George Wythe Review
Volume 10. No. 2 Spring 2019 Patrick Henry College
A PUBLICATION OF THE AMERICAN POLITICS & POLICY PROGRAM OF PATRICK HENRY COLLEGE ________________ Volume 10 • No. 2 • Spring 2019
Editor-in-Chief: Marina D. Barnes Associate Editor: Abigail A. Carter Publication Editor: Jacob S. Settle Research Editor: Spencer J. Reeves Assistant Editors: Coleman A. Raush & Ethan D. Chapman Faculty Supervisor: Dr. Michael L. Haynes
PATRICK HENRY COLLEGE Purcellville, Virginia www.phc.edu Copyright © 2019 ISSN 2153-8085 (print)
OLITICS & NP A C
H E N RY C O
The George Wythe Review is an undergraduate journal dedicated to the integration of faith and reason in American domestic public policy. The editors of this journal recognize that contemporary domestic public policy is navigating the uncharted waters of rapidly advancing technology, an increasingly globalized political environment, and a bureaucratic federal government. The journal is a response to this climate, providing undergraduate students at Patrick Henry College with a venue to engage this climate through quality academic papers. In the vein of the journal’s namesake, the editors are committed to fostering an environment for discussion that enhances the mission of both the American Politics and Policy Program and Patrick Henry College. The George Wythe Review is published twice during the academic year by the American Politics and Policy Program of Patrick Henry College. Essays in the journal do not necessarily represent the views of Patrick Henry College, the editors, or the editorial board. The responsibility for opinions and the accuracy of facts in the essays rest solely with the individual authors. Direct all correspondence to the address below. Patrick Henry College 10 Patrick Henry Circle Purcellville, VA 20132 (540) 338-1776 firstname.lastname@example.org All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means—electronic, mechanical, photocopying, recording, or otherwise—without the prior written permission of the copyright owner. Authors of the respective essays in this publication retain copyright privileges. Copyright © 2019 • Printed in the United States of America.
CO NTENTS ________________ Volume 10 â&#x20AC;˘ No. 2 â&#x20AC;˘ Spring 2019
Letter from the Editor
Under the Table: Evaluating the Impact of Low-Skilled Undocumented Immigrants on the Economy
Christopher Baldacci This study measures the impact of undocumented immigrants on the economy. It finds that their presence has a moderately positive effect on economic growth.
26 Effectiveness of Private and Public Schooling: Analyzing the National Assessment of Educational Progress Keith Zimmerman This study critiques the research methods of two well-known studies that argue that public school and private school students have similar levels of academic success. It calls for a longitudinal study to be conducted in order to more effectively evaluate student success.
Effective Aid: Principles and Pitfalls
Manus Churchill This study seeks to maximize the benefit and efficiency of foreign aid. It finds that effective aid efforts focus on long-term effects, utilize the assets and meet the needs of the recipient, and enable the recipient to be self-sustaining rather than dependent.
The Religious Freedom Restoration Act: Formulation, Passage, and Modern Evaluation
J. Michael Patton This study considers the history of the Religious Freedom Restoration Act in light of Thomas Dye's process model and John Kingdon's "three streams" model.
Countering Violent Extremism in the United States
Claire Atwood and Sarah Jacob This study analyzes U.S. and U.K. efforts to combat radicalization. It concludes that these efforts are constrained by ambiguity and tenuous relationships with key communities. Ultimately, this study recommends a holistic approach to counter violent extremism through accessible research, community engagement, and balanced adjudication.
100 Compromised Confidentiality: De-Stigmatizing the Silent Struggle of Our Servicemen R. Shane Roberts, Jr. This study examines the prevalence of mental health issues facing armed forces personnel and finds that inadequate psychotherapist-patient confidentiality discourages soldiers from seeking treatment. In order to de-stigmatize the issue of mental health, this study recommends that policymakers change the language of mental health polices and improve accountability.
