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May 2, 2006

Have You Used a Kid Today as a Political Pawn?

[Originally appeared in the Chicago Tribune, November 14, 1996, and adapted from a commentary for National Public Radio's "All Things Considered."]

One of the most curious moments in the late campaign came when President Clinton proposed to force states to withhold driver's licenses from teenagers who do not submit to drug tests. A few years ago such a step might have been seen as unthinkably coercive and invasive, but Bob Dole's only response was that it didn't go far enough: "Too little, too late," he called it.

That fit the tone this year: Whatever else they may have disagreed on, every political candidate seemed to agree on the need to protect children by any means necessary. They all wanted to bring peace to Bosnia or keep poison out of our drinking water for the sake of the kids, not because they'd think of doing those things otherwise.

It's been a trend in national politics for some years, and of course both sides are playing. The Left has its Children's Defense Fund, the Right its Family Research Council. Choose to disagree with them about welfare or taxes and it may be because you don't care enough about little Christopher and Samantha.

Politicians have always sentimentalized children as if they were Hummel figurines. And yet when every issue becomes a child-protection issue it's easy to lose sight of other values.

To begin with, protecting kids makes the perfect excuse for taking away everyone's freedom. Why did Congress move to censor the Internet? Why did Janet Reno send in the tanks in Waco, Texas? Why did the California attorney general bust the club that helped cancer patients buy cannabis for their chemotherapy? Why do we send a 6-year-old to detention for giving his classmate a peck on the cheek or suspend a junior high student for giving her friend a Midol? Same reason, every time.

Notice that, as with the driver's license-drug test scheme, the kids themselves are often the ones whose freedoms we take away. Consider the curfews that many cities have passed requiring children to be off the street by 10 or 11 p.m. They may keep some kids out of trouble, but at the expense of others who have legitimate reasons to go out with their parents' OK.

I remember being awfully dubious about that kind of "protection" when I was a kid. I was happy to listen to my mother about how late I should stay out or whether it was okay to ride a bike without a helmet. She had good advice. After all, she was my mom.

Now we have people like Elizabeth Dole, who spent her time as transportation secretary getting states to raise the drinking age to 21. In fact, she once suggested it be raised to 24. First Lady Hillary Clinton has been talking the same way even though she made her career on the idea of children's rights.

Bill Clinton seems to think the worst danger kids face today is seeing a Joe Camel ad. Under his pending proposal, magazines that have too many teenage readers (which includes not just Mademoiselle, but Vogue and Road and Track) will have to stop running cigarette ads. And for that proposal to work many magazines are going to have to start arranging for their demographics to be reported to the government. In fact collecting subscriber data is just the start. According to Clinton official William Schultz of the Food and Drug Administration, "We would want to know who is reading it, not just who it is addressed to." Just what we need--Big Brother amassing data on who's reading what.

Conservative humorist Florence King says the current public mood reminds her of the signature line from a Joan Crawford movie: "I'd do anything for those kids. You hear me, anything!" And you know how Joan turned out in real life: Mommie Dearest.

Candidates cater to this mood because it wins votes. But I wish a few of them would start talking about leaving a world for America's children that's not just a little safer, but a little more free.

Disabilities Law Protects Bad Doctors

[Originally appeared in the New York Times, November 28, 1997]

It was the patients' screams that finally did it. Officials at Hazleton-St. Joseph Medical Center in Pennsylvania investigated Frank Ruhl Peterson and found the anesthesiologist had been stealing narcotics from surgical intravenous bags to feed his own habit. Dozens of patients had been shortchanged of anesthesia prescribed for procedures that included Caesarean sections, biopsies and spinal surgery.

Dr. Peterson, a longtime addict with a record of arrests on charges that included drug possession and kidnapping, was sentenced in February and served a short prison term.

