1. The flowchart:
I first ran into the organization Common Good when Looking for the Next Best Thing linked to a page of theirs, an impressively complicated flowchart that supposedly shows what it takes to suspend a disruptive student in the NYC school system. The chart’s a striking piece of work, but as I read through it, I became uneasy.
I’ve been a bureaucrat. I believe I have some sense of the logic behind the apparent complication of bureaucratic processes, especially in areas like education, where you get multiple overlapping and interacting agencies, authorities, programs, interests, priorities, and rule sets. It’s a necessary complexity, but it lends itself to parody. If you want to take a description of a bureaucratic process and puff it up like a microwaved marshmallow, all you have to do is specify all its possible inputs and contingencies, plus all its optional appeals processes (there are always appeals processes) unto their last detailed kink and wrinkle. It will come out looking impossibly convoluted.
This is in fact what the anonymous author of that flowchart has done with the NYC school system’s suspension process, in order to create the impression that it’s hugely elaborate. He’s cheated along the way; for instance, by separately breaking out the subsections of some regulation (say, the list of information that must be included in the notice of suspension sent to the parents) as though each stipulated databit were a separate step in the process. He’s also given the chart an arbitrarily long, narrow format, which further obscures the actual structure of the process, and makes it look even more endless and convoluted. That’s a misrepresentation, but it’s by no means the only one present.
The flowchart starts by planting the idea of classroom disruption, and the presumed need to get rid of the students who’re causing it. This is not a working model. There are always a few students who are “so disruptive as to prevent the orderly operation of the school,” or whose behavior “represents a clear and present danger to the student, other students, or school personnel,” and you do have to be able to take them out of a setting that can’t accommodate them. However, students that meet that description are not the primary source of classroom disruption, and there sure as heck aren’t one or two of them per class. It’s like bad drivers: a small number of them are so impenitently dangerous that they should be prosecuted as felons, if only to get them off the roads; but they’re hardly the main source of unsafe driving.
Here’s the missing part of the flowchart’s model: Suspending a student is a nontrivially consequential action. The students most likely to get suspended are also likely to have fragile and uncertain school careers. The loss of daily continuity and classroom instruction time can break them. So can the trouble they get into while idle. If you suspend them, they may flunk out, or stop coming, or tangle with the law. At that point, everything suddenly gets much harder for everyone concerned—except, perhaps, for the school that did the suspending.
It’s much easier to dispense education if you’re free to get rid of the problem cases, and anything troublesome can be classified as “disruptive”. Trouble is, the kids you boot out don’t just vanish into thin air. They have to go somewhere and do something. Whatever it is, they’d almost certainly be better off going to school. A good suspension policy doesn’t make it too easy for schools to offload their problems onto someone else’s shoulders.
Aside #1: If you’ve hitherto had a lilywhite WASP school, black students are a disruption. So are ESL students, Muslims, unassimilated Hmong, and observant Jews. It’s not a question of disruption/nondisruption. It’s where we decide to draw the line.
Aside #2: Some of the complications in that flowchart are generated by requirements that parents be brought into the process, fully informed of what’s going on at various stages, and given a say in it. Since I can think of no other circumstance in which parental involvement in education is considered to be a bad thing, I’m not going to accept that it’s bad here, either.
The chart also gets a lot of play out of the separate-but-overlapping rules that kick in if a student is disabled or a Special Ed case. It drops in the questionable datum that about 1 in 10 students is considered “disabled,” which has got to be some kind of misprision. I doubt you can come up with a 10% disability rate in NYC unless you’re counting every child whose home language isn’t solely English—and that’s not enough to get you cosseted. Meanwhile, there’s good reason to have separate rules for children with special needs.
One of the big changes in the U.S. school system over the last few decades has been the mainstreaming of students who have special needs. If they can go to regular schools, they do, and they (supposedly) get the additional help they need to do so. This can be very expensive for their districts, and inevitably brings some disruption to their classrooms, but that was assumed from the start. It can be stressful. But if mainstreaming is going to work, disciplinary assessments have to take special needs into account.
