Enforcing Janus Rights for Public Workers

U.S Supreme Court decision no longer makes union fees a condition of employment

The U.S. Supreme Court recently held that public employees no longer must pay union fees as a condition of employment. The court reasoned that mandatory payments constituted compelled speech and association, which violate the First Amendment. School employees, state workers, police officers, firefighters and any secretaries, nurses, janitors, and others who work for a government entity can choose whether to join or pay fees to a union.

The court, in Janus v. AFSCME, held that public agencies and unions may not collect any form of payment from nonmembers (i.e., fee payers) without their clear and affirmative consent. Nonmembers who previously left the union do not need to resign again from it. That essentially makes all government workers across the country, regardless of current state law, what is commonly known as “right-to-work.”

The court affirmed that a person who no longer wishes to belong to the union or pay fees may constitutionally decline to support it. For unions or public employers to collect payments, the employee must have provided an “affirmative consent.”

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The Janus decision may also impose an obligation on unions and employers to obtain an affirmative consent from all public employees, including existing members. This question will likely be sorted out in the courts, but the majority of justices clearly signaled their understanding that government unions would have to, in the words of the opinion, “make adjustments in order to attract and retain members.”

At least one government entity – a school district in New Jersey – has stopped withholding dues on behalf of the union until it gives evidence that all employees signed up for it. Anna Smith, a middle school teacher in the district, has sued the union for violating her First Amendment rights. The district sent employees an authorization form, but the union has sent a cease-and-desist letter demanding that dues continue to be withdrawn and given to them.

While Janus doesn’t change the fact that most government employees may choose to be in a union, it now gives them a right to also not join or pay. Many unions have chosen the path of resistance, bullying workers into joining or blocking any attempts to leave. We hope that changes going forward.


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Later High School Start Times Should Stay Local Decision

Change by Berkley district cites academic benefit

Oakland County's Berkley School District is giving its high schoolers more time to sleep in, reports The Detroit News. While some may say the district is just encouraging teenaged laziness, the evidence suggests the new schedule is likely to help students learn more.

Last year classes at Berkley High School began at 7:40 AM, but as students return after this coming Labor Day, the start time will come 40 minutes later. This change gets the district closer to 8:30 AM, which is the earliest start time recommended by the American Academy of Pediatrics and other professional groups. Despite those recommendations, only about 13 percent of high schools nationwide implemented 8:30 or later start times as of 2015-16, according to the National Center for Education Statistics.

Bolstered by the underlying sleep science, studies have found later school day start times can lead to statistically significant gains in academic achievement for middle schoolers, high schoolers and first-year college students. Berkley's sole high school finished higher than nearly 70 percent of its peers on the latest edition of the Mackinac Center's Context and Performance Report Card, but this change may help its students improve their results.

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Importantly, the district's superintendent says the potentially impactful change comes with "no added cost." But changing the schedule still entails trade-offs, because time itself is a resource. Many students may learn and retain more class material because they get more sleep. But other teens might find it harder to participate in an extracurricular activity or to help working parents pick up younger siblings after school.

Berkley's move to a new schedule was likely simplified because they don't operate buses to transport general education students to and from school. (Michigan law only requires districts to provide transportation for students with special needs) Bus schedules are often cited as the key obstacle to later start times. But Macomb County's South Lake Schools buck this trend as they continue to bus students to school, even as officials report that last year's switch to an 8:35 AM start time has worked well in their area.

The News article points out that years of grassroots efforts in some larger southeast Michigan districts have had less success in compelling districts to push back their start times. In Berkley’s case, school officials considered input from parents, but they also had to secure approval from the district's teachers union.

Still, as with starting the school year before Labor Day, setting the times for school to be in session should remain a local decision. No one-size-fits-all state rule could account as well for family schedules and student needs.

To allow local districts to be more responsive to parental concerns, however, the Legislature could choose to take the topic of starting times off the union bargaining table. State lawmakers also could guarantee and expand access to different public education options, including through the state's Schools of Choice laws. That option would go a long way to helping students and families who desperately want a new calendar or class schedule.

