Futures and Options

I wish I could say that I’d been following Ward v. Wilbanks as a result of a watchful eye on interesting cases, but I have to admit that it took a friend’s comments on the Fox News coverage to bring the case to my attention (despite what some of you may think given my political leanings, I have no love of Fox’s often-skewed reporting).  For those of you who don’t care to read through the judgement and who (correctly) don’t fully trust Fox’s article, I’ll summarize the case briefly.

Julea Ward was enrolled as a graduate student in Eastern Michigan University’s Counseling program.  As part of state accreditation requirements, the curriculum for this program includes instruction on, and mandates adherence to, the ACA Code of Ethics.  Students failing to follow the American Counseling Association’s code are subject to disciplinary action, up to and including the student’s removal from the program.  ACA standards as well as state accreditation standards further specify that students will be required to engage in a Practicum during which time they will apply their classroom knowledge by engaging in actual counseling sessions, albeit with oversight from a professional in the field or faculty members themselves.

Ms. Ward excelled in the classroom portion of the program and despite taking numerous positions on homosexuality, both in written work and during in-class discussions, that were substantially contrary to those of her professors and fellow students, continued to receive high marks in all classroom courses.   There is no evidence to suggest that Ms. Ward’s views caused any undue hardship for her during the two and a half years she spent in the classroom portion of the program, indeed the consistent high marks awarded to Ms. Ward provide strong evidence that, despite disagreements on the issue of homosexuality, the faculty were successful in their efforts to judge Ms. Ward’s work on its own merits rather than on whether they personally agreed with the positions it often described.

After a highly successful completion of the classroom portion of the program, Ms. Ward entered the Practicum in early 2009 with no initial indications of potential difficulty.  During the course of the Practicum, however, Ms. Ward was asked to counsel a student who was seeking help with depression.  Upon learning that this student had previously sought counseling about a homosexual relationship, Ms. Ward asked her supervisor (a counselor under whose license Ms. Ward was practicing) if the student should be referred to another counselor due to Ms. Ward’s inability to “affirm” the client’s homosexual behavior even though said behavior was not the reason for the counseling session.  Ms. Ward’s supervisor agreed to re-schedule the student with a different counselor.

Ms. Ward was later informed that she would not be assigned additional clients and that her supervisor was requesting an informal review (a non-disciplinary process that includes a student, his or her supervisor, and the student’s faculty advisor) to discuss whether Ms. Ward’s refusal to counsel a homosexual even about issues unrelated to homosexuality represented a breach of the ACA guidelines.  It should be noted that these guidelines are given prominence in classroom learning and it is not possible that someone with Ms. Ward’s academic record could have been unfamiliar with them.  The purpose of this review was to remind Ms. Ward of these guidelines (which state, in part, that, “discrimination based on . . . sexual orientation” is prohibited) and to discuss the fact that a counselor has an obligation to provide counseling based on the client’s values, not the counselor’s values per ACA guidelines.

After the review, Ms. Ward was presented with three options:  (1) complete a “remediation program”; (2) voluntarily leave the program; or (3) request a formal hearing.  Participation in the remediation program required that Ms. Ward recognize, “that she needed to make some changes.” (Judgement, page 4)  The goal of the remediation program was to help Ms. Ward successfully find ways to counsel homosexuals on issues unrelated to their homosexuality.  Ms. Ward chose to request a formal hearing instead.

The formal hearing (which was presided over by a much larger panel than the informal review) resulted in a unanimous decision that ACA guidelines had, in fact, been violated and that, as a result, Ms. Ward was to be dismissed from the program.

That’s the background.

Much has been made about Judge Steeh’s judgement in favor of Eastern Michigan University (EMU), with one news outlet (I’m looking at you Fox) claiming that, as a result of the ruling, “schools can expel students . . . who believe homosexuality is morally wrong.”  This is a ridiculous reading of Steeh’s judgement and it makes me question whether Mr. Starnes (the author of the Fox article) even bothered to read the judgement.  This misrepresentation is not unique to Fox, however, as everyone’s favorite “McPaper”, USA Today, is getting in on the unfounded sensationalism by claiming that the judgement requires that, “student counselors must ‘affirm’ gay clients.”

