Category Archives: Academic Papers

Voucher Programs and the Constitutional Ethic

with Cullen Merritt

ABSTRACT

America’s public schools have not been exempt from the enthusiasm for “privatization” and contracting-out that has characterized government innovations over at least the past quarter century. A number of the issues raised by school voucher programs and to a lesser extent charter schools mirror the management and efficacy questions raised by privatization generally; however, because public education is often said to be “constitutive of the public,” using tax dollars to send the nation’s children to private schools implicates the distinctive role of public education in a democratic society in ways that more traditional contracting arrangements do not. We explore the unique role of primary and secondary public schools in forging a broad consensus about the nature and importance of America’s constitutional ethic, and growing concerns that vouchers, in particular, are failing to address, let alone facilitate, an ethic of citizenship.

INTRODUCTION

Concerns about failing schools, especially in America’s poor urban neighborhoods, have triggered a number of reform efforts, including voucher programs in which government agencies issue certificates to parents who use them to enroll their children in a participating school of the parent’s choice. Schools are paid a predetermined amount for each voucher received (Levin 2001). The vouchers are used at private schools, the majority of which are religiously affiliated. In most programs, vouchers are awarded through a lottery system, in which eligible students—usually but not always determined on the basis of socioeconomic status—are pooled and recipients are chosen at random (Peterson et al. 1998).

Proponents argue that vouchers create a market-based educational system in which schools must compete for students, a process they believe incentivizes innovation and positive academic outcomes. (Levin and Belfield 2005). That belief is based upon economic models of supply and demand in which markets have been shown to benefit consumers; it ignores, however, both the civic mission of public education and the other ways in which education differs from ordinary consumer goods.

Voucher programs have generated acrimonious policy debates as well as a number of lawsuits. The debates are largely between those who believe that education is basically another variety of consumer good, in this case a set of skills preparing young people to enter the job market, and those who argue that education is also an important public good (Carnoy et al. 2003), and that private schools, particularly religious ones, are ill-equipped to fulfill education’s public mission.

TRANSMITTING THE CONSTITUTIONAL ETHIC

The civic mission of public schools includes, at a minimum, the teaching of America’s history and the transmittal of the country’s core constitutional values. Those values guide appropriate individual participation in a democratic polity; even more importantly, a sound and accurate civics education provides students with an understanding of the genesis and evolution of the rules that shape and constrain public service in the United States, and provide a standard against which to measure the performance of public officials and the bona fides of those who ask for their votes.  At its best, civics education transmits the philosophical premises which undergird the Constitution and the Bill of Rights, premises which require allegiance to a particular code of conduct for citizens and public servants alike. That code defines the public good as essentially secular and rights-driven, and situates public service in a world that is increasingly multi-sectoral, multi-cultural, and international in scope.  (Kennedy & Schultz, 2010) The public mission of the schools thus requires them to teach students about this country’s approach to and experience with the principles of democratic self-governance–what Kennedy and Schultz have called the Constitutional Ethic.

The politics of liberal democracies is the politics of faction, as Madison clearly understood. Individuals have economic interests, social goals, and political and religious beliefs that are affected by public policies and that motivate political behavior. When they lack a common understanding of the philosophical underpinnings of America’s approach to governance and fail to form an ethical commitment to those common undertakings, a diverse polity inevitably fragments into tribal components contending for power and influence.  One of the concerns voiced by voucher program opponents is the participation in such programs of religious schools grounded in a wide variety of beliefs that conflict with important constitutional principles. Many of these schools teach students that the First Amendment does not require separation of church and state, and that biblical commands (for example, that women should be submissive and homosexual citizens shunned) take precedence in the public arena over jurisprudence confirming the constitutionality of very different civic imperatives. Opponents of voucher programs also point out that the racial segregation that has re-emerged as a result of some voucher programs (Witte 2000) is both socially undesirable and violative of America’s Constitutional Ethic.

During the 2013-14 academic year, ten percent of students in grades K-12 attended private schools, and those private schools comprised twenty-five percent of all schools within the United States (U.S. Dept. of Education). Just under eleven percent of these private schools, however, are nonsectarian; the remainder are religious. Catholic schools account for just over fifty-four percent of the nation’s parochial schools (U.S. Dep’t of Education). A growing but indeterminate number are fundamentalist Protestant schools that are reportedly teaching creationism, asserting a Christian biblical foundation for the U.S. Constitution, portraying evolution as an evil doctrine and using textbooks published by religious organizations that scholars criticize as wildly inaccurate. (https://www.sheilakennedy.net/2017/10/footing-the-bill-for-proselytizing/) In most voucher programs, parents can choose to enroll their children in any of them.

Challenges to the constitutionality of providing government funding to religious schools were resolved, albeit not without criticism from legal scholars, when the Supreme Court decided Zellman v. Simmons-Harris in 2002. Then- Chief Justice Rehnquist wrote that financial assistance via vouchers should not be considered a subsidy to religious schools, because the voucher is provided to individuals, allowing them to “exercise genuine choice among options public and private, secular and religious,” (Zelman v. Simmons-Harris, 536 U.S. 639 (2002), 663). According to Rehnquist, the fiction that the vouchers go to the parents (in most states, the parent chooses the school to which the voucher is sent, but is never actually given possession of the voucher) “the circuit between government and religion was broken, and the Establishment clause was not implicated.” Similar reasoning has doomed challenges brought under state laws prohibiting the use of public funds for parochial or other religious institutions. See e.g., Anderson v. Town of Durham, 2006; Meredith v. Pence, 984 N.E.2d 1213 (Ind. 2013), 1217).

Research studies evaluating outcomes of the various voucher programs now in effect have focused upon academic achievement, the consequences of diverting education funds from public schools in order to support private and religious ones, and a variety of social equity issues including the racial and socio-economic identitites of voucher recipients. (CITATIONS) There has been little to no research investigating the impact of voucher programs on civic knowledge and cohesion, or any effort to measure their effect on the transmittal of the constitutional ethic.

 

A MODEST PROPOSAL

Given existing case law, it is unlikely that voucher programs will be ruled unconstitutional or otherwise illegal, and despite the growing number of negative evaluations of their academic outcomes, such programs continue to enjoy considerable political support. Assuming that private and religious schools will continue educating approximately ten percent of the American school-age population for the foreseeable future, lawmakers should, at a minimum, condition receipt of government funding on the schools’ obligation to fulfill the civic mission we expect public schools to fulfill. At present, however, there is no generally accepted understanding of the nature or importance of that civic mission, and no standards or procedures for assessing whether individual schools are creating knowledgable, responsible American citizens familiar with and prepared to observe the constitutional ethic.

In the following two sections, we supplement our definition of the Constitutional Ethic and suggest how government might ensure compliance with a requirement that it be taught.

The Constitutional Ethic

The U.S. Constitution is the basis of America’s legal system and civic culture; as it has operated over the years, it has shaped a distinctive value system, a framework within which Americans make public policy and operate our common institutions. Elected and appointed officials take an oath to uphold that constitutional system, an oath that implicitly obliges them to understand its most basic and important characteristics. Both citizens and policymakers need to know not just that the U.S. has a government of checks and balances, but why the system was constructed that way.

At its most basic, adherence to the Constitutional Ethic requires that American citizens, especially but not exclusively public officials and others in positions of authority, act in ways that are consistent with the basic premises of the country’s governing systems, and avoid acting in ways that would undermine them. For example, respect for due process   guarantees would seem to rule out drone strikes on persons–especially but not exclusively Americans–who have not been afforded legal process to determine guilt or innocence. Respect for government’s obligation to treat citizens equally would seem to rule out efforts to marginalize members of minorities, or refuse them access to the institutional benefits enjoyed by other citizens. Respect for the right to vote, one of American citizens’ most fundamental rights, imposes an ethical obligation to refrain from vote suppression tactics or other partisan “dirty tricks.” Respect for the principle of free speech, protected by the First Amendment, imposes an ethical obligation to refrain from attempts to censor ideas of which some people disapprove.

Maintaining the integrity of a constitutional system requires broad citizenship education and civic participation consistent with the values of that system. As Keith Whittington has argued, leaving constitutional compliance to the courts is both empirically and normatively problematic. (Whittington, The Good Society pg. 60) Constitutional rules give rise to conventions, norms and customs that should guide American political behavior. As Vartan Gregorian, President of the Carnegie Foundation has written, increasing young people’s “informed engagement” in our national life requires school-based civic education. “After all, understanding and actively participating in our civic life was one of the principal missions given to American schools from the very beginning.” (https://www.carnegie.org/media/filer_public/85/8b/858b7e5d-c538-42e2-ae78-24471dce73d7/ccny_creview_2011_civic.pdf )

Regulatory and Monitoring Proposals

The nature and extent of state oversight is a key, and often contentious, consideration when states enact voucher programs.  Typically, private schools participating in voucher programs must comply with regulations regarding health and safety, but requirements for compliance with other standards, such as teaching certification, curriculum, accreditation, anti-discrimination and civil rights laws, number of school days, and recordkeeping and reporting vary by state.  No voucher program of which we are aware imposes standards for civics education on participating schools. Because the civic mission of the nation’s schools is so fundamental to the continued operation of American democratic institutions, we propose that inclusion of a robust civics education curriculum be a condition of voucher program participation.

Ideally, private schools accepting vouchers would integrate curriculum content from the We the People: The Citizen and the Constitution Program within their curricula.  Developed in 1987, the We the People education program is administered by the Center for Civic Education, a nonprofit, nonpartisan education program; it was adopted by the Commission on the Bicentennial of the United States Constitution as the principal education program of the federal Constitution’s bicentennial.  The curriculum promotes civic competence and responsibility among elementary, middle, and high school students through “an innovative course of instruction in the history and principles of the U.S. constitutional democracy.”  Through the curriculum, students gain insight into (1) the philosophical and historical foundation of the American political system, (2) how the framers created the Constitution, (3) how the Constitution has evolved to further the ideals contained in the Declaration of Independence, (4) how the values and principles embodied in the Constitution shaped American institutions and practices, (5) the rights protected by the Bill of Rights, and (6) the challenges the American constitutional democracy may face in the twenty-first century.

Multiple studies have found that students who have participated in the We the People program score significantly higher on tests of civic knowledge compared to their peers, especially in the areas of understanding and respect for the rule of law, political attentiveness, civic duty, community involvement, and commitment to government service, among others (e.g., Leming 1996; Owen and Schroeder 2017; Owen Schroeder, and Riddle 2016; Owen 2015a; Owen 2015b).  Participating voucher schools in states electing not to adopt the We the People curriculum would be allowed to develop their own civics education curricula, or to select another existing program, subject to evaluation and approval by the state’s board of education.

It is one thing to require that schools participating in state voucher programs provide adequate and accurate civics education, assuming that such a requirement is  politically feasible. Ensuring that the schools comply with that requirement is another, especially since many states have exhibited a startling laxity in monitoring compliance even with basic health and safety requirements. http://www.orlandosentinel.com/features/education/os-florida-school-voucher-investigation-1018-htmlstory.html

At a minimum, private schools participating in voucher programs should be required to demonstrate compliance with applicable civics education regulations by maintaining  records documenting class participation in the civics curriculum in applicable grade levels on a yearly basis.  Schools should also report student performance in civics-related courses.

CONCLUSION

Acceptance of a voucher by a private school should be subject to that school’s compliance with certain basic requirements. At a minimum, school buildings should meet relevant code requirements and fire safety standards; teachers should be able to offer evidence that they are equipped to teach their subject matter; and the school should both teach and model foundational constitutional values and behaviors. Ideally, schools receiving public funds should not be permitted to discriminate on the basis of race,  disability or sexual orientation (religious schools have a constitutional right to discriminate on the basis of religion in certain situations, although they do not have a right to do so on the taxpayer’s dime) and should be required to afford both students and staff at least a minimum of due process. At present, we are unaware of any voucher program that requires these commitments.

A long line of political theorists have described citizenship as a process of sharing, of forming community around basic values and ethical principles held in common. There are few public issues that do not presuppose a civic understanding of, and broad agreement with, a common purpose, a shared vision of the public good. A constant tension between the public or common good and a commitment to individual rights is a truism of Constitutional law and political debate, and an exploration of that tension should be an explicit part of any civics curriculum.

A quotation from Stephen Macedo is relevant to this issue of teaching the Constitutional Ethic:

Talk of diversity and difference too often proceeds without taking adequate account of the degree of moral convergence it takes to sustain a constitutional order that is liberal, democratic, and characterized by widespread bonds of civic friendship and cooperation.” (Macedo, 2000, 2)

Voucher proponents define the public purpose to be served by education solely as the achievement of a level of academic competence sufficient to sustain economic growth and make America competitive in the global marketplace. We quarrel with this definition. We argue that schools funded by tax dollars, whether public or private, should be contractually obligated to foster the Constitutional Ethic, and that the public good requires more than the transmittal of literacy and technical knowledge sufficient to support economic growth and individual self-sufficiency. It also requires the creation and perpetuation of a political community steeped in the Constitutional Ethic and prepared to contribute to the process of creating unum from our pluribus.

 

 

 

What Is Public? A Clash of Legal and Policy Paradigms

Cullen Merritt, Assistant Professor, SPEA, IUPUI

Julia Carboni, Associate Professor, Syracuse University

Deana Malatesta, Associate Professor, SPEA Bloomington

Sheila Suess Kennedy, Professor, SPEA, IUPUI

 

abstract

Deciding whether to advance public policy goals through government’s own employees or a third-party surrogate can be a complex undertaking largely because legal and policy actors will ask two very different questions: lawyers will ask “did government or someone who can be considered a ‘state actor’ do this?” Policy analysts will ask “Who should do this, government or a private party or a third-party surrogate?” Notably absent from prior scholarship is consideration of how the concept of “public” has evolved in administrative and legal practice. We analyze the evolution of “public” as defined by the Executive branch in OMB Circular A-76 and the parallel evolution of the judiciary’s “public function” test in state action cases.  Comparison of the administrative and legal frameworks in this area offers important insights into the tension between the two.  Conceptual knowledge in this area is especially salient given the increasing reliance on contractors and private funders to perform what public administration scholars have long assumed to be exclusively public functions.