The research tells us that more Michigan school districts should wake up to the idea of later high school start times. But, given some established obstacles, it may take a more compelling case to get it done.

 


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No One Will Win The Tariff Game

Michigan to lose 91,000 jobs from Chinese retaliation alone

Most games are zero-sum, meaning there is a winner and a loser: Someone goes home with the prize, while someone else goes home empty-handed. President Donald Trump appears to see trade as a game of this nature. But unlike football, there are no winners in a game of tariffs, and Michigan may be the biggest loser of all. Despite attempting to promote the national economic welfare, Trump’s tariffs will instead harm Michigan’s economy and the United States as a whole.

A tariff is a tax on virtually everyone except the industry it aims to protect. Since the beginning of this year, Trump has instituted protectionist policies to try to stifle foreign competition to domestic goods. Billions of dollars’ worth of tariffs have been introduced on imported goods, including steel and aluminum. These taxes have led countries like China, Mexico and Canada to reciprocate with tariffs of their own.

China recently enacted 128 tariffs on American-made goods. This tit-for-tat hits Michigan hard, especially in the automotive, plastics and pharmaceutical industries. A Brookings Institution report found that when the tally of Chinese tariffs is taken, Michigan will be the fourth-hardest hit state. China’s tariffs are projected to kill 91,000 jobs, 23,000 of which are in Wayne and Macomb counties. The vast majority of jobs lost statewide would be in automotive production.

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Michigan and Detroit thrive off the auto industry. Cars are Michigan’s biggest export, going to Canada, Mexico and China among other places. The president instituted tariffs on all these countries and all of the countries hit back. Canadian tariffs on the automotive industry, in particular, are a direct hit to Michigan’s economy. Half of Michigan’s exports to Canada in 2017 were cars or vehicle parts, totaling around $15 billion.

For small farms in Michigan, tariffs have an extra sting. Canada and Mexico account for two-thirds of Michigan’s agricultural exports. The farming industry has already seen a sharp decline in income, which is projected to hit a twelve-year low in 2018. Tariffs just add insult to injury in the farming industry, exacerbating this extreme income loss.

It’s time for President Trump to quit the protectionist game. No one will ever win, and the United States will instead continue to be a big loser. Michigan’s economy and industries would benefit were trade barriers to fall, and removing tariffs is the first step.


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Superintendent Earns Praise Painting School – Which Would Be Illegal If He Were Paid

Painting isn’t dangerous and Michigan should eliminate its license

A West Michigan school superintendent is winning widespread praise, deservedly so, for spending his summer painting school walls to save the district money. Interestingly, if he were paid directly for this work, state licensing laws would make his effort illegal.

WXMI-TV of Grand Rapids reports that Martin Public Schools Superintendent David Harnish is working 90 hours a week this summer with a group of students to paint a school building. It hasn’t been painted in 17 years, and doing the work with the student helpers will save the district $150,000.

Since he is not being paid for this work specifically, Harnish does not need to be a licensed painter. But painting is one of the approximately 200 occupations licensed by the state of Michigan. State law requires a person wishing to earn a living by painting to be 18 years old, pay hundreds of dollars in fees and take 60 hours of coursework. Only about half of the 50 states require painters to be licensed, and most do not have education-related mandates.

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Most people believe licensing laws exist to protect the public, but there’s no evidence that the states that license painters experience fewer paint-related harms. And it’s hard to see how this license requirement makes the public safer, considering it’s legal and common for people to paint their own homes. Plus, the licensing law isn’t strictly enforced anyway: Only about 425 of the 4,000 people who make their living as painters are actually licensed.

The Michigan House has voted through House Bill 4608, which would delicense painters and remove a potential obstacle for people who want to paint. The bill is sitting in the Senate, where it needs to be passed before the end of the year to become law. Harnish deserves praise for his work on behalf of students and taxpayers. Lawmakers would earn similar praise if they moved this bill forward and made it easier for Michiganders to employ their skills as painters.