GEORGE WYTHE REVIEW
Letter From the Editor Dear readers, It is my utmost delight to welcome you to the Spring 2019 edition of the George Wythe Review. I have had the privilege of working on the Review for five semesters now and can wholeheartedly say that I have been proud of each and every issue. However, this semester’s edition of the Review is my particular pride and joy, as it represents my first endeavor as the new Editor-in-Chief. As the political sphere grows increasingly dominated by tweets and soundbites, the temptation to fight fire with fire and jump straight into the fray, armed with snappy rhetoric and witty comments, certainly exists. However, the conservative movement will not win the war of ideas by sinking down to such a level; instead, we must return to the basics and focus our efforts on developing a fuller understanding of the foundational principles of conservatism. I believe that the George Wythe Review advances such an understanding. Our journal provides a much-needed forum for undergraduate academic discourse, enabling young scholars to share their research on a variety of pressing issues. I trust you will be refreshed by reading their perspectives on the complex problems facing our nation. Fittingly, the opening study comes from the Review’s previous Editor-in-Chief, Mr. Christopher Baldacci, whose rhetorical ability is matched only by the depth of his insight. He addresses one of the most contentious issues in modern political discourse: illegal immigration. Mr. Baldacci cuts through the controversial rhetoric, delving into the existing data on the economic impact of low-skilled, undocumented immigrant workers. Our second study was conducted by Mr. Keith Zimmerman, a highly accomplished graduate of the American Politics & Policy program. Mr. Zimmerman critically analyzes several pivotal studies on the effectiveness of private schools in comparison to public schools. He highlights several gaps in the existing literature and offers specific recommendations to improve future studies on school effectiveness. Mr. Manus Churchill authored our third study, which explores the factors that determine the success or failure of foreign aid. He delineates steps that both the givers and recipients of aid can take to maximize benefits and increase the productivity of the assistance efforts. Ultimately, Mr. Churchill emphasizes the need to prioritize efficiency over speed and to respond to crises deliberately and thoughtfully. The fourth study focuses on arguably the most significant safeguard of religious liberty since the adoption of the First Amendment: the Religious Freedom Restoration Act. Mr. J. Michael Patton, our much beloved former Associate Editor, probes primary sources to analyze the unique political negotiations that preceded the passage of the Act.
Spring 2019 • 1
GEORGE WYTHE REVIEW
In particular, his findings highlight the pivotal political achievements that cooperation can make possible. Our fifth study was co-authored by Ms. Claire Atwood and Ms. Sarah Jacob, both recent graduates of Patrick Henry College’s Strategic Intelligence program. They address the current measures that the United States and the United Kingdom have employed to extinguish violent extremism before it erupts into terrorism. After highlighting various vulnerabilities in the current strategy, they provide their own thoughtful policy recommendations. Finally, the journal concludes with a study by Mr. R. Shane Roberts, a current J.D. Candidate at the George Washington University School of Law. He offers insight into the stigma that often surrounds mental illness in the military, leaving many servicemen to suffer in silence. Mr. Roberts suggests that combatting this stigma is the first step towards creating a healthier force. Of course, it would be remiss of me to neglect expressing my gratitude to the many people who make the George Wythe Review possible. To my associate and assistant editors—Abi Carter, Ethan Chapman, and Coleman Raush—thank you for your initiative and diligence in completing all tasks, both small and large. To my brilliant research editing team—Spencer Reeves, Ben Crosby, Josiah Dalke, and CJ Fellenbaum—I am so grateful for your commitment to integrity and attention to detail. Your hard work does not go unnoticed. To the publication crew—Jake Settle, Trenton Martin, Mariana Paris, Sam Ross, and Emma Lucas—thank you for the many, many hours you spend making our Review shine. I am continually impressed by your dedication and drive, not to mention your skill. And last but certainly not least, to my wonderful staff editors—Matthew Johnston, Audrey Miller, Cole Reynolds, and Simon Sefzik—you are the future of this journal. Thank you for your energy, your enthusiasm, and of course your many edits. I am honored to have the privilege of working with all of you. We are also deeply grateful for the partnership of the Collegiate Network and the Leadership Institute; this journal would not exist without their support. Finally, from all of us here at the George Wythe Review, a resounding ‘thank you’ to Dr. Haynes. Thank you for your constant faith in us and your never-ending encouragement. Thank you for prodding us along when necessary and praying for us always. Thank you for your example. We hope we can live up to it. Best regards, Marina Barnes Editor-in-Chief