Most of us assume someone is keeping an eye on doctors with backgrounds of drug addiction, alcoholism or serious mental illness. In fact, thanks to the Americans With Disabilities Act, which Congress passed in 1990, these conditions have become legally protected handicaps, and medical boards are being stymied in their efforts to monitor or even identify doctors with histories of drug abuse.

Boards seldom deny licenses to applicants who disclose past psychiatric or substance-abuse problems. Still, most boards would like to have enough information so they can decide for themselves how serious the problems are and then be on the lookout for signs of recurrences.

The civil rights division of the Justice Department has made this very difficult, however, and in some cases impossible. It has ruled it a violation of the disabilities law to question would-be doctors broadly about their histories of alcoholism, drug abuse or mental illness. Such inquiries would cause doctors to be unfairly "singled out because of their disabilities," says the Justice Department, and would impose on them "additional burdens of investigation."

In other words, such questioning would infringe on their right not to be scrutinized more closely than doctors who have been sober or sane all along.

Instead, the Justice Department recommends that doctors be asked questions like, "Do you currently suffer any mental disorder which impairs your ability to practice medicine?" But this overlooks the obvious fact that someone suffering from mental illness is not always in the best position to make such judgments.

Advocates for the disabled further advise licensing boards to rely on nebulous "behavioral" indicators. Such indicators include references from previous employers, though these are often not made available for fear of inviting lawsuits; records of absenteeism, though these may fail to explain why the applicant missed a month of work (a skiing accident or a visit to a drug rehabilitation center?); and criminal convictions, though that will not help in the case of someone arrested repeatedly but not convicted, as seems to have been the case with Dr. Peterson.

The danger of relying on behavioral clues alone is demonstrated by the case of a Texas doctor that was a centerpiece of an investigative report published in The New York Times in 1994. Dr. Garry E. Winn showed symptoms of diminished mental capacity, seizures and "physical disabilities related to a stroke," as The Times reported, in addition to high alcohol consumption, but did not face a malpractice complaint until he miscalculated a dose of medication, inflicting severe brain damage on a previously healthy patient.

Nor did Dr. Winn's uneasy colleagues move to revoke his hospital privileges: they said they were afraid he would sue.

Fortunately, the disabilities law does not protect what it terms "current" illegal drug use. In a landmark suit brought in 1993, the New Jersey Board of Medical Examiners was permitted to go back two years in asking applicants about their illegal drug use.

But two years is hardly long enough. When Dr. Peterson applied for his license, Pennsylvania officials asked about drug use in the previous five years -- very conveniently for him, since he had just passed the fifth anniversary of his entry into a rehabilitation program.

Even five years is a relatively short time. According to Congressional testimony, a significant number of doctors relapse even after five years of reported sobriety; relapse rates in the first five years range as range as high as 50 percent.

No wonder Dr. Ray Bumgarner of the Federation of State Medical Boards warned, in testimony last May before the House Judiciary Committee, that his member boards "cannot adequately protect the public" under the Americans With Disabilities Act as currently interpreted. Doctors with "extensive impairment histories" are bound to slip through, he added, "without evaluation and monitoring."

As Dr. Peterson's patients, crying out from their beds, must have wondered: isn't anyone out there listening?

Anti-Discrimination Ad Absurdum

[Originally appeared in the New York Post, August 24, 1997]

A mother in Long Beach, CA, gasps when her 12-year-old son comes back from the barber shop with his head shaved; he'd asked for just a trim, but the man with the clippers didn't speak English well. A Virginia woman finds shopping for a coffee table takes thirty minutes instead of ten "because I couldn't understand anyone and no one understood me." Students at Penn State struggle to keep up with lectures from a graduate instructor new to these shores.

With immigration at a historic high, such frustrations are mounting. Now the federal government and legal system are doing their bit to make things worse. They're hitting employers with lawsuits if they insist on strong communications skills among employees who deal with the public -- a practice that's being branded "accent discrimination."