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A Plea for Skepticism about the MEDC: An Open Letter

Lawmakers should take a closer look at economic development programs

August 15, 2018

Dear Lawmakers and Candidates for Office:

If you lost a contested primary election in which 1,400 votes had been cast in total, but 400 of those that likely favored you had first been tossed out, would you be angry? Of course you would. The creative vote count may amount to election rigging and what statisticians might generously call “selection bias.”

I was reminded of this while recently reading a 2016 study bought by the Michigan Economic Development Corporation from a consultancy called TEConomy Partners. These consultants, to their credit, were very explicit about their methodology — what they chose to leave out and what they chose to assume. Unfortunately, their approach is enough to largely discredit their economic impact findings.

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This raises questions about a willingness of consultants to exempt data in a way that make MEDC programs look more successful than they really are. The MEDC should not be allowed to hire those consultants needed to gauge the success or failure of a state corporate handout program. The agency simply has too much incentive to game the results. The Legislature should mandate that the Office of the Auditor General perform the evaluations or hire a responsible consultant, and then give the OAG adequate resources to do so, preferably money taken from one of the state’s failed corporate handout programs.

The report produced by TEConomy Parnters measures investments made by the state’s 21st Century Jobs Fund program in companies that some state bureaucrats thought were “winners,” or should be. The authors of the report were charged with creating a “quantitative analysis of the impacts of the investments to date,” among other tasks.

To do so, they compiled a list of 1,400 Michigan companies provided with financial or (perhaps) other 21st Century Jobs Fund assistance by the state between 2005 and 2014. The consultant then excluded from its analysis the roughly 400 companies that had been supported by the state through the program but were not now (in its own words) “actively operating in Michigan in 2014.” (Emphasis added.)

In other words, the MEDC’s consultants eliminated from their analysis the almost 29 percent of firms that had taken taxpayer goodies and run to other states or had failed outright — and then declared that their count showed the investment program was a winner. I bet a lot of political campaign losers last week would have been winners had they been able to toss out more than a quarter of their opponents’ votes.

In addition, the authors warned that, for the sake of their analysis, “It is assumed that these programs have supported all the employment in these firms.” But the logic behind such an assumption is never justified. The jobs created by the firms may have very easily been added sans subsidy, and maybe even before the 21st Century Jobs Program had been created. Assuming a link between state subsidies and jobs is like announcing up front that you will assume the program is a success.

This sleight-of-hand exercise is not an MEDC one-off.

The MEDC has hired consultants in the past who determined a return on investment for various programs, but only after first excluding some or all of the costs of those programs from the calculations. The Pure Michigan campaign is one case in point. The MEDC’s consultants claim they can measure the impact from Michigan tourism promotion, such as running commercials in other states. But they do so while excluding from their estimates the cost of producing those commercials. This no doubt overstates the campaign’s returns. This is not mentioned in the MEDC’s self-aggrandizing public relations statements.

Another case involves the disastrous film incentive program, which wasted $500 million before being shut down. In 2009 scholars at Michigan State University were tapped by the MEDC to measure the impact of the first year of the Michigan film incentive program. The researchers declared it a success and a corresponding press release labeled the program a “big hit.” But these researchers excluded every dollar of the program’s considerable expense from their estimates and said nothing of that fact in their analysis or related press release.

The state’s economic development administrators have their own reasons to puff up their purported success as job-creating dynamos. After all, they are charged with creating jobs and have been given massive amounts of money — directly and indirectly — for the work. They must at least create the appearance of success.

One of the ways they do this is by hiring consultants who employ a questionable (one scholar uses the word “mischievous”) methodology that inflates the jobs and other impacts of the state’s business subsidy programs. Even if the consultant doesn’t conveniently ignore pertinent costs associated with corporate handout programs, MEDC officials can game requests they make of contractors to tilt the contractors’ conclusions in their favor.

This is why state legislators should prohibit the MEDC from selecting any of the scholars or consultants who review the efficacy of MEDC programs. It simply has too many incentives to game the results.