 

INTRODUCTION

Public administration scholars have long sought to develop the concept of “public” (e.g., Bozeman 1987; Moulton 2009; Perry and Rainey 1988; Rainey, Backoff, and Levine 1976). Past efforts have focused on legal ownership (i.e., government versus private), modes of governance, and sources of authority (e.g., government regulation) as ways to distinguish between public and private actors. More recent efforts attempt to reconcile the judiciary’s understanding of state action with public administration scholars’ conceptions of public (Malatesta & Carboni 2014). This task is complicated by the fact that legal and policy actors are asking two very different questions: lawyers will ask “did government or a ‘state actor’ do this?” Policy analysts will ask “Who should do this, government or a private party or a third-party surrogate?” Notably absent from prior scholarship is consideration of the differences between legal and policy concepts of “public” and how those concepts have developed over time.

We analyze the evolution of public as defined by the Executive branch in OMB Circular A-76, and the evolution of the judiciary’s application of the “public function” test for purposes of the state action doctrine. OMB Circular A-76, “Performance of Commercial Activities”, is a federal document that provides guidance to those charged with determining how government will deliver and oversee “commercial” activities; the emphasis is on enhancing productivity and efficiency.  The Circular also provides guidance on distinguishing between commercial activities and “inherently governmental functions” that should be performed by government employees because they are “so intimately related to the public interest as to mandate performance by government employees.”

Though the courts do not have a singular definition of “public,” a subset of state action doctrine cases focus on the discharge of what the Supreme Court designates as public functions.  The state action doctrine is a legal principle used by the courts to distinguish between public and private actors for the purpose of assessing constitutional compliance.  Courts must decide whether conduct at issue is attributable to the state, making defendants potentially accountable to constitutional restrictions that apply only to state actors.  The jurisprudence of state action lacks clarity and consistency, and has been the subject of considerable legal scholarship and debate (Barak-Erez 1994; Carboni and Malatesta, 2014), but that debate has occurred with little or no cross-fertilization with either the policy literature or varying Executive branch directives.

This paper contributes to the growing literature on public-private distinctions.  Our contribution is unique, however, in that it traces the parallel historical evolution of “inherently governmental functions” and “public functions” as defined in administrative and legal contexts, respectively. Public administration scholars should be aware of both concepts, recognize the differences between them, and understand the implications of those differences for policy implementation. This issue is especially salient given the increasing reliance on contractors and private funders to perform what public administration scholars have long assumed to be exclusively public functions (e.g., operation of jails, state parks, and delivery of certain social services). We end the paper with a discussion of the implications resulting from the tension between inherently governmental functions and public functions for public administrators, with special emphasis on challenges in the contracting environment.

 

INHERENTLY GOVERNMENTAL FUNCTIONS ACCORDING TO THE A-76 CIRCULAR

Inherently governmental functions are those activities that federal law and policy have required to be performed by government employees, rather than by contractors or other non-governmental actors.  Though public administration literature has addressed the definition of inherently governmental functions to a limited extent, it has neglected documentation of the gradual but significant changes in the federal definition over the years. Instead, the literature has focused upon issues of accountability (Gilmour and Jensen 1998; Kettl 1997), the ethical/moral nature of outsourcing (Verkuil 2007), outsourcing and discretion in implementation of inherently governmental functions (Rosenbloom and Piotrowski 2005), and methods of managing contracts for complex products and services that involve contractor discretion (Brown, Potoski and Van Slyke 2009).

The definition of an inherently governmental function was originally designed for the purpose of distinguishing between commercial functions, defined as those that could properly be outsourced to non-governmental employees, and functions that should continue to be performed by government’s own employees. Criteria for identifying inherently governmental tasks have undergone changes as public administration distinctions between what is public and what is private have evolved.  The resulting definitions are broad and vague, providing general parameters to assess whether a function should be considered inherently governmental or commercial.

Although the literature has not been focused upon the nature of inherently governmental functions, its treatment of those functions has evolved along with general trends in public administration research. Beginning with Wilson’s politics-administration dichotomy, traditional public administration has been concerned with issues of leadership and executive action in the public sector; the scholarship advocated a separation between politics and administration, improved efficiency in the public sector, and improved service production through better management (Wilson 1887).  Later work emphasized application of general management principles to the public sector in order to improve the efficiency and professionalism of public administration (Gulick, 1937, Urwick 1945). In the 1960s, public administration shifted from an emphasis upon rational actor models and began to consider the human aspects of decision making.  The New Public Administration that emerged during this period was largely a rejection of the traditional approach to public administration and, instead, prized social equity, citizenship, and the provision of services to citizens (Waldo 1968).  Beginning in the 1980s, scholars in the field embraced New Public Management, a model that advocated a return to general management theory and private sector approaches to service delivery.  Contracting out was seen as a way to cut red tape and make government more efficient (Osborne and Gaebler 1993).  More recently, there has been a shift back to consideration of democratic values, responsiveness to citizens, and effectiveness, and an emerging emphasis on governance by complex arrangements of actors rather than by public agencies (Bryson et al. 2014; Denhardt and Denhardt 2000; Stoker 2006).

Confounding administrators’ decisions about what may be properly contracted out are two interrelated definitions of inherently governmental functions in US federal law. Those definitions are detailed below.  Both begin with the same assumption: certain activities are the domain of government only, and others, considered commercial, can properly be outsourced. A detailed account of the changing understanding of “inherently governmental” from the executive branch perspective can be seen through examination of OMB Circular A-76 and policy letters meant to clarify and expand upon that Circular, namely the Federal Activities Inventory Reform (FAIR) Act of 1998.  The FAIR Act of 1998 defines an inherently governmental function as “a function so intimately related to the public interest as to require performance by Federal Government employees.”  The FAIR Act requires executive agency compliance with the longstanding OMB Circular A-76 approach to the definition of inherently governmental functions.  Its primary focus is on requiring executive agencies to use competitive contracting processes in order to produce the most efficient and cost effective result, particularly in areas where functions were previously discharged by government employees.  It also requires executive agencies to report on their commercial activities to both Congress and the public.

The FAIR Act does not specify an exhaustive list of functions that are to be considered inherently governmental; rather, it identifies inherently governmental functions as those that will “require either the exercise of discretion in applying Federal Government authority or the making of value judgments in making decisions for the Federal Government, including judgements relating to monetary transactions and entitlements.” (31 U.S.C, Section 501).  The Act recites that inherently governmental functions are those that: bind the United States federal government by contract, policy, or regulative activities; determine, protect, and advance US property and interests by military or diplomatic action or judicial proceedings; affect the life, liberty, or property of private individuals; control federal employees; or control federal property, including acquisition, use, or disposition. These broad parameters provide a framework for determining what is inherently governmental rather than specifying activities that must be considered inherently governmental.  This broad approach is consistent with the OMB Circular A-76 definition.

OMB Circular A-76, “Performance of Commercial Activities”, is a federal document intended to provide guidance on government delivery of activities deemed to be commercial. It is focused upon enhancing productivity and efficiency, and it offers guidance on making a determination of whether it will or will not be appropriate to rely on the commercial sector.  OMB Circular A-76 defines an inherently governmental function as “an activity that is so intimately related to the public interest as to mandate performance by government personnel.”  Notably, in A-76, inherently governmental functions are defined in contrast to commercial activities.  Like the FAIR Act, Circular A-76 does not provide a list identifying inherently governmental functions; it defines inherently governmental functions as those that require discretion in applying government authority or functions which require value judgments in making decisions on behalf of government, and leaves the task of specifying those functions to the agencies, requiring the creation of agency inventories: “An agency shall prepare two annual inventories that categorize all activities performed by government personnel as either commercial or inherently governmental.”

The Executive Branch’s definition of what should be considered inherently governmental has changed over time, as the following timeline illustrates.

1955                The Eisenhower Administration’s Bureau of the Budget (predecessor of OMB) establishes federal policy to obtain goods and services from the private sector.  This policy, Bulletin No. 55-4, was the first version of the Circular A-76 and states that the government would depend on the private sector for the performance of commercial activities.

1966                Bulletin 55-4 was developed into formal policy under the new name, Circular A-76, by the OMB. The document restated the policy and reiterated the principle that the government should not compete with its citizens.

1967                OMB Circular A-76 was revised under the Eisenhower Administration to provide formal guidelines for cost comparison procedures.

1970                Reorganization Plan No. 2 of 1970 and Executive Order 11541.

1979                Circular A-76 was revised to recognize that some functions must be performed by government personnel, but recognized that in other cases contractor performance may be cheaper and more effective. It considered whether an agency had a requirement to contract out non-inherently governmental functions.

1983                OMB A-76 was reissued to simplify the cost comparison process under the Reagan Administration.  Procedures were also set in place to reestablish the initial objective of the Eisenhower administration so that commercial activities previously performed by the government could be outsourced to private companies.

1990                Chief Financial Officers Act of 1990 (CFO Act) was signed by the George H.W. Bush Administration to improve financial management by calling for the development and reporting of cost information and systematic measurement of performance.

1992                Office of Federal Procurement Policy Letter 92-1.

1993                Government Performance and Results Act (GPRA) mandated performance measurement by Federal Agencies.

Statement of Federal Financial Accounting Concepts No. 1, “Objectives of Federal Financial Reporting”, stated that Federal financial reporting should provide useful information to assess the budget integrity, operating performance, stewardship, and control of the Federal Government.

1995                Federal Accounting Standards Advisory Board (FASAB) recommended standards which produce the Statement of Federal Financial Accounting Concepts No. 4.  Concept No. 4 provides standards for managerial cost accounting.

1996                Circular No. A-76 Revised Supplemental Handbook was produced, replacing the supplement issued with the 1983 Circular.  The handbook provided updated guidance and procedures for determining whether reoccurring activities should be contracted with commercial sources, kept in-house using Government facilities and personnel, or advanced through inter-service support agreements (ISSAs).  The revision added: (1) balance the interests of parties to make or buy cost comparisons, (2) provide a level playing field between public and private offerors, and (3) encourage competition and choice in management and performance of commercial activity.

1998                Federal Activities Inventory Reform (FAIR) Act of 1998 was introduced.  The FAIR Act required the head of each executive agency to submit a list of activities performed by federal government sources to the Director of OMB and Congress.  This helped prepare executive agencies to evaluate cost efficiencies using the A-76 strategy.

1999                OMB updated the Revised Supplemental Handbook.  Revisions outlined that the government can engage in inherently commercial activities if the function is critical to combat effectiveness, if mission effectiveness will suffer because of outsourcing, if a commercial source is not available or does not meet government requirements in a timely manner, if another Federal agency can provide the goods/services, if outsourcing would result in a higher cost to the government, or if items were inherently governmental in nature.

2001                Competitive sourcing through A-76 was identified as a major initiative by the George W. Bush Administration’s Presidential Management Agenda (this initiative was defined by debate/criticism over A-76 competitions; the private sector maintained that the public sector and its employees had the greater advantage under A-76). This included a goal of controlling 50% of the commercial activities operated by federal agencies completed via the competitive sourcing process.

2003                OMB issued the current version of A-76, superseding the prior Circular and any related guidance.  Revisions to OMB Circular A-76 made it friendlier to the federal worker by getting rid of presumption that all commercial activities in government belong in the private sector.  The goal was to get the best value for the citizen irrespective of who performs the work.  Revisions were intended to simplify, clarify, and standardize the execution of the A-76 process.

A significant amount of Circular A-76 competitions occurred between 2003 and 2008 in most Federal agencies.

2007                Public debate ensued over the Walter Reed Army Medical Center in Washington, DC in which living conditions and frustrations of soldiers were reported by the Washington Post.  Both administration and bureaucratic failures were concluded to be factors contributing to poor conditions.  The public debate led to the prohibition of the conduct of A-76 competitions at military medical facilities, which ultimately led to a moratorium on the conduct of A-76 competitions government-wide.  There was concern that some A-76 activities should be considered inherently governmental and should only be performed by federal employees in the DOD.

2008                Congress passed legislation that suspended ongoing public-private competitions for DOD (Section 325 of the National Defense Authorization Act [NDAA] for FY2008) until September 30, 2008.

2009                President Obama signed into law the FY2009 Omnibus Appropriations Act (Sections 212 and 737) which suspended all new, government-wide OMB Circular A-76 studies through FY2009. DOD can use only competitive sourcing to determine how to best accomplish work that is not currently performed by federal employees. The Omnibus Appropriations Act directs OMB to “clarify when governmental outsourcing of services is, and is not, appropriate, consistent with section 321 of the 2009 NDAA.”

 

2009                “Managing the Multi-Sector Workforce” Memorandum.  This memorandum “provides initial guidance to help agencies improve their management of the federal government’s multi-sector workforce” by requiring agencies to:

  • Adopt a framework for planning and managing the multi-sector workforce that is built on strong strategic human capital planning.
  • Conduct a pilot human capital analysis of at least one program, project, or activity, where the agency has concerns about the extent of reliance on contractors.
  • Use guidelines that facilitate consistent and sound application of statutory requirements when considering in-sourcing.

 

2010                Section 735 of Consolidated Appropriations Act FY2010 imposed a moratorium prohibiting certain federal agencies from initiating or announcing a new public-private competition under OMB Circular A-76 through Sept. 30, 2010.

 

Section 325 of the NDAA for FY2010 established a review and approval process from recommencing DOD private-public competitions.  Section 322 and 325 of NDAA FY2010 required GAO to assess DOD’s report on public-private competitions and its use of authority to extend the 24-month time limit on the conduct of A-76 competitions.

In Section 8117 of Department of Defense Appropriations Act of FY2010, Congress prohibited any spending of FY2010 funds to conduct public-private competitions under A-76.

2011                In Section 323 of Ike Skeleton National Defense Authorization Act for FY2011, Congress prohibited the Secretary of Defense from establishing quotas or goals for converting functions performed by DOD civilian employees to contractors unless based on research and analysis required by title 10 United States Code.

In the Consolidated Appropriations Act FY2011, federal agencies cannot initiate or announce new public-private competitions (Section 8103 of P.L. 112-10).

2011                Policy Letter 11-01, “Performance of Inherently Governmental and Critical Functions”, prohibited outsourcing “inherently governmental functions” and cautions against outsourcing functions “closely associated with inherently governmental.”

2012                Technical correction to Policy Letter 11-01 made “to clarify that the Policy Letter applies to both Civilian and Defense Executive Branch Departments and Agencies.”

In Section 733 of P.L. 112-74, The Consolidated Appropriations Act for FY2012 prohibited funds from being used to begin/announce a study of public-private competition.

Obama Administration FY2013 Budget Request sought to prohibit conduct of future public-private competitions under circular A-76.