2. Who are these guys, anyway?
So, what’s this flowchart actually about? Not law and education. Not really. I doubt that many readers read much past the first screen’s worth of it, and I don’t think they’re meant to. That first screen sets up the false model of the principal who can identify the one or two children per class who must be suspended in order to maintain any classroom discipline. It also introduces the issue of separate rules for children with special needs, and drops in that strange bit about a 10% disability rate, which undermines the perceived validity of all the protective regulations.
The real payoff is that next to the main flowchart there’s an image of the chart in miniature, a thumbnail version, which even at that size is two or three screens long. The interaction goes like this: You arrive at the page and start reading the main flowchart. You get through about a screen’s worth of it, and then your eyes glaze over. You switch over to the thumbnail version, click down to see where the thumbnail ends, and find there’s an entire second screen’s worth of it with no end in sight.
At that point, the message that’s delivered is that there are unnaturally and unnecessarily complicated legal requirements attached to what should be a simple, straightforward disciplinary option. It’s a lie. But that flowchart is a very elaborately constructed lie—a professional piece of work. It made me want to find out why someone went to all the trouble to put it together. I clicked through to the site’s home page.
Thus did I meet Common Good. Its website claims it’s about “restoring common sense to American law,” and pretends that Common Good is a grassroots organization. I didn’t quite buy it. There was something too slick and simple about the site. It smelled wrong. An organization of real human beings who are trying to address genuinely complex issues ought not generate a webpage as smooth and featureless as a bowlful of Maalox.I looked further. It didn’t take long, and Common Good was at the top of the list. From the ConsumerWatchDog.org site, 29 May 2003:
Consumer Group & Author Reveal Corporation’s Invisible Hand Behind Attack On Individual’s Legal RightsThat is, Common Good is a corporate-funded organization whose entire purpose is deception and the spread of disinformation.
Santa Monica, CA — The growing attempt to roll back legal rights for individuals in state house across the nation is being surreptitiously coordinated by America’s largest corporations through the use of front groups, a national consumer group and author revealed today. … The “Astroturf” corporate consultants masquerading as independent, grass roots reformers, according to FTCR’s research, include:* Common Good, described in Monday’s front page New York Times story only as “an advocacy group dedicated to changing what it calls the lawsuit culture,” was founded by corporate defense lawyer Philip K. Howard, the Vice Chairman of Covington & Burling. This leading corporate defense firm represents many of America’s largest corporations, all of whom have a large stake in limiting consumer’s legal rights. The list includes Brown & Williamson Tobacco Corp., Lorillard Tobacco Co., Philip Morris Inc., and R.J. Reynolds Tobacco Co, the American Automobile Association, the Association of American Railroads, the American Petroleum Institute, Eli Lilly, ExxonMobil, Goodyear, Microsoft, Procter & Gamble, Trane, and Union Pacific.
Cute, huh? Large corporations can do stuff like that. They have lots of money. The same kind of resources that can buy them airtime and slick ads for their products can also buy them the entire appearance of whole grassroots groups, organizations, and popular movements.
