The sleep needs of adolescents

HISD is considering moving HS start times EARLIER next year (look down toward the middle). But recent research implies that high school students do better later in the day; apparently puberty shifts the 'chronotype' of adolescents to an 'evening preference'. Some districts have shown improvement in student participation and behavior with later times. Other studies have shown a correlation between sleep deficit and reduced creativity and performance.

Of course changing start times for high school students also impacts school faculty and staff, and parents and families. Students may find it difficult to have after-school jobs, long extra-curricular activities, or away-games against schools in other districts. Nevertheless, it appears that with enough planning, the overall effects can be positive for all involved.

I recommend you read the article from the March 2011 issue of "Educational Researcher." Some of the references in the article may be available online if you can't get the link above; please see below.

• Black, S. (2000). A wake-up call on high-school starting times. Education Digest, 66(4), 33–38.
• Blatter, K., & Cajochen, C. (2007). Circadian rhythms in cognitive performance: Methodological constraints, protocols, theoretical underpinnings. Physiology and Behavior, 90, 196–208.
• Bonnet, M. H. (2000). Sleep deprivation. In W. C. Dement (Ed.), Principles and practice of sleep medicine (3rd ed., pp. 53–71). Philadelphia: Saunders.
• Cajochen, C., Blatter, K., & Wallach, D. (2004). Circadian and sleep-wake dependent impact on neurobehavioral function. Psychologica Belgica, 44, 59–80.
• Cajochen, C., Khalsa, S. B., Wyatt, J. K., Czeisler, C. A., & Dijk, D. J. (1999). EEG and ocular correlates of circadian melatonin phase and human performance decrements during sleep loss. American Journal of Physiology, 277, 640–649.
• Carskadon, M. (1999). When worlds collide: Adolescent need for sleep versus societal demands. Phi Delta Kappan, 80(5), 348–353.
• Carskadon, M. (2002). Adolescent sleep patterns: Biological, social, and psychological influences. Cambridge, UK: Cambridge University Press.
• Carskadon, M. A., & Acebo, C. (2005). Intrinsic circadian period in adolescents versus adults from forced desynchrony. Sleep, 28(Abstract supplement):A71.
• Center for Applied Research and Educational Improvement. (1998a). School start time study. Final report summary.
• Center for Applied Research and Educational Improvement. (1998b). School start time study. Technical report: Vol. II. Analysis of student survey data.
• Chandler, M. A. (2009, January 6). Fairfax plan would delay high school start at no cost. Washington Post.
• Crowley, S. J., Acebo, C., & Carskadon, M. A. (2007). Sleep, circadian rhythms, and delayed phase in adolescence. Sleep Medicine, 8, 602–612.
• Dahl, R. E. (1999). The consequences of insufficient sleep for adolescents: Links between sleep and emotional regulation. Phi Delta Kappan, 80, 354–359.
• De Gennaro, L., Ferrara, M., Curcio, G., & Bertini, M. (2001). Visual search performance across 40 h of continuous wakefulness: Measures of speed and accuracy and relation with oculomotor performance. Physiology and Behavior, 74, 194–204.
• Dement, W. C., & Vaughan, C. (1999). The promise of sleep: A pioneer in sleep medicine explores the vital connection between health, happiness, and a good night’s sleep. New York: Delacourt.
• Dinges, D. F., & Kribbs, N. B. (1991). Performing while sleepy: Effects of experimentally-induced sleepiness. In T. H. Monk (Ed.), Sleep, sleepiness and performance. Human performance and cognition (pp. 97–128). Oxford, UK: John Wiley.
• Edgar, D. M., Dement, W. C., & Fuller, C. A. (1993). Effect of SCN lesions on sleep in squirrel monkeys: Evidence for opponent processes in sleep–wake regulation. Journal of Neuroscience, 13, 1065–1079.
• Fischer, F. M., Radosevic-Vidacek, B., Koscec, A., Teixeira, L. R., Moreno, C. R., & Lowden, A. (2008). Internal and external time conflicts in adolescents: Sleep characteristics and interventions. Mind, Brain, and Education, 2, 17–23.
• Giannotti, F., Cortesi, F., Sebastiani, T., & Ottaviano, S. (2002). Circadian preference, sleep and daytime behaviour in adolescence. Journal of Sleep Research, 11, 191–199.
• Kirby, M., & D’Angiulli, A. (2009). Timing (not just amount) of sleep makes the difference: Event-related potential correlates of delayed sleep phase in adolescent female students. In N. A. Taatgen & H. van Rijn (Eds.), Proceedings of the 31st Annual Conference of the Cognitive Science Society. Austin, TX: Cognitive Science Society.
• Kryger, M. H., Roth, T., & Dement, W. C. (Eds.). (2000). Principles and practice of sleep medicine (3rd ed.). Philadelphia: W. B. Saunders.
• Kubow, P. K., Wahlstrom, K. L., & Bemis, A. E. (1999). Starting time and school life: Reflections from educators and students. Phi Delta Kappan, 80, 366–371.
• May, C. P. (1999). Synchrony effects in cognition: The costs and a benefit. Psychonomic Bulletin and Review, 6, 142–147.
• May, C. P., Hasher, L., & Foong, N. (2005). Implicit memory, age, and time of day: Paradoxical priming effects. Psychological Sciences, 16, 96–100.
• Millman, R. P., Working Group on Sleepiness in Adolescents/Young Adults, & AAP Committee on Adolescence. (2005). Excessive sleepiness in adolescents and young adults: Causes, consequences, and treatment strategies. Pediatrics, 115, 1774–1786.
• Mitru, G., Millrood, D. L., & Mateika, J. H. (2002). The impact of sleep on learning and behavior in adolescents. Teachers College Record, 104, 704–726.
• National Sleep Foundation. (2005a). Changing school start times: Arlington, Virginia.
• National Sleep Foundation. (2005b). Changing school start times: Denver, Colorado.
• National Sleep Foundation. (2005c). Changing school start times: Fayette County, Kentucky.
• National Sleep Foundation. (2005d). Changing school start times: Jessamine County, Kentucky.
• National Sleep Foundation. (2005e). Changing school start times: Wilton, Connecticut.
• National Sleep Foundation. (2006). Sleep in America Poll.
• Noland, H., Price, J. H., Dake, J., & Telljohann, S. K. (2009). Adolescents’ sleep behaviors and perceptions of sleep. Journal of School Health, 79, 224–230.
• Owens, J. A., Belon, K., & Moss, P. (2010). Impact of delaying school start time on adolescent sleep, mood, and behavior. Archives of Pediatrics and Adolescent Medicine, 164, 608–614.
• Petros, T. V., Beckwith, B. E., & Anderson, M. (1990). Individual differences in the effects of time of day and passage difficulty on prose memory in adults. British Journal of Psychology, 81, 63–72.
• Schmidt, C., Collette, F., Cajochen, C., & Peigneux, P. (2007). A time to think: Circadian rhythms in human cognition. Cognitive Neuropsychology, 24, 755–789.
• Taylor, D. J., Jenni, O. G., Acebo, C., & Carskadon, M. A. (2005). Sleep tendency during extended wakefulness: Insights into adolescent sleep regulation and behavior. Journal of Sleep Research, 14, 239–244.
• Wahlstrom, K. (2002). Changing times: Findings from the first longitudinal study of later high school start times. NASSP Bulletin, 86(633), 3–21.
• Wahlstrom, K. (2010). School start time and sleepy teens. Archives of Pediatrics and Adolescent Medicine, 164, 676–677.
• W.A.K.E.: Worried About Keeping Extra-curriculars. (n.d.). Disruptions.
• Wright, K. P., Jr., Gronfier, C., Duffy, J. F., & Czeisler, C. A. (2005). Intrinsic period and light intensity determine the phase relationship between melatonin and sleep in humans. Journal of Biological Rhythms, 20, 168–177.
• Wrobel, G. D. (1999). The impact of school starting time on family life. Phi Delta Kappan, 80, 360–364.
• Yoon, C., May, C. P., & Hasher, L. (1999). Aging, circadian arousal patterns, and cognition. In D. Park & N. Schwartz (Eds.), Cognitive aging: A primer (pp. 151–170). Philadelphia: Psychology Press.

