GrokLaw is at it again

A friend of mine sent me a link to a GrokLaw article about the cyberbulling case. You know, the one where the mother of another child set up a fake friendster page and pretended to be a boy who was interested in a girl so that she could have the fake boy eventually crush the girl's spirit by breaking up with her or ending the fake friendship that had been nurtured online. That one. Well, she was found guilty of violating the Computer Fraud and Abuse Act (CFAA) because she violated Friendster's terms of service (TOS). The GrokLaw piece depending heavily on an amicus brief (i.e. a third party brief).

The amicus brief overstates things, and the groklaw piece overstates things even further. 

The central issue in the case is the nature of the false identity assumed by Ms. Drew, the defendant. Was it fraudulent and in violation of the terms of service to an extent that might make fall under the CFAA?

First, it obviously was not her full and real identity. 

Second, it was not an obviously anonymized identity (e.g. Publius, the name given as the author of the Federalist Papers, or my identity as "ceolaf"). 

Third, it was not a partially obscured version of her identity. That is, the brief says, "child safety advocates like the Child Exploitation and Online Protection Centre of the British government specifically encourage children to protect themselves by providing misleading identifying information instead of real names on social networking sites." Obviously, children are not expect to creating entirely fictional identities in such situations, but rather the obscure and mislead on some particularly identifying details while allowing them to still have their own personalities in their interactions. 

Fourth, it was not done for satire or any LAPS (i.e. literary, artistic, political or scientific) purpose.  (The LAPS test comes from obscenity jurisprudence.)

The groklaw article assumes, quite without any justification, that US vs. Drew would make all violations of websites' TOS into legal violations of the CFAA, as though it would be a black and white issue with that clear line. It assumes that then entire history of first amendment jurisprudence would be entire inapplicable, that there would be not room for judgement as to whether a particular TOS violation rose to the level of a CFAA violation. 

I don't buy it. I don't buy it for a second. 

Ms. Drew's violation of Friendster's TOS were gross violations of a flagrent degree. It violated the TOS in multiple ways, all of which were obvious violations. No reasonable person could believe that this behavior would be condoned or even allowed. Ms. Drew's behavior was the sort that is only justified by the immature claim, "It's a free country; I can do what I want," the kind of thinking that says that people can do or say whatever they want without any regard to its impact on others. The kind of thinking that says because we have freedom of speech we can yell "Fire!" in a crowded theater. 

As a matter of practicality, websites must be able to protect themselves with terms of service (TOS), or else they can be held liable for anything that users might put on their sites or use their sites for. I understand that the question here is whether such TOS violations could ever rise to criminal violations of the CFAA. That's the issue. 

But is not whether all TOS violations should be viewed as criminal violations. That law does not work that way in this country. Our courts recognize that many issues are NOT black and white, that there are shades of grey and varying contributing factors that must be taken into account when deciding whether something passes a threshold, and that there are human judgements to be made. 

Only small children and developmentally stunted adults cannot accept that. 

GrokLaw, it seems, does not.

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I can see plenty of reasons why this might be a bad decision, or a bad precedent. Or reasons why TOS violations should be civil offenses and not criminal offenses. But I can also see the other side. More importantly, for the purposes of this post, GrokLaw's hyperbolic ranting entirely misses the the point. 

iPhone 2.0!

While yesterday marked the release of the new iPhone 3G -- adding GPS and faster network access when away from WiFi -- the more important news was the new software that came on this new model. It it was freely downloadable for all owners of the the original iPhone. I was one of the people who dared to install the software a day early, and I've got to say that I love it.

New Features from Apple

The most important new features from Apple are not important to me. For example, with Apple has positioned

the iPhone to compete better with RIM's Blackberry by giving it full compatibility with Microsoft's Exchange right out of the box. But I don't have an have an Exchange account. So, this is a big deal, but not for me. Multiple language support is great for Apple, as it allows them to ship the same model around the world. It is great for other developers (see below), too, as they also can make just one version of their software available around the world. 

Other new features from Apple are relatively minor. The calculator, now doubles as a scientific calculator. Occasionally useful for some; frequently useful for few. The new stand alone contact application -- it had been embedded in the phone application -- is more useful for me, but the old one usually met my needs. Improvement support for viewing attachments is good, but rarely do I need to read them anywhere other than my computer. As the iPhone still lacks the ability to edit even the simplest Word and Excel documents, something that Palm devices have supported for nearly a decade. 

Probably the most significant new feature from Apple for people like me is that it can now automatically sync email, contacts and calendar data without needing to be plugged in to a computer, or even being anywhere near it. Subscribers to Apple's MobileMe (nee .Mac) service -- approximately $100/year -- can take advantage of this feature, which ends up acting much like the Exchange support that I cannot use. 

New Features from Others

The most important thing that Apple has done with its this new software is to open up all iPhones to third party software. Apple has made it easy to distribute their applications by making them available through the iTunes store -- both from a computer and directly from an iPhone. Apparently, the development tools are incredible, which makes it easier and fasted for developers with good ideas to get the software to me and  consumers.

Even before the new iPhone 2.0 software was easily available to most users, the App Store in iTunes was up and running with over 500 applications available. I grabbed a few of them quite quickly.

Lightsabers for Everyone The first application I downloaded was the free Phone Saber. A couple of years ago, someone write an application that would make a MacBook Pro or a MacBook sound like a lightsaber when you swing it around. There's something cool about about that, but it pales before awkwardness and geekiness of swinging around a laptop computer. Now, however, there's a similar application for the iPhone. Much less awkward, of course. More portable, surely. Even more secretive, if the user is wearing headphone. So, the iPhone is absolutely no doubt a better platform for this entire class of applications. Last night I showed this to a 4 year old who was not as impressed as I thought he should be. I mean, this kid is already really into Star Wars and known the entire Skywalker family genealogy. He grabbed his own lightsaber -- whose black is only about 12" long -- which I had to admit might even have been better than mine. The blade, little more than a plastic tube, lit up in many colors and made all the sounds that my Phone Saber did. So, until Phone Saber can project a blade, it's not necessarily the best platform for lightsabery.

Recording, at Last The one feature from my iPods that I have missed in my iPhone -- even needed from time to time -- is the ability the record audio. There are no less than six (!!) different audio recording applications available for iPhones. They vary quite a bit in price ($0, $.99, $.99, $4.99, $9.99, $9.99), but they all do the generally same thing, as best I can tell. The best of the bunch might be the $4.99 SpeakEasy Voice Recorder. But none of them can transfer their recordings to my computer, which is incredibly important to me. Given the power of the iPhone platform, I would also like the to record to an compressed format, rather than uncompressed (wav?) files. But even without those features, I am glad at least one of them exists. 

Let There Be... There are a few flashlight applications available, some free, some not. The all turn on the screen so that it can be used as a weak flashlight. myLite is one of the free ones, and it can also act as a strobe light and the user can change the color of the screen. 

Reading Without Network Access I grabbed two applications that would allow me to read online articles while on the subway. NYTimes is an application from the New York Times that grabs a whole bunch of articles from the day's paper, and stores them so they can be read later. I do not know exactly which articles it grabs, but it certainly includes the OpEd pages and at least the top stories in every other section. It has a an iPhone appropriate interface, and an ad appears under each article as your read it. I would have paid for this application, but it is free. 

A friend of mine told me weeks ago that NetNewsWire would save webpages to read offline, so I grabbed that one, too. I've not used a dedicated RSS reader in the past, but I've already been so impressed with this implementation on the iPhone that I am going to start use the full version for my MacBook Pro.

Fidgeting I needed something to play with while I listened to podcasts if I wasn't doing something else (e.g. walking, cooking, etc.). I decided to buy ($9.99) Cro-Mag Rally, a little racing game. It is as fun and as mindless as I wanted it to be. But critically, even if you turn off all of Cro-Mag's sounds, it stops whatever the iPod is playing. So I downloaded the free, and far inferior, Cube Runner.  It's graphics are slightly inferior to Tron, but the game is appropriately mindless. 