2013                Prohibition is continued.

2015                Prohibition is continued.

 

THE STATE ACTION DOCTRINE AND THE DEFINITION OF PUBLIC FUNCTION

In the United States, the legal system draws a constitutionally significant distinction between the public sector, defined as government and its agencies and officials, and the private sector, including civil society, defined as the multitude of nongovernmental, voluntary communal and religious associations through which individuals may act and connect. That distinction is a crucial, if unarticulated, element of most U.S. policy decisions, because only government actors can violate the American Bill of Rights, which limits government actions but not private behaviors. Based upon this particular understanding of the relationship of public and private behaviors, the American Constitution does not grant affirmative rights; it limits the power of the state to infringe private ones. This is not the case in many other Western democratic states, where it is common to have a constitutional system that both restrains and empowers government, and where social entitlements frequently are embedded in the constitution.

As a result of the United States’ approach, sometimes called “negative liberty”, a transfer of authority to nongovernmental agents is more than merely a management problem, as it is in many other countries, because constraints on the use of governmental authority are fundamental to the United States’ political and constitutional order (Kennedy 2012). “The Bill of Rights restrains only government action, making it essential that citizens and public managers alike be able to identify when government has acted” (Kennedy 2012, 1). The growth of contracting arrangements has made that identification increasingly problematic, blurring the boundaries between private and public action and making it difficult in many situations to determine whether a particular action or decision can fairly be categorized as governmental (Kennedy 2012). The result, in the opinion of many scholars, has been a loss of essential governmental accountability and thus legitimacy (Brown 2008; Metzger 2003; Kennedy 2001; Gilmour and Jensen 1998).

In making a determination whether state action is present, the courts will consider a number of elements, including but not limited to whether the function in question has traditionally been performed exclusively by government. As the practice of contracting out has grown, courts have increasingly been faced with cases in which the presence of state action sufficient to impose legal liability is less than clear-cut; accordingly, the question of what constitutes a public function for purposes of constitutional jurisprudence has changed over time. The inconsistencies of those changes have prompted calls for clarity from lawyers and legal scholars alike.

Current Status of the Relationship between State Action and Public Function

The Supreme Court has not discarded the idea that some governmental activities are in fact inherently “public functions.” It has, however, over time changed its approach to defining what those activities are, and not in a coherent fashion. In 1992, Justice Scalia began his state action analysis in the case of Lebron v. National Railroad Passenger Corporation with an observation that “It is fair to say that our cases deciding when private action might be deemed that of the state have not been a model of consistency.”  It is hard to disagree, and subsequent jurisprudence has not remedied the problem.

In the early 1940s, “the Court first expanded the meaning of state action to include private actors performing a government function (Smith v. Allwright 1944) and private action in which the state is significantly involved” (Peretti 2010, 273).  Since Marsh v. Alabama in 1946, however, the Court has been wary of too expansive an application of the state action doctrine in public function cases (Wirth 2014).  The evolution of legal doctrine defining what the courts will consider to be a public function can be seen not only when the Court finds a particular defendant a state actor, but also when it declines to do so.  For example, despite the common assertion that state action will be found when government exercises its coercive power or has provided significant encouragement of the decision at issue, in Blum v. Yaretsky, the Supreme Court declined to find state action even though the private nursing home’s medical personnel were obeying specific government regulations.  The ruling in Blum v. Yaretsky, among other cases, highlights the reluctance of the courts to deem private parties state actors.  Today, courts will typically find state action under the public function test when three conditions are present: (1) the activities have traditionally been performed only by government; (2) the private actor’s undertaking of the activity substantially replaces the government’s traditional performance of the function; and (3) the private activity is substantially aided by the state.

The Evolution of Public Function Application in State Action Cases

In a number of rulings, the Supreme Court has found private actors’ performance of governmental functions sufficient to make these parties agents of the state.  Judicial decisions focused upon state action and public function have centered on the First, Eighth, Fourteenth, and Fifteenth Amendments to the United States Constitution although, theoretically, state action may be found when any constitutional provision is at issue.  The rather limited set of issues on which the Court has based its rulings in this area suggests that the Court is more likely to find state action when the liberty interest involves freedom of speech, cruel and unusual punishment, equal protection and due process, and the right to vote, as Table 1 illustrates.

Cases implicating civil rights, especially the right to vote, led to the birth of state action doctrine and the legal interpretation of public function.  In two foundational cases, the court held that conducting elections is “exclusively a state function and invalidated racial discrimination by non-governmental groups (political organizations or parties) who exercised effective control over the selection process of candidates in a primary or pre-primary process” (Hunter, Shannon, McCarthy 2013, 67).  In Smith v. Allwright (1944), the Democratic Party of Texas, a voluntary organization, was held to be a state actor when Smith, a black man, was denied the right to vote on the basis of his race.  Because the state of Texas governed the selection of party leaders at the county level, the practice of racial discrimination in elections was considered a violation of constitutional rights by the state.  In Terry v. Adams (1953), a private association denied a citizen the right to vote on the basis of race.  The Supreme Court upheld the precedent in Smith: if a private political party is authorized to influence the outcome of an election, which is a function of government, the private actor will be found to be an agent of the state subject to the Fifteenth Amendment.  Smith v. Allwright and Terry v. Adams established that most, albeit not all, election functions traditionally performed by government will be deemed to be public functions.

Court rulings grounded in the First and Fourteenth Amendments (and on two occasions the simultaneous violation of both) (Marsh v. Alabama 1946 and Amalgamated Food Employees v. Logan Valley Plaza 1968), further developed the state action doctrine following the early civil rights cases.  In multiple cases, court rulings extended the doctrine beyond government actions to encompass functions that the Court deemed “governmental in nature”.  In Marsh v. Alabama, a Jehovah’s Witness disseminated religious literature near a post office in Chickasaw, Alabama, a company town, without obtaining permission from the Gulf Shipping Corporation, the owner and operator of the town.  The question before the court was whether the State of Alabama violated Marsh’s constitutional rights under the First and Fourteenth amendments when she was arrested for distributing religious material.  In a 5-3 ruling, Justice Hugo Black emphasized that owners of privately held bridges, ferries, turnpikes, and the like may not operate them as exclusively private entities. Rather, because these facilities are built and operated primarily for the benefit of the public and are governmental in nature, they will be subject to state regulation and required to operate in a constitutionally appropriate manner. Even though Chickasaw, Alabama was a “company town”  owned and operated by a private corporation, the court emphasized the town’s numerous public attributes, including the fact that the town’s policeman was a deputy from the Mobile County Sheriff’s Department. In Evans v. Newton (1966), the Court built upon the precedent set in Marsh and held that prior governmental involvement in the operation of the public space compelled a finding of state action; the case revolved around the use and maintenance of a tract of land which had been willed to the City of Macon, Georgia in 1911, to be used as a park for white people only.

Freedom of speech was the central constitutional issue in Amalgamated Food Employees v. Logan Valley Plaza (1968).  The Court was faced with a case concerning a protest occurring at a shopping center that maintained common areas, including parking lots and driveways; the question was whether the premises were public or private for purposes of evaluating protestors’ Free Speech rights.  The Court concluded that individuals may peacefully protest based on their First Amendment rights, since the shopping center was the “functional equivalent” of the business district of a town.  Citing Marsh, the Court used the case to further clarify its application of the state action doctrine and the degree to which it will consider common areas sufficiently public to justify constitutional analysis.  The more an owner opens private property to public use, the more the owner’s private rights become limited by the rights of the individuals who use it (Amalgamated Food Employees v. Logan Valley Plaza).  Legal scholars consider the precedent set in Amalgamate Food Employees v. Logan Valley Plaza the high-water mark of the public function theory (Huss & Simmons, 1976); the difficulty of balancing the competing public and private rights involved becomes apparent in subsequent litigation. The Court would revisit the issue four years later in Lloyd Corp. v. Tanner (1972), and would reverse course in Hudgens v. NLRB (1976).

The court held in Lloyd Corp v. Tanner (1972) and Hudgens v. NLRB (1976) that exclusively private property is not public property just because the public is invited to use the property for its intended purpose. In addition, due process guarantees will not apply to a plaintiff in situations where the state merely acquiesces to private actions (Flagg Bros v. Brooks 1974); when an action is not traditionally or exclusively reserved to the state (Jackson v. Metro Edison 1974); and when no symbiotic relationship exists between the state and private party (NCAA v. Tarkanian 1988; Baker v. Kohn 1982; San Francisco Arts & Athletics v. US Olympic Commission 1987).

In West v. Atkins (1988), a Fifth Amendment case in which a private contractor provided health care services to prisoners for a state hospital, the contractor was operating under state authority and was found to be a state actor performing a public function. In Edmonson v. Leesville (1991), the Court held that the right to trial by a fair and impartial jury is a guarantee issued by government, and the fact that private litigants dictated race-based exclusions during jury selection process would not deprive the litigant of a that constitutional guarantee.  When private actors participate in the selection of jurors, they serve a vital function within the government and are agents acting under its authority.

Careful consideration of the issue of state action should be a critical component of decisions by government agencies to contract out. Both the government and the contractor need to understand whether and under what circumstances the contractor’s actions will be legally attributable to the government, and where the ultimate liability will lie in the event of a successful lawsuit by a third party.

 

[Table 1 about here]

 

DISCUSSION AND CONCLUSIONS

“The development of a coherent and comprehensive understanding of state action begins with a multi-issue inquiry (ideally by all branches at all levels of government) into the nature of every transfer of government authority.” (Gilmour and Jensen 1998, 25).  Inquiry is necessary at three points—when the decision to delegate authority is made, during administrative oversight, and during judicial review. OMB Circular A-76 is concerned with the first point, the initial decision to contract out. It outlines a broad set of criteria to determine whether or not a function is appropriate for outsourcing or should be discharged by government through its own employees.  A-76 approaches that inquiry based on issues involving discretion and authority, rather than history.   In contrast, the courts’ “public function” test is applied to a situation in which that initial determination has already been made. Courts must determine whether the private entity employed by government was functioning as a state actor, justifying a finding of state action for the purpose of settling claims arising out of action that has already occurred.  In the process of assessing the public function test in order to determine the presence of state action, the courts look at several factors, including whether the activity in question has traditionally been performed exclusively by government.

These two approaches, the administrative and the legal, can complement each other, with A-76 providing guidance to public administrators as to whether or not something is a government function – even if it has been contracted out (state action can be attributable to private actors). Even if the Executive Branch approach to defining public function differs from the more limited instances in which the courts will find state action, recognizing the circumstances within which the courts will assess liability will inform contract negotiations and drafting, and avoid inadvertent assumptions of liability.  The courts have established a high bar for determining which functions are “public functions” and for determining when a contractor will be found to be a “state actor.” Understanding this jurisprudence may help both government and those with whom they contract to insulate private actors from constitutional claims that would apply if government performed the same functions (Buchanan et al. 1997), without inadvertently depriving citizens of constitutional protection.

Furthermore, encouraging those acting on behalf of the Executive Branch to familiarize themselves with what the courts have held in order to rationalize their respective definitions of public function is also important; when government is engaging in outsourcing, those responsible need to understand how their administrative decisions will be reviewed and interpreted in the event of litigation.  What makes this particular inquiry difficult, and may account for what seems to be an existing disconnect between the Executive Branch definition and the legal doctrine, is the lack of specificity of the former and the lack of clarity of the latter. The legal scholarship critiquing the Court’s state action jurisprudence and pointing to the practical problems raised by the incoherence of that jurisprudence is copious. When we counsel public administrators to follow the guidance of the courts, we assume that the courts are actually offering that guidance. When the various tests applied by different Circuit Courts differ from each other and from cases decided by the Supreme Court, guidance is hard to come by.

As Brown’s (2008) law review article concluded, “Balancing the United States Supreme Court’s tests with individual circuits’ applications of these tests, all while carefully excluding inapplicable precedents” (581) is a difficult analytical task facing courts in modern state action cases.

Losing the court’s favorability in recent decades, due in part to the judiciary’s utter confusion with this area of the law, modern courts are hesitant to authoritatively find state action. The state action doctrine is slowly descending into utter confusion, where private parties remain unaware of what conduct subjects them to Constitutional restrictions, and courts are unclear as to the appropriate state action standard. The time has come for the United States Supreme Court to declutter the state action doctrine by combining tests, shedding unnecessary terminology, demystifying the state action doctrine, and giving the lower courts a tangible standard with which to work (581)

The lower courts would not be the only beneficiaries of such clarification. Public administrators and private contractors could base contracting decisions on accessible and consistent guidelines, and (in an ideal world) citizens could be confident that protection of their constitutional liberties was an important and conscious element of governmental contracting decisions.

Clearly, the advancement of public policy objectives is “not the exclusive province of government, nor is government the only institution having public obligations, [though clearly] government has a special role as a guarantor of public value” (Jorgensen and Bozeman 2007, 373-374).  As a guarantor of inherently governmental functions and public functions and primary contributor to the public value that emerges from these activities, government will benefit from resolving the tension between administrative and legal conceptions of public.

 

Cases cited

 

Smith v. Allwright, 321 U.S. 649 (1944).

Marsh v. State of Alabama, 326 U.S. 501 (1946).

Terry v. Adams, 345 U.S. 461 (1953).

Evans v. Newton, 382 U.S. 296 (1966).

Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978).

Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974).

Blum v. Yaretsky, 457 U.S. 991 (1982).

Rendell-Baker v. Kohn, 457 U.S. 830 (1982).

San Francisco Arts & Athletics v. United States Olympic Committee, 483 U.S. 522 (1987).

 

Hudgens v. NLRB, 424 U.S. 507 (1766.)

National Collegiate Athletic Association v. Tarkanian, 488 U.S. 179 (1988).

 

West v. Atkins, 487 U.S. 42 (1988).

Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991).

Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968)

Lloyd Corp. v. Tanner, 407 U.S. 551 (1972)

 

REFERENCES

 

Barak-Erez, Daphne. 1994. A State Action Doctrine for an Age of Privitization. Syracuse L. Rev. 45:1169.

 

Bozeman, Barry. 1987. All organizations are public: Bridging public and private organizational theories. San Francisco: Jossey-Bass.

 

Brown, Julie K. 2008. Less is More: Decluttering the State Action Doctrine” Mo.L.Rev., 73:561.

 

Brown, Trevor L., Matthew Potoski, and David M. Van Slyke. 2009. Contracting for complex products. Journal of Public Administration Research and Theory 20:i41-i58

 

Bryson, J. Crosby, B, and Bloomberg, L. 2014. Public Value Governance: Moving Beyond Traditional Public Administration and the New Public Management. Public Administration Review 74:445-456.