American Academy of Actuaries on Social Security

Who would be in a better position than the American Academy of Actuaries to evaluate a benefit plan like Social Security? I suggest reading this report on Social Security from the Academy, which explains why a safety net program like this needs to be a defined benefit plan instead of a defined contribution plan. From the abstract:

As originally conceived, Social Security provided monthly benefits for life to covered workers who ceased employment after attaining age 65. Benefits were calculated by a formula based on each worker’s employment history and were payable for life, regardless of how long the worker lived or the amount of taxes paid on his or her behalf while working. Thus, there was at best an indirect relationship between taxes paid and benefits received.

Plans such as this, where the benefits are determined according to a formula and generally paid for life, are called defined benefit plans. By contrast, plans that pay benefits based on amounts accumulated in an individual’s account are called defined contribution plans (or individual account plans).

Much has changed since Social Security was created. The program has expanded to cover new classes of beneficiaries, such as spouses of retired workers, surviving spouses and other family members of deceased workers, and disabled workers and their families. Many U.S. workers have also earned benefits under employer-sponsored defined benefit plans. These developments account, in part, for the fact that the elderly now have the lowest poverty rate among all age classes.

However, over the past 25 years, many employers have dropped sponsorship of their defined benefit plans in favor of defined contribution plans. Many Americans are now saving for their own retirements through employer-sponsored 401(k) plans (a type of defined contribution plan), individual retirement accounts, and personal savings. Some people believe that Social Security would also work better if converted, in whole or in part, to a defined contribution structure.

After careful study of the issues involved, the Social Insurance Committee of the American Academy of Actuaries has concluded that the defined benefit structure is preferable to the defined contribution structure for providing basic retirement benefits under Social Security. Because of its ability to tailor benefits that meet the needs of beneficiaries in different circumstances and its inherent risk-sharing attributes, the defined benefit structure is more efficient at providing the floor of retirement and disability protection needed by U.S. workers, particularly those least able to supplement their Social Security benefits from other income sources. This conclusion is only strengthened by the trend toward defined contribution structures among employer-sponsored retirement plans, since this leaves Social Security as the only remaining defined benefit plan for many workers. This is not to suggest that a defined contribution approach should not be a part of Social Security reform, but this committee would support it only as a supplement to the benefits provided under a basic defined benefit program.

The cost of public education

A friend has re-posted some charts from a CATO Institute article on costs associated with public education. As you can probably guess, the article has a particular point it's trying to make; I'd like to point out some things that might be helpful before you read it.

The article refers to data collected from the NCES 2009 Digest. When you notice that the number of public school employees is growing at a faster pace than the number of enrolled students, it would be helpful to know the breakdown in the increase of employees - how many are teachers, staff, administrators, etc. That's available in this table from the National Center on Education Statistics (NCES) which shows that at least between 1990 and 2007 teacher salaries represent a pretty constant 61% of expenditures. Other subgroups (administration, staff, food services, transportation, etc.) keep pretty constant ratios as well.

How does this compare to private/religious school staffing at the same level? You can actually test that with this table, which shows that the number of teachers in the public sector rose 50% between 1980 and 2009 - but so did the number of teachers in private schools. The number of students has increased by roughly 26%. The net effect has been to drive down student/teacher ratios from 18.7 to 15.3 in the public sector; in the private sector the ratio went from 17.7 to 12.8.

On the bottom chart in the CATO article: As the source says: "Total expenditures for public elementary and secondary schools include current expenditures, interest on school debt, and capital outlays." Capital outlays include new technology, internet access, textbooks and materials, laboratories, school buildings, etc. Schools would, for example, save a huge amount of money by replacing obsolete Windows and Macintosh computers with state-of-the-art Linux machines. Table 182 confirms the graph; expenditures per pupil doubled from 1980 ($5695/student) to 2009 ($10,041/student).

But compare that to private schools: table 27 shows an increase in overall private school expenditures (in constant dollars) of 150% between 1980 (est. $20B) and 2009 (est. $50B). That compares to the public schools which increased 130% over that period, from $262B to $600B.

Does the increase in costs raise scores? chart 123 shows the scores stay pretty constant from 1992 through 2007. The overall scores for private schools are higher per grade; but that may be an effect of a self-selecting population. More interesting are the jumps from 4th to 8th grades (keeping in mind these are comparing apples to oranges to some extent, as students move around). Public schools increase the scores by 50 points over 4 years (a 1994 4th grader to a 1998 8th grader), and so do the private schools. As a percentage, the public schools raise scores 25% over the 4 years, while private schools raise them a little over 20%. That's an interesting result given the popularity of the new "value added" calculations used to assess teachers and schools.

