All things excellent are as difficult as they are rare.


04 July 2011

Sic Semper Tyrannis

Note: That's an ablative plural Tyrannis up there, not the traditional dative (although they look the same, down to the long vowel). I mean to say something less like "Thus do we always render up to tyrants our vengeance" and something more like "Thus always is the manner of the tyrants." It's meant as a warning not to the tyrants, but to the populus. Please enjoy the rest of your post.

What the hell is up with laws that have waivers in them? From Education Week, I learn:

Duncan, who predicts 82 percent of schools will be labeled failing this year, has declared the law broken. If Congress does not rewrite it, he has said he will grant waivers to states to bypass its key components.

The Council of Chief State School Officers, (which now represents all states but Texas), plans to lead an orchestrated effort to flood the department with waiver requests that would allow states to use their own accountability models, which would be based on a common framework.

Kentucky is out in front on this, and already has asked for permission (unlike the Idaho way of ask-forgiveness-not-permission) to use its own accountability model.

Duncan & Co., who so far have refused to articulate their waiver plan, are at risk of losing control of this debate over what happens to NCLB in the interim.

Let me back up. There's a very famous quote of which many people -- particularly but not exclusively those moderns who call themselves "progressives" -- are excessively fond. It reads thusly:

The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.

I've always had a sort of ambivalent appreciation for this quote. On the one hand, Anatole France has a point: when you're prosecuting people who sleep under bridges and steal bread, you're pretty much deciding to prosecute poor people. On the other, you're prosecuting them for an action, not merely because they are poor. No one is going down the street and saying, "Hmmm. You look poor. You're probably the sort of person who is going to sleep under a bridge and steal bread, and that's trouble, so we're going to arrest you for being poor." (Actually, the authorities do do just that, with vagrancy laws and startling regularity, but that's a separate issue that I'll discuss on another distant day.)

The reason I'm ambivalent is that I don't object ex ante to laws that outlaw activity, but I do object ex ante to laws that outlaw identity. In other words, I'm a fan of Equal Protection. If a law says "Black people need to ride in the back of the bus", well, supporters of the law could argue (pathetically) that the law is applied equally to whites and blacks: everyone is equally subject to the law, after all. It just has differential outcomes for different groups of people.

Of course, the differential outcome here, unlike in the case of vagrancy and theft laws, are written into the law. And that's what makes the law a bad law. The vagrancy law isn't a bad law on its face; it's just that when put in full context and coupled with biased enforcement, it becomes something nasty.

Anyway, here's what the NCLB Act says:

`(a) IN GENERAL- Except as provided in subsection (c), the Secretary may waive any statutory or regulatory requirement of this Act for a State educational agency, local educational agency, Indian tribe, or school through a local educational agency, that —

(1) receives funds under a program authorized by this Act; and

(2) requests a waiver under subsection (b)

In case you were wondering, the restrictions in section (c) aren't restrictions on how the Secretary is allowed to exercise his discretion in granting waivers, but rather restrictions on what parts of the law he is allowed to waive.

Think about a similarly crafted murder statute:

(a) IN GENERAL - Except as provided in subsection (c), the Sheriff may waive application of this homicide statute to any person who:

(1) is subject to prosecution under this act; and
(2) requests a waiver in writing

Would you feel safe, being protected by such a law? What if it were a law that forbade driving a gas-powered vehicle (for the environment, of course)? Using incandescent light bulbs? Gas for me and my friends, says the Secretary of Energy, but bicycles for you. Warm, solid light for our homes but flickering, cold light for thine.

The very idea that a law has a provision for waivers built into it is dictatorial, and a blatant violation of Equal Protection -- not in the "discrete and insular minority" sense (that would be a question of a challenge against enforcement and application of the waiver provisions), but rather in a very fundamental "This law on its face does not apply to every citizen equally, though we'll have to wait and see who gets screwed" sense.

Sic Semper Tyrannis: Gold for me, but not for thee. Freedom for me, but not for thee. Differential treatment under the law is the cornerstone of tyranny and dictatorship.

Obviously, this is just as applicable to discretionary waivers of Obamacare or waivers of any other program. If your law sucks so badly that you need to be able to waive its application, rewrite the damn law.

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