The reality of the situation is that Justice Steeh’s judgement is, in fact, quite narrow and is unlikely to set any significant new precedent.  The Judgement, when distilled to its essence, essentially reiterates the already established legal fact that a school has the right to enforce a program’s guidelines when such guidelines have clear secular purposes.  In EMU’s case, the guidelines in question were those of the world’s largest association of professional counselors; it is not at all unreasonable for the university to hold students in a particular program to the same standards as are prevalent within the professional world to which that program applies.  Additionally, the school is required to adopt and enforce these guidelines in order to maintain its accreditation; a concern which is most certainly secular in nature as well as being religiously neutral.

My own commentary on the entire issue is simple.  Ms. Ward knew the ACA guidelines and knew that her own views were in opposition to those guidelines.  As such, she had three main options: (1) seek attendance at a school which adopts and enforces ACA guidelines and, in so doing, accept that she would need to counsel homosexual persons without bias despite her own views; (2)  seek attendance at a school which did not adopt ACA guidelines and, in doing so, accept that such a school would not be accredited; or (3) seek attendance at a school which adopts ACA guidelines but dispute the idea that said guidelines require her to counsel homosexual persons.

Ms. Ward chose the third option and the outcome should have been predictable.  Indeed, the outcome is so predictable that one must wonder if this were not Ms. Ward’s intent from the very beginning.  The complaint filed by Ms. Ward’s lawyers seems to support this reading of the situation as my first impression upon reading Ms. Ward’s complaint was that her lawyers chose to throw as much at the wall as possible and simply hope that something stuck.

It is disheartening to see the press making so much out of what is, in reality, an unsurprising judgement.

To paraphrase a line I picked up from another blogger, “It’s no major feat to ignore reality and pretend that laws can be erected to change any situation,” and we’re seeing more of this insipid parlor trick in the recent wailing and gnashing of teeth by House Democrats (led by the ever-delusional Henry Waxman) in response to Wall Street’s recent multi-billion dollar writedowns.  Waxman and his cronies are apparently aghast that Wall Street has the incredible temerity to follow SEC regulations which require that all companies immediately restate earnings to reflect changes to the present value of long-term liabilities, which includes tax liabilities.

I guess accounting irregularities are OK as long as those irregularities hide the government’s lies.

As my own application for admission to law school has already been accepted (Go Huskies!), I was able to read Roger Clegg’s recent article on whether or not it is wise to include a “Diversity Index” in law school rankings with less bias than I might have had a few mere weeks ago.  Even though agreement with his argument no longer technically furthers my own interests, I can only agree with his evaluation and applaud his conclusions.  While diversity of opinion may indeed be a noble goal, mere diversity of pigmentation cannot achieve it.

MoveOn.org, bastion of unbiased information, has put together a list of , “10 Things Every American Should Know About Health Care Reform“.  As expected, this “information” is effectively an advertisement and it is quite deliberately misleading.  Let’s go through the list point by point.

The claim:

1. Once reform is fully implemented, over 95% of Americans will have health insurance coverage, including 32 million who are currently uninsured.

The reality:

Currently, only 15% of the US population is uninsured (46 million uninsured individuals per the 2007 Census Bureau data and a current US population of 307 million).  If we only count persons who are legal US Citizens (this includes both native-born citizens and naturalized citizens), then only 12% are uninsured (80% of uninsured are US citizens, so 80% multiplied by 15% gives us 12%).  This paints a very different picture as we begin to see that this bill will spend trillions of dollars over the next decade but will only improve the number of insured by 7% to 10%.  That’s not a lot of juice for the amount of squeezing being done.  In addition, we must also account for the fact that large numbers of currently non-covered individuals are either children who would be covered under their parents’ existing insurance but whose parents have neglected to register them, or young professionals who choose to opt-out of employer-paid health care because they do not believe it is necessary to have coverage.  The net result when such factors are accounted for is that the bill exists to benefit only about 4% to 8% of the total population.

The claim:

2. Health insurance companies will no longer be allowed to deny people coverage because of preexisting conditions—or to drop coverage when people become sick.