 

Bryson, John M., Barbara C. Crosby, and Laura Bloomberg. 2014. Public value governance: Moving beyond traditional public administration and the new public management. Public Administration Review 74: 445-456.

 

Buchanan, G. Sidney, Charles L. Black Jr, William J. Novak, and Gillian E. Metzger. 1997. State Action and the Public/Private Distinction. HOUS. L. REV. 1367:1248

 

Denhardt, Robert B., and Janet Vinzant Denhardt. 2000. The new public service: Serving rather than steering. Public administration review 60: 549-559.

 

Gilmour, Robert S., and Laura S. Jensen. 1998. Reinventing government accountability: public functions, privatization, and the meaning of “state action”. Public Administration Review 247-258.

 

Gulick, Luther. 1937. Notes on the theory of organization, In Luther Gulick & Lyndall Urwick  (Eds.),  Papers on the science of administration, 3-13. New York: Institute of Public Administration.

 

Hunter Jr, Richard J., John H. Shannon, and Laurence McCarthy. 2013. Fairness, Due Process and NCAA: Time to Dismiss the Fiction of the NCAA as a Private Actor. J. Pol. & L. 6:63.

 

Huss, Richard B. and Richard J. Simmons. 1976. Hudgens v. NLRB: Protection of Shopping Center Picketing under the Constitution or NLRA? , Industrial Relations Law Journal (1976): 632-655.

 

Jørgensen, Torben Beck, and Barry Bozeman. 2007. Public values: An inventory. Administration & Society 39:354-381.

 

Kennedy, Sheila S. 2001. Privatizing education: The politics of vouchers. Phi Delta Kappan, 82:450-456.

 

Kettl, Donald F. 1997. The global revolution in public management: Driving themes, missing links. Journal of Policy Analysis and management 446-462.

 

Malatesta, Deanna, and Julia L. Carboni. 2015. The public–private distinction: Insights for public administration from the state action doctrine. Public Administration Review 75:63-74.

 

Metzger, Gillian E. 2003. Privatization as delegation. Columbia Law Review 1367-1502.

 

Moulton, Stephanie. 2009. Putting together the publicness puzzle: A framework for realized publicness.” Public Administration Review 69:889-900.

 

Osborne, David and Ted Gaebler. 1993. Reinventing Government; How the Entrepreneurial Spirit is Transforming the Public Sector. New York: Plue.

 

Peretti, Terri. 2010. Constructing the State Action Doctrine, 1940–1990. Law & Social Inquiry, 35:273-310.

 

Perry, James L., and Hal G. Rainey 1988. The public-private distinction in organization theory: A critique and research strategy. Academy of management review 13:182-201.

 

Rainey, Hal G., Robert W. Backoff, and Charles H. Levine. 1976. Comparing public and private organizations. Public administration review 36:233-244.

 

Rosenbloom, David H., and Suzanne J. Piotrowski. 2005. Outsourcing the constitution and administrative law norms. The American Review of Public Administration 35:103-121.

 

Stoker, Gerry. 2006. Public value management: a new narrative for networked governance? The American review of public administration 36:41-57

 

Sullivan, Harold J. 1987. Privatization of public services: A growing threat to constitutional rights. Public Administration Review 461-467.

 

Urwick, Lyndall. 1945. The Elements of Administration. New York: Harper and Brothers.

 

Verkuil, Paul R. 2007. Outsourcing sovereignty: Why privatization of government functions threatens democracy and what we can do about it. New York: Cambridge University Press.

 

Waldo, Dwight. 1948. The Administrative State. New York: The Ronald Press Company.

 

Wilson, Woodrow. 1887. The study of administration. Political science quarterly 2:197-222.

 

Wirth, Stephen K. 2013. State Action, Government Speech, and the Narrowing Spectrum of Private, Protected Speech. Cornell L. Rev., 99, 485.

 

 

 

 

 

 

 

 

 

 

 


 

 

Table 1

 

Supreme Court Rulings on State Action Cases involving Public Functions

 

Year Case Finding of state action? Public Function
1944 Smith v. Allwright yes elections
1946 Marsh v. State of Alabama yes public space (in company-owned town)
1953 Terry v. Adams yes elections
1966 Evans v. Newton yes public space (desegregation of park)
1968 Amalgated Food Employees v. Logan Valley Plaza yes public space (trespass on private property)
1972 Lloyd Corp. v. Tanner no public space (trespass on private property)
1974 Flagg Bros., Inc. v. Brooks no public space (trespass on private property)
1974 Jackson v. Metropolitan Edison Co. no utility
1976 Hudgens v. NLRB no public space (trespass on private property)
1982 Blum v. Yaretsky no state subsidized healthcare
1982 Rendell-Baker v. Kohn no education
1987 San Francisco Arts & Athletics v. United States Olympic Committee no national interests
1988 National Collegiate Athletic Association v. Tarkanian no due process
1988 West v. Atkins yes state subsidized healthcare
1991 Edmonson v. Leesville Concrete Co. yes civil trial jury selection

 

Thirty Years of Public Management Scholarship: Plenty of “How” Not Enough “Why”

Reflecting upon thirty years of scholarship in any field is a daunting assignment. When the field is public management, there is much to applaud: scholars have made important contributions to our understanding of everything from bureaucratic motivation, public budgeting processes, the promises and pitfalls of contracting-out, and identification of the skills needed to be an effective public manager, to the scientific arcana of sustainability and the respective responsibilities of public administrators and elected officials. These and other insights into what we might call the “nuts and bolts” of managing government operations are valuable and the copious research that has produced them has been both instructive and worthwhile.

That said, as I have surveyed the public management literature over these years, I have become increasingly convinced that the profession would benefit greatly from a much more sustained emphasis upon the history and philosophy of the constitutional choices made by those who framed America’s original approach to governance. I remain persuaded of the validity of the following observation from a 2003 review of several public administration textbooks:

Before there was public management, there was political theory: what should government do? What actions by the state are to be considered legitimate? What is justice? What is public virtue? As Thomas Barth reminded us in this journal last October (Barth, Thomas J. “Reflections on Building an MPA Program: Faculty Discussions Worth Having,” Journal of Public Affairs Education, Vol.8 #4), those of us who teach public management too frequently neglect these seminal questions for the necessary but inevitably more mundane skills of the profession—budgeting, planning, human resources management, policy analysis. But these practical subjects did not emerge from a void; they are inextricably bound up with our constitutional system, and that system in turn is the outgrowth of great philosophical debates about the proper ordering of human communities. It can be extremely rewarding for students to visit those debates. (One would love to say “revisit” but that would be inaccurate; virtually none of them have any familiarity with this intellectual history.) (Kennedy 2003)

In 1986, well before the beginning of the thirty-year survey of literature with which this journal issue is concerned, John Rohr published his seminal To Run a Constitution, in which he emphasized the link between public management ethics and constitutionalism. He revisited that connection in 1998, in Public Service, Public Ethics and Constitutional Practice. Rohr has long argued that the central theme of public management, and the most important challenge facing civil servants, is how to ensure the responsible exercise of administrative discretion. That “responsible exercise” requires familiarity with the constitution that administrators take an oath to uphold, and an understanding of the philosophical underpinnings and constitutional context of our particular approach to governance. Rohr noted the tensions between the culture of the administrative state and that of constitutionalism, and in language pertinent to both the opening quotation and the focus of this journal issue, noted that the “culture of the administrative state is managerial. It stresses achievement and performance; its watchwords are efficiency and effectiveness. The latter is cautious and legalistic. It limits government, checks tyranny, and provides the blessings of liberty.” (Rohr, p.38)

It is inarguable that the literature of the past thirty years has been concerned primarily with efficiency and effectiveness; there has been much less research into the ways in which those constitutional “limitations on government” and “checks on tyranny” affect the management of public agencies. Among other things, the search for cost-effectiveness and efficiency has prompted substantial growth in comparative research; scholars increasingly investigate public management practices in other countries in order to identify useful alternative approaches to common public administration issues. There is no doubt that management regimes benefit greatly from research on such common challenges as waste disposal, public transportation, pollution reduction and the use of new communication technologies, among other tasks; however, no matter how useful and transferable such practical insights are, we must not lose sight of the fact that the rules and underlying assumptions governing management of public affairs will inevitably be particularistic. Public officials must manage the public’s business as that business is defined by a particular society at a particular time. In the United States, that imperative requires a more than passing familiarity with constitutional assumptions about the roles, rights and respective responsibilities of government and its citizens.

Constitutions are the original declarations of public policy. They embody a society’s fundamental philosophical assumptions about law, legitimacy and the proper exercise of government power. Constitutions and the legal and administrative systems they establish dictate the ways in which we frame public problems and they effectively foreclose exploration of certain policies that may be employed in other countries or at other times. To cite some rather obvious examples, the United States Constitution does not permit American officials to impose martial law when burglary rates get too high, or to censor music lyrics when some citizens find them too suggestive. It does not permit government to reduce welfare rolls by refusing to feed Hispanic children, or to combat civic unrest by criminalizing political demonstrations or marches. Understanding the constitutional bars to these and other governmental measures, and the reasons for them, is critically important to the proper discharge of a public manager’s duties.

Constitutional provisions not only circumscribe and prescribe the arena within which public policy debates may legitimately occur, they also provide us with a common language, something that is required for meaningful democratic dialogue. Public managers don’t need to agree with every choice made by the nation’s founders, but they do need to understand what those choices were, why they were made, and why they matter today. Without that essential background, many public management issues cannot be properly framed or the political passions they sometimes arouse clearly understood; they will tend to be viewed as isolated and unconnected problems to be addressed by the appropriate technocrats. With constitutional literacy comes recognition that certain underlying principles will be as applicable to discussions of welfare reform, tax policy and land use as they are to school choice or public health or gay rights.

A case in point: An issue that has generated a great deal of public management research over the past thirty years is the issue of privatization, more accurately described as “contracting out.” The practice of providing public services through third-party surrogates, both non-profit and for-profit, has grown considerably over the past three decades. Public administration scholars have studied the practical and fiscal challenges of the practice (Cooper, 2002; Greene, 2002; Kettl, 2000; Sclar, 2000; Brudney, Hebert and Wright, 1999; Starr, 1987) ; nonprofit scholars have addressed concerns about sectoral blurring and its effect on nonprofit and voluntary organizations[Milward, 1994; Gronbjerg, 1993; Smith and Lipsky, 1993; Milward and Provan, 1993; Milward, Provan and Else, 1993]; and both have examined the mechanics and challenges of what has been called the “contract state.” (Hall and Kennedy, 2008; Marvel and Marvel, 2007; Light, 2006; McGuire and Agranoff, 2003; Perry and Wise, 1990) The scholarship examining contracting is copious and growing, and over the years, as researchers have explored the civic and monetary costs of these arrangements, those analyses have become more fine-grained and illuminating. Even today, however, despite significant academic interest in most aspects of the practice, there is a paucity of literature examining the sometimes troubling effects of these arrangements on constitutional accountability, and a limited recognition of the different constitutional implications of different public-private relationships.

The terms “public affairs” and “public management” reflect the existence of both public and private sectors, and different constitutional cultures define those spheres differently. In the United States, we have drawn a distinction between the public sector, by which we mean government and its agencies, and civil society, by which we mean the multitude of nongovernmental, voluntary communal and religious associations through which individuals may act and connect. That distinction is a critical element of constitutional analysis. It is extremely dispiriting to encounter public officials who are simply unaware of the concept of state action, who have never been taught that the constraints of the Bill of Rights limit government only, and that as a consequence, we must ask different questions when we are proposing government interventions than when we are contemplating other kinds of collective social action.

Contracting out can make it difficult to distinguish private from public activity, a distinction critical to constitutional analysis. On the one hand, if a government agency engages in traditional procurement activities, if, for example, it buys computers or automobiles or other products from a private company, the vendor of those goods will not and should not be considered by virtue of that transaction to be a part of the public sector. But what is the result when a city or state engages a for-profit company or nonprofit organization to deliver services that are government’s responsibility and that were previously delivered by government employees? During the discharge of those contractual duties, can the private-sector company or non-profit organization legally engage in practices that would be unconstitutional if done by government?  The case law to date suggests that the answer to this question is sometimes yes, and that is a very troubling conclusion. (Kennedy, 2001) Even more troubling is a lack of clear guidance from the courts to public managers that would assist them in distinguishing between situations in which a non-governmental partner will be held constitutionally responsible and those in which it won’t. (In Lebron v. National Railway Passenger Corporation, a 1995 case, Justice Scalia memorably conceded that “It is fair to say that our cases deciding when private action might be deemed that of the state have not been a model of consistency.”)

Nevertheless, though the public management literature dealing with normative constitutional issues over the past thirty years is thin, it is not non-existent. This essay previously referenced John Rohr’s foundational contributions to the literature in To Run a Constitution. His later Public Service, Ethics & Constitutional Practice brought together a series of lectures addressing the same concerns, given over a period of twenty-plus years. Publication of the book, according to Rohr, had three goals: to remind public servants of the nobility of their calling; to stress the importance of the constitutional dimension of their work; and to encourage public managers to make greater use of constitutional language to describe their everyday activities. In connection with the third goal, he reiterated his belief that “one of the most fundamental problems with the public management movement” is its failure to emphasize that the job of the public manager is to implement the Constitution.

David Rosenbloom has been one of the most important and consistent scholars amplifying Rohr’s insistence upon the essential relationship between constitutional principles and the everyday decisions of public managers. (Rosenbloom 1971, 1983, 1987, 2002, 2003; Rosenbloom, Carroll and Carroll, 2000; Rosenbloom and Kravchuch, 2005; Rosenbloom and McCurdy, 2007) In 2000, together with James and Jonathan Carroll, Rosenbloom published Constitutional Competence for Public Managers, intended as a textbook for those teaching public administration. The book provided a highly readable combination of public administration theory and constitutional case law, including several issues raised by contracting and the Reinventing Government movement. The authors explained the book’s objective in their introductory chapter as an effort to provide students and practitioners of public management with knowledge needed to make them “constitutionally competent.”