Moving students from public schools to private schools would apparently increase the number of teachers required to maintain their low student/teacher ratio. How will that drive down the cost of education, other than by paying teachers individually less? Would increasing private school costs and lowering public school costs reduce the price of education overall - or would it instead shift the cost more directly to parents and reduce the cost to taxpayers without children? It would be a policy decision to decide if that's equitable - spreading what would essentially be the same cost over a smaller group of people.

Open source and 17 U.S.C. 203

Section 203 of the US copyright statute* is an interesting provision which allows an author to terminate the right to use a work 35 years after the grant was made. There are good policy reasons behind this rule; an author may not be in an equal position to bargain with a publisher, and the value of a work may not be apparent when the grant is first made. The rule allows an author to re-negotiate for more compensation if it turns out that the right they sold (or gave away) turned out to be more valuable than initially thought.

Does this introduce any uncertainty in the rights you receive when you use free software? Do programmers and companies now need to worry that they can use free software for at most 35 years before the author has the right to tell them to stop? What about other software which builds on top of the first work - can the rug be pulled out from under them at that point, if the author decides they want to revoke the rights granted to you and instead sell the right to use software?

I believe there is little to no risk imposed by Section 203. First, 203(b)(1) specifically says that derivative works created before the revocation may continue to use the underlying work/code. This would generally protect anyone who has created any material modification of the work, or who has included it in a compilation (for example, a CDROM or other collection). A Freedom Toaster might be an example; any Linux distribution such as Debian GNU/Linux would be another.

Second, section 203(a)(4) (and 37 C.F.R. 201-10) impose strict notice requirements on an author, including, for example, a requirement that the revocation be in writing and that delivery be made by US mail or in person. These might make it expensive for a programmer to contact each grantee to revoke their rights.

The third consideration is interesting; section 203(a) states the requirement that the grant be "executed by the author." Both the GNU Public License (GPL) (section 2) and the Creative Commons licenses state that when you distribute/convey a work to someone else, the recipient is granted a license directly from the author(s); the GPL specifically states that no sub-licensing is involved. This seems to imply that an author could revoke the license to use their piece of free software as long as they comply with the rest of the provisions of section 203 and with the C.F.R. Of course, that would require an author to know exactly when you received the software; the 35 years runs from the time of the grant, which they may not know if you got the code from source other than them. Consider too: what would happen if you receive a revocation from an author and a subsequent copy of the work under the GPL? Would the terms of the GPL mean that the author has agreed to re-license the work to you, as is allowed under sections 203(b)(3)-(4)? That interpretation seems consistent with the language in the statute.

Finally, the "life cycle" of software is fairly short; it's pretty unlikely that a piece of code will remain valuable for more than 35 years. Nevertheless to remove risk entirely, it might be prudent for a recipient to document when they first receive a work under a free software license and to plan to replace the code in 35 years if it's still in use.

For all these reasons, I believe the risks to recipients of free software from provisions in section 203 are minimal, can be easily avoided, and can likely be ignored pretty safely.

*In case you were wondering: section 304 paragraphs (c) and (d) only allow authors to terminate grants prior to 1/1/1978. The first version of the GPL was in 1989, well after that date, so those provisions don't apply here. It's my assumption that 1989 is the first time a free software license was used for works in the United States.

The value of being open

The Register reports that the security on the iPhone 4 can easily be bypassed by a particular sequence of key presses. Apparently earlier iPhones suffered from a similar issue.

On a recent earnings call, Steve Jobs amusingly described Apple's iPhone as being more "open" than Google's Android operating system. If the iPhone really were in fact open at all, security problems like this would have more likely been found and fixed before they were widely distributed. End users would have been able to patch their own phones, if they wanted to, using the source code to Android itself. There are how-to articles and online support communities to help. And finally, if iPhone were really an open platform, other companies or enthusiasts could port Adobe Flash or Java to run on it.

The bottom line is you will never be able to fully trust your machine if it is running Apple software. You don't know if it's secure, and without source code you will never know if apps are stealing your data or are making transactions on your account. It's sad to hear Steve Jobs trying to claim the mantle of being "open" when it's so clear he wants to completely control the experience of every one of his customers - to their detriment, with at best an ephemeral benefit in return.

Houston ISD Magnet Program survey - admissions criteria

I wrote earlier about Houston ISD's questionnaire about its magnet programs; in particular about the survey question on funding. Another such question asked about how students should be admitted to magnet programs.

The magnet programs at HISD exist both to cluster students with similar interests, skills, and abilities, and to allow students from under-performing schools to attend programs outside their HISD zone. In a perfect world, every student who wanted to attend a magnet program would; however, there are a limited number of programs, and a limited number of students the programs can admit. Therefore there needs to be some way for a program to admit a fraction of its applicants.

One thing that makes this a little more complicated is that HISD has a parallel program called "Vanguard" which targets a subset of the children who are identified as "gifted and talented." I think the idea is generally sound - it's easier to provide a centralized accelerated academic program in a small number of schools than it is to have a separate such program in each of schools. I'll address each program (Vanguard, magnet) for each grade level (elementary, middle, high school).

Elementary school

• Vanguard

  HISD uses a battery of tests to determine which students are identified as "gifted and talented"; within that population, a further set of tests determine which students qualify for the "Vanguard" program. I'm not sure the data convince me these second tests are effective - it's not clear that all the students chosen for the programs end up thriving in them, nor is it clear that the students excluded from such programs would not have done better as participants. If the second battery of tests does not effectively differentiate between those populations, then perhaps admission to a Vanguard program at this level should be by lottery from the pool of "gifted and talented" applicants.
  

• Magnet

  I believe most magnet programs at this level accept applicants by lottery. This seems pretty fair.
  

Middle school

• Vanguard

  At this level HISD has more data about its students, based on grades, test scores, and teacher evaluations. It may have enough information to be able to tell which students would benefit from accelerated Vanguard programs. If so, selection based on these criteria would be appropriate. If the data are not enough to be able to rank students, then perhaps a threshold to apply plus a lottery among the qualified would be better and would allow more students to participate. Some students might not thrive in such an environment and may choose to leave it; programs should actively recruit new students for open spots in 7th and 8th grades to replace them.
  