Other Applications I also grabbed a few other applications. Twitterific, Apple's Remote for iTunes, MLB's at Bat are the headliners.

But...

I am incredibly pleased with the new software because it makes these third party applications possible. Once again, the iPhone is unlike virtually all other technology products because it is meeting the expectations that its developer and the press have set. Cro-Mag is a great game. NYTimes, Twitterific, and NetNewsWire are great apps, without having to make any apologies for being run a phone. These are, as best I can tell, no compromise applications. The iPhone truly is a mobile computing platform. 

But there are a few limitations. Because third party applications cannot run in the background, NetNewsWire and NYTimes cannot update their data unless they are launched and allowed to run. Even when push for third party apps is supported in the fall, NetNewsWire cannot get data that way because the application grabs data from multiple third party (fourth party?) web sites. NYTimes could use push to update data, but I cannot forecast whether or not they'll take advantage of it. 

Last, during my first full day using the new software, it looked like my battery was running down very quickly. Most of the day, the phone was just sitting on a table without being used. Perhaps I had left a network application running during this time and did not realize it because the screen had turned off. But the battery should be brand new, as Apple replaced by old iPhone just two or three weeks ago. If the original iPhone's battery  cannot make it through a whole day, even though it does not use the higher power 3G network, this is a huge problem that Apple must fix. If it is simply the result of a poorly written third party app, Apple should pull that app from the App Store until the problem is fixed. 

Four Question About Babysitting

I have four questions that I use all the time to demonstrate how important our high school educations were, one for each of the four major academic subjects. Here they are, and the point I think that they demonstrate.

• English: What is the rhyme scheme of a Shakespearean (i.e. Elizabethan)  Sonnet? (Bonus: What is the meter?)
• Math: log (A*B) = ?
• Social Studies: What century was The Declaration of the Rights of Man? (Bonus: What century was The Universal Declaration of Human Rights?)
• Science: What is the atomic number of Nitrogen? (Bonus: What is its atomic mass?)

I've been asking people these questions for at least 10 years, perhaps as many as 20, and I never expect anyone to get them right. In fact, in all these years, I've only met one person who got all four right. I don't think think that I've had even a handful get more than one right. The vast majority don't get any of them right, or think that they might get one of them right.

And yet, I always explain, we were all taught these things. The odds are they we were tested on each of them. 

So, if we don't remember these individual tidbits today, then why were we tested on them back in school?

Well, Ted and Nancy Sizer wrote, "Education is the worthy residue that remains after the lessons have been

 forgotten." I wholly agree with them. This, therefore, begs the question of what is the worthy residue that remains of those lessons, the one where you were working on the information I asked about above?

I think that the answer is, "None." The odds are that those lessons did not leave any worthy residue. And if that is true, the lessons were part of your education. Instead, they are part of your babysitting. If that is true, high school was about keeping you supervised and out of trouble, instead of about teaching you anything.

But this is not about condemnation of chemistry, poetry, logarithms* or Enlightenment Thinking. I think that all of those lessons can be geared towards meaningful education, can all contribute to a worthy residue. Unfortunately, they rarely are. 

*Actually, I would like to condemn  logarithms. I don't think that they should be part of the algebra

 curriculum anymore. We don't use slide rules, so it is far less important that we understand logarithm. Those weeks should be spent on something else. So, I suppose I should change my math question to, "What is the quadratic formula for? (Bonus: What is the the quadratic formula?) 

My point is that we know that students will forget today's lessons. Maybe tomorrow, maybe in a week, maybe in a year, but almost certainly in five or ten years. Knowing that, why do we bother? Are we making sure that for the thousands of hours that students spend in high school they are getting something that lasts? Are they learning larger lessons worth learning for a lifetime? 

Unfortunately, doing this requires an incredibly thoughtful approach to schooling. This is not compatible with the standardized testing the we do. It is not compatible with how we evaluate teachers (i.e. lessons taught in isolation). It is not compatible with short term evaluations of schools. There is so much about the American system of schooling that would need to be revisited if we were to making those lessons worth students' time.

But with doing that, isn't high school just about babysitting?

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Answers:

• Engligh Elizabethan Sonnets: abab,cdcd,efef,gg & iambic pentameter.
  
• Math Logarithms: log (A) + log (B). The quadratic formula is to solve quadratic equations (i.e. those with x-squared, but not cubed or higher, and only one variable), and is
  

• Social Studies Declaration of the Right of Man: 18th century, part of the French Revolution. Universal Declaration of Human Rights, 20th Century.
  
• Science Nitrogen: atomic number 7,  mass 14.

McCain: Not Moderate at All

John McCain has a reputation as a maverick. That certainly used to be true. There are enough examples in his past to give such a statement a basis in fact. But he is not a moderate and never has been. 

You see, there is a difference between being a conservative and being a Republican, just as their is a difference between being a liberal and being a Democrat. While it is true that there is a strong correlation between the conservative-liberal spectrum and the Republican-Democrat spectrum, they are not actually the same thing. And someone like McCain -- who has been known to buck his party's interest -- might have an independent streak, even while being a very consistent conservative. 

I cannot think of single example of when McCain has gone against his party and gone against the conservative position. 

Conservatives don't like big government and they don't like taxes or spending, but they certainly don't like deficits. John McCain has bucked his party on spending -- likening his colleagues to a bunch of drunken sailors on shore leave. He wanted lower spending. In fact, back when he was against the Bush tax cuts, it was because they were not accompanied by the necessary spending to prevent deficits. 

He went against the Republican party to take the conservative position. 

Honest and clean government is not particularly a Democratic or liberal position. In fact, if I had to pick, I'd actually point to it as a conservative issue, if anything. Certainly, neither party has a great interest in losing the power or positions that is has. Efforts to clean up election spending is, therefore, not a liberal position at all. Of course, the GOP has long had a been money advantage under the old rules, so the party does not want a change in the rules. 

So, on campaign finance, he went against the Republican party, but not towards particularly liberal position.

It simply is not accurate to say that John McCain is a moderate. He is in favor of lower taxes. He is in favor of lower government spending. He is anti-choice/pro-life. All conservative position. He is in favor of states' rights on gay marriage, a conservative position, even if the religious right doesn't like it. 

I cannot think a single instance when his maverick streak pushed him to take a liberal position. I can only think of occasions when he stepped away from some of the insanity of his party to take a conservative or non-ideological position. 

This, actually, is something that I respect him for. He was not bound to his party beyond all reason -- at least not before he started running for his party's nomination for the presidency this cycle. When he feels it strongly enough, he stands up for what he believes in -- or at least he used to -- even when those beliefs do not match the interests of his party. 

But that doesn't make him a moderate, which is a statement about his liberal-conservative tendencies. He simply has no record of taking liberal positions on anything. Is sometimes went against the Republican position, but extremely rarely to a Democratic position. Rather, sometimes he found  anti-partisan position. 

At best, that made him somewhat independent of his party and his caucus. But still conservative. 

In fact, the only thing has has pushed him from his general conservatism has been his recent embrace of GOP positions. The best current rankings have him in the the most extreme quintile of the Senate, whereas Obama is in the middle quintile, even closer to the middle than McCain has been been across his entire career. 

Bonds

The excellent Joe Posnaski wrote  a post this morning about hot streaks in baseball. As usual, it is an interesting read, one that shows Mr. Posnaski's personality and intelligence. Oddly enough, he entirely misses the obvious.

In writing about hot streaks, he settles on Ted Williams as having one of the most notable hot streaks in history. Ted Williams is often referred as "The greatest hitter who ever lived," and there's a decent case to made on that point. The problem with Mr. Posnaski's post is that he ignores Barry Bonds, who played the same position as Ted Williams. 

Bonds, who had four whole seasons that were better than Ted Williams amazing 38 game hot streak in 1957.