Sincerely,

 

Michael D. LaFaive

Senior Director of Fiscal Policy

Mackinac Center for Public Policy


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Michigan’s Trial Courts Have a Major Funding Problem

The statutory scheme that keeps them running is set to expire in 2020 – and there’s no back up plan in place yet

It’s past time for Michigan to pass some legislation to address the problem of funding its county courts. If lawmakers do nothing, counties will have to scramble to come up with hundreds of thousands of dollars to keep their local courthouses open.

Michigan’s county courts recoup their operating expenses by passing their expenses on to convicted criminal defendants in a user fee model. This model is problematic because it’s a poor business practice (courts recoup only a fraction of what they charge) that is also probably unconstitutional. Moreover, it’s about to get thrown out, because the statute that authorizes courts to fund themselves this way will expire in 2020. Without something else to replace it, counties will have to find a way to meet the considerable expense of operating the courts – or risk being subjected to lawsuits.

Depending on User Fees: A Failed Business Model

Summary of Circuit Court Cost Data, 2015

Costs Imposed by Average County

$311,612.82

Costs Imposed in Average Case

$464.61

Costs Collected by Average County

$76,414.33

Average Amount Collected

$150.08

Average Number of Cases with Costs

575

Average Percent of Costs Collected

24%

 

Summary of Circuit Court Cost Data, 2016

Costs Imposed by Average County

$334,645.10

Costs Imposed in Average Case

$432.18

Costs Collected by Average County

$112,124.90

Average Amount Collected

$206.24

Average Number of Cases with Costs

586

Average Percent of Costs Collected

51%

 

The Legislature created the Trial Court Funding Commission to study alternatives to the current funding scheme, but the progress to date on this problem has not been encouraging. Namely, the statute authorizing the funding model was slated to expire in 2017 and, rather than replace our current broken court funding scheme with something more sustainable, lawmakers simply gave the law a three-year extension. More than two years in, we’re no closer to solving the problem.

This is a big deal because the Michigan Supreme Court has already said that trial courts do not have the authority to fund themselves through imposing fees on defendants. In response, lawmakers hurriedly passed a temporary measure to nullify the high court’s ruling and keep county courts running, but the funding structure has been called into question before the high court once again, and Michigan is not prepared to respond to another unfavorable ruling.

While the state pays judges’ salaries, the day-to-day court operations are funded by county governments, which are – for now – allowed to prorate these costs and pass them on to people convicted of felonies. If criminal defendants are tried but found innocent, courts recoup nothing – creating a perverse incentive for judges to convict and an uncertain revenue stream for counties.

Because criminal defendants are frequently indigent, courts actually bring in only a fraction of what they are authorized to charge offenders.

There’s a few ways this could end. The clock might run out on the statute authorizing the current funding mechanism, and we will either replace it with a more sustainable and equitable system, or it will get strung out for another three or more years. Or – and this is where things could get messy – the state Supreme Court might rule the whole scheme unconstitutional, in which case the counties who are caught unawares by the decision will be left scrambling and likely vulnerable to additional litigation.

The clear solution is to end courts’ reliance on guilty verdicts to keep their doors open. County and state officials must work together to channel a reliable stream of tax revenue to the courts, which, after all, are a core function of government and benefit all of us. There simply is no time to lose. Whether by sunset or Supreme Court opinion, the current stream of court funding will soon be cut off, and we have no option but to be ready.

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Election Night: More Corporate Handouts or More Personal Income Tax Cuts?

As expected, both candidates have different plans for economic growth

This week’s big political race in Michigan played out as expected. Marquee candidates Gretchen Whitmer, a Democrat, and Michigan Attorney General Bill Schuette, a Republican, each won their respective party’s nomination to be governor. Many of the policy choices advanced by each — it will not surprise the reader — are not championed by the other.

But they have agreed on something: Both candidates have supported state corporate handout programs. During her tenure in the state Legislature, Whitmer voted to approve $4.5 billion worth of discriminatory incentives for businesses. She voted in favor of 98 percent of the subsidies that came before her. Schuette, also a veteran state lawmaker, voted to approve just $224 million, but this represented 100 percent of the subsidy dollars that came before him.