• Magnet

The Magnet schools at this level are impressive - foreign language, performing and visual arts, etc. Students are likely to self-select at this point, so it may be that a lottery is reasonable as a selection process. On the other hand, it may be better to use the screening processes that high school programs use, below. Students can further be clustered in the school by aptitude for acceleration, if appropriate.

High school

• Vanguard

  By high school, the district should have enough data to be able to determine which students will do well in a Vanguard/accelerated program. Students will also self-select at this level, since these programs will typically include an expectation that students take a decent number of IB or AP courses and exams. The pressure to have a high GPA may convince students not to attend unless they're sure they'll succeed. Therefore, at this level the schools should probably have open admissions or a lottery of all candidates who qualify based on grades and test scores.
  

• Magnet

  The Magnet schools at this level are really incredible - foreign language, performing and visual arts, science/medical, engineering, even a school with a flight program. If the program has some minimum ability requirements it should test for them (language fluency or aptitude, science/math scores or grades, performing ability, etc.) Like the Vanguard programs above, students will likely self-select at this point, so programs should probably have open admissions or a lottery among all who qualify. The assumption is that anyone applying to such a school will be interested enough to succeed if they have the skills to do so.
  

Since one of the goals of the magnet program is to allow students to "escape" an under-performing they're zoned to, perhaps at each level some preference should be given to an applicant who is zoned to such a school. There also, frankly, should be more magnet programs!

Houston ISD Magnet Program survey - funding magnet programs

Houston ISD is conducting a survey of parents and teachers about its magnet program, sending out questionnaires and holding town hall meetings around the city. The survey they sent out asks a number of thought-provoking questions; I'm curious to know how they collate and respond to the submissions they receive. I wonder if they will hold a subsequent round of discussions so we can react to each others' responses.

One question asked how you would recommend funding the programs at magnet schools; they give three suggestions: (1) equal funding by school; (2) funding by pupil; (3) differential funding by type of program. They give only a small box for the response, so I thought I'd elaborate on my submission here:

Each paradigm has its merits and demerits.

• Funding by pupil has the problem that programs with few pupils, especially starting programs, may not have enough baseline funding to hire the personnel necessary to get established.
  
• Funding "by program type" implies differential funding - do STEM schools get more than music/arts schools? How about Vanguard/Gifted schools? Do we decide there are a small number of "types" and assign funding amounts to them? How would an innovative new "type" of program get established and funded?
  
• Finally, while equal funding per school sounds fair, it can be attacked as providing inordinate funding to schools with small magnet populations. It might also under-fund popular programs with a large number of applicants.
  

Perhaps a "tiered" system makes sense. Schools with 1 - 100 magnet students would receive some baseline amount; schools with 101 - 200 get more; and perhaps a per-capita allowance for every student over 200. That might be supplemented by service-based funding for things like after-school programs, or grants of initial capital to do things like purchasing art supplies and tools, musical instruments, gymnastics or dance items, etc.

Building a Muslim community center in NYC

The Park51 project, sometimes described as the "Ground Zero mosque", is a Muslim community center and prayer space located a few blocks away from the former site of the World Trade Center. The location is zoned to allow religious organizations to build there; as such, the Religious Land Use (and Institutionalized Persons) Act protects the group's right to build there. This is the same statute that protects the right of a Christian mega-church to expand, or a a small church to use a downtown space to hold services. This law was passed by Congress to protect the right to free exercise of religion, a right recognized by the First Amendment to the U.S. Constitution.

In an interview on National Public Radio (NPR) on September 11, New York's Mayor Bloomberg discussed the recent controversy around the Park51 project. I was impressed by his analysis of the issues:

NPR: There've been so many controversies leading up to today, between the proposed Islamic Center there in lower Manhattan, the threatened burning of Qurans in Florida. Have 9/11 commemorations become politicized?

Mayor BLOOMBERG: I think that a lot of it has become politicized. The whole issue of the Islamic center, which was proposed a while ago and nobody seemed to have any problems with it, all of a sudden in the middle of an election campaign became something that the candidates can't stop talking about. It's pretty hard to argue that they aren't trying to make something out of this for their own political gain. And that will go away after the November election.

The real issue here is history will look back and say, did we have the courage to stand up for the Constitution and keep us free going forward? The government shouldn't be involved in telling people who to pray to, where to pray, how to pray, who's going to fund their praying.

And I think that hopefully we'll be able to look back and say that, you know, a few people were a little bit of hotheads, a few people tried to take advantage of it, but in the end America understood that the Constitution has protected us for a long time and if we don't protect other people's rights, we're not going to have our rights.

NPR: Your support of the right of the Islamic center to open being noted, if the people who run the Islamic center on their own decided to move it, would you be relieved?

Mayor BLOOMBERG: The government should not be relieved or whatever - concerned, I guess, that they have a right to build a place of worship any place that's zoned for that kind of activity. This place is. And it's totally up to them. And if the government starts expressing a view of concern or relief, that's just the government trying to influence a decision which it should not.

Compare that expression to the pressure brought to bear by the Obama Administration (and others) on the church threatening to burn copies of the Quran - an attempt to affect a different right (free speech) under the First Amendment.

Burning the Quran

A congregation led by a Pastor Jones is planning to burn copies of the Quran on September 11, 2010 - the same day as the feast of Eid ul-Fitr, which marks the end of the Muslim holy month of Ramadan. I find it surprising that the plans of a 50-person congregation from somewhere in Florida are being reported around the world. Why would the actions of such a small group cause so much commotion?

1. This is not news.

   It should come as no surprise to anyone that there exists somewhere in the world a small group of people who are prejudiced against one or more other groups. If the media were to report on every such collection of people, they'd run out of room in every broadcast and in every newspaper. Had the news media not made a "story" out of these plans, no one would likely have even noticed it happened; as an event, it's especially uninteresting because there's no threat to anyone's safety or welfare. Sadly, by shining a spotlight on this insignificant group, and by making its leader famous enough to appear on television, the news, and in print, the media inspires them and others to even more outrageous acts in the future.
   

   This is a great example of where the phrase "nothing to see here, move along" is applicable.
   

2. They have the right to burn copies of the Quran.

   Speech of all sorts is protected in the United States under the First Amendment to the Constitution. There are some types of speech which can be controlled or punished, but for the most part, the tension between (1) protecting others and their reputations, and (2) encouraging discourse about the government, officials, and important issues generally ends up protecting most types of speech. In particular, as long as you're not causing a danger to anyone (arson) you're generally allowed to burn anything you want. That goes for flags, books, pop albums, etc.
   