2 • Spring 2019
U N D E R T H E TA B L E
UNDER THE TABLE: EVALUATING THE IMPACT OF LOW-SKILLED UNDOCUMENTED IMMIGRANTS ON THE ECONOMY Christopher Baldacci Abstract The question of how the United States should deal with illegal immigration is increasingly contentious. While illegal immigration across the Mexican border has decreased slightly over the last decade, undocumented workers still constitute 5% of the labor force. Opponents of illegal immigration argue that low-skilled undocumented workers take jobs from other low-skilled workers and drain social services, while others argue that these workers actually contribute to the economy through their labor and taxes. This study performs secondary analysis in an attempt to better understand how low-skilled undocumented workers affect economic growth by examining the indicators of wages, government expenditures, and economic efficiency. It hypothesizes that low-skilled undocumented immigrants positively affect the economies in which they reside. This study finds that undocumented immigrants have a moderately positive effect on economic growth. ___________________________________
Spring 2019 â&#x20AC;˘ 3
GEORGE WYTHE REVIEW
Introduction In 2002, Pedro Chan began his two-year journey to the United States. He left his village in Guatemala and traveled to Mexico, where he arranged for a smuggler to take him across the U.S. border into Texas. From there he traveled to Brooklyn, New York, where he arrived in 2004. Once in New York City, he met up with his uncle, who helped him get a construction job in the city. Pedro still works construction to this day as an undocumented employee, making about $25,000 dollars a year— considerably less than the thousands of documented construction workers in the city (Davidson, 2013). Pedro is just one illegal immigrant out of millions who live and work in the United States. There are approximately 11.1 million undocumented immigrants in America, 8 million of whom are employed without authorization (Krogstad, Passel, & Cohn, 2016). This means that undocumented immigrants now make up 5% of the American labor force (“Wage War,” 2016). Given the high volume of illegal immigration, the issue of immigration reform has been a contentious part of American politics for the last several decades; however, it became especially important during the last presidential election cycle. With President Trump’s emphatic assertions that he would build a wall along the U.S.-Mexico border and impassioned rhetoric against immigrants, the status of undocumented immigrants in the United States became a national talking point. Much of the debate has centered around the economic impact of immigrants. During a 2015 debate between Republican presidential candidates, Donald Trump stated in no uncertain terms, “We have to stop illegal immigration. It’s hurting us economically. It’s hurting us from every standpoint” ("Republican presidential debate," 2015, para. 108). Other conservatives have argued that undocumented workers take American jobs and depress wages, while supporters of immigration believe that the influx of workers makes goods cheaper and has a net-positive effect on the economy. While there has been significant research in the last twenty years about the effects of undocumented immigrants, academics continue to disagree about the economics of immigration. When more mainstream political outlets try to weigh in on the debate, they tend to select the academic literature which supports their side, blurring the lines between what is settled and what is speculative and occasionally distorting the truth. Especially when it comes to the economic impact of low-skilled workers, there are proponents and detractors. Yet before policymakers can make meaningful and beneficial reforms, they must determine if undocumented workers are helping or hurting the economy. The purpose of this study is to synthesize much of this prior research and paint a more holistic picture of the economic effects of immigration to provide more insight for legislators and policy analysts. This study asks the research question: does the presence of low-skilled,
4 • Spring 2019
U N D E R T H E TA B L E
undocumented immigrants increase economic growth? This study hypothesizes that such migrants benefit the economy and that there is a positive relationship between the presence of undocumented immigrants and overall economic growth.