Given the number of articles and research studies that have been devoted to the New Public Management (NPM) over the past three decades, it is worth quoting a particularly cogent analysis from Chapter Six of Constitutional Competence for Public Managers, addressing the conflicting philosophies of NPM and the Constitution. Noting the NPM emphasis on employee empowerment, the authors began by quoting Al Gore:

“…people—in government or out—are, for the most part, neither crooked nor stupid. Most people want to do the right thing, so long as the right thing makes sense. Perhaps the most important thing about the reinvention initiative, and its regulatory reform work in particular, is that it is based on a new assumption: that people are honest and that if you tell people what needs to be done, and let them get on with doing it, the chances are it will be done better—and more cheaply—than if you tell them how.” (127)

As the authors observe, this statement may or may not be an accurate view of human nature, but it is inconsistent with both the “underlying premises of the Constitution and the received political culture in the United States” (127)

Furthermore, they point out that one person’s prudent precautions against corruption and overreaching are the next person’s red tape. Deregulation and employee empowerment will inevitably create tensions with provisions of a constitutional structure designed to encourage accountability and discourage administrative capriciousness—especially the separation of powers and due process.

The importance of Separation of Powers to the field of public management was also the subject of a book written in 1995 by Michael Spicer, The Founders, the Constitution and Public Administration. In that book, Spicer made a strong case for the importance of constitutional values to public administration. (Indeed, he began the book with the assertion that public management that is not rooted in the Constitution lacks legitimacy, a view that both Rohr and Rosenbloom would almost certainly endorse.) “The purpose of this book,” Spicer says in his introduction “is to examine the worldviews underlying public administration and the Constitution. It is also to see how our vision of public administration might be modified so as to render it more compatible with the worldview of the Founders.”(10)

Spicer argues that public administration, with its early roots in scientific management, has focused almost exclusively on such specific areas as policy analysis, management science, and systems analysis in public administration, and more recently on the public management uses of computers, management information systems and the various techniques for reinventing or streamlining government. The Constitution, in contrast, is concerned with broader philosophical questions about the proper use and reach of government power. Spicer cites Madison’s abiding concern over the abuse of state power by officials responding to popular passions, as well as his belief in the importance of checks and balances, and his conviction that “ambition must be made to counter ambition”(36). He quotes from Hamilton to underscore the Founders’ conviction that it is better for government to do too little than too much, better to regret that good laws didn’t pass than to regret that bad laws did.

Spicer argues that because public administration has concentrated on the need to legitimize the administrative state, it has found itself at odds with a central Constitutional concern, the need to limit power. He suggests that for public administrators intent upon steering the ship of state, the Constitution is far too often seen as a problem to be circumvented, rather than a basis upon which to build legitimacy.

In the first decade of the 21st Century, there has been an uptick, however slight, in publications meant to underscore the importance of constitutional competence in public administration. In 2006, Anthony Bertelli and Laurence Lynn published Madison’s Managers: Public Administration and the Constitution, in which the authors challenged public management scholars and professionals to recognize the importance of constitutional foundations to the actual and perceived legitimacy of public administration; in the book, the authors explored the specific implications of that insight for managerial practices. Also in 2006, Bertelli and Lynn published an abbreviated version of their argument, titled “Public Management in the Shadow of the Constitution” in Administration and Society.

 In 2009, Robert Christensen emphasized the connection between public law and public management in an article published by Public Performance and Management Review titled “Running the Constitution: Framing Public Administration,” and in 2010, Stephanie Newbold provided an important overview of the (scant) literature and argued for renewed emphasis upon the constitutional roots of public management. Newbold’s article in Public Administration Review was titled “Toward a Constitutional School for American Public Administration,” and in it she made the case for the establishment of a “constitutional school,” which she defined as a “loose confederation of public administration scholars and practitioners” who would connect the U.S. Constitution with all aspects of American public administration theory and practice. In her introduction, Newbold cited David Rosenbloom (2002, 2003) for the proposition that the Constitution is “the normative base for our scholarship, and it demands that we reemphasize and reestablish a greater commitment to how the rule of law pervades public administrative management in its entirety.”

Newbold credited Michael Spicer and Larry Terry for the term “constitutional school,” which they coined in 1993 in a Public Administration Review forum on public administration and the Constitution. Terry believed that public administrators’ oath to uphold the Constitution should be seen as a “moral commitment” requiring fidelity to the values embodied in the nation’s charter. Newbold also cited Terry Cooper (1991, 1994; Cooper and Wright 1992), Rosemary O’Leary (O’Leary and Wise 1991, 2003) John Rohr (1986, 1998, 2002) David Rosenbloom (2002; Rosenbloom, Carroll and Carroll 2000), Larry Terry (2003), and Dwight Waldo (1948), among others, for their efforts to focus awareness on the importance of public law and constitutionalism to the field of public management. She described them as scholars who have

championed the notion that it is often just as important, and perhaps even more so, for government to implement public policies and rely on managerial techniques that demonstrate values associated with responsibility, representativeness, responsiveness, rule of law, and especially constitutional competence (p. 540).

Newbold rests her argument for a constitutional school on three grounds: first and most importantly, she echoes Rohr’s conviction that the legitimacy of the administrative state requires fidelity to the constitution. Second, she notes the importance of a consistent terminology with which to define, discuss and advance scholarship devoted to issues of constitutional adherence. And finally, she emphasizes the need to extend scholarly discourse on these issues beyond the narrower academic silos within public management.

To say that an increase in research emphasizing the constitutional context of public management has failed to materialize would be an understatement, despite the advocacy of scholars like Rohr, Rosenbloom, Newbold and others. The anemic response is dispiriting for several reasons, not least because more attention to the constitutional and legal imperatives of public management would provide an appropriate and overdue rebuttal to the repeated, thoughtless and widely accepted mantra that government should be “run like a business,” with its unmistakable implication that specialized knowledge or skills are unnecessary to successful public administration. The assumption is apparently that anyone possessing “common sense” business skills is thereby equipped to capably manage the operations of government agencies, no matter the agency’s mission or the complexity of its assignments.

When significant segments of the population do not know the history, philosophy or contents of their country’s Constitution, they cannot judge the propriety of public administrators’ behaviors. When public managers are uncertain of the professional or ethical behaviors required by the Constitution, they may find themselves obeying or enforcing Congressional or Administrative mandates that contravene constitutional values and erode democratic norms. In the wake of the 2016 election, public debate over the constitutionality of several actions taken by the new Trump Administration has become ubiquitous; unfortunately, that debate has also placed the public’s widespread lack of civic literacy on prominent display. That lack of basic civic and constitutional knowledge is apparently shared by a depressing number of public officials, both elected and appointed.

The Journal of Public Integrity recently published an article in which I explored the importance of grounding public management ethics and performance in a deep understanding of the constitutional culture, especially in a country as diverse as America:

Unlike citizens of countries characterized by racial or ethnic homogeneity, American identity is rooted in allegiance to a particular worldview; it is based upon an understanding of government and citizenship originating with the Enlightenment and subsequently enshrined in the U.S. Constitution and Bill of Rights. Understood in this way, “constitutional culture” has a considerably broader scope than law and policy; it is an expression of the ongoing dialectic between a society’s legal norms and the broader culture within which those norms are situated and must be understood. The American “constitutional culture” arises from the operation of our constitutional values in a radically heterodox culture, and the effects of that interaction on policy choice and contestation.

Decisions made by those who designed America’s constitutional architecture have shaped contemporary definitions of public and private, notions of governmental and personal responsibility, and conceptions of human rights. They dictate the manner in which we frame and understand civic responsibility, and allocate collective social duties among governmental, nonprofit and private actors. In short, those initial constitutional choices have been constitutive of a distinctive American culture. What Kennedy and Schultz have called “the Constitutional Ethic” is behavior grounded in, and compatible with, the American Constitution (2011). (Kennedy 2012)

Survey research offers substantial support for the proposition that American voters believe our national government is broken. The just-concluded presidential campaign made it abundantly clear that we lack a common understanding of what it is that government should do, and disagree rather strongly on the methods elected officials should employ in the discharge of their duties. That lack of a common understanding of America’s legal culture, or even a common vocabulary for exploring our differences, is exacerbated by the internet and social media, which enable citizens to live within information “bubbles” consistent with their worldviews. This state of affairs poses immense challenges to public administrators, whose effectiveness requires a widely shared, if necessarily superficial, agreement on the purposes of America’s governing institutions and an ability to recognize the bases of government legitimacy.

It is not the job of public management scholars to provide the broader American public with the requisite levels of civic knowledge, but those scholars can examine the causes and consequences of the public’s anger with its governing institutions, and the degree to which that anger might be ameliorated by changes in the ways in which public managers communicate or operate. Researchers can assess the extent to which the practical imperatives of the administrative state have suffocated or displaced the constitutional norms to which they should be subservient, and offer correctives where appropriate. Even the necessary “nuts and bolts” literature can remind the profession of its constitutional roots. In the past thirty years, however, literature that addresses these important connections between constitutional theory and management practice, between the rule of law and the exercise of public power and discretion, has been all too rare. Let us hope that the next thirty years’ literature corrects that deficiency.

 

References

Bertelli, A.M. and Lynn, L.E. (2006). Madison’s Managers: Public Administration and the Constitution. JHU Press.

————————————(2006) “Public Management in the Shadow of the Constitution.” Administration and Society. Vol. 38, #1.

Brudney, J.L., Hebert, F.T. and Wright, D.S. (1999). “Reinventing Government in the American States: Measuring and Explaining Administrative Reform. Public Administration Review 59(1) January/February. Pp. 19-30.

Christensen, R.K. (2009) “Running the Constitution: Framing Public Administration.” Public Performance and Management Review 32(4) June. Pp. 604-609.

Cook, B.J. (1996). Bureaucracy and Self-Government: Reconsidering the Role of Public Administration in American Politics. Baltimore: Johns Hopkins University Press.

Cooper, P.J. (2002) Governing by Contract: Challenges and Opportunities for Public Managers. Washington, D.C.: CQ Press.

Cooper, T.L. (1991) An Ethic of Citizenship for Public Administrators. Englewood Cliffs, N.J. :Prentice-Hall.

————–(1994). Handbook of Administrative Ethics. New York. Marcel Dekker.

Cooper, T.L. and Wright, N.D. (eds. 1992) Exemplary Public Administrators: Character and Leadership in Government. San Francisco: Jossey Bass.

Greene, J.D. (2002) Cities and Privatization: Prospects for the New Century. Upper Saddle River, N.J.: Prentice-Hall

Gronbjerg, K.A. (1993) Understanding Nonprofit Funding: Managing Revenues in Social Services and Community Development Organizations. San Francisco: Jossey-Bass.

 Hall, L. and Kennedy, S.S. (2008) “Public and Nonprofit Management and the ‘New Governance’” American Review of Public Administration. (Vol. 38, No. 3). Pp 307-321

Kennedy, S.S. (2000) “Back to Basics: Citizenship, Public Administration and the Constitution.” Journal of Public Affairs Education. Vol. 6, #4, October.

—————“When is Public Private? State Action, Privatization and Public-Private Partnerships.” George Mason Civil Rights Law Review. Vol. 11 #2, Spring 2001.

—————( 2013) “Civic Literacy and Ethical Public Service: An Under-Appreciated Nexus.” Journal of Public Integrity. Vol. 15, #4 .

Kennedy, S.S. and Schultz, D. (2010) American Public Service: Constitutional and Ethical Foundations. Jones and Bartlett Publishers

Kettl, D.F. (2000). The Global Public Management Revolution: A Report on the Transformation of Governance. Washington, D.C. Brookings Institution.

Light, P.C. (2006). “The Tides of Reform Revisited: Patterns in Making Government Work, 1945-2002.” Public Administration Review 66(1) pp. 6-19.

Lynn, L.E. “Public Management in the Shadow of the Constitution.” Administration and Society 38(1) March. Pp.31-57.

Marvel, M.K. and Marvel, H.P. (2007) “Outsourcing Oversight: A Comparison for In-House and Contracted Services” Public Administration Review 67(3) pp. 521-530.

McGuire, M. and Agranoff, R. (2003) Collaborative Public Management: New Strategies for Local Governments. Washington, D.C.: Georgetown University Press.

Milward, H.B. (1994) “Nonprofit Contracting and the Hollow State: A Review Essay.” Public Administration Review 54: January/February pp. 73-77.

Milward H.B. and Provan, K.G. (1993) “The Hollow State: Private Provision of Public Services” in H. Ingram and S.R. Smith (eds.) Public Policy for Democracy (Helen Ingram and Steven Rathgeb Smith, eds.) Washington, D.C. : Brookings pp. 222-237.

Milward, H.B., Provan, K.G. and Else, B. (1993). “What Does the Hollow State Look Like?” in B. Bozeman (ed.) Public Management: The State of the Art. San Francisco, Jossey Bass pp. 309-322.

Newbold, S.P. (2010) “Toward a Constitutional School for American Public Administration.” Public Administration Review 70(4) July/August. Pp. 538-546.

O’Leary, R. and Wise, C. (1991) “Public Managers, Judges and Legislatures: Redefining the ‘New Partnership.’” Public Administration Review 51(4). Pp. 316-327.

————————— (2003) “Breaking Up is Hard to Do: The Dissolution of Judicial Supervision of Public Services.” Public Administration Review 63(2) pp. 177-91.

Perry, J.L. and Wise L.R. (1990) “The Motivational Bases of Public Service.” Public Administration Review 50(3): pp. 367-373.

Rohr, J.A. (1986). To Run a Constitution: The Legitimacy of the Administrative State. Lawrence: University of Kansas.

————(1998) Public Service, Ethics and Constitutional Practice. Lawrence: University of Kansas.

———–(2002) Civil Servants and Their Constitutions. Lawrence: University of Kansas.

Rosenbloom, D.H. (1971) Federal Service and the Constitution: The Development of the Public Employment Relationship. Ithaca, N.Y.: Cornell University Press.

————- (1983) “Public Administrative Theory and the Separation of Powers.” Public Administration Review 43(3): pp. 219-27

————(1987) “Public Administrators and the Judiciary: The “New Partnership.” Public Administration Review 47(1): pp. 75-83

————-(2002) Building a Legislative-Centered Public Administration: Congress and the Administrative State, 1946-1999. Tuscaloosa: University of Alabama Press.

————-(2003) Administrative Law for Public Managers. Boulder, CO: Westview Press.

Rosenbloom, D., Carroll, J.D. and Carroll, J.D. (2000). Constitutional Competence for Public Managers: Cases and Commentary. Itasca: IL. F.E. Peacock.