3. Anyone who responds to this is responsible for their own actions.

   A number of U.S. officials have attempted to warn the group that their planned event will end up endangering the lives of U.S. citizens and troops around the world. I don't think this is a reasonable or relevant observation.
   

   To begin with, any response by a member of the Muslim faithful to the burning of a copy of the Quran is their own responsibility, not the fault of the members of this congregation. No one has the right to respond with violence to what amounts, at most, an insult. It's useful to keep this in perspective: the books this Florida church plans to destroy are mere copies of the text; burning these books will not make it impossible for others to continue to teach or worship as they did before. This is not an impediment to anyone else's free exercise of their religion. And no one's health or welfare will be directly harmed by the book burning.
   

   That said, people will respond in various fashions, and some will be incited to violence. Some of the violence may happen where U.S. troops are currently stationed. Frankly, the best way to prevent violence against the troops is to move them to somewhere safe, especially home. By referring to the potential danger to U.S. troops, General Petraeus and President Obama seem to be trying to use guilt to stop the book burning; the implicit suggestion is that any subsequent violence around the world will amount to "blood on [this congregation's] hands." These statements come across as nothing more than an indirect way to pressure this group to cancel their plans.
   

   Sadly, there are also likely to be responses from those who support the views of Pastor Jones and his church. If the event goes forward, it might instigate copy cat burnings in other communities, or may inspire other groups to grab media attention with even more outrageous activities. If the burning is called off, sympathizers may act out against those whom they believe worked to shut down the event. Again, anyone who responds violently on either side should be held responsible for their actions, in accord with the law.
   

4. What this group is doing is insensitive and an inappropriate response to 9/11.

   Of course, the purpose of the protection of speech in America is to encourage reasoned discussion and debate in our community. To that end, it's welcome to have public officials, ecumenical leaders, and generally everyone else point out that burning copies of the holy book of any group is simply a manifestation of hatred toward the members of that group. Such an event adds nothing to our understanding of the causes and/or effects of the events of 9/11; instead, it acts to rend the ties in their community (and in any others which respond).
   

   I understand and defend their right to express their ideas in this fashion, but I can't say I appreciate or support it. While the government and elected officials have no right to tell them not to go ahead with their plans, I wish they would choose on their own to cancel their event, and I really wish I'd never heard of them at all in the first place.
   

America's Prophets

I'm reading America's Prophets - How Judicial Activism Makes America Great by UH Law Center professor David Dow. In the book, Dow describes the function of the biblical prophets in ancient Israel as cultural course correctors; their role was to tell the public when their practices were contrary to higher law. The prophets were, in effect, the visionaries who had the courage to tell the majority "no" when necessary.

In contrast, the priests were the ones who maintained cultural continuity; it was their job to preside over and defend norms of long standing. It was their job to look to the past for guidance. This metaphor is from page 11:

... We can think of priests and prophets as judges taking a ride together on a train. The priests are seated facing the rear. They can see backward along the rails all the way back to the depot from which the train began its journey. They believe that their job is to be experts on all that has transpired between the origin of their culture and the location at which they reside at the moment. The prophets face sideways. Turning their heads one way, they see what the priests see. Turning their heads the opposite direction, they see forward. They cannot see to the end of the track, perhaps, bu they can see some distance into the future. Of course, to continue with this metaphor, there will be spots in the future that the prophetic judge, no matter how keen her vision cannot see. ... Nevertheless, the prophetic judge can see some distance into the future, and the prophetic judges believe that their job is to ascertain, based on the vector from which they have come, where they are going.

How is a US Supreme Court justice like a prophet in the Bible? In our political system, the Constitution provides the higher law, the foundational framework against which all legislation must be measured. Like the Jewish prophet who warns the people when they stray from their fundamental goals and principles, the activist judge is in the position of saying "no" to the Congress and the majority it represents, when the Congress (or a state) attempts to enact a law which runs counter to the Constitution. This is not a comfortable role for a judge to play; as any parent knows, saying "no" invites an emotional backlash. Without judges performing this role, however, we run the risk of subjecting less powerful groups to the tyranny of the majority, a concept first described by Alexis de Tocqueville, and later mentioned in the Federalist papers.

Are these "activist judges" imposing their personal morality, ethics, or interpretation of the Constitution on the rest of us? Or are their decisions based on a strict application of legal reasoning to the text and principles of the Constitution? Dow gives us the examples of Plessy v. Ferguson and Brown v. Board of Education as examples of "priestly" and "prophetic" approaches to racial equality, and promises to visit other similarly controversial examples of "activism" later in the book. He asserts that the prophetic course corrections are grounded in good law and reasoning; they would have to be, given the decisions and rationale are all public. However, I've not yet read his analysis of the various cases; those are later in the book.

On a related note, can "activist" judges on the US Supreme Court be identified by their ideology? Some interesting research from Dow and collaborators:

A study of the last ten years of the Rehnquist Court reveals that a justice's deference score* depends on something besides a judge's simple belief that the majority should be free to do as it sees fit. For example, the same justices who are most willing to tell the majority no when Congress intrudes on individual liberty (i.e., Justices Stevens and Souter in the aforementioned study) are least willing to tell the majority no when Congress intrudes on the states. Conversely, the justices most protective of the states, and therefore most willing to tell Congress no when it interferes with state power (i.e., Justices Scalia and Thomas), are least willing to tell Congress no when it interferes with individual rights. ...

I'm not even half way through the book, and I find it fascinating, hard to put down. The idea of the judiciary as a brake on the majority is a concept I've been trying to articulate and logically frame for myself for a while, and here's a book by an author who's thought it through and is a compelling writer. I'm hooked.

* A judge's deference score describes how often a judge defers to Congress and the majority it represents. A judge receives a positive score (+1) for each time he or she votes or holds that the law is consistent with the Constitution, and need not change. A judge receives a negative score (-1) for each time he or she decides a law is unconstitutional.

Public disclosure of private facts

Justice Louis Brandeis's Right to Privacy outlined a legal theory which in the United States led to the creation of four privacy related courses of action. One of these is known as public disclosure of private facts, which is defined (roughly) as a

1. public disclosure
2. of one or more private facts
3. the release of which would offend a reasonable person.

A publisher can claim that the facts are newsworthy as a defense; however, the truth of the fact(s) is not a defense, as it is in defamation actions.