Past, however, is not necessarily prologue. Both these candidates discussed targeted incentive programs on the campaign trail.

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At a Michigan Economic Developers Association meeting in March, Whitmer promised to “Unleash the MEDC” in her first year as governor. Presumably, this means she believes that the Michigan Economic Development Corporation maintains a certain prowess for creating more jobs through state programs than might be destroyed by the taxes required to finance them. The MEDC is effectively the state’s corporate welfare department, and it redistributes money taken from taxpayers across Michigan to a select few corporations and industries.

Schuette, for his part, has focused his policy reform ideas around a broad-based tax cut, and he did so publicly even before formally declaring himself a candidate for the governor’s office. He has repeatedly advocated rolling back the state’s personal income tax to 3.9 percent. That was the rate promised to Michigan taxpayers in 2007 in exchange for an 11.5 percent income tax increase, one that was supposed to be temporary. But as for the MEDC, it is unlikely to disappear under a Schuette administration.

In an interview with the Mackinac Center’s Michigan Capitol Confidential, Schuette told reporter Evan Carter, “Objective one is have an environment of low taxes, fewer regulations, and so we can win again.” But he added, “We also need to compete against other states that offer incentives for businesses to plant capital and build jobs.” Schuette maintains that he doesn’t believe in unilateral disarmament, a common argument made by those who support taxpayer-funded corporate subsidies.

Both candidates would be wise to avoid the use of selective corporate handouts or other targeted favors to business as a way to create jobs. The evidence against them (scholarly and anecdotal) is overwhelming. The subsidy programs are almost always ineffective. Indeed, these programs do so little to spur real economic development that it is fair to say that states aren’t necessarily fighting over jobs so much as job announcements.

These programs amount to little more than expensive braggadocio and ribbon-cutting ceremonies for each state’s political class. They are fundamentally unfair too. Unfair to taxpayers who have their wealth confiscated and transferred by force to corporations, and unfair to in-state businesses who may have to compete against a subsidized rival.

The good news, at least, is that candidate Schuette has not made these programs the centerpiece of his economic strategy. Quite the contrary. As far as this author knows, the only reason Schuette even discussed the topic on the campaign trail was that a Mackinac Center employee asked him about it.

His policy platform — which is long on broad tax reforms — is much more likely to facilitate economic growth and development than any use of targeted, state-bestowed subsidies for business anywhere.

Last spring, the Mackinac Center estimated the impact of an income tax cut. We found that if the state rolled back the personal income tax rate from 4.25 percent to 3.9 percent, Michigan could add 15,000 jobs to its economy in the first year afterward.

That would create far more jobs than the state’s corporate welfare apparatus and be fairer too.


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The Legislature remains on a summer and primary season break, with a tentative session scheduled for Aug. 15, and regular sessions resuming Sept. 5. Rather than votes, this report contains some interesting or noteworthy recent bill introductions.

Senate Bill 1061: Require state to allow some cremated remains depositions in state parks

Introduced by Sen. Tonya Schuitmaker (R), to require the Department of Natural Resources to cooperate with certain associations in allowing the cremated remains of deceased individuals to be buried in a designated part of a state park. Referred to committee, no further action at this time.

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Senate Bill 1063: Authorize local mail-in elections

Introduced by Sen. Steve Bieda (D), to allow local governments to hold elections for local officials or local ballot measures by mail. This would not apply if any state offices or statewide measures are on the ballot. Local clerks would send a ballot to every registered voter, who could return it by mail, or at designated drop-off points on election day. The bill would establish comprehensive rules for the process and authorize the Secretary of State to administer them. Referred to committee, no further action at this time.