 

I admit it, I have always liked Bonds. And I like Kobe Bryant, too. I don't know either of them, so I can't vouch for their character. I don't know anyone who knows them, either, so there are real limits to how seriously I can take what others say about them. To my knowledge, their friend -- however few they may be -- have never come out publicly to explain what makes either of them tick or to explain why they act the way they do with the media or teammates. 

What I do know is that both of them have been the best in the world at what they do. Kobe is a top notch offensive player and a top notch defensive player. I don't mean "above average." I mean that he might be the best in the world at his position at each of them. Bonds has a record number of MVP awards, has broken records previously thought unbreakable and was perhaps the best player in the game many years before steroids took over. He won three MVP awards in four years -- and it likely should have been four straight -- in the early 1990's, all of this five years before anyone suggests he began using performance enhancing drugs. 

All I really care about with Mr. Bonds and Mr. Bryant is how they play the game. To me, they play sports. They are entertainment on the court/field. I know that I will never know them well enough to be able to judge them as people, or even as teammates. I just want them to be great in the only way I am in a position to judge them, in their performance on the field and court. 

So, what's the deal with Mr. Possnanski? Honestly, I think that he just overlooked Bonds. I think that he just took Bonds for granted.

But I want to defend Bonds. 

Bonds is the greatest offensive player who ever lived. He is in the same class as Ruth and Gehrig and  Williams. He had better seasons. He broke their records. 

Ruth was a better baseball players, because he was a good -- sometimes great -- pitcher before he turned to hitting full time. Ruth was a greater baseball player because he changed the game. Williams was a war hero.

But Bonds had more home runs. More walks. More total bases. He had slightly lower on base and  and slugging %s, but he more than makes up for that with his stolen bases. Hie peak was greater. His total was greater. 

Only some people disqualify him for the use of steroids. I think that there are many responses to this.

First, obviously, his accomplishments from before the steroids count, too. He was already a first ballot Hall of Famer, even with many more years to go in his career. 

Second, Bonds did not bring steroids to the game. He was not the first celebrated player to do steroids. He was not the first record breaker to do steroids. He was not not even first MVP to do steroids. Mark McGuire has gotten nothing like the condemnation that Bonds has received. One might argue that McGuire has been off the national stage, but Jason Giambi is still playing. Mr. Giambi won an MVP while using steroids and is still playing for the Yankees. 

In fact, if Game of Shadows is to be believed, it was McGuire's use of steroids and Major League Baseball's response that pushed Bonds to begin using performance enhancing drugs (PEDs).

Barry Bonds looked at the game of professional baseball early in his career, one where both speed and power were important, and became the best offensive player in his sport. Then, in the middle of his career, he looked at the game of professional baseball and saw that power was important, speed was not and PEDs were were an accepted way to prepare, and he regained his position as the best offensive player in his sport. 

Moreover, Bonds was not the first all time great player to take advantage of the immoral rules of Major League Baseball. He was not the first law breaker to play the game. And there have been far more assholes in the game than just him. 

If you want to condemn baseball, that's fine with me. If you want to condemn all the alleged steroids users, that's fine with me.

But that is not what is happening. Bonds has been getting special condemnation. Bonds has been singled out, both in the eyes of the public and the media. He has been singled out by Major League Baseball. The greatest offensive player who ever lived, no doubt one of the top four hitters of all time, has been vilified and virtually excommunicated.

And I can only think of one reason. 

Newsflash: We have a constitution

Yesterday, in a 5-4 ruling, the Supreme Court ruled that we do -- in fact -- have a constitution. 

I don't know why, but very few people understand why we have a constitution, or even what the Constitution is. Shockingly, this includes many politicians and political leaders. It is not really that hard to understand.

It is not hard to understand what laws are. They are rules. Of course, people have different relationships to laws and rules. Some think that they only need to follow them if they might get caught/in trouble if they don't. Some think that you always have to follow them, not matter what. Some think that they can flout them whenever they are inconvenient for them. Some think that they are bound to follow laws as part of social contract, even then they inconvenient. And some think very deeply about the morality of particular laws and feel morally bound to disobey immoral laws. 

Too many people think of the Constitution as simply a set of laws, albeit and old set of laws. That is not correct.

At its most fundamental, any state's -- in the sense of county -- constitution is the basic blueprint for its government. It defines the rules by which the government operates. It laws out the powers and authority of that government, and its limits. As such, it is supreme to other laws that are made by that government, and if any of those laws fall outside or violate the government's constitution, those laws are invalid.

The United States Constitution has a Bill of Rights -- the fist ten amendments -- that guarantee protections for certain rights. These are particular rights that the people are assured, that the government cannot violate. These are not the only right addressed by the Constitution, but they are the most commonly cited. (Actually, originally those were only protections from the federal government, but they were eventually extended to apply to states, as well.)

Not only is the Constitution supreme to regular laws -- and to states' constitutions, as well -- it is harder to change. In fact, it is intentionally difficult to change. The usual process is for 2/3 of each house of Congress to pass an amend, which sends it out to the states. If 3/4 of the states approve it, it becomes an amendment. However, it is not impossible to change; it has been changed seventeen times since the Bill of Rights was passed. 

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To really understand the Constitution, you have to think about when it was written. The Founding Fathers -- certainly the elites of their times -- had recently broken away from a tyrannical king. They were afraid of the powers of the state, of the ways in which the state could overwhelm the rights of individuals and overstep what was appropriate. They also were going through the failure that was the Articles of Confederation (i.e. USA 1.0). They knew that the country needed a stronger central government than the Articles allowed. The Constitution and the Bill of Rights really recreated the country (USA 2.0), accounting for their fears of uncheck governmental power and concern about the dysfunctions of a confederation. The Civil War Amendments extended the protections of the Constitution to apply to the states, further centralizing power (USA 2.5?). 

Those who argue against the protections of the Constitution are not simply arguing with liberals or Democrats. They are arguing with the founding fathers. They are arguing against the lessons of the Civil War. And they are usually arguing to expand state power and limit individual rights. 

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An example: No Religious Test Clause

Most people don't know this, but the Constitution expressly forbids any religious tests to serve in any office or position in the government. Jews can be judges. Catholics can be clerks. Muslims can managers. The government may not bar anyone from any position in the government because of their religion. 

It is easy to imagine some people saying that Muslims should not be allowed serve in the CIA, or that fundamentalist Muslims should not be allowed to serve in Department of Homeland Security. However, the fact of their religions cannot be used to keep them from a governmental position. This is not a problem because we are not at war with Islam or even Fundamentalist Islam. There are many fundamentalists Muslims who are not at war with the United States. Most do not actually want to kill Americans. And so, the the CIA can hire Muslims while not hiring the "death to America" crowd. 

And so, there are many who might bar follows of particular religions from holding many governmental positions. There certainly are some who would require a Christian faith, or even an evangelical faith. But the Constitution prevents the government from having religious tests for any office. Simply passing a law would not be enough to overrule that, and were such a law passed it would rightly  be quickly struck down by the courts. Changing that constitutional protection requires amending the Constitution.

(It should be noted that this prohibition on religious tests applies to the government, not to individuals. Voters can apply whatever tests they want when selecting among candidates for elected office. If you think that Muslims should not serve in Congress, you are free to apply that test yourself -- even though I personally would disapprove of your criteria.)

Obviously, there is something a little undemocratic about this. If a majority of the American people want to ban Muslims from the CIA, one might think that in a democracy this should be allowed. A constitution serves to limit pure democracy. It declares that there are certain areas in which a majority ought not to be enough to change things. It declares that there are certain rights and/or ideas that ought to quite difficult change or remove, and that it ought to be quite difficult add other rights/ideas to that group. 

Not only does our Constitution require more than a simple majority to change certain rights, it also prevents the passions of a moment from changing our government and our rights. The process of amending the Constitution takes enough time that even if the entire country wants a change at a particular moment, that popular will must remain long enough to see the entire process through. 

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And so we get to this week's court decision, Boumediene v. Bush. 