A major investigation by USA Today in February found language hassles to be widespread, with nearly one in four poll respondents reporting problems in the last year because a clerk, salesman, or other business person spoke English poorly. "Economists say they lack of language proficiency costs businesses billions of dollars," the paper reports. In New York, the Giuliani administration has required remedial courses for cabbies who flunk a spoken-English test.

Yet Washington keeps pushing in the opposite direction. The immigrant-rights unit of the US Department of Justice has run subway and newspaper ads warning that the "ability to speak fluent English" must not "affect your decision about hiring a prospective employee."

Accent cases started making headlines in 1992 when a state court upheld a verdict against Seattle-based People's National Bank, which didn't think Cambodian-born Phanna Xieng had strong enough language skills for a post where he'd interact with irate customers turned down for loans. Xieng's lawyers brought in medical experts, who claimed the shock of not getting promoted was so psychologically traumatic it would prevent their client from working for at least five years. Presto: a $389,000 award.

The federal Equal Employment Opportunity Commission got into the act the same year, filing charges against a California company that had fired a credit manager with a strong Indian accent. Robert Gaskins, the company's former CEO, said customers had complained that Rambhai Patel's phone calls on overdue accounts were "rude and insensitive" as well as hard to understand. Rather than fight, Gaskins' company agreed to settle without admitting wrongdoing for $12,000 plus undisclosed damages.

Civil-rights enforcers admit there are situations where employers may legitimately consider accents; they just take an ultra-narrow view of what's legitimate. Thus the attorney general of Massachusetts ruled it would be unlawful for the town of Westfield to refuse to assign a teacher with a thick accent to a job where he'd be teaching language skills to first- and second-graders.

Influential law professors push the new line. Stanford's Mari Matsuda has proposed in the Yale Law Journal that employers be made to "accommodate" shortcomings in English, just as they're now made to accommodate deaf or blind employees. She says supervisors might try using written instructions, "sign language" and "pictographs."

Another widely cited piece, in the Harvard Law Review, claims that "difficulty in understanding those with less common accents is socially contingent, and . . . customers will ultimately adjust to the accented speaker if our civil-rights law insists that accented speakers be allowed to hold positions in which they regularly communicate with the public."

Won't it be a blueprint for frustration for customers to have to "adjust" to hundreds of different accents" Tough. It is "necessary to reject customer-preference arguments," argues Matsuda, a leader in the trendy Critical Race Theory movement. Barring accent discrimination in service jobs "will admittedly impose some hardship on businesses that rely heavily on pleasing customer whims" -- thus reducing to a mere "whim" humans' desire to communicate clearly with each other in transacting their affairs. If customers fail to understand an accent, she suggests, it might be their own fault for having "lived a monocultural life."

One great irony here is that many immigrants themselves support the idea of setting high standards of English proficiency. Not only do they realize the fluency is crucial to their children's success, but they keep running into that arch-frustration: dealing between novice English speakers whose original languages are not the same.

When the teacher-assignment controversy hit in Westfield, 400 parents in the heavily ethnic mill town signed a petition asking that instructors in early grades be proficient in "the accepted and standard use of pronunciation."

Mayor George Varelas, himself a Greek immigrant with a marked accent, backed the parents. "Persons like myself -- and I cannot be confused with someone from Boston or Alabama -- should not be" in charge of 5- and 6-year-olds' first language skills. "I would only impart my confusion and give them my defects in terms of language." A Boston Globe columnist called the parents "know nothings" and the state education commissioner charged them with "bigotry," but Varelas got sacks of supportive mail from around the country.

And now safety worries are cropping up. Queasy about the risk of medical flubs due to doctor-patient misunderstandings, the panel that certifies foreign-trained physicians has decided to test applicants on how well they communicate with patients, starting in July of next year.

Want to bet they'll get sued?