3. What’s going on here?
In the case of Common Good, the agenda being pursued can be loosely grouped under tort reform, which isn’t a reform movement at all. It’s a massive lobbying and PR campaign surreptitiously financed by business interests. It works to (1.) bring the law into disrepute; (2.) turn public opinion against small plaintiffs by portraying them as greedheads who file groundless or frivolous lawsuits; (3.) spread the idea that American firms are being driven out of business by runaway jury verdicts (which they aren’t)(and by the way, juries tend to make smaller awards than judges do); (4.) likewise spread the idea that American doctors are being ruined by skyrocketing malpractice premiums caused by an epidemic of outlandish malpractice awards (premiums are up, but malpractice awards aren’t, and the greedheads in this instance are actually the insurance companies); and (5.) create a climate of public opinion that will enable them to get laws and regulations permanently changed in their favor.If you aren’t already familiar with this issue, probably your best single-stop website is CorpReform.com. Consider linking to it. As the site sums things up,
Tort reform isn’t about fixing a “broken” justice system; it’s about protecting the public image and bottom lines of the biggest and most powerful companies in the world. Tort reform isn’t about protecting doctors from high insurance rates; it’s about protecting their insurers from having to pay large judgments. Tort reform isn’t about keeping “greedy lawyers” from filing frivolous lawsuits; it’s about keeping those who are severely injured out of the court system and away from the public eye.All true, I’m afraid. This has been going on for a while. From a consumer watch website:
On February 27, 2002, the Wall Street Journal reported that the U.S. Chamber of Commerce plans to spend up to $15 million for television ads that highlight the “hidden costs” of allegedly plaintiff-driven product-liability litigation. Thus, U.S. business returns full throttle to an old campaign: tort reform.You know all those stories you’ve read about ridiculous court cases where greedy plaintiffs and their greedy lawyers collect huge settlements for minor injuries that were their own fault in the first place? The McDonald’s coffee case is the most famous. I’m sorry to say that those stories are fabrications, part of the PR campaign. Some of them are pure fiction. Others have been cooked up by grossly misrepresenting real court cases. Netizens have spread them far and wide.
The message is not new. For the past fifteen years, pro-business interests in America have sought to “reform” the judicial and regulatory systems that govern consumer products and services in America by limiting the remedies of injured citizens. Until now, initiatives targeting legislative change have encountered limited success. Although many legislatures have adopted some tort-reform measures, most states have rejected the more Draconian reforms. In fact, courts in some states have struck down tort reform attempts as unconstitutional.
The tort reform campaign has gained much wider acceptance, however, in the jury box. Many jurors now treat as axiomatic the notion that the nation is plagued with “frivolous” lawsuits and outrageous jury verdicts. The rich and greedy plaintiff’s lawyer has become a part of American folklore. Of course, these stereotypes have not emerged by chance. They have grown out of a calculated attempt by corporate America to portray itself as the helpless victim of an unfair legal system—to cultivate a legal system that favors business interests.
Thus, while the tort reform campaign may not have convinced legislatures and judges, it has resonated with the public at large. Contrary to widespread propaganda, studies have shown that jurors tend to be “generally favorable toward business, skeptical more about the profit motives of individual plaintiffs than of business defendants, and committed to holding down awards.” As a result, plaintiffs prevail in fewer than half of the cases (48%) that juries hear. Moreover, the overall value of the average jury award is generally less than the actual losses suffered by victims. In fact, juries make the largest awards not in tort cases, but in business litigation cases.
The battle here is not about reality, but perception, and business interests have clearly influenced this battle. And there is every indication—from the Chamber of Commerce’s announcement to election promises—that pressure for alleged “reform” of the legal system will only increase. To face these challenges, proponents of equal access to the justice system for all must understand (1) how the “need” for reform was created, (2) the tactics used and (3) the true facts about the role of personal injury cases in the nation’s courts.
THE BEGINNING OF THE “TORT REFORM” CAMPAIGNInitial industry efforts to shape the tort-reform debate began in the 1980’s and concentrated on the editorial boards of large newspapers and small-town publications. Editorial writers themselves described direct links between industry-sponsored tort reform campaigns and the content of the editorial articles they wrote. In the mid-1980s, for instance, three tobacco firms (Lorillard, Brown & Williamson and Philip Morris) hired the law firm of Arnold and Porter to gather news clippings on “out-of-control” personal injury claims and send them to influential reporters, columnists, editors and TV producers. These clippings inevitably contained biased accounts of lawsuits in which plaintiffs won large verdicts for seemingly small or nonexistent civil wrongs. Public relations campaigns like these, targeted at the press, produced positive results for their industry sponsors. Commentators soon noted that “… the media began to reflect the anguish of business leaders who complained that a ‘tort explosion’ was undermining Corporate America.”