The Constitution makes very clear that habeas corpus is very important. "The Great Writ" allows those held in custody by the government to demand that the government prove in court that it has the the legal right to do so. This right goes back at least 350 years in England, and perhaps as much as 900. The Constitution says that this right may only be suspended in cases of rebellion or invasion. We are neither in state of rebellion nor invasion. 

The Bush administration and the the compliant Congress keeps trying to declare that those held in Guantanamo do not have the right of habeas corpus. If they succeeded this this -- simply by executive order (struck down in Hamdan v. Rumsfeld) or conventional law (struck down in Boumediene v. Bush)  -- then the Constitution would be meaningless. The rights of individuals would not be protected. The status of the Constitution as the "supreme law of the land" would have ended. 

Quite simply, the Supreme Court had to rule as it did. Disturbingly, four justices did not agree. In fact, the author of the dissenting opinion claims that he is an originalist who believes that the constitution means only what it meant that the time it was written. But the Constitution could not be more plain on this point. "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

Fortunately, there is a still a majority of justices who believe in the Constitution.

Criteria

Count Every Vote

I believe in counting every vote, and that every vote counts. You wouldn't think that that would be that controversial a position, but these days it actually is. 

I. Choosing a Nominee: The Basics

Each party has as process for choosing their nominee for the presidency. They are a little different, and I am going to focus on Democratic Party's process. 

First, we have so-called pledged delegates. I say "so-called" because their pledges have no binding force, according to the DNC rules. When they were selected, they said (i.e. "pledged") that they would support a particular candidate, but they actually can do whatever they want. We all, especially the media, generally ignore that fact.

These pledged delegates are selected in two ways, caucuses and primaries. Technically, a primary is paid for by the state, and a caucus is paid for by the party. Generally, we ignore that, too. Instead, we talk about primaries as though they are like elections, but just with the candidates for the nomination of one party. We talk about caucuses as though they are more complicated affairs that take much longer, people do not have secret ballots and you can try to convince people to change their votes. All primaries are actually primaries, but some some caucuses actually work like primaries -- with the state party paying for them, of course,

Second, we have superdelegates. They are part of the rules, too. They add up to less than 1/5 of the total number of delegates. They, too, are selected democratically. Your senator is a superdelegate, and s/he was elected. Your congressman, too. Other superdelegates are elected by members of the party, both state and national. If you want to take part in that process, you have to be much more active in your party that you are. There are state conventions, to say nothing of local meeting and any other events I know virtually nothing about. You can be elected a member of the DNC (Democratic National Committee) that way. To be honest, these are not all direct elections. In the same way that you don't get to vote on federal laws, but instead the people you vote for get to vote on federal laws, some of the superdelegates are voted on with a representative system. There are also a very small number of unelected superdelegates, selected by elected leaders the state parties. 

There are over 4,000 delegates, total. The nominee needs to get over half of them.

II. Degrees of Democracy

Clearly, direct vote for candidates would be the most democratic system. But we don't have that for presidential elections -- instead we have the Electoral College -- and we don't have that for selecting nominees. I don't like it, but that's that way it is. 

Superdelegates are, generally, selected democratically, but not for this particular purpose. Whether or not this is a good idea or not does not matter in this discussion. They are a part of the process, but one might argue that they are the least democratic part of the process. 

Primaries, on the other hand, are probably the most democratic part of the process. They are the quickest way to vote, and therefore have higher turnout than caucuses. I can't even tell you how many times my mother took me with her to vote, counting primaries. We'd go down to the school and she'd take me into the booth with her. A parent with an infant could easily take him/her to vote, or a child of any age. Childcare responsibilities does not preclude participation. Because polls open all day, generally before and/or after working hours, having a job -- even on an odd shift -- does not preclude participation. I would certainly argue that higher turnout is more democratic, and therefore primaries (and primary-like caucuses) are the most democratic.

Traditional caucuses are somewhere in the middle. Delegates chosen this way are chosen directly for this purpose, but the inconvenience of these things (e.g. they take hours; they happen at a particular time) prevent many people from taking part. Less participation means less democratic, in my book. 

III. Choosing the Nominee: The Anti-Democratic Part

There are a few ways in which our system is actually anti-democratic. 

First, this is not a national system. By cutting the system up into states, there are some inefficiencies that can mess things up around the margins. Think about the Electoral College and the 2000 presidential election. No one questions that Gore had more votes nationally, but if without Florida, he lost in the Electoral College. 

Second, pledged delegates are not apportioned proportionally by total primary/caucus results in each state. Rather, the state is cut up into small pieces and the the delegates are won in each of those small pieces. This is like a little electoral college in each state. This principle is why we do not have third parties (e.g. Green, Libertarian) in the House of Representatives, even though they could win enough votes in the largest states to get a seat, were they allocated proportionally even by state. This does weird things to the math, so you actually have to look at each district to see how many delegates someone won in a state. This is why we need CNN on election nights. 

Third, delegates are assigned to the pieces not by population, registered democrats or turn out in the primary/caucus. Instead, they are assigned based on Democratic turnout last election. So, if your district was more turned off by Kerry/Bush than most, but is super-excited about Hillary/Obama, your old boredom prevents your greater turnout this time from having proportional weight. 

Fourth, all the little state things. In Nevada, some votes count more than other, as much as 20x more. That is how Obama got 6 more deletes, despite Hillary getting 600 more votes. In Texas, they have a primary and a caucus, which is how Obama got 5 more delegates despite Hillary getting 95,000 more votes. 

All of these issues hamper the system's ability to respond to the will of the people, as expressed by the simple idea of that the candidate with the most votes should win the nomination. 

IV. Who Set the Rules

Each state sets its own rules. If the state wants a primary, it has a primary. If it wants a caucus, it has a caucus. 

However, states are concepts, right? States don't make decisions; people make decisions. Which people? Well, the state government. So, the legislators and their governors. It's fairly democratic, as democratic as superdelegates.

But there is a problem. You see, some states governments are controlled by Democrats, and some Republicans. For example, Florida is controlled by Republicans. They set the rules of the primary. They set the date. They set the rules and the date of the Democratic primary. And this time, that caused a problem. The Republican controlled government set a date that the DNC did not approve of. But why should Republicans care? What can the DNC do them? 

Usually, this is not a problem, but it is a problem this year.

V. The Schedule

The DNC announced a schedule for this year's primaries and caucuses. First Iowa (1/14), as always. Then Nevada (1/19), to give the Southwest and Hispanics more a voice. Third was to be New Hampshire (1/22), as always the first primary. Fourth was to be the South Carolina primary (1/29), to give the South and African-Americans and early voice.

Then, other states could go, but only after February 5. The two caucuses in the first week. Then a week just for New Hampshire and a week just for South Carolina. And then everybody else. 

But Florida decided to go early. They didn't leap ahead of any of the four early states, but they wanted to go the same day as South Carolina. The Florida Republicans made this decision. Not the Democrats in the legislature. Not the Democratic voters. Not even the Republican voters. And once Florida went early, Michigan did not see a reason why it couldn't go early, too. Michigan was willing to respect the tradition of Iowa and New Hampshire going first, but it had no respect for Nevada or South Carolina.

And once Michigan went early, Iowa and New Hampshire decided to go even earlier. And New Hampshire even jumped ahead in line, ahead of Nevada. 

VI. Meting Out Punishments

Iowa was not punished. They were alway supposed to the first and they stayed first. They went even earlier, but who cares, right? New Hampshire, on the other hand, they skipped ahead in line. But they weren't punished, either. 

Florida and Michigan were punished, however. The Republican Party cut half the delegate count for the primaries that moved their dates before 2/5, including New Hampshire. But the DNC did not punish the New Hampshire for its convention. 

Just focusing on Florida here, think about who was punished for what. It was the state Republicans who scheduled the primary, but it is the Democratic voters who are being punished here. The party stripped Florida of all of its delegates to the convention. The DNC disenfranchised every single potential Florida Democratic primary voter. They did this last August, in an effort to get the state to moved its primary back. But why would the Republicans in charge care? No delegates to the Democratic National Convention? That's no skin off their backs. 