Rosenbloom, D. and Kravchuk, R.S. (2005) Public Administration: Understanding Management, Politics and Law in the Public Sector. 6th ed. Boston: McGraw-Hill.

Rosenbloom, D. and McCurdy, H. (eds. 2007) Revisiting Waldo’s Administrative State: Consistency and Change in Public Administration. Washington, D.C.: Georgetown University Press.

Sclar, E.D. (2000). You Don’t Always Get What You Pay For: The Economics of Privatization. Ithaca, N.Y.: Cornell University Press.

Spicer, M. (1995) The Founders, the Constitution and Public Administration. Washington, D.C.: Georgetown University Press.

Spicer, M. and Terry, L.D. (1993). “Advancing the Dialogue: Legitimacy, the Founders and the Contractarian Argument. Public Administration Review 53(3) pp. 264-67.

Starr, P. (1987) “The Limits of Privatization.” In Hanke, S. H. (ed) Prospects for Privatization. New York: Academy of Political Science.

Smith, S.R. and Lipsky, M. (1993) Nonprofits for Hire. Cambridge, MA. Harvard University Press.

Terry, L.D. (2003) Leadership of Public Bureaucracies: The Administrator as Conservator. Armonk, N.Y.: M.E. Sharpe.

Waldo, D. (1948). The Administrative State: A Study of the Political Theory of American Public Administration. New York: Ronald Press.

 

 

Electoral Integrity: How Gerrymandering Matters

If there has been a constant theme running through 2016 political campaigns, it is that the “system” is rigged and democratic processes no longer work. To the extent that culprits responsible for this state of affairs are identified, political activists on the Left (most prominently Bernie Sanders) point to money and the outsized influence of the 1%, while those on the Right (most prominently Donald Trump) attack “political correctness,” immigrants and minorities. Among members of the general public, dissatisfaction with the country’s current direction is attributed to a wide number of additional grievances. One such grievance that has gained traction over the past several years is the perceived impact of state-level partisan redistricting, or gerrymandering, on both state and federal elections.

The public’s widespread belief that gerrymandering is largely responsible both for “gaming the system,” via the growth in the number of noncompetitive electoral districts and for current extremes of partisanship has revived efforts to reform the way in which states handle redistricting, and has reignited scholarly disputes over the degree to which the ills ascribed to partisan redistricting are accurate. At the same time, pending lawsuits challenging both redistricting practices and certain of those reforms will soon require the Supreme Court to revisit its redistricting jurisprudence.

Popular opinion would seem to weigh in on the side of those who argue that partisan redistricting has distorted the electoral process. (Li 2015, Hulse 2015, Draper 2012) Popular concern about the deleterious consequences of partisan redistricting is augmented by activism undertaken by think tanks and good government organizations, among them the Brennan Center, the League of Women Voters and Common Cause. Belief in the efficacy of partisan line-drawing is also exhibited by the political insiders who go to great lengths and significant expense to draw lines favorable to their electoral prospects. (Draper 2012)

It is thus timely to revisit not just the contending academic arguments about gerrymandering’s influence on political polarization and partisan outcomes generally, but also the existing constitutional jurisprudence and especially the issue whether political rather than racial gerrymandering is justiciable, and if so, the appropriate standard to be applied. Redistricting reforms in states like California, Arizona and Iowa have prompted efforts to revise redistricting processes in a number of other states, and cases pending before or on their way to the Supreme Court are poised to clarify the extent to which the Court will intervene in state redistricting decisions when partisan advantage, rather than race, is at issue. Finally, emerging analyses of the experiences of the states that have implemented reforms may provide evidence of the efficacy or lack thereof of redistricting reform, and confirm or fail to confirm the belief that such reforms can generate increased electoral competition, increase turnout, or decrease partisanship to any appreciable degree.

This article makes two arguments: first, that many of the data-driven conclusions of political scientists who dismiss the impact of gerrymandering —although accurate as far as they go—don’t go far enough; that is, they ignore the extent to which redistricting may be implicated in the phenomena to which they do attribute the growth in the number of noncompetitive districts; and 2) the existence of a widespread public conviction that gerrymandering is undermining democratic legitimacy by depriving voters of voice has political consequences that may be difficult if not impossible to measure, but should not for that reason be dismissed as inconsequential. (As the Supreme Court noted in Shaw v. Reno, reapportionment is one area in which appearances do matter.)

 

The Scholarship

There is a copious scholarly literature dealing with gerrymandering, the practice of partisan redistricting that takes its name from then-governor of Massachusetts Elbridge Gerry. Over the years, scholars have disagreed about the actual impact of such practices. One group of researchers has argued that, although redistricting may matter at the margins, it is only one cause among many for the lack of competitiveness that characterizes state-level elections and elections for the U.S. House of Representatives. One of the most frequently cited authorities for the proposition that redistricting is not the primary cause of non-competitiveness is a study by Abramowitz, Alexander and Gunning (2006). They tested three causal hypotheses: redistricting, partisan polarization and incumbency, and concluded that only the latter two were part of the “pattern of reinforcing advantages” that had led over the years to “extraordinarily uncompetitive” elections. They particularly noted the fundraising disparity between incumbents and challengers, although they did not consider the extent to which creation of safe seats via gerrymandering might contribute to that particular advantage of incumbency. Campbell and Jurek ( 2003) also attribute the decline of competition to the fundraising and other advantages enjoyed by incumbents.

Both political polarization and the lack of electoral competitiveness have been attributed to the growth of polarization between the states (Enten 2013), to geographical self-sorting (Wasserman 2014) and to single-member Congressional districts (Drutman 2016) rather than to gerrymandering.

A widely-cited article by McCarty, Poole and Rosenthal (2006) also dismissed the importance of gerrymandering to political polarization. (Finding “little evidence” for such a link, they did note that gerrymandering operates to increase Republican seat share in the House of Representatives, but concluded that this fact was not an important source of polarization.) However, their final paragraph is worth quoting, because it recognizes both the role of gerrymandering in reducing competition and the importance of public perceptions of legitimacy:

“Nothing we say should be interpreted as contentment with congressional districting as it is currently practiced. The protracted political and legal battles over the boundaries cannot help but diminish the legitimacy of American democracy. And redistricting does appear to have a negative value on electoral competition. There are many reasons to do something about gerrymandering. But reducing polarization is not one of them.”

Other researchers and political figures have connected gerrymandering to both non-competitiveness and polarization. Carson, Crespin, Finocchiaro and Rohde (2007) concluded that redistricting is one among other factors producing polarization in the House of Representatives; former Congressman Lee Hamilton (2000) has written that the way in which congressional districts are drawn contributes to the “overwhelming” advantages enjoyed by incumbents; and Sam Wang of Princeton’s Program in Law and Public Affairs has statistically calculated the number of voters effectively disenfranchised by gerrymanders (Wang 2013). In 2006, Thomas Mann implicated gerrymandering in the polarization of the House of Representatives, and in a book co-authored with Norman Orenstein (2008), Mann argued that the decline in electoral competition and the entrenchment of partisan behavior has diminished incentives for compromise and bipartisan behaviors.

Interestingly, one of the most complete reviews of recent scholarly literature on the effects of partisan redistricting appears in an amicus brief filed by Mann and Orenstein on behalf of Arizona’s independent commission in Harris v. Arizona Redistricting Commission. Mann and Orenstein are political scientists who have written extensively about redistricting, and about “packing” (creating districts with supermajorities of the opposing party) “cracking” (distributing members of the opposing party among several districts to ensure that they don’t have a majority in any of them) and “tacking” (expanding the boundaries of a district to include a desirable group from a neighboring district). They cite to studies tying redistricting to the advantages of incumbency (Hirsh 2003, Issacharoff and Nagler 2007, Kang 2006, Levitt 2011), and also note that the reliance by House candidates upon maps drawn by state-level politicians operates to reinforce partisan rigidity.

Mann and Orenstein also cite to a 2009 article by Oedel, Lynch, Mulholland and Edwards, in which the researchers investigated whether representatives from districts drawn by independent commissions become less partisan.

“Contrary to the initial expectations of the authors, the evidence reviewed here suggests that politically independent redistricting seems to reduce partisanship in the voting behavior of congressional delegations from affected states in statistically significant ways.

There is a copious literature examining numerous other aspects of redistricting: questions of compactness and respect for communities of interest, the legal requirements imposed by various states, the mechanics of line-drawing, and especially the ways in which the mandates of the Voting Rights Act, both before and after its partial evisceration by the Court in 2013, interact with redistricting. Those issues are important, but ultimately tangential to the questions of competition, partisanship and perceived legitimacy considered here.

Whatever the scholarly doubts about the effects of partisan redistricting, a number of states are engaging in efforts to address the perception that district boundaries drawn as a result of political bias allow officeholders to choose their voters rather than the other way around, thus diminishing the integrity of the democratic process. The major challenge reformers face is the absence of judicial agreement on a standard of measurement that can be applied by mapmakers and courts to determine whether a given district’s boundaries have been drawn so as to make them constitutionally improper.

 

The Jurisprudence

The question whether gerrymandering violates the Constitution did not arise until 1962, when the Supreme Court decided Baker v. Carr, often referred to as the “one person, one vote” decision. In Baker, Tennessee citizens eligible to vote brought suit to redress what they alleged was a deprivation of their federal constitutional rights. Under the terms of a 1901 statute, Tennessee had apportioned seats in the state’s General Assembly and had subsequently failed to reapportion them, despite substantial growth in and redistribution of the State’s population. The plaintiffs asserted that , as a result, they suffered a “debasement of their votes” and were denied the equal protection of the laws. Lower courts had dismissed the suit on the grounds that political reapportionment was not justiciable, but the Supreme Court reversed, holding that an apportionment case may be reviewed on Fourteenth Amendment grounds, so long as these grounds are independent from questions clearly assigned to political decision-makers.

Subsequently, the Court has heard cases involving both racial and partisan gerrymandering; however, only two of those cases—Davis v. Bandemer and Vieth v. Jubelirer—focused exclusively on the issue of partisan redistricting. (A third case, League of American Citizens v. Perry (LULAC), challenged the propriety of a mid-decade redistricting in Texas, the only purpose of which, plaintiffs alleged, was to expand partisan advantage.)

In Davis v. Bandemer, Plaintiffs alleged that Indiana’s Republican-controlled legislature had gerrymandered state legislative districts after the 1980 census.

The Court narrowly held claims of partisan gerrymandering justiciable under the 14th Amendment’s Equal Protection Clause, but found that the mere fact of an adverse effect on proportional representation (the discrepancy between the percentage of votes garnered by a political party and the number of seats that party ultimately won) was not a sufficient standard to demonstrate both partisan purpose and effect.

The problem identified by the Court was the lack of a reliable standard for determining when a district had been intentionally gerrymandered for partisan advantage. Justice White led a plurality of the Court in holding that plaintiffs would be required to prove both discriminatory intent and discriminatory effect, and that “unconstitutional discrimination occurs only when an electoral system is arranged in a manner that will consistently degrade a voter’s or a group of voters influence on the political process as a whole” (at 132). The plurality’s standard thus required evidence of continued frustration of the will of the majority or continued frustration of the ability of an identifiable minority to influence the political process. The Bandemer challenge lost because only one election had been held since redistricting.

As one legal scholar noted,

“In terms of a legal standard, requiring litigants to suffer a continued burden makes sense, as a single election cycle has too many variables to definitively show that gerrymandering caused the election outcome. Conversely, if there has been a constitutional violation, requiring litigants to continue to suffer the violation seems like a perverse result.” (Butera 2015)

The standard applied by the plurality in Bandemer did not survive the Court’s analysis in Vieth v. Jubelirer. In that case, Democratic voters challenged the legislative districts drawn by Republicans in Pennsylvania following the 2000 census. There was agreement that Justice White’s standard was unworkable, but there the agreement ended. The four conservative judges argued that redistricting is a political question, and should not have been held to be justiciable; the four liberals argued that the Equal Protection Clause should apply; and Justice Kennedy disagreed with both positions. Kennedy rejected the Plaintiffs’ gerrymandering claim, but also rejected the argument that the issue was non-justiciable. The problem, for Kennedy, was the inability of litigants or members of the Court to devise a workable standard for determining whether a gerrymander had occurred. (Interestingly, the four Justices who believed the issue to be justiciable proposed three separate standards, none of which has been adopted.)

Even in LULAC, where the highly irregular mid-decade redistricting would seem to be convincing evidence of a partisan motive, Kennedy found legitimate legislative objectives sufficient to uphold the validity of the new districts.

In the wake of LULAC, a number of social scientists and lawyers have tried their hand at devising a standard that the court—and especially Justice Kennedy—will see as workable. Two cases, the Arizona case previously discussed and another from Maryland, may offer the Court opportunities to consider two very promising efforts to fashion such a standard.

In “Partisan Gerrymandering and the Efficiency Gap,” Stephanopolous and McGee (2014) proposed a standard incorporating the concept of “wasted votes.” As Stephanopolous has described this standard, the efficiency gap is the difference between the parties’ respective wasted votes in an election, divided by the total number of votes cast. “Wasted” votes are ballots that don’t contribute to victory for candidates; they may be lost votes cast for candidates who are defeated, or surplus votes cast for winning candidates in excess of what they needed to win. When a party gerrymanders a state, it tries to maximize the wasted votes for the opposing party while minimizing its own, thus producing what Stephanopolous and McGhee call an efficiency gap. In a state with perfect partisan symmetry and no gerrymandering, both parties would have the same number of wasted votes. As a matter of simple arithmetic, the efficiency gap is equal to a party’s undeserved seat share.

In their paper, Stephanopolous and McGhee go through several calculations based upon recent elections to demonstrate the relative simplicity and reliability of the efficiency gap.

Another proposed standard has been offered by Samuel Wang, in a paper for Princeton’s Program in Law and Public Affairs (2015). Wang observes that identification of partisan asymmetry requires examining all of the districts in a state, and says “this is a job for statistics.” In a New York Times op-ed explaining the approach developed in his paper (2016), Wang writes:

“An easy test is available that directly measures overall bias: the difference between the average and the median. This century-old statistic uses math that is in the Common Core standards for sixth grade. It also won this year’s competition for a gerrymandering standard sponsored by the nonpartisan organization Common Cause.”

The average-median difference is simple enough that a busy judge can calculate it in the margin of a brief. Here’s how it works. First, calculate the targeted party’s median vote share, which is defined as the middle district on a list that is sorted in order of increasing party vote share. If the targeted voters have been packed into a few districts , they are counted in the average but have little effect on the median. Thus, perhaps counter-intuitively, it is possible for more than half the districts to have a below-average number of partisan supporters.