4. Seducing Snopes
Don’t take it personally. Even Snopes.com has fallen for them. But then, Snopes would. They grew up out of the old Internet, back when less money was at stake, and they’re dependent on their informants. That means they can be gamed. Besides, these stories are just their cup of tea, with their consistent underlying trope of “common sense” vs. ridiculous laws, ridiculous regulations, ridiculous courts.
Common Good, the site I was looking at when I started this post, is part of the effort to bring the law into disrepute. That ought to offend you. The law belongs to you, and it’s there to protect you. It’s not always perfect; neither are the courts. But it’s there for you. These campaigns to belittle the law are being paid for by people who are manifestly not on your side.
These are corporations which stand to have to pay out large sums to satisfy legitimate individual claims. Note that: legitimate claims, as in “the corporation knew their product was lethally dangerous under circumstances that were bound to occur sooner or later, and consciously decided not to do anything about it.” They put millions of dollars into spreading the idea that juries commonly award ridiculous damages in trivial lawsuits, and that we’ve somehow become a lawsuit-happy society. They’re lying.
Remember, that supposedly huge settlement $2.6 million settlement against McDonald’s wasn’t because they gave Stella Liebeck third-degree coffee burns (though they did, and then refused her offer to settle if they would just pay her medical bills). The punitive damages were because it came out during the trial that in the ten years prior to Stella Liebeck’s accident, over 700 people had been seriously burned by the coffee McDonald’s kept at an unsafe temperature. McDonald’s knew this was happening, but they maintained their coffee at 190 F. anyway, because it keeps longer at that temperature and thus is slightly more profitable. Finally, the amount of the award wasn’t McDonald’s income for two days, nor even McDonald’s income from coffee for two days. It was two days’ profit from selling coffee that their own spokesman characterized as “unsafe for human consumption.” Ten years of serious injuries didn’t get them to turn down the temperature on their coffee pots. Two days’ coffee profits did.
Never doubt that it’s worth their while to lie to you. When you’re talking about really big corporations and really big money, it’s worth their while to lie to you very, very elaborately.
I should mention malpractice awards, which are another branch of the tort reform campaign. These are the stories about how doctors have to “practice defensive medicine” or stop practicing altogether because their malpractice premiums are going through the ceiling due to people getting rich off frivolous malpractice claims. (Do have a look at that link.) While it’s true that malpractice premiums have gone way up, it’s not because malpractice awards have gone up. It’s because insurance companies want to make even more money than they’re already making. With some of them, it’s because they greedily put a lot of money into risky high-yield investments—exactly the sort of thing insurance companies shouldn’t be messing with—and got caught short when the boom ended.
Apparently some clever fellows have figured out that you can make a lot more money if you divest yourself of the claims-paying part of the insurance business.
It’s very much worth their while to lie to you.
A few years back I had an argument with one of my brothers. I said that right-wing disinformation had a whole lot more money and organization behind it than anything the left had to say. He said no, it didn’t. I said yes, actually; it did. He again said no it didn’t, so I saw there was no use in talking about it, at any rate not with him. But it’s true. Corporate America doesn’t just buy airtime and put together slick ads for its products. It also uses its money to generate some of the slickest disinformation on the planet.
We think we’re so clever, we think we can cope, we think we’re on top of the problem. We don’t just take any old advice off the Internet. We think we know where to find the good stuff. We know to think twice before listening to corporate spokesmen. We give extra credence to private netizens who, out of the kindness of their hearts, are giving us the straight dope on something. We’ve done it a hundred times before. We’ve done the same when someone asked a question we could answer, and felt good for being able to help them.
It’s different now. There’s too much money at stake for that frontier to stay open. Deceiving us has become an industrial process.