The reality:

By eliminating the right of a business to deny coverage to people who are guaranteed to cost more than they pay in premiums the bill effectively mandates that prices increase across the board.  Let’s use a perfect analogy to illustrate why this is so.  Imagine if the exact same thing were required for car insurance companies.  In such a world, you could buy a wrecked car and then file a claim to make the insurance company pay for repairs despite the damage being preexisting.  Obviously premiums would increase significantly.  Perhaps you think that this simply means that insurance for persons who require more care will only be more expensive to those particular people, but this is not so as the bill regulates an insurance company’s ability to recoup costs from clients who are very expensive to insure.  The only way for insurance companies to guard against such losses will be to increase everyone’s premium, regardless of your risk level.

The claim:

3. Just like members of Congress, individuals and small businesses who can’t afford to purchase insurance on their own will be able to pool together and choose from a variety of competing plans with lower premiums.

The reality:

This is already a reality.  In fact, the company for which I currently work is part of such a pool.  To claim that this is a benefit of the Obama bill is disingenuous at best and downright deceitful at worst.  MoveOn.org is simply exploiting voter ignorance for political gain.  They know that most Americans are not sufficiently familiar with current regulations to understand that such pools of small businesses already exist and so they are dishonestly touting such pools as benefits of the Obama bill.

The claim:

4. Reform will cut the federal budget deficit by $138 billion over the next ten years, and a whopping $1.2 trillion in the following ten years.

The reality:

Once again we are into territory that is either disingenuous or deliberately deceitful.  As with claim #3, MoveOn.org is exploiting voter ignorance for their own political ends.  On the surface, this looks good, until one realizes that “deficit” is not synonymous with “debt”.  The federal budget deficit is a yearly number that represents how much money is being borrowed to run the government for that particular year.  The federal debt is the total amount of money that the government still needs to pay back from all previous years combined.  It is possible to reduce the deficit without there being any corresponding reduction in total debt at all, and this is all that is actually being claimed.  In fact, because there are no claims that the deficit will be eliminated, MoveOn.org is effectively admitting that overall debt will continue to grow even after the supposed $1.2 trillion in deficit reduction.  There is also the deliberately misleading wording where it appears at first glace that the $1.2 trillion in deficit reduction will occur in 10 years, even though the reality is that this deficit reduction comes in the 10 years after the first ten years where the reduction is only $138 billion.  This means that the supposed $1.2 trillion in deficit reduction occurs in 20 years, not 10.  Long story short, this claim actually admits that the Obama bill will spend more money than it saves over the next 20 years.

The claim:

5. Health care will be more affordable for families and small businesses thanks to new tax credits, subsidies, and other assistance—paid for largely by taxing insurance companies, drug companies, and the very wealthiest Americans.

The reality:

When business are taxed, they inevitably pass those costs on to the consumers. Any benefit in tax credits to consumers will be counterbalanced by increases in premiums, especially given that claim number 2 essentially guarantees that premiums will increase across the board. This also contains the hidden premise that it is acceptable to levy large taxes on “the very wealthiest Americans” even though such taxes amount to punishment for success.  This claim is nothing more than an appeal to those who are bitter over the success of others and who wish to lay claim to the fruits of other people’s success.

The claim:

6. Seniors on Medicare will pay less for their prescription drugs because the legislation closes the “donut hole” gap in existing coverage.

The reality:

This claim assumes that there are no other variables, such as increases in the costs of drugs due to pharmaceutical companies needing to recoup the punitive taxes that this bill would impose.  Additionally, the Medicare Part D coverage gap (the “donut hole”) is a legitimate and intended design feature of Medicare Part D coverage that was designed to discourage the tendency of some physicians to prescribe drugs with less discrimination than might otherwise occur.  The maximum cost that a senior may incur while in this gap is $4,250.25, or about $360/month.  Less than a car payment for many people.  Additionally, there are already programs for low-income seniors so that they are not affected by the Part D coverage gap.

The claim:

7. By reducing health care costs for employers, reform will create or save more than 2.5 million jobs over the next decade.

The reality:

Interestingly, this is the only claim for which MoveOn.org has no source listed, which suggests that it’s, well, just a wee bit made-up. It is also a claim that economists understand is effectively impossible to track or measure in any real-world scenario.  The fact that there is absolutely no way to ever verify or disprove this claim makes it fantastically useful propaganda, but also makes it worthless as a legitimate statement of the benefits of the Obama bill.

