Notes I tried my best to compile and clean-up. Here’s a car: Case

Federalism

Title IX is an expansion of federal power

We face, as the book’s subtitle puts it, the unchecked expansion of the state. That unchecked power did not begin with Obama, but his administration has pushed us far into uncharted waters of uncontrolled executive power. As a result, the people’s liberty has taken a beating and the old concept of the rule of law has become a bad joke.

Readers will probably be at least somewhat familiar with most of the topics covered, including the legerdemain of Obamacare, the administration’s efforts to prevent people from acquiring guns and ammunition, the unprecedented aggression of the National Labor Relations Board in pushing unionism, Operation Choke Point’s illegal strangling of lawful businesses through abusive banking regulation, interference in state voting laws where it helps Democrats, the IRS’s targeting of groups that oppose Obama’s agenda, the funneling of settlement money into left-wing activist organizations, and much more.

Seeing all of those usurpations of power and perversions of the rule of law discussed in one place gives one a heightened sense of anxiety over the nation’s future. Are we past the point of no return?

In his introduction, Reuter maintains that we are “dangerously near a tipping point” in that the balance of power is so eroded that the very concept may be irretrievably lost. Preserving that concept, he writes, “requires a certain faithfulness by all.”

Unfortunately, most leftist politicians today do not act in good faith toward the document they are sworn to uphold. The balance of power inhibits them because it makes governing slow and deliberate, requiring compromise and the willingness to take “no” for an answer. But they’re impatient to get things done and happy with the breezy idea expressed by Democratic consultant Paul Begala, “Stroke of the pen – law of the land. Kind of cool.” That, however, is not how our government was supposed to work.

It isn’t possible to do justice to each of these meaty essays here. I will concentrate just on a few that exemplify the extraordinary overreach of the Obama administration.

Consider the Second Amendment. The Left loathes the idea that citizens have the right to keep and bear arms and has engaged in an ugly campaign against it. In his contribution, former House member Bob Barr details the non-legislative, extra-legal means employed by the Obama administration to undermine that right.

One of them was “Operation Fast and Furious,” a gambit undertaken by the Department of Justice to sell firearms to Mexican drug cartel figures with the intention of demonstrating the supposed need for a greater crackdown on arms sales. Some of the weapons involved in this rogue plan were used in the gun battle that cost a border patrol agent his life in 2010. But when Congress investigated and sought information about Fast and Furious, Attorney General Eric Holder refused to turn over documents and was then held in contempt of Congress. That, however, had no impact at all.

nother abuse of power is Operation Choke Point, an illegal program aimed at destroying legitimate businesses that sell guns and ammunition (as well as those in other lines of business that Obama administration officials find unsavory, such as payday lending and coin sales). The way it works is by having the Federal Deposit Insurance Corporation pressure banks into refusing to continue to deal with these kinds of businesses because they are “high risk,” as declared by the administration. No law authorizes this ideological vendetta against legitimate businesses and when Congress looked into it, the response from Attorney General Lynch was merely a promise to “look into it.”

Another instance where executive department bureaucrats simply made up the law to suit their whims (and push a useful political narrative) is the Education Department’s imposition of standards for the way colleges and universities must handle cases where sexual assault has been alleged. No statute gives it that authority, but under its “interpretation” of the law and a rule promulgated without adhering to the Administrative Procedure Act, Department officials decreed that colleges must follow their dictates.

In their essay on this, Greg Lukianoff and Samantha Harris of the Foundation for Individual Rights in Education show how the vague language of Title IX of the Education Amendments of 1972 has been twisted to mean not just that schools receiving federal student aid money cannot discriminate against women (the statute’s clear intention) but to give the Education Department carte blanche to dictate every aspect of school policy having anything to do with sex. Under the Department’s “guidance letter” in 2011, colleges risk the loss of government funds unless they do their utmost to prevent and punish all conduct that might be deemed “harassment.”

This has First Amendment implications, the authors note: “If a listener takes offense to sex- or gender-related speech for any reason, no matter how irrationally or unreasonably, the speaker has engaged in sexual harassment.” So we now have college officials frantically monitoring for speech that might lead to an investigation by federal bureaucrats.