Google is perhaps setting itself up as the Napster of location disclosure. As part of its data collection effort for Street View, Google has been collecting private wireless hot spot data; Irish and German authorities caught them keeping private information and forced them to remove it in a fashion auditable by third parties. Google reports that they are using the data about your wireless routers to better locate the position of Internet users. They keep that wireless information in a huge database, associated with its physical location.

How does this work? An application running on your computer, or phone, or network router can continuously check to see what wireless hot spots are around you. The application can then submit that "MAC" information to Google's location service to find out where you are.Once that's determined, the application can send that information to an advertising service, or to a social network site, or basically anywhere else, to keep track of you and let others know where you are.

Is this a public disclosure of a private fact? A number of moving parts must be analyzed to answer that question.

First, is your current location a private fact about you? If so, does the disclosure of one's location offend a reasonable person? Those questions are probably best answered by a jury, should a case like this ever be brought to court.

Is there a public disclosure of your location? To whom is the location disclosed? At what point in the process is it disclosed? Who is at fault for the disclosure; what is the proximate cause? Certainly your computer or device can know your physical location (latitude and longitude) if you are using a GPS (Global Position Service) device; most phones have that built in, and you can buy a GPS device for your computer or laptop. Without such a device, which is presumably known to you and/or under your control, your computer and its applications can't know your location without a database like the one maintained by Google. Therefore it's definitely difficult to argue that Google is the cause of a disclosure, if one happens. They are only potentially an enabler, much like Napster was, and perhaps can be held liable under a similar theory.

More to the point is that it's the browser or other application which is taking the environmental information (local hot spots etc.), is using that to determine the location, and then is publishing your location (with explicit or implicit permission?) to other applications and services. Netscape/Mozilla has been here before in Specht v. Netscape Communications Corp., when it was sued over its "Smart Download" applet, which stored and transmitted information about user downloads back to Netscape Corporation. Litigating the disclosure of location information is more difficult, because there are likely a large number of applications and devices which are performing the public disclosure, each of which would have to be enjoined. That would be a lot of work. If Google and other "geolocation" services can be reached under a Napster-style enabling theory, then the problem goes away much more quickly, unless they can make a case that they are providing a compellingly important public service.

By the way, you can turn off location information in Firefox. Just browse to the bottom of that page to see how. Can you do that in other browsers?

Don't steal this textbook

I'm a pretty regular reader of Kevin Carson's writings over at the Mutualist Blog and at C4SS, the Center for a Stateless Society (I only read his contributions and cannot recommend any of their other writers to date). As a self-described "libertarian leftist" he contributes a lot to a vision of a distributed and decentralized society, one which is potentially more robust economically and socially. His work is a generally well reasoned synthesis of wide range of philosophers and economists; I recommend not only his blog posts but the longer works published as PDFs. In a nutshell: broadly available tools of production and raw materials should make it possible for more people to participate in the economy as producers, to contribute improvements to processes and designs, and to realize the full value of our efforts. Decentralization reduces the concentration of wealth and power and make the system more resilient because the failure or destruction of any one contributor (individual, group, firm) does not have a huge effect on the ecosystem. In such a system, no one producer is too big to fail, contributors leverage incremental increases in knowledge, and everyone realizes the bulk of the value they add to the economy.

Sometimes Mr. Carson gives advice on how get to such an ecosystem. In Steal this Textbook, Mr. Carson identifies textbook producers (especially publishers of college texts) as market manipulators, and suggests a course of action to reduce or remove their influence in the market. He points out that professors both write and recommend texts for classes, and suggests that new editions are produced and printed for what are typically minor changes (which disrupts the market for used/re-sold books). These points are debatable; but let's assume arguendo they're true. He suggests the market power of the textbook publishers can be broken by a coördinated effort to scan and electronically distribute copies of their books; however, I think this is not a reasonable course of action, and the effects may run counter to what he might intend. It's also a recommendation to break the law, which I can't condone anyway.

My second objection is that his suggestion is counter-productive. A wide scale disregard for copyright would undermine (for example) the Free Software ecology; the enforced sharing inherent in "copy-left" licenses such as the GNU General Public License requires the respect of the rights of the authors and copyright holders in the relevant software. Without such protection, such gifts to the community could be appropriated by publishers who would benefit from the value without contributing anything to the community in return. In another example, the works at C4SS (and on this blog) are published to the readers under a Creative Commons "By Attribution" license, which means you can use the work however you like as long as you credit the author(s). The academic ecosystem relies on reputation, and attribution is a crucial component of that calculation. A disregard for copyrights would undermine these and related sharing based environments.

Another objection arises from economics. When textbook publishers lose revenue because of illegal copying, they can to some (large?) extent recoup the loss by increasing prices on legitimate textbook purchasers because there are as yet no alternatives to their products. An example comes from computer operating systems: it isn't massive copying or "piracy" alone which makes Microsoft worried about their hegemony, it's the presence of alternatives to MS-Windows. As long as there were no viable alternatives to using MS-Windows (remember the 1990s), Microsoft could take advantage of their monopoly position to raise prices to maintain their profit margins, and their corporate and legitimate end users had no choice but to pay the rents. Now that Apple is increasing its market share, Linux is taking over data centers and desktops, and distributors like Lenovo and Dell are pre-installing Ubuntu on computers, Microsoft faces an upper bound on what customers are willing to pay for their software, which makes piracy a much more potent threat to their revenues. I suggest to Mr. Carson that it's far more effective for people to support and contribute to open education resources such as Connexions than to spend time scanning and distributing copyrighted texts on the internet. Once there is real competition in the textbook space, the publishers will start worrying about their rotting corpses [being displayed] on [our] battlements. Until then, the publishers can figure out alternate ways to extract revenue from students: mandatory textbook fees per student from universities? Textbook rentals instead of sales (like K-12 schools)? Higher textbook prices? etc.

As I and other comment writers suggest on the article, readers should look for open source textbooks, wiki books, and open education efforts such as Connexions to participate in. Having valuable peer-produced texts to use in education will start the process of forcing the textbook publishers to change their profit model to survive. I don't think it's worth the effort to scan and distribute textbooks; all that will do is convince textbook publishers to adopt the RIAA approach. Far better to have publishers react as IBM did to free software: figure out how to make money by providing added value, either with improvements to the products, or in associated services.