The Republicans violated the principal of "One man, one vote," going to "One man, half vote" for some states. But the Democratic Party violated the principal of "Every Vote Counts."

VII. Good Idea or Bad Idea?

There are rules, and I understand this. There is a Rules committee that makes and tries to enforce the rules. Sometimes they make good decisions, and sometimes they make bad decisions. 

This is a bad decision. 

First, they are punishing the voters, not the people who made the decisions. 

Second, if their decision ends up affecting the outcome of the nominating process, that would mean that they are leading to the selection of a candidate who is less appealing to Florida and Michigan voters. I can see why the GOP would want that. But why would that be good for the party? Doesn't it hurt the party's chance's of winning the White House?

Third, in a close race, it makes Obama look weak. Whether or not it actually makes a difference, it looks like Obama could not win the nomination outright, and that he needed to resort to technicalities to secure it. With blowout losses in late states, its puts his own legitimacy into question. And I believe that in order to win a nominee has to look like he deserves to win it. People want strong winners. If he can win it, even counting Florida and Michigan -- and he can -- he looks stronger. If he can only win it if the DNC does not count Michigan and Florida...?

VII. Pledged Delegates or Total Votes

The superdelegates are part of the rules. People who claim that they are not part of the rules are deluded. Furthermore, people who say that the superdelegates are deciding this for themselves are also deluded. The superdelegates are deciding it along with the pledged delegates. 

Obama is ahead in pledged delegates, superdelegates and the popular vote total, even if you count Michigan and Florida. He will remain ahead in pledged delegates, no matter what. However, nearly 200 superdelegates have yet to announce anything, and the others can easily change their minds.

And then we get to the popular vote, which is all I really care about. It is possible that Hillary will win the total popular vote.

(Explanation: Four caucus states don't actually count individual votes, so you have to impute those results a little bit. Obama and Edwards took their names off the ballot in Michigan, so you have to split the "uncommitted" vote there somehow. If you do both of those things, the popular vote total is very close right now, with Obama up maybe 0.33%, with Puerto Rico, South Dakota and Montana still to vote.)

What happens to Obama's legitimacy if he goes into the convention with more pledged delegates, even counting Florida and Michigan, but fewer popular votes. How should the superdelegates respond to that.

I entirely grant that Barack Obama deserves the nomination more than Hillary Clinton. He ran from behind, he out-raised her, out-organized her, understood the rules better and actually has won more pledged delegates.

But what do the voters deserve? Isn't that what this should be about? Isn't that what a democracy should be about?

There is a lot of complicated mess in this system. I would hope that at the end of the day it can find a way to give the voters what they deserve. The superdelegates can do that. They can fix an obviously mistaken outcome without breaking any rules. I have said all along that superdelegates should support the candidate with the most votes. If that is Barack Obama, then they should support him. If it is Hillary Clinton, they should support her.

Not because Obama or Clinton deserve it. But because the voters do.

Gay marriage

First, let me say that I am in favor of gay marriage. But it is more complicated than that, and I think that most of the arguments about it more conclusion driven and honest and sharp thinking. So, here's my take on them, in no particular order.

I. The Word "Marriage" Matters

Obviously, the word itself matters. The very fact that giving same-sex couples all the legal rights and privileges of marriage, but calling the institution "civil unions," is such a popular option proves that the word matter. Those who who argue that the label doesn't matter, but it shouldn't apply to same-sex unions are contradicting themselves. If you don't want to call it marriage, then clearly the word matters. 

How does it matter? Well, even if we ignore the countless the tiny legal issues that would be easily handled by calling it "marriage," there are social associations with the word. There are links to the long history of marriage. There's the fact that we have all grown up having a sense of what marriage is. The majority in the California Supreme Court is right. The word matters. Anything less than the the whole shabang, including the label itself, is less than equality.

II. There Might Not Be Discrimination Against Individuals

I am straight and so long as I am unmarried, I can marry any member of the opposite sex. The same is true of homosexuals. Neither of us are entitled to marry members of the same sex. It is not clear to me that anyone is being discriminated against.

I understand that a gay man is not going to be interested in marrying the same people that I am. I understand that we each have a right that I want and he doesn't care for. I understand that there is a parallel right that he would want and I don't care but, one that neither of us has. But, in fact, we each have the same rights.

Rather, I think that it is same-sex couples that are discriminated against. Opposite-sex couples can marry, and same-sex couple cannot. But gay men and women have been allowed to marry all along. They could even marry each other. Gay men could marry straight women. Gay women could marry straight men. Gay men could marry gay women. Gay men and women were treated exactly like straight men and women. Straight men have been no more able to marry each other than gay men. 

Should couples have rights? I think so, in some fashion. I think so, in this fashion. But we should acknowledge that this is about couples, not about individuals. 

III. Marriage Has Been About Men and Women, Historically

Marriage has existed for a very long time. But over its history, it has changed quite a bit. It has been about property. It has been about cementing unions of larger families/clans. It has been about having children. It has been about economic units. It has been about love.

We no longer talk about arranged marriages to cement unions between families or clans, at least not in this country. We no longer demand that people marry in order to have children, nor must married couples have children, at least not in this country. We don't expect families to work business as a unit, either a farm, or a shop or anything else. The institution of marriage has changed over the centuries. We don't even demand that a church be involved, at least not in this country. However, we do now demand that the state be involved. We certainly do not demand that couples be in love, though we might expect it. 

Almost everything about marriage has changed over the centuries. Except one thing about marriage has been constant until very very recently; marriage has been about joining men and women. Sometimes is been about multiple men and women, but it has always been about at least one men and at least one women. That was the only constant. 

Anyone who claims otherwise is either being disingenuous or dishonest with his/herself. I don't say this to end the debate. I only say this to make the debate clear. 

IV. The Legal Debate Is Not About Anyone's Church

I think that the dumbed argument that anyone brings forth in this debate is that this will force your church to marry gay people. That is just untrue. It is a simply a lie.

The Catholic Church has rules about who it will marry and what they have to do before being married. Many religious officials won't marry anyone outside of their faith (i.e. mixed marriages). A church can refuse to marry people of different races. 

We have a separation of church and state in this country. The state (i.e. state and the federal government) cannot tell churches who to marry. Your church will never be told by the state that it must marry gay couples. 

Ever. Never ever ever. 

No one is talking about your religion. Get over it.

V. Is Marriage Legal or Religious?

I think that the real argument, the real discussion, should be about the dual nature of marriage. Historically, marriage was more a religious institution than a legal one. Priests would marry couples, and marriages did not have to registered with the state. In more recent centuries, the state got more involved, but it is only in the most recent times that the church's role became optional.

In some other countries, especially those with official state religions, the church maintains a huge role. For example, in Israel -- and I think France as well -- the church has complete control of marriage. And, as I said, it is only relatively recently that the marriage without a church or religious official entered the mainstream. 

And yet, at the same time, marriage is also a legal institution. There are legal rights and privileges that are associated with marriage, only the most obvious of which are inheritance right and tax files status. And these have nothing to do with the religious institution.

And so, people on both side of the debate should recognize the other side is not entirely incorrect. Those who decry same-sex marriage because marriage is a religious institution are not entirely incorrect. Those who clamor for same-sex marriage because it is a legal institution are not entirely incorrect. 

Of course, it is also a social institution. But that aspect of marriage has been the most fluid. That's where the change has occurred over the years, decades and centuries. But those who want to defend their religious institution do have a point. And those who want equivalent access to the legal institution do have a point. 

VI. Is Same-Sex Marriage a Threat to "Traditional" Marriage?

Frankly, I don't even understand this argument. If you and your spouse are both heterosexual and/or in love with each other and/or committed to each other, how does legalization of same-sex marriage threaten your marriage? There are many things that may be viewed as a threat to existing marriages, but same-sex marriage?

Of course, there is some small fraction of men and women who are in opposite-sex marriages, but would rather be in a same-sex marriage. Yes, legal recognition of such unions would be a threat their their marriages, but I don't think that that is what people are referring to.