States backlash in opposition of expansion of Title IX power

The decision to join Kansas in a direct challenge to the federal action comes after a federal appeals court in Virginia yesterday declined to reconsider its earlier ruling that upheld the legal reasoning behind the administration's policy. In that case, Grimm v. Gloucester County School Board, a transgender student sued a local school board over its requirement that students use the bathroom associated with their biological sex, not their gender identity. Although the district also made a private, unisex bathroom available for any student's use, the Fourth Circuit Court of Appeals held that was insufficient to satisfy the Title IX prohibition on "discrimination based on sex."

"I had hoped the Virginia case could quickly resolve this issue by confirming the longstanding traditional understanding that Title IX applies to biological sex, not gender identity," said Schmidt, who had filed a brief in the Virginia case in support of the school board. "But today's refusal by the appeals court in Virginia to reconsider its earlier flawed decision means our only option is to pursue a more direct challenge to the Obama administration's unlawful efforts to unilaterally rewrite Title IX."

Title IX of the Education Amendments of 1972 prohibits discrimination in education “on the basis of sex.” Earlier this year, the Obama administration announced that it was reinterpreting “on the basis of sex” to include gender identity in addition to biological sex.

Schmidt said he has consulted with Governor Sam Brownback, who favors joining litigation in this matter, and now will join Kansas as a plaintiff in a direct legal challenge to the federal action. He said he is reviewing whether to join the 11 states, led by Texas, that filed suit on the subject last week or file a separate similar lawsuit shortly.

“The bottom line is that Kansas will challenge the Obama administration’s attempt to unilaterally rewrite Title IX in an unprecedented way that further expands federal power," said Schmidt, who noted his office is in touch with numerous other states to coordinate legal strategy on this matter. "In our federal system of government, not every decision needs to be handed down from Washington, and this is a matter best left to state or local authorities, including school boards, as it traditionally has been - and as the law requires.”

Title 9 increased power violates the resolution

Since May, the U.S. Department of Education has held hostage school districts across the country by saying it may withhold precious federal funding if its Office of Civil Rights determines they have not complied with its (incorrect) interpretation of Title IX.

The “Dear Colleague Letter” that agency issued to schools in May declared that transgender identity is included within the term “sex” in Title IX, so any school that prevents a transgender student from using bathrooms or changing facilities that comport with the student’s gender identify, as opposed to his or her anatomy, is in violation of Title IX and jeopardizes federal funding.

Schools that had been offering reasonable accommodations to such students—which has been every school I’ve found in researching the issue—were left struggling with how to balance the needs of transgender students with the privacy concerns of every other student in their care.

Naturally, school boards and administrators have been disinclined to stand up to the department. Federal funding has a coercive effect on recipients. State legislators have largely shrugged their shoulders. What can they do in the face of the mighty federal government?

This Isn’t an Isolated Tyranny

Since the letter was released, in federal courts throughout the country several states, including Wisconsin, have attempted to resist implementing the guidance. The Center for Competitive Federalism recently filed an amicus curiae brief in one such case pending before the U.S. Supreme Court, arguing the department’s guidance should be afforded no deference. While the May letter is certainly the most well-known, it represents one of many that Obama administration agencies have issued over the last seven plus years.

While the efforts of states and other interested parties to defend against agency overreach is a promising defensive tactic, in the short term it does little to fundamentally reset the proper role of states and administrative agencies in our federal form of government.

Lost in the flurry of the campaign season, three weeks ago Reps. Rob Bishop (R-Utah) and Cathy McMorris Rodgers (R-Washington) introduced H.J. Res. 100. The resolution proposes an amendment to the U.S. Constitution to give states the authority to repeal a federal rule or regulation when ratified by the legislatures of two-thirds of the several states. At a time when policy makers are grappling with appropriate responses to an ever-expanding and intrusive federal government, the resolution represents an effort to reinsert the prerogatives of the states in our constitutional system.

The resolution obviously faces a very uncertain future. Recall that under Article V, any amendment to the Constitution first requires a proposal initiated by either Congress, by a two-thirds vote of both houses, or on the application of the legislatures of two-thirds of states. In this case, Congress is introducing the proposed amendment. Assuming a proposed amendment receives support from either Congress or the several states, it must then be ratified by three-fourths of the state legislatures or conventions.