The claim:

8. Medicaid will be expanded to offer health insurance coverage to an additional 16 million low-income people.

The reality:

Admitting that a mismanaged program which is swimming in red ink will be expanded is not the best way to sell the Obama bill.

The claim:

9. Instead of losing coverage after they leave home or graduate from college, young adults will be able to remain on their families’ insurance plans until age 26.

The reality:

Many, perhaps even most, plans currently have similar allowances. For example, I could have stayed on my parents’ insurance until I was 24, a full two years _after_ graduating from college and being hired into my first job with benefits.  Had I remained in school, I would have been able to stay on my parents’ insurance even longer.  MoveOn.org is yet again taking advantage of voter ignorance for their own political gain.  MoveOn.org is fully expecting that most people will lack the familiarity with their current insurance plans to know that this sort of feature is already offered on many plans.  As I said before when responding to claim number 3, to claim that this is a benefit of the Obama bill is disingenuous at best and downright deceitful at worst.

The claim:

10. Community health centers would receive an additional $11 billion, doubling the number of patients who can be treated regardless of their insurance or ability to pay.

The reality:

Increasing funds to community health centers is a great thing in theory, but it doesn’t change the fact that we cannot afford the current level of spending, much less a doubling of it.

So, there you have it.  10 things that every American should know about health care reform and the actual truth behind each one.

The US Supreme Court has agreed to hear arguments in the case of Doe No. 1, et al., v. Reed, et al. In what is something of a rare position for me, I come into this hoping that the Court will affirm the Ninth Circuit’s decision.  While I am often not a particular fan of the Ninth Circuit, and while I tend to agree with Mr. Volokh’s opinion that the Ninth Circuit made the right decision for not entirely the right reasons, in this particular case I can see legitimate rationale behind the decision.  The Ninth Circuit seems to believe that the anonymity of petition signers is at least potentially mandated by the First Amendment in certain circumstances but in the case of the WA State petition the state has sufficiently compelling reasons to limit the supposed First Amendment right to anonymity.

My own interpretation mirrors Mr. Volokh’s; I do not believe that there is any situation in which the First Amendment protects the anonymity of petition signers.  It is my hope that the Supreme Court with affirm the Ninth Circuit’s decision with clarification on the reasoning.  Even if there is no clarification of reasoning, however, a simple affirmation would still be a defensible position in my mind.

Told you I’d continue it someday.

This is not so much a “thing” in the sense of a named event or entity, but it’s still a situation that baffles me:

For the past several years, I have been receiving E-mails intended for someone else due to a similarity in our addresses.  Mildly annoying because the majority of these misdirected E-mails have been the result of this other person mis-typing her own E-mail into form subscriptions or contact lists, so it’s not like strangers are making the typos; she should know her own E-mail address.  Yesterday she enrolled in online banking through Wachovia.  Using my E-mail address.  Ponder the consequences of that for a moment.

All of that, however, is mere background to the upcoming absolutely stunningly illogical event that is about to occur.

Being a (relatively) nice guy, I forward the welcome message to Wachovia’s customer service department notifying them that I did not have an account with their company and that I should not be receiving information about someone else’s bank accounts.  (It might just be me, but I don’t think it’s a particularly good thing for strangers to receive each other’s banking information.)  I received the following response from Wachovia:

Unless you are a customer, we are unable to de-enroll your e-mail address.

That’s right.  Because I was not a customer, they refused to stop sending me E-mails containing someone else’s account information.

In the meantime, while waiting for their reply, I received a “daily balance notification” letting me know how much money was in an account that didn’t belong to me.

I notified Wachovia again.  Same response.

Unless you are a customer, we are unable to de-enroll your e-mail address.

After receiving several more E-mails from Wachovia containing information about an account that did not belong to me (and notifying Wachovia each time), I finally received a reply from a higher-level customer service manager.

I have contacted the customer who had your e-mail address on file. I have found that there was a typo in the e-mail address. I have taken care of this issue.

A few minutes later, I received an E-mail from Wachovia’s automated online banking system:

Our records indicate that you recently added or made a change to one of your email address(es). This notification is to confirm that you initiated this change.

All it took was repeated pushing on my end to get them to correct the issue.  If I had given up after the first response, I would still be receiving information about an account which I do not own.