A Connecticut Yankee In Court

[Originally appeared in City Journal, Autumn 1996]

Just as the disputed borderland of Alsace-Lorraine abounds with flag-waving Gallic patriots, so we in Connecticut tend to insist, a bit too loudly, that we, too, are New Englanders. Sure, we're only an hour or two from Times Square, but we can find brown eggs and Yankee at the Stop & Shop, and Essex might just as well be on Cape Cod. We even have town meeting. Actually, there is something to this last point. Towns here do preserve their individual character, in large part because we lack anything like county government. Tedious and chaotic though it often is, town meeting symbolizes the way neighbors cooperate hereabouts. It's a kind of face-to- face citizenship, concerned with every topic of local interest but, above all, with management of the schools.

These days will soon draw to a close if the Connecticut Supreme Court makes good on its widely hailed July 9 decision in Sheff v. O'Neill. In what three dissenting justices called "a vast and unprecedented social experiment," the court blithely struck down Connecticut's deeply rooted system of town-based school districts and turned the state toward a policy so utterly discredited since the 1970s that most of us never expected to hear of it again: mandatory city-suburb busing to achieve racial integration.

For years the lawyers behind the litigation trotted out lead plaintiff Milo Sheff, a black teen from Hartford, in order to give the suit an appealing public face. Yet there was nothing spontaneous, local, or personal about Sheff v. O'Neill. It arose from years of planning by national groups like the American Civil Liberties Union and the NAACP Legal Defense Fund, and no one thought it strange when the lawyers held their first post-victory strategy session in New York City. The idea was to get around the U.S. Supreme Court's 1974 ruling in Milliken v. Bradley, which made clear that the federal Constitution does not require city-suburb busing. The new tactic was to subject various broadly worded provisions of the Connecticut Constitution to what former ACLU legal director John Powell called some "stretching."

The plaintiffs won a 4-3 squeaker. Three Lowell Weicker appointees joined with departing chief justice and former Yale law professor Ellen Peters to propound a wholly new constitutional right of children to enjoy "access to public school education that is not substantially impaired by racial and ethnic isolation." Rather than ordering some specific "remedy," as courts normally do, the majority simply directed the legislature and the governor to take care of the problem at once--"to put the search for appropriate remedial measures at the top of their respective agendas"--without saying what would satisfy this command. This vagueness also reflected a deliberate strategy of the plaintiffs: during seven years in court, as the Hartford Courant reported, they had "never suggested any specific ways to correct the imbalance." Better to get into the driver's seat first and then decide in later rounds of litigation where they want to go.

Three dissenting judges, led by Justice David Borden, charged that the decision was "ungrounded in the text and history" of the state Constitution. They were less coy about its implications: "every school district in the state that is primarily white and that does not have an appropriate percentage of African-American and Hispanic students" was in violation of the court's ruling and would have to alter its boundaries or its racial and ethnic makeup to remedy this "unconstitutionality." The necessary practical result: "a statewide system of transportation based solely on racial, ethnic, and religious factors."

The state's governing elites have agreed to avoid any discussion of this prospect. "Busing is not an issue," said James Fleming, majority leader of the Republican state senate. A confidential memo from the state Democratic leadership, inadvertently left behind in a conference room, warned that election-year talk might easily turn to "forced busing," "loss of local control," and "redistricting." It advised lawmakers to "draw the debate away" from such disturbing possibilities.

Though it is impolitic to discuss busing openly, some opinion leaders see no harm in quietly preparing the public mind for it. The Hartford Courant reported that minority lawmakers "did not rule out some busing to help achieve racial balance." Students already ride buses, the paper's editorialists sagely noted: "Some extra transportation may be necessary, but it doesn't have to be massive and over long distances." One much-discussed option is forcing towns to merge into regional school districts--that way, no one could complain of being compelled to cross district lines.

Once under such a regional scheme, towns would inevitably lose control of school finances, hiring, discipline, and curriculum. Many parents are still only dimly aware that Sheff might mean so much for their children and communities. Like the cartoon character who doesn't know he's run off a cliff until someone directs his attention downward, they pack up the kids each morning for a school that, without their realizing it, has been abolished out from under them.