The language of the proposed amendment is simple:

[A]ny Presidential Executive order, rule, regulation, other regulatory action, or administrative ruling issued by a department, agency, or instrumentality of the United States may be repealed in whole or in part by the several States. Such repeal shall be effective when the legislatures of two-thirds of the several States approve resolutions for this purpose that particularly describe the same provision or provisions of the Executive order, rule, regulation, other regulatory action, or administrative ruling to be repealed.

The authority would not include the power to repeal any law enacted by Congress or any federal court ruling. In addition to the language’s limit to rules and regulations, any repeal would still require approval of two-thirds of state legislatures, a high hurdle similar to the amendment process under Article V.

We Desperately Need This Conversation

While the political odds of the above language becoming the 28th amendment to the Constitution are low, it should not deter congressional leaders from championing what would represent a very real recalibration of political power between federal bureaucrats and state leaders.

Elected officials in the states should not be forced to collectively shrug their shoulders when the latest executive order, rule, regulation, other regulatory action, or administrative ruling is handed down by the bureaucratic gods of Washington DC.

Federal Stem initiatives fail – federal overreach

Attempting to counter the faltering academic standing of American students and seeking to elevate them “from the middle to the top of the pack in science and math,” the Obama Administration announced its Educate to Innovate initiative in November 2009.[4] The program, while touted as an effort to enhance STEM education, falls short of achieving this goal because it fails to address the underlying problems that plague the current educational system.

Promote alternative and flexible means to certify new teachers;

Create an environment favorable to online education to allow more students to have access to quality STEM education;

Link teacher pay to performance to help recruit and retain qualified teachers; and

Reform the traditional public school structure to promote school choice.

Educate to Innovate

President Barack Obama’s Educate to Innovate campaign is touted as a collaborative effort between the federal government, the private sector, and the non-profit and research communities to raise the standing of American students in science and math through commitments of time, money, and volunteering. The program strives to increase STEM literacy, enhance teaching quality, and expand educational and career opportunities for America’s youth.

When the program was first announced in November 2009, the participating organizations offered a financial and in-kind commitment of more than $260 million. Taxpayer obligations for the federal government’s portion of Educate to Innovate add to that total.

Additionally, five public–private partnerships were announced, as well as commitments by key societal and private-sector leaders to mobilize resources for STEM education, innovation, and awareness.[5] These partnerships and commitments are:

Time Warner Cable’s “Connect a Million Minds” (CAMM), which pledges to connect children to after-school STEM programs and activities in their area;

Discovery Communications’ “Be the Future” will broadcast dedicated science programming to more than 99 million homes and offer interactive science education to approximately 60,000 schools;

Sesame Street’s “Early STEM Literacy” commits to a two-year focus on STEM subjects;

National Lab Day will promote hands-on learning with 100,000 teachers and 10 million students over the next four years, and foster communities of collaboration between volunteers, students, and educators in STEM education. These initiatives will then culminate in a nationally recognized day centered on science activities;

The National STEM Video Game Challenge promotes the design and creation of STEM-related video games;

The annual White House Science Fair will bring the winners of science fairs from across the nation to the White House to showcase their STEM creations and innovation; and

Sally Ride, first female astronaut, Craig Barrett, former Intel chairman, Ursula Burns, CEO of XEROX, and Glenn Britt, CEO of Eastman Kodak, committed to foster interest and support for STEM education among American corporations and philanthropists.[6]

In January 2010, President Obama announced the continuance of the program, highlighting the half-billion-dollar financial commitment from the Administration’s partners. This expansion includes an added commitment of $250 million in financial and in-kind support, and a promise by 75 of the nation’s largest public universities to train 10,000 new teachers by 2015. The program expansion also included further public–private partnerships intended to facilitate the training of new STEM educators, including the launch of Intel’s Science and Math Teachers Initiative and the PBS Innovative Educators Challenge, as well as the expansion of the National Math and Science Initiative’s UTeach program and Woodrow Wilson Teaching Fellowships in math and science. Furthermore, the President called on 200,000 federal government employees working in the fields of science and engineering to volunteer to work with educators in order to foster enhanced STEM education.[7]

A More Fundamental Problem

When President Obama announced his Administration’s plan to enhance STEM education, he affirmed that “we know that the nation that out-educates us today will out-compete us tomorrow.”[8] The President’s plan to enhance STEM education, much like similar efforts in the past to improve education through short-term bursts with federal dollars, falls short of the dramatic changes needed in the educational system to truly fill the gap.

