Archive for the ‘law and society’ Category
Last week a judge struck down tenure for California teachers on civil rights grounds. (NYT story here, court decision here.) Judge Rolf Treu based his argument on two claims. First, effective teachers are critical to student success. Second, it is poor and minority students who are most likely to get ineffective teachers who are still around because they have tenure — but moved from school to school in what Treu calls, colorfully, the “dance of the lemons.”*
To be honest, I have mixed feelings about teacher tenure. I’d rather see teachers follow a professional model of the sort Jal Mehta advocates than a traditional union model. This has personal roots as much as anything: I’m the offspring of two teachers who were not exactly in love with their union. But at the same time, the attack on teacher tenure just further chips away at the idea that organizations have any obligation to their workers, or that employees deserve any level of security.
But I digress. The point I want to make is about evidence, and how it is used in policy making — here, in a court decision.
new book on work and family: Unfinished Business: Paid Family Leave in California and the Future of U.S. Work-Family Policy
When I visiting another university to give a talk a few years back, I met two faculty members for lunch. One was wincing visibly in pain. When I asked what was wrong, my colleague explained that he was suffering a migraine but that he would still teach class. When I suggested cancelling class that day to recuperate, he felt he couldn’t. He explained that he needed to save his vacation days for helping his ailing father, who was aging in place in another state. Moments like these made me realize that for workers of all ages, attending to family matters is not easy or well-supported in the US.
Such policy issues are addressed in a new book by sociologist Ruth Milkman and economist Eileen Appelbaum: Unfinished Business: Paid Family Leave in California and the Future of U.S. Work-Family Policy (2013, ILR/Cornell University Press).
Here is a description of Unfinished Business: Paid Family Leave in California and the Future of U.S. Work-Family Policy provided by the authors:
This book documents the history of California’s decade-old paid family leave program, the first of its kind in the United States, which offers wage replacement for up to six weeks for all private-sector workers when they need time off from their jobs to bond with a new child or to care for a seriously ill family member. Based on original fieldwork and surveys of employers, workers, and the larger California adult population, it analyzes the impact of paid family leave on employers and workers in the state, and explores the implications for crafting future work-family policy for the nation.
The book makes three key arguments. The first concerns the politics of paid leave. In contrast to most government-sponsored social programs, which are under attack and often have little popular support, paid family leave (and indeed work-family policy more generally) is a crossover issue politically. Conservatives see it as an expression of “family values,” whereas for progressives it is a much-needed element of the safety net for working families. As a result it has strong support across the political spectrum. Business routinely opposes any and all legislative initiatives in this area, which is a major obstacle to passing laws like the one that created the California program. But because the population generally is so highly supportive of paid leave, that opposition can be overcome by means of coalition organizing, as the passage of California’s landmark 2002 law – documented here in detail – illustrates.
The second argument is that contrary to the claims of the Chamber of Commerce and other business lobbyists, paid family leave and other programs like it do not impose any major burdens on employers. This book presents survey data that show that in California, employers themselves concluded that the impact of the new state program on their productivity, profitability and performance was minimal and often positive. In addition, paid leave often reduced turnover and improved workers morale, at little or no cost to employers. The tax supporting the program is paid for entirely by workers, and many employers enjoyed cost savings as a result of the program’s creation, because they could coordinate their own wage replacement benefits with now offered by the state.
The third argument is more disturbing. This book shows that although workers who use California’s paid leave program and their family members have benefitted greatly, and although the program is well-managed and easy to access, awareness of its existence remains low. Moreover, those who are in most need of the program’s benefits – low wage workers, young workers, immigrants and disadvantaged minorities – all of whom have little or no access to employer-provided wage replacement benefits when they need to take time off to care for a new baby or a seriously ill relative – are least likely to know about it. As a result, the program’s potential to act as a social leveler, making paid leave available not only to managers and professionals, who are much more likely than lower-level workers to have access to paid time off in any form, but to all private-sector workers, has not yet been achieved. Instead the longstanding pattern of inequality in access to paid leave has remained largely intact. And even workers who are aware of the new state program are often reluctant to take advantage of it because they fear repercussions on the job.
Here’s the front and back of the book cover:
It is common for affirmative action critics to sue colleges over race based admissions policies. Here’s my question: How often do critics sue colleges over legacy admissions (i.e., giving preference to alumni children)? I think the answer is “not much.” The lack of concern over legacy admissions suggests that critics don’t really object to the absence of color blind standards. Spending so much money on court fights aimed at under privileged students while ignoring the student who slides by on family connections leaves a very bad taste in one’s mouth.
There’s a bunch of legal theories that assert that a statute, regulation, or constitution should be strictly interpreted in terms of the author’s intention or the common sense meaning of the words as they were used at the time of the writing of the text. I get it. We should figure out what the law actually means, not what we want it to mean. And for a lot of everyday law, I can buy it.
But still, theories of intent and meaning leave me scratching my head. For example:
- What if the legislators don’t know the meaning of the law? For example, when big laws are passed, like the Patriot Act or the Affordable Care Act, the text is literally thousands of pages. A lot of folks literally don’t know what they are voting for. What is the “intent” of the law?
- What if the legislators didn’t write the law? A lot of legislators rely aides and others to actually write the text. Does interpretation of the law rest on what some clerk thinks?
- If multiple people authored the law, whose meaning or intent takes precedence?
- What if the law uses really vague words? For example, people argue over “cruel and unusual” punishment. Even back in the day, people must have had differences in opinion. Do you have to somehow go back in time and take a survey to figure out what the average American in 1789 thought was cruel and unusual?
- What if the original meaning or intent of the law was muddled to start with? Is there an assumption that legislators have a sort of papal infallibility that ensures a clear “intent” that we must discover?