This, I don't understand

The Houston Chronicle published a story about the Texas unemployment tax going up again next year. The logic behind such a move is perplexing. The fund, which is established by the Texas Labor Code, increases its impact on businesses (especially small businesses) during bad years, and reduces its impact on business during good years. This is because the tax rate goes up in bad years; the rate is calculated (roughly, and in part: see 204.062ff) by taking the unemployment claims to September 30 (in bad years, this goes up) and dividing this by taxable wages for the same period (in bad years, this goes down). The result is to essentially exacerbate the effect of recession by putting a higher burden on solvent businesses to support the unemployment fund in bad years.

The fund is organized as a reserve (see section 203.028(b)), so contributions should instead be increased during good years, to reduce the load on businesses during bad years. This would allow the state to assess businesses when they can best afford it, and save money for periods when businesses could use a break.

Disclaimer: I'm neither an economist nor an actuary. There may in fact be sound business reasons why the tax is structured the way it is, but I'm afraid they're too obscured by what seems like an obvious flaw in the reasoning behind the calculation. I'd appreciate any comments explaining why the current setup makes sense.

Policy Governance (R)

There is a governance model, developed by John Carver and elaborated at http://www.carvergovernance.com/, which describes one way an organization can structure itself to best serve its mission and the needs of its internal and external constituents. I was first introduced to the concept as the "Carver Model", and I'll use that phrase here, since "Policy Governance" is a registered trademark of John and Mirriam Carver.

Let me start by saying that I think the principles behind the model are sound. I agree that a governing board or council should work toward a model in which it is responsible exclusively for high-level decisions; a board should certainly limit itself to discussing mission, goals, policies, and limits on executive authority. When a board is focused on minutiae (the day-to-day operations and interactions of staff, micromanagement of assets, etc.) then the life of the organization grinds to a halt because the board is a bottleneck. First UU Church Houston (First UU) has dealt with this in the past by delegation, but perhaps in a less than optimal way; perhaps the least appealing option exercised was an "executive committee" made up of the board president and some other leaders which met quietly each week and which made a lot of decisions, some of which were unpopular or challenged at later board meetings. The limits on the authority of the committee were not formalized and minutes were not typically kept, which made it difficult to argue that the church was being run in a transparent fashion.

The Carver Model thus describes an organizational structure in which an Executive reports to the Board, and the Board sets goals, policies, and limits on the Executive so the Executive can independently run the Church (see here). This is a good division of authority and responsibility; the Board has a focus on the forest, the Executive on the trees. The devil is in the detail of the composition of the Executive.

Although some congregations empower an Executive team, others place all the authority in the hands of the minister. A hybrid example is one where the Executive is a team but is dominated by ministers. I believe the last two models are inherently flawed because in the typical UU church, minsters are granted tenure. This privilege makes it difficult for the Board to effectively use any leverage to make sure the Executive continues to perform their duties consistently with the policies and limits set by the Board on behalf of the congregation at large. Ministers who for whatever reason begin to have a strained relationship with the whole or significant parts of the congregation are difficult to remove when their position becomes untenable, and a congregation can become severely fractured during the process. A model which vests complete authority (or a majority influence) over staff and spending in a tenured minister or ministers is in my opinion a dangerous mistake.

What would be a better model? There are benefits to having a single Executive (the CEO) who is empowered to make final decisions over operations. Such an person can be effective without calling meetings and can be held to account when they fail to execute their duties responsibly. When a decision needs to be made, an independent CEO (not a minister or a member of the Board) can make it with few concerns about a potential conflict of interest. To keep the CEO responsive to the Board and the congregation, this position should be filled by a lay person whose employment is controlled by the Board; they should be removed by a simple Board vote if they fail to perform their duties.

There are also benefits to having an Executive team but I think they may be inherently harder to realize. A team can perhaps be more available than a single person; in a situation which needs a quick decision it may be more likely to reach one of several people than one alone. The team can also take input from various areas of the church and balance them accordingly. It however seems harder to assign responsibility to a group when things go wrong; whom do you hold accountable in such a situation? Perhaps the team can be chosen by the congregation but members can be removed by the Board (triggering another selection process) if they are not performing their duties.

Let me close by saying I think a church can benefit from removing their governing council from daily operations and by having an independent Executive. I find the model which grants the Executive role to a tenured minister unappealing because it confuses having charismatic leadership in spiritual matters with the dangerous situation of having a charismatic leader of the bureaucracy. I suggest that First UU in particular consider having either an Executive team (on which the minister can sit, in minority) or a paid staff person identified as Manager or CEO.

Death Panels

In 1999 Texas governor George W. Bush signed into law the Texas Futile Care Law, now part of Chapter 166 of the Texas Health and Safety Code, which "allows a health care facility to discontinue life-sustaining treatment against the wishes of the patient or guardian ten days after giving written notice if the continuation of life-sustaining treatment is considered medically inappropriate by the treating medical team." The law could be described as an improvement over the previous regime which allowed a hospital to "simply" receive a court injunction to withdraw treatment without notifying the family.

Contrast that to what's being described as "death panels" in the current health care reform proposals: a requirement for caregivers to discuss (and presumably memorialize in signed documents) the wishes of the patients themselves, so ordinary people can express their preferences ahead of time in case they are put in such a position of incapacitation. Could that not be considered an improvement over what currently exists in Texas, where the treating medical team can make that decision for the patient and the family?

Ireland rejects electronic voting

Clearing out old news articles: Ireland decides to end their electronic voting and counting project for financial and political reasons. Quote:

The Minister noted that “the public in broad terms appear to be satisfied with the present paper-based system and we must recognise this in deciding on the future steps to be taken with the electronic voting system.” The Minister also acknowledged that “the assurance of public confidence in the democratic system is of paramount importance and it is vital to bring clarity to the present situation”.

Maybe they've noticed our own declining confidence in electronic voting machines.

Keepin' it real at the Fed

As a follow up to my article about HR 1207, I offer a brief reference to a related bill, HR 3232, the PROFIT Act of 2009. A little background, perhaps, is in order.