The need to improve STEM education in the United States is no recent revelation. Over the past 50 years, American leaders have repeatedly discussed the need to enhance STEM education. Yet, despite increasing federal efforts and spending, U.S. students continue to under-perform in STEM subjects. In 2007, for instance, the America COMPETES Act created new federal funding for STEM education. The act included the creation of a new federal initiative to train 70,000 new teachers in Advanced Placement and International Baccalaureate courses, as well as initiatives intended to provide existing teachers with STEM training and to encourage university students pursuing STEM degrees to concurrently obtain teaching certifications. Despite these efforts, there remains a major shortage of qualified STEM teachers throughout the nation—and American students continue to perform worse than their peers in STEM subjects.[9]

Encouraging the private sector to get involved in the education of tomorrow’s workforce can align the education of today with the skills needed for tomorrow. Using creative approaches to tackle learning challenges is certainly a concept that should be embraced. The problem with the President’s approach, however, is that the root of America’s STEM education deficit is much more fundamental than the problems addressed by the President’s initiatives. The American K–12 education system is meant to function as a pipeline that prepares students for higher education and careers. But with an average annual dropout rate of close to 10 percent, there is little doubt that this pipeline has sprung a leak.[10] Even many of those who do graduate with a high school diploma lack the knowledge and skill-base to succeed in the STEM field.

In the United States today, just 73 percent of freshmen entering high school will graduate within four years, and those who do are often not adequately prepared for higher education and careers in STEM fields.[11] Too many students are not making it through the leaky pipeline of the American education system with the skills they need to succeed. The reasons for their underperformance stems from a number of problems:

Spending

STEM

Doing the plan will cost billions if not million; empirical funding show

Camera 16 -Education reporter at U.S. news & World Report, covered education topics for over a decade, was a 2013 Spencer Education Fellow at Columbia University’s School Of Education, “Feds to States: Use Federal Dollars for STEM” Published by U.S. News, 4/13/16, Accessed 7/3/17, https://www.usnews.com/news/articles/2016-04-13/feds-to-states-use-federal-dollars-for-stem.

The Department of Education wants more states to tap federal dollars for science, technology, engineering and math, or STEM education, especially for poor students, students of color and other historically underserved students. “Too often many of our students, especially those who are most vulnerable, do not have equitable access to high-quality STEM and computer science opportunities, which are part of a well-rounded education and can change the course of a child’s life,” Secretary of Education John King said. “We are committed to ensuring that all students have the same opportunities to access a rigorous and challenging education.” In a letter sent Wednesday to states, school districts and schools, top officials at the Education Department provided examples of allowable uses of federal funds for the development, implementation and expansion of STEM classes and programs for the 2016-2017 school year. The examples include recommendations for both improving access for students and supporting educators in STEM disciplines, including computer science. “Enhancing the impact of STEM education programs and maximizing the impact of available federal resources necessitate leveraging various sources of support,” they wrote. For example, districts could use the federal pot of money they receive to help educate poor students to purchase STEM materials, devices or STEM-focused digital learning resources. Alternately, they could use the federal money for teacher support to train educators on new STEM concepts. The guidance was announced during the sixth White House Science Fair, where more than 130 students from more than 30 states showed off their STEM projects. During the event, President Barack Obama also announced a handful of new STEM initiatives, including a $200 million investment by Oracle to support computer science education for an additional 125,000 students; a commitment from more than 500 schools to expand access to computer science with help from Code.org; and the launch of a mentorship program to help STEM professionals who want to volunteer match with nearby schools. The announcements come on the heels of the president’s budget proposal, which included $3 billion for STEM education programs and a $4 billion proposal to offer computer science to all students. The Obama administration’s focus on STEM and computer science is largely an economic one. According to the U.S. News/Raytheon STEM Index, computer science jobs are helping to drive wages in the U.S. higher, and seven of the top 10 most rapidly growing fields involve computers, from support positions to software engineering. But currently, only one-quarter of all K-12 schools in the U.S. offer computer science and coding classes, and only 28 states allow those classes to count as credits toward high school graduation.

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