So, that means those who put forth this argument are not referring to existing marriages, but rather the appeal of marriage to non-married people. Somehow, allowing same-sex couples to marry would prevent or dissuade opposite couples from getting married. Moreover, those dissuaded would outnumber the same-sex couple who did get married. I guess that they mean that if same-sex couples are allowed to get married, it would take some of the luster or exclusivity of marriage away, making it less attractive. I would think that allowed mixed-race marriages would have had the exact same impact, but I've never heard them mention that. 

But here is why I really don't understand the argument. Let us accept this premise for a moment, that for some people, allowing same-sex marriage makes opposite-sex marriage a little less attractive. Obviously, this wouldn't be true for everyone. Those godless heathens and/or liberals who clamor for same-sex marriage already have distorted views of marriage. It is obviously only those who have a proper and biblical reverence for the institution who will really feel this attack on "traditional" marriage. Right? O.K.

But those who have the "proper respect" for marriage would not let this hit on the dignity of marriage hold them back. They have so much respect for marriage that they still would have enough left to get married, anyway. And the godless heathens and/or liberals -- those who purportedly already lack the "proper respect" for marriage and therefore sometimes don't even bother to get married anyway -- they won't notice the hit. So, the only ones who might notice are those whom the hit is not great enough to dissuade them. 

Really, I ask who has a view of marriage that would have them believe that marriage is so tarnished by allowing same-sex marriage that they no longer would want to partake in the institution. I don't mean people who project that onto unidentified others. I mean identified people who are in the sweet spot? Show me a single survey that identifies any of them. Show me a single non-satirical interview with a single one.

Until then, either the argument is deluded, or I am simply not understanding it. 

VII. Separation of Church and State?

Unfortunately, I don't see a great answer here. I don't see us getting to a a solution that honors the valid arguments of people on both sides of the issue. 

Honestly, I think that the best answer -- and one that the California Supreme Court said is a legal one -- would be for the state to get out of the marriage business. Give marriage back to the church and let the state have all the legal stuff. The state could call it "civil unions" for both same-sex and opposite-sex couples. Or, the state could call it larriage (i.e. legal marriage). More specifically, the state could get out of the marriage game, and leave individuals and couples to decide whether or not they want to call their unions marriage, leave to them the basis on which they might make such a decision. 

I understand that were the state to get out of the marriage game, many on the right would feel that that was itself an assault on marriage. They would not see it as a move to protect their conceptions of marriage from the actions of the state. Rather, they likely would see it as another attack on their faith, an attempt to exclude faith from the public square. Of course, these are people are want more of their faith and religious beliefs reflected in government policy, people who do not understand that the separation of church and state is about protecting each from the other. These are people who might not support the Bill of Rights, were it to come up for a vote today.

VIII. My Answer

As much as I think that it should, the state is not going to get out of the marriage business. But I don't buy tradition as being a good enough reason to restrict marriage to opposite-sex couples. The institution has changed over the years, and it is now about building a loving and/or stable family, with or without children. Gay men and women can adopt and can have their own children, and they can even bring children they already have into a marriage, just as my mother and her husband have. Other traditional institutions have gone the way of history, from slavery to segregated water fountains, from small children working in factories alongside their parents to the one room schoolhouse. 

So, that means that we have to get to legal recognition for same-sex marriage, not just "civil unions." The nation's most populous state decided democratically, by a vote of legislature and a signing of the governor, to give same-sex unions all of the legal rights of opposite-sex unions, but for the word marriage. That is an enormously popular position throughout the nation. All that that leaves is the word marriage, and the arguments for denying that word quickly fall apart under any fair examination. You simply cannot say that you want to treat them equally, and yet at the same times make sure that they don't get access to the word that means so much to you. 

Dear Hillary,

I've favored Hillary throughout the Democratic Primary race. It's not that I don't like Barack Obama, because I think that he is a very strong candidate with the potential to be a transformative president. Given two differently appealing candidates, I've leaned towards you, Hillary. But it's time to gracefully withdraw.

My wife and I had a long discussion on Super Tuesday about superdelegates and how they should make their decisions. I tried to lay out all the legitimate lines of argument that I could think of.

• Because they are selected by their constituents, whomever their constituents (i.e. district or state, as appropriate) supported in the primaries/caucuses. 
• Because they have special responsibility to the party as a whole, whomever wins the national popular vote.
• Because they have been entrusted by their constituents to use their best judgement, whomever they believe will make the best president for the country.
• Because they are specially responsible for their constituents' interests, whomever they think will be the best president for their district. 
• Because they have been entrusted by their constituents to use their best judgement and it is critical that the Dems win the general election, whomever they believe has the best chance of winning in November.  

I respect that their are different arguments. I only asked that they declare their preferred argument and make their thinking transparent. Of course, they'll make some decision or other, and cite whatever logic they think will hurt them the least and perhaps help them the most. But I hate it when people change their argument to suit their pre-ordained conclusion . Hate it!

However, I don't respect the argument that the superdelegates must automatically reinforce the so-called "pledged delegate" count. Were that the case, they would not need to exist. If they exist, they must have some sort of purpose. They are part of the rules. If race is tight enough for a margin in superdelegates to overwhelm a margin in pledged delegates, so be it. That's how the rules were set up. Keep in mind that superdelegates are the elected representatives of the party. Democratic senators, congressmen, governors and former presidents were elected by the people. DNC members were elected by the party members who chose to show up and state party meetings and conventions. Yes, there is a small number of "unpledged add-ons," but the majority of them are elected by state party leadership -- who was elected by state party members.

So, my wife pressed me for which argument I thought was the strongest, which I would use. That wasn't hard for me to answer. I think that the Democratic Party should always nominate the candidate preferred by the members of the party, by which I mean primary voters and caucus-goers. There are lots of rules in each state, inconsistent across states, rules that distort the will of the people. Obama got more delegates out of Texas and Nevada, even though he lost the popular votes in each state. In my view, superdelegates should correct that kind of mistake.

We are the Democratic Party. We should stand for democracy. Especially after the 2000 election. Whomever gets the most votes should win, regardless of which states they came from. Regardless of when they came. More votes is more votes. 

Now, I understand that this argument diminishes the role of caucus states because turnout is lower in caucus states. That does not bother me. I don't care about states; I care about people. Caucus states can adopt primaries or run their caucuses like primaries. A state should have a bigger voice only if it has more people turning out for this election. 

Obviously, a tight three-way race could lead to one candidate having more first place votes, but the other being preferred in a two-way race. Yes, I can foresee that. But that it not what we have today, and I hope we do not have to deal with it. Though, to be honest, computerized voting makes any number of solutions to that problem easy to implement.

So, I've been favoring you, Hillary, all year. And though it has been clear for quite some time that you could not catch Obama in the pledged delegate count, I did not think that you should drop out of the race. If you could pull ahead in the popular vote count, I thought that you should stay in the race. But after the North Carolina and Indiana primaries, it is now clear that you cannot. And without that, you don't have a strong enough argument to sway enough superdelegates to overwhelm your pledged delegate deficit. 

If you could say to John Kerry, "Look, the Democratic voters of your state favor me, the Democratic voters of the nation favor me and I am the party's best matchup again John McCain," you would have an argument. But the matchup argument is not clear, and you don't have the national vote argument. I even buy the the matchup argument. That is, based on exit poll data over the course of the last three months, I don't think that Obama has appealed to swing voters as much as I thought he would and I don't trust the young to turn out. I honestly think that you have a better chance of winning swing voters and base voters with Barack campaigning his heart out for you than he does with you campaigning you heart out for him. 

But you have lost the popular vote. Even with Michigan and Florida, which I believe do count, you cannot win the popular vote. 

And that means that it is time to drop out.

My wife has been a fervent  Obama supporter, but she had not given any money to his campaign. You see, we did not think that it made a lot of sense for us to give offsetting contributions. Moreover, we knew that the winning candidate would need primary money after s/he had the nomination locked up. So, we've been waiting. Well, last time, at 1am, we gave $250 to the Obama campaign. 

