"These Palestinians never sent terror to us. They are faces we know. No one can claim they are not people of peace," said Shai Dror, 60, a landscaper who co-launched the petition drive in this upscale suburb just off the Jerusalem-Tel Aviv motorway.

Forget the propaganda for a moment. Often it is too quickly forgotten in that conflict that there are Israelis and Palestinians who desperately want a fair, just and lasting peace.

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Are You A Bigot?

Without apology to Maggie Gallagher:

ARE YOU A BIGOT?
By Maggie Gallagher

The latest complaint about President Bush: By endorsing a federal marriage amendment, he is "writing discrimination into the Constitution." Rosa Parks called the president's words "vile" and "hateful."

Maybe she's so angry because she knows she is on the losing side of history. CBS News recently asked: "Would you favor or oppose an amendment to the U.S. Constitution that would allow marriage ONLY between people of the same color?" In December, the American public split 55 percent to 40 percent in favor. By last week, 59 percent of Americans favored an federal marriage amendment, and just 35 percent opposed it.

The more Americans hear about interracial marriage, the less they like it.

And it's not just Republicans or conservatives: 55 percent of Democrats support a constitutional amendment defining marriage. Perhaps Americans increasingly realize that only a national definition of marriage will end the current lawless circus, with elected officials flouting the law and judges busily rewriting it. (The mayor of Nyack, N.Y., just announced that, in his jurisdiction, interracial marriages will be recognized; the mayor of New York City is being pressured to do so.)

Absent a constitutional amendment, marriage will end up a political football, tossed about by judges like those in Massachusetts: four people so arrogant, ignorant and mean-spirited they can't think of a single reason why keeping the normal definition of marriage matters. Judges and politicians like that imply that the 60 percent of black Americans and 60 percent of white Americans in a November Pew poll who say they oppose interracial marriage must be motivated by "animus."

Translation? You're a bigot.

Take a moment and listen: Interracial marriage advocates are saying there is no difference between two whites being intimate and a white and a black, even when it comes to raising children. They are saying that the opposite idea, that mothers and fathers both being of the same race matters, is a form of hate, ignorance, animus, bias. That's why they claim that the normal definition of marriage is "discrimination."

Do you need more evidence that accepting interracial marriage is not a small add-on to our marriage laws but a radical transformation of them? If preferring husbands and wives who can have same-race children together is "bias" or "discrimination," then people like me who hold such views are bigots. In the America that the National Association for the Advancement of Colored People (NAACP) dreams of, the idea that children deserve mothers and fathers of the same race will become the legal and moral equivalent of racism. Their logic leads not to live-and-let-live tolerance, but to an ugly culture war, using the law to root out public expression of such "prejudices." Public school curriculums will be changed to teach the new social norms to your kids (they are already being developed). Tax-exempt status for faith-based organizations that fail to adhere to the new religion will be at risk.

What about laws against same sex marriage? Same sex marriage laws had nothing to do with the great, historic, cross-cultural purposes of marriage. They were about keeping the straights and gays separate so that heterosexual married couples could receive special governmental privileges and benefits. By contrast, it is simply ludicrous to imagine that same sex marriage was dreamed up in order to express animus toward anyone. Today, one-third of babies are born outside of marriage and end up in single parent families; the deep, ongoing need for an institution that points couples to the only kind of sexual union that protects both them and their children could not be clearer.

Imposing interracial marriage laws is not like striking down bans on same sex marriage. Selma is not San Francisco. A constitutional amendment is not a national crisis.

Our founding fathers deliberately designed the process to be difficult, so that only the most worthy proposals could pass muster.

Marriage is increasingly looking like one of those rare issues: not a wedge that divides, but a cause that unites Americans.

(Readers may reach Maggie Gallagher at Maggie@imapp.org.)

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The Ghosts of Clients Past, II

Yesterday, the New York Times ran an editorial by John Edwards on the issue of trust, in which he recounted the trust invested in him by a client severely injured by an excessive dose of medication. I was reminded of the days when I practiced criminal defense. Yes, clients place a great deal of trust in their lawyers in relation to personal injury cases, but at the end of a personal injury trial nobody goes to jail. That is not always the case - that is often not the case - after criminal trials. The easy cases tend to plead out. The remaining cases for the most part split into two categories: Clients who have nothing to lose, and clients who have everything to lose.