Literature Review Economists and scholars generally agree that immigration on the whole is economically advantageous (“The effects,” 2016). However, there is a significant amount of literature about the impacts of undocumented immigration, and academics are especially split about the economic impacts of low-skilled migrant workers. Researchers are first divided over whether or not undocumented immigrants contribute more to social services than they take. Lipman (2006), Chomsky (2007), and Campbell (2016) argued that undocumented immigrants contribute far more to the economy than they cost to social services. Gee, Gardner, Hill, and Wiehe (2017) documented the significant contributions immigrants make through state and local taxes and argued that greater amnesty should be granted to undocumented workers to increase tax revenues. However, organizations that are more opposed to immigration have argued that immigrants pose a net cost to the federal government because of their use of services (FAIR, 2011). The Congressional Budget Office (2007), while acknowledging some of the economic impacts of migrant workers, also admitted that immigrants inevitably cost states money. Camarota (2004) pinpointed this number as a $10 billion deficit for the United States. The Heritage Foundation also produced a significant study claiming undocumented immigrants cost each American household $14,387 (Richwine & Rector, 2013). However, other authors have criticized the methodology of that study (Nowraseth, 2013a). The majority of the literature written on the topic of immigrants and the economy concerns the impact that undocumented workers have on wages. The simple textbook explanation is that in a “closed-market” economy, an increased supply of workers should depress wages (Samuelson, 1964). Lalonde and Topel (1997) argued that population increases via immigration always reduce aggregate wages. However, this did not seem to be the case in America. Early on, Friedberg and Hunt (1995) argued that immigrants had a negligible impact on the wages of American citizens. Economists quickly began to try to evaluate the complex factors that go into immigration. Most of the foundational research in this area comes from the 1990s and early 2000s when the undocumented immigrant population in the United States increased exponentially. Blau and Mackie (2016) explained that three methods eventually developed to measure the impact of workers on wages: spatial, skill set, and structural studies. The first type of study was spatial, comparing cities with high immigration to
Spring 2019 • 5
GEORGE WYTHE REVIEW
those with low immigration (e.g. Card, 2001). However, these studies were widely criticized for not considering all the reasons why immigrants move to certain cities and how migration disperses labor. This led to the development of skill set studies, pioneered by Harvard economist George Borjas (2003), who is considered the most influential economist in the area of labor and immigration. Skill set studies compare immigrants and native workers with similar education and work experience to evaluate how increases in one group (immigrants) affect the other (native workers). Borjas and Katz (2007) found that wages for native-born workers and especially low-skilled workers decrease as immigration increases. On the other hand, several other scholars contend that there are more complex factors that go into comparing workers of similar skill sets, and subsequently that immigrants have a net positive effect on the wages of native American workers (Card & Shleifer, 2006; Ottaviano & Peri, 2008). The last type of study is a structural study, attempting to ascertain the function of immigrants in the economy and estimate the impact if those workers were to leave. For example, The Economist argued that the economic growth of Arizona slowed as a result of increased deportation (“Wage War,” 2016). Lastly, the literature has considered the role of low-skilled immigrant workers in the economy. Hanson (2007) argued that undocumented immigrants fill a natural need in the economy for low-skilled, low-educated workers. Scholars have similarly argued that if the undocumented workforce were to decrease, there would be significant labor shortfalls (Goodman, 2014; Jaeger, 2006). However, the same scholars that argue undocumented workers depress wages also suggest that the abundance of jobs for undocumented workers stems from their willingness to take lower wages and that native-born workers should be filling those positions at higher income levels.