House Bill 6043: Require report to state of disclosures on prospective school employees

Introduced by Rep. Cara Clemente (D), to expand a law that requires individuals who apply for a school job to sign a document that authorizes the applicant’s current or former employers to disclose any unprofessional conduct to the school. The bill would require the school to report to the Department of Education any information obtained this way about sex or other crimes involving a minor, or inappropriate conduct involving a minor. The bill would also require this if a school receives similar information about a current employee from a credible source. The department would be required to keep these reports for six years. Referred to committee, no further action at this time.


House Bill 6049: Increase tax assessor training requirements

Introduced by Rep. James Lower (R), to revise many details of the functions, qualifications, restrictions and requirements on property tax assessors and local tax assessor offices, the effect of which is generally to further professionalize these functions. Referred to committee, no further action at this time.


House Bill 6052: Get independent review of business subsidy efficacy

Introduced by Rep. Thomas Albert (R), to require the state to contract with a consultant, nonprofit entity or academic institution to evaluate whether government economic development incentives are effective at growing the state economy and employment. This would apply to programs that grant tax breaks or actual cash subsidies to certain companies selected by state officials and political appointees. Referred to committee, no further action at this time.


House Bill 6058: Authorize pre-occupational licensure disqualification determinations

Introduced by Rep. Scott VanSingel (R), to establish a process where an individual seeking one of the many occupational licenses that are mandated by the state as a condition of earning a living in a particular profession could get a preliminary determination of whether any court judgments against him or her would likely result being denied a license under provisions in these laws that require “good moral character” in an applicant. Referred to committee, no further action at this time.


House Bill 6064: Create new corporate subsidy program

Introduced by Rep. Jason Wentworth (R), to authorize up to $50 million in annual state subsidies to some private businesses selected by state officials through a device the bill would create called a “rural development fund.” Reported from committee, pending before the full House.


House Bill 6069: Ban smoking in parks and playgrounds

Introduced by Rep. Peter Lucido (R), to ban smoking or vaping tobacco in state parks, municipal beaches and public playgrounds. Referred to committee, no further action at this time.

A Flip Of A Switch

Not all energy is there when you need it

When you flip a light switch on, you expect an instant result. If everybody flipped a light switch on simultaneously, they would all expect instant results. A key factor that helps to determine whether people get the light they expect is if the electric generation sources that create the power for those many switches are “dispatchable” or not.

Dispatchable sources of electricity are those that can supply the power we need, when we need it. “When” and “how much” are the key concepts, because our power usage is constantly and rapidly fluctuating, and providers need to respond quickly to meet the demand. Dispatchable also refers to the amount of power being supplied, since overproducing in times of low usage is just as inefficient as underproducing in times of need.

Non-dispatchable sources are those that the companies providing electricity cannot control. Renewable energy sources, like solar power and wind power, are not consistent, nor are they controllable. The solar radiation that hits solar cells and produces electricity is affected by nightfall, cloud cover, and the geographical location of the cells. Likewise, the wind does not blow all the time. Wind currents are affected by air density and temperature, which vary throughout the day. And the wind must be neither too strong nor too weak for it to generate electricity.

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Hydroelectric power is the most dispatchable source of energy. Flowing water can be made to power a turbine in a matter of seconds and is the most efficient way to produce electricity. Since the water captured behind a dam needs nothing more than gravity to ensure it will spin a turbine, it is available to produce electricity at a moment’s notice.

Nuclear and coal plants are dispatchable in that they are completely controllable. Once running, they affect the grid supply instantly and can be relied on to continue running consistently. These plants are typically used to provide baseload power — the always-on, minimum amount of electricity needed to meet the never-ending demand for electricity in a modern society. They supply the energy that runs our society, regardless of the weather or time of day.

But baseload generators may not always provide enough energy. A hotter-than-usual summer night would, for example, increase the demand for air conditioning. That increased demand would require more energy than normal, and quickly. This is where dispatchable energy comes in. Since nuclear and coal power plants are already meeting the minimum demands, other sources, such as natural gas, must step in quickly. When the amount of electricity a region requires returns to normal, a dispatchable source can be slowed or powered down, preventing overproduction.