I am sorry. I am sorry for the party and the country that my preferred candidate, the one that I think the country needs most at this time, has not won the nomination. However, I am glad that the Democratic Party has an exciting, brilliant and inspiring candidate to lead us to victory in November. I look forward to your campaigning for him. 

Oh, whatever will we do?

Salon's Farhad Manjoo wrote today about a story I read about many months ago -- a 27 year old prospective teacher who was denied her teaching degree for posting a picture of herself drinking on MySpace. I think it ties in with the current wringing about Roger Clemens. In both cases, there has been a huge over-reaction to entirely typical behavior.

The prospective teacher, Stacy Snyder, was of legal drinking age. She is not giving alcohol to minors. She is not doing anything the least bit risque. She is just wearing a pirate hat and drinking out a cheap plastic cup; she's labeled the pic "drunken pirate."

Obviously, this is shocking result. Teacher preparation programs are charged with ensuring the appropriate "dispositions" in their graduates, and I suppose that that is what the dean was thinking about when he denied her the teaching degree. But it is not as though teachers don't drink. The New York Times wrote a story last summer about teacher drinking and teacher bars last summer. Young workers in every industry go out for drinks after work, especially on Fridays, and teachers are no different. 

So, what's the problem? That someone took a picture? That students could find out that their teacher drinks? Perhaps it was the cheap plastic cup? Maybe, if she looked more poised, and had a wine glass in her hand, it would have been viewed differently. But so what?

27 year olds drink after work and on weekends. 

It has come out in the past week that Roger Clemens might have cheated on his wife. A baseball player has cheated on his wife! Stop the presses! 

What was the last baseball movie that did not allude to, mention or even depict ballplayers hooking up with groupies, even married ballplayers? What is your best guess as to the fraction of players in the Hall of Fame who did not cheat on their wives? 

Do you think that it resembles the percentage of 27 year old teachers who don't drink? 

And yet, in both of these cases, each of the the individual engaging in these expected behaviors was selectively vilified. 

This garbage happens all too often. Barak Obama has been vilified for not wearing a flag-pin, even though neither Hillary Clinton nor John McCain wear flag-pins. 

I've got to admit, I don't get it. I don't understand what prompts this kind of selective outrage. 

One criteria is not enough

More from Scott Adams. This time, he proposes a rating system for movies to help him identify movies he might like. He has 11 different criteria, and that's just for a 1-3 hour experience. Don't we need at least that much to figure out what is going on in schools?

Mr. Adams criteria are impressive. Shape of story arc, star power, mumbling quotient, bladder, artistry, sadism, originality, incomprehensibility, humor, scariness, suspense. All but the first on on a ten point scale, whereas story arc is a series of high/medium/lows. 

It's important to note that he does not suggest adding all these up. Rather, together they give profile of a film, so that people with different tastes -- or perhaps we can think about it as 'needs' -- can find what they are looking for.

Unfortunately, our current paradigm in education calls for a single rating for each school. Under NCLB, it is the simplest possible rating: yes/no. Either a school is making all the progress it is supposed to making, or it is not. In New York City, we have a wider set of criteria, but it is still reduced to a single rating, A-F. 

If I were to design a system to describe schools, I would never reduce it to a single rating; schools do too many different things. There's teaching basic skills and complex thinking. There's teaching analytical problem solving and teaching open-ended creativity. There's working with average children, special education student and the gifted. There are academic issues, and non-academic (e.g. teamwork, perseverance, work ethic). All of these are important, but not equally important to every parent -- perhaps not equally important to every community. Reducing measures of schools to a single measures loses that detail that parents want to know about.

Moreover, losing that detail equates schools that do many things extraordinarily at the expense of doing some terrible with with schools that do everything well but nothing extraordinarily. To put that another way, is a C average a result of a bunch of individual C's, or is it a result of a mixture of A's and F's? 

How do we judge schools, or those who work in them, with just a single composite measure? If Mr. Adams can even jokingly suggest that he needs a dozen criteria to understand a movie, shouldn't we need even more for a school?

What is patriotism?

Last week, Scott Adams (the author of Dilbert) posed the following question on his blog:

If a person is relatively certain that going to war will end his ability to enjoy the rest of his life, one way or another, and the war does not present a plausible threat to the homeland, is such a person unpatriotic for dodging the draft to save himself?

Some of comments struck me as rather asinine. For example, they keep referring to you "your country calling you to serve," or questioning the value of patriotism. And yet, they don't actually get to the real question Mr. Adams is posing: What is patriotism?

Many arguing that patriotism itself is a bad thing seem to be operating under the assumption that patriotism mean blind acceptance of the president's views/beliefs/orders/desires. But plainly that can't be true.

Obviously, one element of patriotism is love of country. I would suggest that that is actually the root of patriotism, it's essence. Love of one political party over another is not patriotism, nor  is love of a particular leader, though perhaps either could be compatible with patriotism. 

Refusing to defend one's country against and existential threat is clearly unpatriotic. No question. 

Refusing to enable internal powers to twist one's country to support their new goals or ends is not unpatriotic. 

But the line is not clear. If you love your country enough, wouldn't you want to see its interests furthered? For example, if the United States needed to annex Canada in order to survive an energy crisis, it strikes me as being unpatriotic to refuse to take part in the invasion. Of course, allowing the country to get to point -- or enabling others to do so -- would also be unpatriotic. 

An essential element of modern (liberal) democracies is the peaceful handover of power from one faction/party to another. George Washington stepped down after two terms, peacefully. And Al Gore refused to challenge the results of the 2000 election past the Supreme Court decision, though many urged him to and the Constitution allowed for it. Is it inevitable that power will change hands, and with that so will policy.  Louis XIV said, "L'Etat c'est moi" (i.e. "The state is me"), but democracies' leaders cannot say such a thing. Therefore, aggrandizement  of a particular leader or blind devotion to his/her policies cannot be patriotism, as both will change shortly, perhaps even radically.

Criticism of a leader is not unpatriotic, on it face. And refusal to serve an unjust cause that does not protect the nation or its interests is not unpatriotic, either.

Of course, one must come to some kind of answer of what it is that is loved, when on proclaims love of country. Is is the land itself? Is the original peoples? The powerful classes? The masses? The messy diversity that exists in that particular country, be it ethnic, socio-economic, regional, what have you? Their common denominator? Some set of value or principals or some sort?

I think that there are different kinds of countries and that there different answers for these different countries. I don't think that Iceland and the United States can have the kind of patriotism. Icelanders share a common language that goes back centuries, a homeland which their forbearers have inhabited for as least as long, a common culture and way of life. The US is almost entirely made of immigrants and their descendants. Has even a quarter of our population's families been here for even 100 years? (Half of New York City either immigrated here themselves or are the children of immigrants.) The French might love their common culture and language, both of which go back far further than this country's. 

I think that this country, the United States, is especially a country of values. 230 years ago, it was not out ethnicity that set us apart from England, and yet we broke apart from the British Empire. Patriotism in the United States cannot simply be about our ethnic heritage, as that varies. It cannot be about the land, as we have grown through our history and out founding documents barely reference it at all. Clearly, the United States is largely about our governing values and principals.

However, I would not argue that the Constitution is the entirety of what matters about the US. There are other values that are a part the very fabric of this nation that do not about in the Declaration of Independence or the Constitution. Pluralism, the common school, economic opportunity, freedom from many areas of discrimination. 

I acknowledge that there are some questions as to which values actually should be included in that group. Simply projecting all of my own values cannot work, as others have different values. There will always be arguments about what values are the essential American values, and some incontestable values likely can be in conflict with others, so the prioritization of those values will also be an area of debate. 

But blind faith in the leader of the moment or the powers of the day? That is not patriotism. Temporary control over the levers of power does not make a group, however powerful, the same thing as state. 