The Great Big Bank Bailout Bill of 2008 (HR 1424 of the 110th Congress), passed with votes from Barack Obama and John McCain, was sold to the public as a necessary evil (to "stabilize the economy", right before the election) with a potential upside. Publicly, the Treasury would provide funding to banks in return for stock (in the case of at least AIG, a controlling interest), a requirement to pay what was effectively interest, and warrants, options to buy bank stock at a later time at the current (lower) price. This last provision was sold as an "upside" - the Government would enter the global casino with the hope that when the economy recovered, there would be additional money to be made to the profit of taxpayers, and we could hold our breath, cross our fingers, and hope to maybe even make a profit from all this investment. Never mind the fact that by tying the program's success to the requirement that these institutions have a future as independent entities made it much more difficult to consolidate or close them down as part of the solution.

Of course, the TARP has operated much differently from how it was sold. Because the Federal Reserve is now providing financing to banks and "banking institutions" (outside Congressional oversight; see HR 1207), funding recipients are now repaying the money they received under the public TARP. And, shockingly, the Treasury are redeeming the warrants at a fraction of their value, according to a report by the Congressional Oversight Panel. In other words, effectively providing the banks another subsidy. And this is public funding to institutions like these (from the Bloomberg article above):

[TARP special inspector general Neil] Barofsky said the TARP inspector general’s office has 35 ongoing criminal and civil investigations that include suspected accounting, securities and mortgage fraud; insider trading; and tax investigations related to the abuse of TARP programs.

We need to collectively admit the obvious: the people in charge of "fixing" or "managing" this financial crisis were either responsible for it in the first place, or were negligent in their oversight of those responsible. Starting with Reserve Chairman Bernanke and Treasury Secretary Geithner (and his predecessor Paulson) on down, these public servants need public supervision and guidance, without which they seem to pretty much be doing whatever they please with our money as long as it keeps some favored institutions in business (and profitable), and perhaps even forces competitors to fail.

Please contact your Congressional Representative and ask them to support HR 1207, HR 3232 (which requires the above-mentioned warrants to be sold in public at market prices, so we can realize those promised "profits"!), and related bills. This is the sort of oversight which should have been in the bailout to begin with; we should have kept up the pressure on our Representatives to block the bill until these safeguards were in place. Hopefully we'll do that next time.

Deeper in

I'm reading Karl Llewellyn's lectures collected in The Bramble Bush, the 2008 Oxford University Press edition, and thought I'd share another quote: this one is about assuming institutions are just so because that's the only way they could be arranged. This quote is preceded by a description of what courts and judges do, which I omit.

... I take time to say this because I deem it important that early, very early in this game you meet some counterweight against what I may call the unconscious snobbery of social institutions: against the touching faith that the current rationalizations of an institution, first, fit the facts, second, exhaust the subject, third, negate other, negate better possibilities. Nowhere more than in law do you need armor against that type of ethnocentric and chronocentric snobbery -- the smugness of your won tribe and your own time: We are the Greeks; all others are barbarians. ...

I offer the above quote to those who argue that a market based or private insurance solution to our health care crisis is important because the United States has a "tradition" of such things (a very recent one, to be sure). If that were not enough, Paul Krugman shares this report by Kenneth J. Arrow, excerpts of which are available from the World Health Organization web site; it's an economist's analysis of the factors which contribute to the observation that a market based approach does not provide optimal solutions to the pricing and provision of health care.

Question everything!

Entering the Bramble Bush

I've started reading Karl Llewellyn's lectures collected in The Bramble Bush, the 2008 Oxford University Press edition, and found these passages from Chapter 1. I may be republishing other interesting excerpts as I find them. Emphases are are in the original.

... We have discovered in our teaching of the law that general propositions are empty. We have discovered that students who come eager to learn the rules and who do lean them, and who learn nothing more, will take away the shell and not the substance. We have discovered that rules alone, mere forms of words, are worthless. We have learned that the concrete instance, the heaping up of concrete instances, the present vital memory of a multitude of concrete instances, is necessary in order to make any general proposition, be it rule of law or any other, mean anything at all. Without the concrete instance the general proposition is baggage, impedimenta, stuff about the feet. It not only does not help. It hinders. ...

... You may have missed in this discussion the common idea that the law is right, that rules of law are to be obeyed because they are right, that men have duties to uphold the law. Such ideas are not missing because they have been overlooked. They are left out because you may fairly be expected to be well aware of them already. They are left out, too, because they contain truth so partial, so faulty, as to cry out for revision in the light of some such analysis as I have been presenting. They are left out because at this stage of your approach to law your common sense is rather in the way than otherwise. Let me here say only this about rightness of the law. That if most people did not stand behind the officials, however passively, there would be little law to talk about. That if most people did not most of the time when they looked at a rule look to its purpose as well as to its exact and narrow form, and fit their conduct roughly to that purpose, then the officials would have been a burden on their hands they could not bear. And, finally, that if most people shaped their conduct really with reference to the law and to their legal rights, for any serious fraction of their time, rather than with reference to the patterns of action, the patterns of thought, the standards of judgment which they inhale as the social atmosphere they breathe, then life in our society would become unlivable. ...

I offer this in part as a response to those who look at the actions of those responsible for the current crisis in mortgage backed securities and who say "nevertheless, what they did was legal". This would also be applicable to those who excuse the actions of our government's agents toward those in its detention centers because of some technical justification by the Bush Administration's Office of Legal Counsel. Just because someone can twist the words of the law to justify reprehensible actions doesn't make those actions any less wrong.

Auditing the Federal Reserve

Representative Ron Paul of TX has introduced the Federal Reserve Transparency Act of 2009, a bill which essentially opens the workings of the Federal Reserve to Congressional audit but not control. It's a hugely popular bill on OpenCongress.

Proponents of shielding the Federal Reserve from meaningful disclosure and oversight justify their position by arguing that "the Fed" should be able to complete its work without political pressure, especially pressure to take short-term actions counter to particular long-term policies. There's some value to that, in the sense that in many cases the actions necessary to preserve economic stability and/or growth in the long term may be unpopular in the short term.

However, it's ultimately in the democratically-elected Congress where the nation can debate its long term goals, and when necessary, the tactics required to achieve them. As it stands, we can only trust the Reserve to take its actions without fear of audit; this is disturbing because we the people end up paying for loose or tight monetary policy and its "lending as a last resort". Because their actions spend or encumber our tax dollars (now or future), we taxpayers should have the power to determine (at least post facto) if the short-term tactical decisions make sense.

As Justice Brandeis once said, "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants ...". The Federal Reserve is not a sausage factory; it in part implements policy by regulating its member banks. It's responsible to the Federal Government, and as such, should expect to be audited by elected officials.