It should not take repeated notifications on my part for a bank to stop sending me the account information for a stranger.  They should have suspended the account’s automated E-mails immediately after my initial notification to them and then contacted the account holder about the mix-up rather than doing nothing until I harassed them enough to get it kicked up to an upper-level representative.

Wachovia, I have a suggestion for a new slogan:

Online banking security; we’re doing it wrong.

Haven’t had a chance to read through the full ruling yet, but so far this one looks like a win for rationality.  If you’re not familiar with the case, George Will provided an excellent summary about two months ago.

I started keeping track of the raw numerical data for my travels and so far this year in numbers is either impressive or depressing depending on how one looks at it.  Numbers are slightly projected through the end of this month to capture the entire first 6 months of 2009:

• Days in year to date:  181
• Days on the road:  97 (53.59%)
• Airline Miles Earned:  76,932
• Expenses (incl. hotel/airfare):  $20,488.83
• Projects worked on:  3

H/T to Consultant Ninja for giving me the idea to track this.

H/T to Discriminations for bringing this to my attention.

I already explored some reasons for criticizing Sotomayor in a previous post, but it looks like we have a couple more gems from from someone who is nominated for one of the most mentally-demanding positions in the world.  In describing her experiences in college, Sotomayor said in a 1996 speech at Princeton:

When my first mid-term paper came back to me my first semester, I found out that my Latina background had created difficulties in my writing that I needed to overcome. For example, in Spanish, we do not have adjectives. A noun is described with a preposition, a cotton shirt in Spanish is a shirt of cotton, una camisa de agodon [sic], no agondon [sic] camisa.

Now, I’ll admit to not knowing enough Spanish to even ask where the bathroom is, but I still know enough to understand that even when the construction is, “a shirt of cotton”, the word “cotton” remains an adjective, whether in English or in Spanish.  To be sure, the point which Sotomayor is attempting to make, that differences in standard grammatical construction between two languages represent additional challenges beyond mere vocabulary for people who learn a second language, remains reasonably valid.  However, Sotomayor’s method of expressing this point can only be described, charitably, as “inartful”.

In a delightful case of sabotaging her own point, Sotomayor had earlier said:

Most people never go back to basic principles of grammar after their first six years in elementary school. Each time I see a split infinitive, an inconsistent tense structure or the unnecessary use of the passive voice, I blister.

Personally, I bristle when someone mangles a common idiom.  Furthermore, style guides frequently caution against being excessively prescriptive with regard to split infinitives as there are often cases where a split infinitive is superior, both in clarity and grace, to it’s ostensibly grammatical counterpart.  As if that weren’t enough, her distaste for the passive voice is likewise misplaced; in legal or technical writing it is often desirable, if not strictly “necessary”, to omit reference to an agent that is performing the described action.

As before, the point which Sotomayor was attempting to make stands reasonably valid.  Clear and concise writing (which is generally achieved through mindful consideration of proper grammatical style) is vitally important to effective communication.  However, we once again see an example of how Sotomayor’s own writing falls short of being clear and effective.

I recognize that grammatical errors are part and parcel to the human condition and I do not expect that anyone will always be completely without error in his or her speech; however, the examples above are such as should have been well proofed and I do not believe it to be at all unreasonable to expect that Sotomayor would understand that Spanish does indeed have adjectives and that the proper English idiom is “bristle”, not “blister”.  A person who is being considered for a seat on the US Supreme Court simply should not produce writing that suffers from such elemental flaws.

From the Associated Press via Yahoo!

Jolted by cost estimates as high as $1.6 trillion, Senate Democrats agreed Tuesday to scale back planned subsidies for the uninsured and sought concessions totaling hundreds of billions of dollars from private industry to defray the cost of sweeping health care legislation.

Apparently Senate Democrats have forgotten that goods and services actually have to be paid for.  They must have also missed the fact that the country is already bleeding money with record deficits.

Then again, given the ratio of what is paid for to what is going to be financed through deficit spending, maybe they’ve simply decided to exercise the same level of fiscal restraint as their constituents did before this whole mess started.

Several officials said the Congressional Budget Office had issued a cost estimate of $1.6 trillion, with only about $560 billion paid for.

Just put that $1.1 trillion on the credit card and worry about it later.  What’s the worst that could happen?