Non-dispatchable sources, like wind and solar, do provide some energy. They can charge batteries when the sun is shining or the wind is blowing, and then use this power during times of peak energy usage. For example, the Crescent Dunes power plant in Nevada can hold 10 hours of energy when fully loaded. But solar energy is not equally useful in all areas, especially in a state like Michigan, which has less than half the total number of clear days that states like California, Nevada, Arizona and New Mexico receive.

Renewable energy sources augment the baseload power supplies of nuclear and coal, but since we can’t control the weather, they are not reliable sources of energy. To ensure that the lights come on with the switch is flipped, it’s best to have power sources that do not depend on the weather.

 


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New rules attack cyber school option for families

Bureaucrats can rely on new laws to crush innovative learning options. But they can rely on new interpretations of existing rules to do the same thing, bypassing laws that elected officials have approved. Such is the case with a new set of rules the Michigan Department of Education has released for financial auditing.

If these rules stand, they will threaten the existence of unconventional education opportunities that have proved to be a lifesaver for some families with challenging health needs, as well as for youths who struggled in the standard, one-size-fits-all system. Just one example is Success Virtual Learning Centers, a charter school that combines online and face-to-face learning to serve at-risk kids.

The department's Pupil Accounting Manual guides school auditors on how to properly count students, which goes a long way in determining the amount of funding districts and charter schools receive through the state’s foundation allowance. Two new rules in that manual spell danger for innovative schools.

Buried in the cyber school section of the manual, which affects schools like Success VLC and more than a dozen other online charter schools, is a creative reinterpretation of established law about the number of instructional hours a school must provide. The new interpretation would make operating an online charter school virtually impossible. It also clashes with language in the recent school aid budget approved by the Legislature, which says student "participation" is to be defined the same for district online programs as for cyber schools.

State law requires public schools of all types to provide a student at least 1,098 hours of scheduled instruction each year in order to get the designated foundation allowance funding on behalf of that student. The foundation allowance, the bulk of state money a school receives, is determined by the number of students physically present or active at a school on two “count days,” one in October and another in February.

The first rule says cyber schools "cannot enroll a pupil if, at the time of enrollment, less than 1,098 hours remain in the cyber school's schedule." In other words, cyber schools can only receive funding on behalf of students who enrolled very shortly after the school year begins.

But schools like Success VLC often take in new students who transfer midyear from a different school. It's bad enough that the law puts so much weight on a fall count day (it determines 90 percent of a school’s student tally), which means that most of the funding doesn’t follow these midyear transfers. But worse, under this new interpretation of the law, a student could enroll in a cyber school in time to be included on count day but still not generate any new funding for it.

The second rule is even more unreasonable. For the first time, the department says that cyber schools must log a full 1,098 hours of a student's activity online, tracked by the school's software. Time spent doing assignments away from the computer, apparently, would not count as instructional hours. But students in many cyber school programs do not complete all their learning while logged on, just like students in conventional schools do not receive instruction every minute class is in session.

Still, this rule goes beyond imposing a Procrustean standard to make cyber schools operate like brick-and-mortar schools. It also comes with harsher consequences for cyber schools.

If excessive snow days or other conditions reduce a school’s instructional hours below the legal standard, a conventional district could be docked a prorated amount of its state funding. One hour short, for example, would mean it loses roughly one one-thousandth of foundation allowance funding. Under this rule, though, cyber schools would lose all funding for all students who spent less than 1,098 hours in the online system.

To get that money back would require many months of appeals within the department. Even if some appeals ultimately succeed, the bureaucratic friction will deter unconventional programs that provide opportunities for kids who aren't served well in the current system.

Dallas Bell, superintendent of Success VLC, says he has met with many department staff members who support helping the at-risk students and families who benefit from a cyber school option. Unfortunately, though, they have been stymied by more senior-ranking bureaucrats who seem bent on trying to squeeze education back into a small, tight box.

Lawmakers should ask the department’s senior staff why they have come up with these new rules and what evidence shows that these changes are necessary and good for students. Otherwise, it would appear that the department is unfairly singling out cyber schools and burdening them with rules that threaten their very method of operation.

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