Data and Methods This study performs secondary, qualitative analysis on prior research to determine the effects of undocumented labor. Both statistical data and social and historical analysis about the status of migrant workers are considered. First, it is important to define what type of individuals this study considers. Undocumented workers are those who have come to the United States in violation of the law and do not have the documentation to prove that they have a right to residency in the United States. These workers also do not participate in temporary residency programs like student or worker visas and therefore work illegally. Many of these immigrants use fake Social Security numbers, while others are paid in cash or do not fill out W-2s (Campbell, 2016). There is some debate about how to define “unskilled” laborers. Some consider anyone with only a high-school education or lower to be unskilled (Card, 2009). Borjas used a complex matrix that involved eight
6 • Spring 2019
U N D E R T H E TA B L E
interval levels of work experience (in increments of five years) and four interval levels of school experience (high school dropout, high school, some college, and college education) to create 32 skill categories (2003). While this may be helpful for more precise statistical analysis, such a complex definition is not necessary for the purposes of this qualitative study. This study will consider unskilled laborers to be all those with the equivalent of a high school education or less who tend not to have specialized skills or years of experience in the workforce. Second, it is necessary to define “economic growth” for the purposes of the hypothesis. While economic growth is commonly understood to be the increase of goods and services produced and the accumulation of wealth in a society, this must be further operationalized so that the impact of undocumented workers specifically can be analyzed. There are three indicators of economic growth that are especially relevant to this research question. First, wages: rising wages are usually a sign of an economic boom, so this study will consider whether undocumented immigrants hurt or help the average wages of those they compete against, as well as those they do not. It will also consider the role that immigrants have to play in the economy and the effect they have on the number or type of wage-earning jobs. Second, fiscal impact: how much immigrants cost the federal and local governments. Immigrants’ use of social services and programs must be compared to how much they contribute in taxes, since this will affect both states and the national economy. Immigrant workers can cost the government money through the use of infrastructure and public services, and if they receive more than they are taxed, they force the government to tax others to make up for the deficit. Third and finally, economic productivity: this indicator considers whether or not immigrant workers actually increase the overall output and efficiency of the economy through their participation in businesses and industry. For example, do they receive back most of their productivity through their wages or do unskilled laborers increase in productivity over time? And does this capital stay in America? These three indicators together will help establish a wellrounded picture of the impact of undocumented, unskilled laborers on economic growth.
Research Background: Immigration in America
Even though the political focus on international immigration appears to be a recent development, the amount of immigration from low-income countries to high-income countries has been increasing for the last half-century (Peri, 2016). There are now approximately 42.4 million immigrants currently living in the United States, the most in American history (Camarota & Ziegler, 2016). The Pew Research Center estimated that just over 11 million of these are undocumented immigrants
Spring 2019 • 7
GEORGE WYTHE REVIEW
(Krogstad, Passel, & Cohn, 2017). While that is an exponential increase over the 3 million illegal immigrants present in the U.S. in 1995, the number has remained largely constant since 2009 and even represents a slight decrease from the historical high of 12.2 million undocumented immigrants. In 2014, 52% of all unauthorized immigrants were Mexican, but this number is declining, as increasing numbers of undocumented workers come over from Asia and Central America (Gee et al., 2017). Although it is difficult to calculate because most undocumented laborers are employed surreptitiously, around 8 million undocumented immigrants work in the U.S., making up 5% of the labor force (Krogstad et al., 2017). It appears that these immigrants are planting their roots in America, as more and more immigrants are permanent residents—two-thirds of unauthorized immigrants have been in the United States for 10 years or more (Krogstad et al., 2017). Undocumented immigrants are also clustered in a few states and localities, meaning certain states are disproportionately impacted by immigration. Almost two-thirds of undocumented immigrants live in California, Texas, Florida, New York, New Jersey, and Illinois (Hinojosa-Ojeda, 2012). Undocumented immigrants account for 7.4% of California’s population, 10.2% of Los Angeles County’s population, and 7% of Arizona’s population (Hinojosa-Ojeda, 2012). While generalizing about a given population can be problematic, undocumented immigrants have a few common characteristics and motivations that can inform our economic analysis. First, it is important to know why people immigrate to the United States. With the exception of refugees and those seeking political asylum, immigration is often a response to economic factors—when labor and business prospects get worse in one country, and there is demand for labor in another country, people move. Much of the immigration to the United States from 19902010 was a result of Mexico’s struggling economy and America’s relative economic growth. As America faced the recession after 2008, labor demand decreased, as did the number of immigrants crossing the border without authorization (“Wage War,” 2016). However, there are still strong economic incentives for many people to come to America, especially for low-skilled workers. For example, minimum-wage work pays $5.30 per hour more in America than in Mexico (Hanson, 2007). It is no surprise then that family-based immigrants, students, and high-skilled workers tend to try to immigrate legally, while low-skilled workers largely immigrate illegally (Hanson, 2007). Additionally, undocumented immigrants, especially Mexican immigrants, tend to have lower levels of education. Nearly 60% of Mexican immigrants (who are statistically more likely to be undocumented) had less than a high-school education (“Wage War,” 2016). There is a growing asymmetry of education, as nonMexican and native-born workers are increasingly graduating college and Mexican
8 • Spring 2019
U N D E R T H E TA B L E
immigrants are not (Borjas & Katz, 2007). However, it is not just undocumented Mexican workers; 44% of the 16 million workers in the United States without a high school diploma were foreign-born (Enchategui, 2015). These low-skilled, low-educated workers gravitate towards more manual labor. “Unauthorized immigrants are overrepresented in farming occupations (26%) and construction occupations (15%)” (Krogstad, Passel, & Cohn, 2016, para. 8). Even though the jobs that illegal immigrants take in the United States are usually worse than legal jobs, they are significantly more productive than jobs in Mexico and other countries, so unauthorized immigration remains attractive for many laborers (Chassambouli & Peri, 2014).