So, dodging a draft that exists to fight an unjust war that does not protect whatever it is about a nation that is loved when one is patriotic? That is not unpatriotic. And it might even be patriotic itself. 

Wireless Disk Speed Test

There are so many ways to access data with Apple hardware. It could be on an internal drive. It could be on an external drive, either FireWire or USB. It could be on a disk attached to an AirPort Extreme (AirDisk), or a TimeCapsule. It could even be on the disk inside a TimeCapsule. How do the speeds of these various methods compare?

I used XBench, a free benchmarking tool, to compare the speeds of these different forms of storage. I don't have anything in particular to say about this tool, nor can I vouch for its usefulness generally. But it was free. Regardless of its details, it provides a common measuring stick, especially because I have run it from the same machine (i.e. a stock early 2008 black Macbook) for each test.

Unfortunately, other issues have varied across groups of tests. For the first group of tests, the external drive was a 300GB/7200rpm IDE drive in a Metal Gear Box USB2.0/FireWire enclosure. For the second group of tests, the drive was a 750GB/7200rpm SATA drive in a USB2.0 enclosure. 

                   XBench Disk Test Score

A: Internal Disk            28.70

B: FireWire Disk            49.01

C: USB Disk                 33.82

D: AirDisk (802.11n/2.4MHz)  3.91

E: AirDisk (100bT)           6.94

The internal disk is a 2.5" SATA disk, which explains why it scored so much lower than the USB and FireWire disks. Note that the USB and FireWire disks are actually the same disk, in the same enclosure. Of course, the two tests use different chipsets in the enclosure, and the pair serves to demonstrate the speed advantage of FireWire. Moreover, FireWire outperformed USB in every disk subtest. This same enclosure was attached by USB to an original AirPort Extreme BaseStation, which supported 100bT Ethernet. The wireless connection was 1/10 the speed of the direct connections. While the wired Ethernet connection was twice as fast as the wireless, that was still about 1/5 of the direct USB connection.  

For the second group of test, I attached the same 750GB/7200rpm SAT/USB drive to the same Apple BaseStation (BS) and to an Apple TimeCapsule (TC) , which also had its own internal 500GB/7200rpm SATA drive. 

                         XBench Disk Test Score

F: USB 2.0                         30.67

G: BS AirDisk (802.11b/g/n)         3.55

H: BS AirDisk (802.11n/5MHz)        5.10

I: BS AirDisk (100bT)               7.03

J: TC AirDisk (802.11b/g/n)         2.41

K: TC AirDisk (802.11n-only 2.4MHz) 3.27

L: TC AirDisk (802.11n/5MHz)        6.64

M: TC AirDisk (1000bT)             12.96

N: TC Disk (802.11b/g/n)            3.03

O: TC Disk (802.11n-only 2.4MHz)    3.56

P: TC Disk (802.11n/5MHz)           6.32

Q: C Disk (1000bT)                 15.10

Clearly, switching to 5MHz band -- at the cost of backwards compatibility with 802.11b & 802.11g, and the ability to penetrate as many walls -- gives a huge speed boost, both for the Extreme BaseStation and the TimeCapsule. Simply turning off compatibility itself results in a speed boost, though not as great. A wired connection, however, is always much faster than a wireless connection, topping out at 5x as fast as the b/g/n network. Note, however, that the same disk was still more than 2x as fast when hooked up directly with a USB connection.

Wireless benchmarking is notoriously flakey, and so you have to put assume some margin of error in each of these scores. That would explain why each of the disks had the top score in at least one test, despite clear trends suggesting that the TimeCapsule disk is the fastest and BaseStation's AirDisk is the slowest. 

Why K12 teachers need tenure

Brian Lehrer keeps asking why we need tenure, given the teacher shortage we face. Unfortunately, he keeps doing it in the context of other education discussions, and he never gets an answer.

So here I go.

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First, a little history. Tenure is not a product of collective bargaining. It is not in teacher union contracts. It is a matter of state law, and goes much further back than when teachers unions gained collective bargaining rights. Though in higher ed it has been about academic freedom, in K12 education it has equally been about patronage (i.e. new administrators replacing existing teachers with their cronies).

Second, a point of clarification. Tenure for K12 teachers is not guaranteed lifetime employment. Rather, after three years of teaching with good evaluations, tenured teachers cannot be fired at the drop of a hat or at the whim of an administrator. Rather, the principal must document the teacher's problems, let him/her know about them, given him/her a opportunity to correct them, and then check to see whether they were corrected. If all of these steps are documented, the teacher can be dismissed. For an employee who has already proven him/herself over years of employment, it's just good management practice. 

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So, why do we still need tenure? Patronage is not the problem it once was, certainly not with a teacher shortage and licensure requirements. And what kind of academic freedom do K12 teachers need?

A) The teacher shortage is not evenly distributed. High performing schools don't have the same problems attracting teacher. High paying district don't have the same problems attracting teachers. English, social studies and art teachers are in good supply for most schools. Low performing schools, lower paying districts, math and science positions, these are the areas of teacher shortages. So, the shortage issue is not a factor for most teachers.

B) This really comes down to the question of why principals might want to be rid of a teacher. I would suggest that any manager would want to be rid of any employee who makes his/her job or life harder. Ideally, this would only be low performing teachers, but that is a fantasy view.

Any kind of rabble rouser can make a principal's job harder. Encouraging parents to express their concerns to a principal ends up costing principals a lot of time. Encouraging parents to go high up in the organization of the principal does not give them fair hearing can cost a principal far more. Encouraging students to organize and express their concerns to administrators is not always taken well, either. And yet, teachers who feel a strong drive to teach for social justice commonly do both of these things.

Obviously, union activists are already protected by other labor laws.

C) Academic freedom in K12 is not like in higher education, that's true. But it is still an issue.

A teacher who tries to raise the bar in his/her classes can create no end of problems for a principal. If standards in school have been too low, and a teacher demands more than students are accustomed to, students and their parents can demand enormous amounts of principal's time. This is a different form of rocking the boat, but can still be enough for a principal to wish to be rid of the teacher.

Principals cannot be experts on everything. Once, when teaching high school English, my principal as a former middle school math teacher. He insisted that I as an English teacher, "not worry about critical and analytical thinking" and "just teach English." Though he had no training or experience with high school English, he had ideas about what it meant. He did not approve of the fact that I was spending as much time on teaching my student how to reason as on the mechanics of writing. His assistant principal insisted that we not teach students to write essays at all  any more, and instead focus on other forms of non-narrative writing.

Another principal might be an old school traditionalist and insist that English classes only be about books. He might not approve of using film or video to teach about theme, plot, symbolism, character development, story arcs, allegory and any of the rest. But a teacher might feel that this would be the best way for students to learn these lessons. I never had this experience, but I have spoken to those who have. Quite simply, teachers who insist on doing something different than what has been done before can face blowback from administrators and from parents (i.e. "if it was good enough for me..."). 

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No, we don't need tenure if principals can be counted on to make good decisions in the best interests of children. But they are human, and therefore often make decisions in their own interests. Moreover, we have a real shortage of high quality principals, even as we are breaking up large schools into multiple small schools and opening up charter schools. 

Which brings me to something that Richard Rothstein talks about. We have regulations not to ensure the highest quality of anything, rather to prevent the lowest quality. Once a teacher proves him/herself over three years, tenure ensures that s/he will only be dismissed for a valid reason after s/he -- who has already demonstrated that s/he can do the job well -- has been given a chance to correct the situation. 

I do not suggest that there are not problems with our tenure system. A lot falls to principals, perhaps too much. Teacher observation and evaluation is not easy, and the tenure process in dependent on principals making good decisions about teachers during those first three years. Principals, coming from the teacher ranks, know far more about how to teach or have difficult conversations with children than with adults, and yet they are expected to do these thing in the process of trying to remove a tenured teacher. Principals need support and training that they rarely receive.

And that is why we still need tenure. It takes a series of bad decisions over a number of years for a poor teacher to get tenure. But without tenure, it only takes one bad decision for a good to be dismissed.