Wang applied his standard to the Arizona district that is at issue in the case pending before the Supreme Court and concluded that the median Democratic vote share was less than the average by 3.3 percentage points, “a direction that slightly benefitted the Republicans….If the Commission was trying to show special favor to Democrats, it did a poor job.” (In that case, Republicans are claiming that one of the districts drawn by Arizona’s nonpartisan commission intentionally and unconstitutionally favored the Democrats. The Commission attributed the population discrepancy to requirements of the Voting Rights Act, and defended its magnitude as falling within allowable bounds, a defense with which Wang agreed.) In Wang’s paper, he supplements this first statistical test with two others, and demonstrates that the tests can be used singly or in tandem, to determine the statistical likelihood of a particular outcome, that is, whether the outcome falls within or outside of what Wang calls “the zone of chance.”

The Arizona challenge is to the state’s use of an independent commission, and is unlikely to involve a direct consideration of potential standards. However, a case working its way to the Court from Maryland may offer an opportunity to directly evaluate the utility of various proposed standards. Shapiro v. McManus challenged Democratic redistricting in that state. The District Court dismissed the challenge as insubstantial without convening a three-judge panel, despite the fact that the rules call for such a panel unless the case is “obviously frivolous.” The Supreme Court reversed, finding that a three-judge panel should have heard the arguments. That ruling was procedural, and did not address the merits, but Court observers are cautiously optimistic about the case’s potential to resolve the standards issue, because rulings by three-judge panels go straight to the Supreme Court, bypassing the usual appeals process. The Maryland case could thus give the Court its first opportunity in nearly a decade to revisit the issue of partisan gerrymandering.

Another case, from Wisconsin, is also in the pipeline, albeit further from Supreme Court consideration; in Whitford v. Nichol, Democrats are challenging a 2012 redistricting plan that they allege is the product of extreme gerrymandering, and they are relying upon the efficiency gap test to demonstrate the accuracy of that allegation. The District Court declined to dismiss the claims, despite noting that plaintiffs will face significant challenges proving their case.

 

Reforms and Consequences

Over the past several years, a number of organizations and citizen groups have worked toward redistricting reform. In addition to the Brennan Center, the League of Women Voters and Common Cause, mentioned earlier, organizations like Fair Vote, End Gerrymandering, Ballotpedia, Redistricting Online, the National Council of State Legislatures, and the Public Mapping Project all maintain active and informative websites devoted to providing information and assistance to grassroots reform efforts.

Complicating these efforts is the fact that state redistricting procedures vary widely. Even the six states with independent commissions have varying membership requirements and procedural rules governing the establishment of boundaries for both state legislative and congressional districts. Although a number of other states have advisory commissions with varying degrees of input in the process, the six states that have thus far committed the redistricting process to independent commissions are Alaska, Arizona, California, Idaho, Montana and Washington.

Despite the continued insistence of many social scientists that gerrymandering is not a significant causal factor in non-competitive districts or political polarization, the early results of redistricting reforms have been salutary. This article has previously cited Oedel, Lynch, Mulholland and Edwards, who were surprised to find that redistricting reform moderated the partisanship of Representatives. Stephanopoulos has found that the use of neutral institutions such as commissions produces fairer and more competitive elections. (DATE) In a 2008 study, Mark Dunkelman calculated that truly competitive House districts could generate up to eleven million additional votes, and that those votes would come disproportionately from states with particularly egregious gerrymandering practices. There is also emerging research supporting the proposition that redistricting reforms reduce the incidence of uncontested elections and increase the likelihood of a quality challenger entering the race (Cottrill 2012). At Lead or Leave, an Indiana Foundation formed to advance redistricting reform, Iowa is held up as a success story; in the wake of its redistricting reforms, elections in that state have more closely reflected the actual partisan preferences of Iowa voters (Zellner and Nierzwicki, 2014).

Conclusion

The scholarship may be contested, but if the numerous citizen organizations, editorials and letters to the editor are to be believed, the public is convinced that partisan redistricting is a major contributor to democratic dysfunction. It is difficult to quantify the extent to which perceptions of gerrymandering contribute to voter cynicism and apathy, but that difficulty does not justify dismissing the importance of those perceptions to political legitimacy.

In a 2012 paper delivered to the Western Political Science Association, James Cottrill made an important and frequently overlooked point: there are consequences of redistricting reforms that scholars have overlooked, because they are difficult or impossible to measure.

“In an era of heightened mistrust of government, there may be intrinsic benefits to redistricting reform that are not directly related to electoral outcomes, such as greater trust in government and increased political participation.”

Marc Hetherinton (1998) has also assessed the importance and role of political trust in the electoral process.

If the Supreme Court accepts one of the proposed standards for evaluating whether a gerrymander has occurred, we may have the opportunity to find out whether those benefits are real, and if so, how extensive they may be. As this is written, pundits are attributing the appeal of extremism and support for “outsider” candidates in the 2016 election cycle to voter anger and frustration. To the extent that gerrymandering contributes to voters’ cynicism, reforms that encourage more competition and less partisanship, while no panacea, couldn’t hurt.

References

Abramowitz, A., Alexander, B., & Gunning, M. (2006). Incumbency, Redistricting and the Decline of Competition in U.S. House Elections. The Journal of Politics, 68, (1), 75-88.

Arizona State Legislature v. Arizona Independent Redistricting Commission, 576 U.S. ___ (2015)

Baker v. Carr, 369 U.S. 186 (1962)

Butera, J. (2015). Partisan Gerrymandering and the Qualifications Clause. Boston University Law Review, 95, 303-334.

Campbell, J. E., & Steve J. J. (2003). The Decline of Competition and Change in Congressional Elections. In Congress Responds to the Twentieth Century. Ahuja and Dewhurst, eds. (pp. 43-72) Columbus, OH: Ohio State University Press.

Carson, J.L., Crespin, M., Finocchiaro, C.J., & Rohde, D.W. (2007). Redistricting and Party Polarization in the U.S. House of Representatives. American Politics Research, 35 (6), 878-904.

Cottrill, J. B. (2012, March) Non-Legislative Redistricting and the Public Trust: The Indirect Benefits of Electoral Reform. Paper presented at the 2012 Annual Meeting of the Western Political Science Association, Portland, OR.

Davis v. Bandemer, 478 US 109 (1986)

Draper, R (2012, October). The League of Dangerous Mapmakers. The Atlantic, http://www.theatlantic.com/magazine/archive/2012/10/the-league-of/309084/

Drutman, L. (2016, February 14). The clever strategy that could stop the polarization of American politics. Quartz. http://qz.com/615630/the-clever-strategy-that-could-stop-the-polarization-of-american-politics/

Dunkleman, M. (2008). Gerrymandering the Vote: How a ‘Dirty Dozen’ suppressed as many as 9 million voters. Democratic Leadership Council.

Enten, H. J. (2013) Why ‘gerrymandering’ doesn’t polarize Congress the way we’re told. The Guardian, http://www.theguardian.com/commentisfree/2013/jan/03/gerrymandering-polarise-congress

Hamilton, L. (2000) Noncompetitive Elections for Congress. The Center on Congress at Indiana University.

Hulse, C. (2016, January 25). Seeking to End Gerrymandering’s Enduring Legacy New York Times, January 25, 2016. Retrieved from http://www.nytimes.com/2016/01/26/us/politics/seeking-to-end-gerrymanderings-enduring-legacy.html?_r=0

Hetherington, M. J. (1998). The Political Relevance of Political Trust. The American Political Science Review, 92 (4), 791-808.

Hibbing, J.R. & Theiss-Morse, E. (1995) Congress as Public Enemy: Public Attitudes Toward American Political Institutions. New York, NY: Cambridge University Press.

Hursh, S. (2003). The United States House of Unrepresentatives: What Went Wrong in the Latest Round of Redistricting. Election Law Journal: Rules, Politics, and Policy, 2 (2), 179-216.

Issacharoff, S., & Nagler J. (2007). Protected from Politics: Diminishing Margins of Electoral Competition in U.S. Elections. Ohio State Law Journal. 68, 1121-37.

Kang, M. S.\ (2006). De-Rigging Elections: Direct Democracy and the Future of Redistricting Reform. Washington University Law Review, 84, 667-716.

League of American Citizens v. Perry, 548 US 399 (2006)

Levitt, J. (2011). Weighing the Potential of Citizen Redistricting. Loyola Law Review, 44 (2), 513-544.

Li, M. (2015 July 13). State Gerrymandering Reforms Start to Show Results. Retrieved from https://www.brennancenter.org/blog/state-gerrymandering-reforms-start-show-results

Li, M. (2015 December 11). Could Partisan Gerrymandering Be Headed Back to the Supreme Court? Retrieved from https://www.brennancenter.org/blog/could-partisan-gerrymandering-be-headed-back-supreme-court

Mann, T. (2006). Polarizing the house of representatives: how much does gerrymandering matter? In Brady, D. & Nivola, P. Red and blue nation? Characteristics and Causes of America’s Polarized Politics, (Vols. 1 pp. 263-282). Baltimore, M.D.: Brookings Institution Press.

Mann, Thomas and Norman Ornstein. Brief for Amici Curiae in Support of Appellees, Arizona State Legislature v. Arizona Independent Redistricting Commission. 2015.

Mann, T. & Ornstein, N. (2012) It’s Even Worse Than It Looks: How the American Constitutional System Collided with the New Politics of Extremism. New York, NY: Basic Books.

Mann, T. & Ornstein, N. (2008) The Broken Branch: How Congress is Failing America and How to Get it Back on Track. New York, NY: Basic Books.

McCarty, N., Poole K.T., & Rosenthal H. (2006). Does Gerrymandering Cause Polarization? American Journal of Political Science 53 (3), 666-680.

Oedel, D.G., Lynch, A.K., Mulholland, S.E., & Edwards, N.T. (2009). Does the Introduction of Independent Redistricting Reduce Congressional Partisanship? Villanova Law Review, 54 (1), 57-90.

Opdycke, K., Segura, P. & Vasquez, A.M. (2013). The Effects of Political Cynicism, Political Information Efficacy and Media Consumption on Intended Voter Participation. Colloquy, 9, 75-97.

Shapiro v. McManus, 577 US _ (2015)

Shaw v. Reno, 509 US 630 (1993)

Stephanopolous, N.O. (2013). The Consequences of Consequentialist Criteria. U.C. Irvine Law Review, 3, 669-715.

Stephanopolous, N.O. & McGhee, E.M. (2015). Partisan Gerrymandering and the Efficiency Gap. University of Chicago Law Review. 82, 831-900.

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Wang, S.S.-H., (2015) Three Tests for Practical Evaluation of Partisan Gerrymandering. Program in Law and Public Affairs and Princeton Neuroscience Institute, Princeton University. Advance online publication doi: http://guides.main.library.emory.edu/c.php?g=50081&p=324328

Wasserman, D. (2013) Introducing the 2014 Cook Political Report Partisan Voter Index. Cook Political Report. Retrieved from http://cookpolitical.com/story/5604

Whitford v. Nichol (W.D. Wisconsin)

Wittman v. Personhuballah

Zellner, S. & Nierzwicki, F. Drawing Lines in the Sand: Redistricting Commissions in the United States. Unpublished manuscript. School of Public and Environmental Affairs, Indiana University-Purdue University Indianapolis, Indianapolis, Indiana.

 

 

 

 

 

 

 

 

 

 

 

 

 

Is Low Civic Literacy a Wicked Problem?

 

 

In 1973, Horst W. J. Rittel and Melvin M. Webber published an influential article on the nature of social problems. Titled “Dilemmas in a General Theory of Planning,” the article focused upon the difficulty of solving what they dubbed “Wicked Problems,” and triggered an ongoing scholarly discussion about the nature of such problems and the differences between efforts to craft social policies addressing them and the “tamer” and more linear approaches appropriate to the solution of scientific problems (Rittel and Webber, 1973).

As Rittel and Webber (1973) defined them, stubborn (“Wicked”) problems are those implicating value judgments and perceptions of equity. Given the pluralist nature of contemporary democratic societies, those values and perceptions will be heterogeneous, making even agreement on policy goals a contested exercise. Furthermore, wicked problems are by definition systemic, and efforts to address them will have “waves of repercussions that ripple through such systemic networks” (p. 156).

“One of the most intractable problems is that of defining problems (of knowing what distinguishes an observed condition from a desired condition) and of locating problems (finding where in the complex causal networks the trouble really lies). In turn, and equally intractable, is the problem of identifying the actions that might effectively narrow the gap between what-is and what-ought-to-be” (p. 159).

Rittel and Webber (1973) proceeded to identify ten characteristics of wicked problems, and subsequent scholarship has elaborated on them (Richey 2005, 2011; Weber and Khademian 2008; Conklin 2001). Indeed, a robust and widely diverse scholarly literature has developed in which the notion of problem “wickedness” has been applied to everything from ecological challenges and environmental degradation (Brennan 2004; McKinney and Harmon 2004; Frame 2008; Frame and Brown 2008; Rayner 2006), to business and manufacturing (Camillus 2008; Conklin 2005; Powell, Kopet and Smith-Doerr 1996), to democracy, citizenship and politics (Barabas, Jerit, Pollock and Rainey 2014, Mathews 2008; Chrislip and Larson 1994) to public administration and governance (Head and Alford 2013; Feldman and Khademian 2002; Kettl 2003, 2202; Bardach 2001; Evans 2000; Klijn and Koppenjan 2000; Agranoff and McGuire 1998) to general organizational theory (Kedia and Mukherji 1999; Susskind, McKearnan and Thomas-Larmer 1999; Behn 1998), among many others.

A scholarly literature particularly relevant to problem “wickedness” is network theory, which has grown significantly since the introduction of the concept of “wicked problems.” As Weber and Khademian have documented (2008), the study of networks has augmented, and arguably is replacing, prior scholarship focused upon hierarchies and markets. Networks have come to be seen as an effective means of addressing complex problems and achieving collective goals. (Peters 2001 Podolny and Page 1998; Kickert, Klijn and Kippenjan 1997; Powell, Kopet and Smith-Doerr 1996). Weber and Khademian define effectiveness in this context as collaborative capacity, improved policy performance, and accountability, and argue that addressing the special attributes of “wicked problems” requires the sorts of collaboration and knowledge sharing that networks make possible.