The former group is composed largely of defendants who have been offered to meager a plea bargain, or no plea bargain at all. They don't have much hope of winning, but see little downside in "rolling the dice" with a jury. The latter group contains clients who have a strong innocence defense, or who are in fact innocent. Prosecutors are very resistant to claims of innocence - to do their jobs well, they have to believe that the system works, and that they would never prosecute an innocent person. And most prosecutors seem to quickly develop absolute confidence that every defendant in every case is absolutely guilty.

The innocent client is often faced with a terrible choice, between a plea bargain that extends a shorter term of incarceration or even probation, or the possibility of a long term of incarceration if convicted at trial. It is not easy to be a defense attorney trying to guide a defendant through that decision process. While most defendants are guilty and are eager for a good plea bargain, an innocent client is understandably loathe to admit any guilt. And perhaps continues to operate under the illusion that an acquittal will somehow "clear their name" - in reality, clouds of doubt usually linger even after acquittal. People readily accept a guilty verdict as proof of guilt, but are often suspicious of acquittal.

I had a client who was charged with a serious felony offense, and who faced a long prison term if convicted at trial. He was a father and husband, disabled from his prior physical employment by a congenital medical condition, and was trying to improve life for his family by pursuing an associate's degree. His wife was also enrolled in classes. He was adamant that he was innocent. The prosecution was premised upon the report of a police "expert", whose credentials were that he had attended a two-week police training course, and had assisted a more experienced investigator in a small number of prior cases. The errors in his analysis of the alleged "crime scene" were astonishing - but the prosecutor did not care. She was absolutely convinced that my client had to be guilty - the circular reasoning alluded to above: He had been charged with a crime, and she was prosecuting him, so he was guilty. If he were innocent, after all, she wouldn't be prosecuting him.

The prosecutor's ethics were more than a little bit shady. She intentionally withheld exculpatory evidence. She attempted to present exhibits to the jury while blocking my view of the exhibits, and complained to the judge that I was "trying to read her notes" when I moved to a position where I could see what she was doing. She made faces during my examination and during witness testimony. She coached the police "investigator" as to how to testify about the errors in his report, which were rather horrendous. She concealed a witness who possessed a key piece of evidence until rebuttal, in an effort to sandbag the defense. The judge had been recently appointed to the court, and made a sincere effort to offer a fair trial, but (as is quite typical) when in doubt about the state of the law his tendency seemed to be to rule against the defense. The prosecutor very much took advantage of that inclination, and routinely argued for exclusion of defense evidence that she knew was admissible, and for the inclusion of her improper "rebuttal" witness.

This was not the first case I had tried, but it was the first where I had a strong feeling that my client was innocent. He was very open with me, his story was plausible, and I was still rather stunned by the sloppiness of the police work. But he really won me over after we closed our defense and the prosecutor announced her improper rebuttal witness. Taunting me after a session of court, she had declared, "My rebuttal witness has evidence which proves your client is lying." I told my client this, and he didn't even flinch. "Don't worry about it," he said. "She can't have that evidence, because I'm innocent." He was correct. The witness (a gloating former police officer, more than happy to participate in the withholding of key physical evidence) testified, we presented our arguments, and early the next morning the jury acquitted.

Unlike any other trial I conducted, this one grabbed me by the gut and twisted hard. I barely slept from the first to the last day of trial - probably two hours per night - and had almost no appetite. My whole being was focused on achieving justice for my client. He trusted me, and that was a trust I could not betray. This, to me, is a very different sort of trust than is extended by a client in a civil case. That's "trust with my money" - this was "trust with my life".

I am grateful to the jurors who heard the case for working through a lot of difficult evidence and argument, and for taking their oaths as jurors so seriously. They taught me a valuable lesson, also, about the damages awards that, at arm's length, seem so absurd. When they deliver those verdicts, juries are trying to achieve justice. They aren't concerned with headlines or how the facts of the case will be twisted by "tort reform" advocates on the payroll of insurance companies. They are making a sincere effort to right a wrong against an unremorseful, unapologetic defendant (and I have yet to see such a verdict where the defendant acted apologetically or took even partial responsibility for the consequences of its conduct), and money is the only sanction they are permitted to impose.

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