While the literature of network theory has seen a copious expansion, scholarship applying the concept of problem wickedness to education, and especially to citizenship education, has remained relatively sparse. Educators and educational philosophers have begun to investigate the intersection of growing complexity and the transmission of civic knowledge (Hipkins 2010; Kress 2008; Gilbert 2005; Boyd, Bolstad, Cameron, Ferral, Hipkins, DcDowall et al 2005; Westheimer and Kahne 2004) but none have as yet applied the lens of “wickedness” to the specific challenges of civic education.

In order to determine whether the transmission of civic knowledge is a wicked problem, and whether the stubbornly low levels of American civic literacy can properly be categorized as “wicked,” it is necessary to determine how many of the problems faced by civic educators match the characteristics of wickedness enumerated by Rittel and Webber.

A caveat is important here: most wicked problems will not exhibit all ten of wickedness’ defining characteristics. Scholars are in agreement, however, that the greater the number of such characteristics, the “wickeder” the problem. The elements of wicked problems, as Rittel and Webber catalogued them, are: no agreed-upon formulation/definition of the problem; no “stopping rule” (solutions can always get better); solutions will not be true or false, but rather good or bad; there is no immediate and no ultimate test of solutions; every solution is a “one-shot” because there is no opportunity to learn by trial and error; there is no enumerable or exhaustively describable set of potential solutions; every wicked problem is essentially unique; every wicked problem is a symptom of another problem; discrepancies can be explained in numerous ways; and the planner (or problem solver) has no right to be wrong.

“So what is the problem that the term “wicked problem” addresses? The common sense approach to WPs is fairly straightforward: As stated above, WPs are about people – the most “complex adaptive systems” that we know of. They are subjective problems. Everything that has to do with people and society is ultimately subjective. Above all, WPs are about people as stakeholders: competing and cooperating, vying for position, willing to reflect, and to change their positions on the basis of this self-reflection. This is why such problems do not have stable problem formulations; do not have pre-defined solution concepts; and why their course of development cannot be predicted. This is also why attempting to causally model or simulate the paths of development of such problem complexes is often worse than useless” (Richey 2005).

Weber and Khademian (2008) offered a somewhat abridged description of the elements of wickedness, summarizing the more elaborate ten-characteristic typology offered by Rittel and Webber into three major dimensions: wicked problems are unstructured (their precise causes and effects are difficult to isolate, the problem-solving process is fluid, and there is little or no consensus on problem definition or solutions); they are cross-cutting (having multiple stakeholders with diverse perspectives, requiring trade-offs among competing values); and above all, relentless (there is no finish line).

 

Civic Literacy and Civic Skills

 

As used in this analysis, civic literacy refers to knowledge of America’s history, governing philosophy and structures. It is different in kind from the sort of “civic intelligence” addressed by Douglas Schuler and others (Schuler 2014) and indeed, would seem to be far more concrete than the social impairments that work against achievement of such civic intelligence.

At first blush, low civic literacy, defined as widespread ignorance of basic civic knowledge, would not seem to be a wicked problem. If people lack information about their history and government structures, if they lack the tools to understand the roots and/or nature of the issues they face, the solution seems simple enough: they should be educated, and provided with that information and those tools, preferably in school. It is only when we look more closely at the nature of the problem that we begin to understand the multiple ways in which the challenge presented by the deficit of civic knowledge may be wicked. To begin with, the educational process itself has multiple characteristics of wickedness.

For example, it’s often said that the education problem can’t be solved until the poverty problem is addressed. These two problems are intertwined not only with each other, but with many other social issues such as crime, child care, health care, and unemployment. These entangled problems are made even more complex because they are values-laden. It’s impossible for everyone to reach consensus about how they should be addressed. There is no right or wrong answer, and each attempted solution will give rise to other anticipated, unanticipated, and delayed wicked problems. Furthermore, each wicked problem can be considered a symptom of another wicked problem because of their interconnectedness. Wicked problems are never solved once and for all, just re-solved over and over again. Hence, the current state of affairs in education (McMahon, 2011).

When we focus upon education in service of civic participation, we encounter still other aspects of wickedness. Although there is significant debate about causation–about which comes first, lack of knowledge or lack of engagement– there is substantial evidence of the correlation between civic ignorance and civic apathy and disengagement (Delli Caprini, Keeter and Scott 1996; Levine 2011).

There is also ample research confirming the existence of what has been called a “civic deficit” (Delli Caprini, Keeter and Scott 1996; Galston 2001, 2004, 2007; Intercollegiate Studies Institute 2008, 2011; Schudson 2000; Torra & Novarro, 2008; Fleming 2012; Levine 2011). A recent blog post from the Center for Civic Literacy summarizes some of that research:

Only 36 percent of Americans can name the three branches of government. Fewer than half of 12th grade students can describe the meaning of federalism. Only 35% of teenagers can identify “We the People” as the first three words of the Constitution. Fifty-eight percent of Americans can’t identify a single department in the United States Cabinet. Only 5% of high school seniors can identify checks on presidential power, only 43% could name the two major political parties, only 11% knew the length of a Senator’s term, and only 23% could name the first President of the United States (Kennedy, 2015).

 

In What Way is Civic Literacy a “Wicked” Problem?

 

Existing research on civic knowledge confirms that deficits in civic literacy are real, but that research also displays the heterogeneous value commitments identified by Rittel and Webber. There is no agreement, for example, on the definition, causes or consequences of the problem. In some cases, there is disagreement about whether this lack of knowledge should even be considered a problem; a number of people dismiss the importance of content knowledge, asserting that cultural attitudes are more important. Others question whether low levels of political participation are really attributable to civic ignorance, suggesting that apathy and even satisfaction with the status quo are more likely to explain a lack of civic engagement (Dudley & Gitelson, 2002; Galston, 2004).

Among those who believe that lack of basic information is a genuine problem, there is no consensus on the content of the civic information with which a minimally-literate citizen should be familiar. American history? The Constitution? What about basic economic or scientific principles necessary to an understanding of current events (Kennedy, 2013)? And what about those current events? Should a civically-literate American know the names and partisan affiliations of at least high-ranking elected officials? The names and locations of countries with which we are at war? The identities of sitting Supreme Court Justices? Scholars are deeply divided over the value of such knowledge, with some dismissing it as trivia not reflective of or necessary to a genuine understanding of the operation of our democratic system, and others arguing that truly engaged or informed citizens will inevitably acquire such information.

Not only is there substantial disagreement on the nature of the information necessary to informed participation in the democratic process, Americans’ value heterogeneity challenges efforts to reach consensus on the meaning of even that content widely agreed to be an essential element of civic knowledge. This is especially true with respect to our basic legal structure. The Bill of Rights, in particular, is a statement of broad principles, and the proper application of many of those principles to new and emerging “facts on the ground” has historically been contested even by legal scholars. What has been called “constitutional competence” (Rosenbloom, 2000) is further challenged by partisans and outright propagandists who seek to exploit the inherently contestable nature of Constitutional language in order to further ideological or religious agendas. This means that even in areas where there is broad agreement about the sorts of basic civic knowledge citizenship requires, there is considerable dispute over the proper way to understand those principles and the way in which civics should be taught. In Oklahoma last year, for example, lawmakers threatened to defund Advanced Placement American history because they deemed the new curriculum, which emphasized critical thinking, insufficiently “pro American.”

Conservative critics attacked the new course guidelines, and charged that the increased inclusion of negative episodes constituted “rewriting American history” in ways that undercut (their version of) the purpose of teaching that history.

If we are judging civic competence by reference to participation rather than knowledge, what should count as adequate engagement? Voting in a Presidential election, but not a municipal one? Working with one’s neighbors to solve a problem? Attending a public hearing? Donating to or volunteering with a political campaign, or working with a nonprofit organization to solve a civic problem (a metric used in state-level Civic Health surveys)? Furthermore, in each of these cases, how do we assess the adequacy of engagement? Should voting and other political participation “count” more than donating to a cause or doing volunteer work for one’s church? Should the amount of the donation or the duration of the volunteer effort factor into the evaluation? What “grade” is to be deemed sufficient? What about clearly uninformed or destructive participation—say, membership in the Ku Klux Klan or in a “volunteer” militia patrolling the border?

As noted above, research does support the contention that civic knowledge and civic engagement are highly correlated (Delli Caprini et al., 1996; Milner, 2002), but the relative contribution of each is speculative, as is the question of causation. Are more knowledgeable citizens more likely to become civically involved, or does civic involvement lead to a more complete and accurate understanding of the way in which our democracy works (or doesn’t)?

If there is no agreement on the nature and extent of the deficit, there is even less on its causes. Critics of public education accuse schools and teachers of poor performance, of which civics is only a part; defenders point to the current emphasis on STEM subjects, No Child Left Behind, and the increasing conflation of education with job training as major reasons schools have little time for civics. Civics and social studies teachers note that the current emphasis on high-stakes testing inevitably means that teachers and students alike will emphasize those areas of the curriculum that are subject to testing; they point out that civics is rarely one of the areas tested. Sociologists and political scientists point to socio-economic factors, and note that the gaps in civic knowledge between poor children and those from more affluent families are similar to the gaps that characterize disparate performance levels in other subjects (Diemer, 2012).

Still other observers focus on the fragmentation of contemporary media, and its tendency to feed a popular culture that emphasizes celebrities and sports figures, rewards sensationalism, and increasingly lacks the resources to provide serious investigative reporting on matters of public concern. Recent research by the Jonathan M. Tisch College of Citizenship and Public Service (home to the Center for Information and Research on Civic Learning and Engagement, a pre-eminent resource for research on civic learning) has focused on the question whether and how the news media might impact broad democratic practices. Other explanations for low civic engagement include economic factors; observers note that low-income Americans are working increasing hours just to put food on their tables, and lack the time to participate in civic and political matters. Although such time constraints are undeniably real, however, it remains true that few of those Americans are motivated to devote what leisure time they do have to civic enterprises.

Further complicating the situation is the fact that all of these explanations, and many others that have been proposed, are interrelated. Economic inequality sends children to schools of very uneven quality. Our inability to agree on the content or methodology or institutional arrangements leading to effective public education produces very different results even in schools serving so-called “privileged” communities. The lack of a sound educational grounding drives media choices, and media outlets competing for “eyeballs” offer entertainment and (often) propaganda intended to appeal to increasingly segmented audiences—a problem exacerbated by the increasing use of sophisticated algorithms to deliver “relevant” information over the Internet (Pariser, 2011) and by America’s persistent thread of anti-intellectualism.

Wicked problems have multiple stakeholders representing multiple and frequently inconsistent values. This is certainly the case with civic literacy; stakeholders include the aforementioned public school teachers and administrators, education reform activists, lawyers, political pundits, elected officials and public managers at various governmental levels, journalists, and citizens working for particular policy outcomes or for redress of perceived grievances. Many of these stakeholders represent disciplines having specialized languages and professional terminologies, complicating communication. Further, value diversity means that solutions—or at least improvements—acceptable to some stakeholders will be unacceptable to others. In the Oklahoma example cited previously, stakeholders presumably agreed that “American Exceptionalism” should be taught, but they disagreed profoundly on its definition and importance.

Furthermore, as Rittel and Webber (1973) noted, professionals of various fields laying claim to superior knowledge or expertise can expect considerable resistance from members of the general public, or laity, who tend to be resentful of such claims and suspicious of “elites,” especially academic ones. This heterogeneity of stakeholders is further complicated by the structural relationships among them.

Civic literacy deficits exhibit three other elements of “wickedness”: there are no “stopping rules,” because the problem of a civically illiterate population cannot be definitively solved; solutions are unlikely to be true or false, only better or worse; and there is no immediate or ultimate test of a solution.

 

What to do

With “tame” problems, linear processes leading to recognizable solutions can be employed: one defines the problem, identifies potential solutions together with their strengths and weaknesses, and chooses the remedy that seems best. With efforts to improve civic literacy, however, proceeding in that fashion leads to what has been called “analysis paralysis,” repeated studies that simply confirm the widespread lack of civic knowledge. Stakeholders can’t act to address the problem until there is more information, but that information isn’t available until someone acts. In the case of civic literacy, analysis paralysis has resulted in a copious literature confirming the existence of a deficit and a less robust literature offering theoretical approaches to remedying that deficit, but considerably less research on actual programmatic efforts.

If civic literacy is a wicked problem, we have no choice but to act, to try different solutions that will help us to better understand the nature of the problem and evaluate the results of efforts to address it. This is not a risk-free strategy; as Ritchey (2005) has written, “every implemented solution is consequential. It leaves “traces” that cannot be undone…And every attempt to reverse a decision or correct for undesired consequences poses yet another set of wicked problems.” This is self-evidently true of any individual program or attempted intervention. However, a new approach to content delivery in a classroom, a new state standard for civics instruction, an effort to improve public understanding of local government or similar efforts can be immensely instructive—whether it succeeds or fails. It is here, I argue, that civic literacy differs from many other wicked problems and (arguably) becomes less wicked. Rittel (1973) notes that “One cannot build a freeway to see if it works.” But civic education is not a freeway; nor is it the design of a new car (an example used by Conklin). Proposed solutions need not exclude other potential solutions, need not require the expenditure of massive amounts of money. Pilot programs can be conceived and their results evaluated; those with promise can be adapted or replicated.

A central insight of Rittel and Webber (1973) was that substantially wicked problems can only be approached through an iterative process that sheds needed light on the nature of the problem at the same time as it is trying to improve the situation. The nature of the civic deficit allows for the use of a wide variety of approaches employing such a process.

In order to engage in this trial and error methodology, however, we must address the elements of wickedness that have led to the current analysis paralysis. At a minimum, stakeholders must work together to create, first, a shared and much more widespread and public understanding of the problem and its consequences; and second, a shared commitment to the broad goal of improving civic knowledge, all while recognizing the partial and tentative nature of that understanding and the high probability that the goalposts will move more than once.

Rittel and Webber’s (1973) original identification of wicked problems, and their enumeration of the thorny challenges such problems represent, was not intended to dissuade us from trying to solve social problems. It was not a counsel of surrender. It was an analytic tool that distinguished between different kinds of challenges, confirmed the contours and difficulties of certain of those challenges, and warned us away from obvious pitfalls.

If the literature on wicked problems confirms anything, it is that most social problems are wicked to a greater or lesser extent. Recognizing that fact does nor relieve us of the obligation to work for their (more-or-less) satisfactory resolution.

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