Impact on Wages
In order to analyze how immigrants affect wages, it is first important to determine the role of undocumented immigrants in the economy. More specifically, researchers have questioned whether or not low-skilled undocumented immigrants are interchangeable with native-born workers and therefore directly compete with them. If a native worker has the same set of skills as an undocumented immigrant such that an employer could reasonably hire either one to fill the same position, economists call these workers “perfect substitutes.” On the other hand, if there are experiential or language differences between a native worker and an undocumented worker such that an immigrant could not replace a native worker at his job, these workers are called “imperfect substitutes.” When a population of immigrant workers in the same skill category as native workers are perfect substitutes, it is likely that the presence of immigrants will have a greater effect on wages since they are competing for the same jobs. When the supply of the labor market for a given set of positions increases, wages decrease. But if low-skilled immigrants and low-skilled U.S. citizens are not interchangeable, then they likely do not directly compete against each other for jobs, completely changing the dynamics of wages. First, and more generally, there is the question: should high school dropouts and those with a high school diploma be considered essentially an equivalent skill class? Borjas and his intellectual progeny thought that these are two separate skill classes, so his studies recorded the effects of low-skilled immigrants against the very concentrated class of “high school dropouts” (approximately 14% of the population). However, Peri (2016) pointed out that the empirical evidence does not support such a distinction, “as relative wages of high school dropouts and graduates do not seem to respond to changes in their relative supply, either at the national…or the local level" (p. 12). Instead, high school dropouts and high school graduates should be considered one broader skill group that low-skilled immigrants potentially compete against, and this is a much larger section of the population (approximately 60%)
Spring 2019 • 9
GEORGE WYTHE REVIEW
(Card, 2009). Are low-skilled immigrants interchangeable with American workers in this broader skill group?
There is strong evidence that low-skilled immigrants and native workers are not perfect substitutes. In the first place, as a college education becomes more ubiquitous among American citizens, there are simply fewer low-skilled native workers. By the year 2022, the U.S. job market will add 4 million more jobs that do not require high school degrees (Misra, 2015). These positions must be filled by lowskilled workers, and there is a decreasing amount of native-born laborers to do the job, giving the high numbers of undocumented low-skilled laborers opportunities to take jobs without competing with natives. Additionally, there already exists a significant language disparity between immigrants and other classes of workers. This means that immigrants tend to take jobs that require less communication, while native workers specialize in more communication-heavy jobs (Lewis, 2011). This is borne out in the research of Enchategui (2015), who found that certain jobs are dominated by immigrants. Immigrants constitute 80% or more of the food processing, manicuring, and sewing industries (Enchategui, 2015). Immigrants are also dramatically overrepresented in manual labor jobs. On the other hand, the jobs that are most heavily dominated by low-skilled native labor are all jobs that involve much more communication, including receptionists and hosts/hostesses. The specialization of both groups of laborers should significantly mitigate any wage effects between the two groups (Peri & Sparber, 2009). While this evidence is sometimes colloquially phrased as “there are jobs that Americans just won’t do,” this seems to be an overgeneralization. As Camarota and Ziegler (2013) noted: “If the argument is correct, there should be occupations comprised entirely or almost entirely of immigrants (legal and illegal). But Census Bureau data collected from 2009 to 2011, which allows for detailed analysis of all 472 separate occupations, shows that there were only a handful of majority‐immigrant occupations” (p. 1). In a separate study, Camarota (2013) wrote: There are 67 occupations in which 25 percent or more of workers are immigrants (legal and illegal). In these high-immigrant occupations, there are still 16.5 million natives—accounting for one out of eight natives in the labor force. The idea that there are jobs that only immigrants do is simply incorrect. (para. 38) However, there are enough occupations that are dominated by low-skilled immigrant workers and enough differences between undocumented immigrants and native workers that it seems the two groups do not compete with each other. The Wharton School of Business at the University of Pennsylvania (2016) summarized:
10 • Spring 2019
U N D E R T H E TA B L E
Because less-educated immigrants often lack the linguistic skills required for many jobs, they tend to take jobs in manual labor-intensive occupations such as agriculture and construction. Even for low-skilled native-born workers in these industries, the effects of increased competition from immigrants are ambiguous, as many take advantage of their superior communication abilities and shift into occupations where these skills are more valuable, such as personal services and sales. (p. 4) To the contrary, it seems that low-skilled immigrants compete with each other more than they compete with natives. Costa, Cooper, and Shierholz (2014) argued: Unauthorized immigrants…have essentially no bargaining power and virtually no labor or employment rights. If they complain about workplace safety violations or being paid less than the minimum wage, for example, an employer can fire them or threaten them with deportation. That puts downward pressure on the wages and working conditions of workers—both native- and foreign-born—in the occupations and in the places where unauthorized workers are present. (p. 6) If anything, this is a larger worry than any impact on the wages of American workers. For those workers who do not face direct competition from immigrant workers, their wages are largely unaffected by increased immigration—in fact, their wages may be positively affected as demand for their work increases (Camarota, 2013). It seems clear, then, that researchers’ stances on whether low-skilled immigrants and low-skilled natives are perfect substitutes will significantly affect their research model. Borjas in 2003 and 2013 resisted the idea that immigrants and natives were imperfect substitutes and thus directly compared the effects of immigrants on natives in similar skill groups. Therefore, he found that there was a “4 percent decline in the wage of high school dropouts (relative to college graduates), both in the short and long runs” (Borjas, 2013, p. 13). Both he and Camarota (2013) claimed that even if it is assumed that native workers are complementary and not competitive, then the wages of high school dropouts still falls between 2% and 5%. Interestingly, Borjas’s estimates of the effect on the wages of native high school dropouts have gotten increasingly conservative with time. In 2003 he estimated an 8.9% decrease in the wages of high school dropouts; this fell to 4% by 2013. Borjas’s research partner, another Harvard professor named Lawrence Katz, has since argued that the effect of immigration on the wages of American workers is negligible (Edsall, 2016).
Spring 2019 • 11
GEORGE WYTHE REVIEW
Conversely, when studies consider a more nuanced picture of immigration, they find that immigrants positively affect wages. Ottaviano and Peri published several studies in response to the early work of Borjas and Katz using what they called a “general equilibrium” model that (1) did not assume that natives and immigrants were perfect substitutes and (2) took into account that businesses and investors usually adjust their allocation of capital in response to an enlarged labor market. Their calculations found that from 1990-2006, immigration affected the wages of low-skilled natives by +0.5% to +0.7% (Ottaviano & Peri, 2008). Higher skilled workers saw incrementally larger wage increases. This makes sense if such workers are truly complementary, since firms that save money with less expensive, low-skilled laborers have more capital to grow their business and increase the wages and hours of other workers. The most comprehensive review of the studies on the economics of immigration was conducted by the National Academy of Sciences in their massive paper published last year (Blau & Mackie, 2016). They noted that “[i]mmigration raises the return to capital, making capital more productive and increasing income to owners of capital” (Blau & Mackie, 2016, p. 127). Furthermore, “[t]he immigration surplus is larger when immigrant workers are complementary to natives. Income from the surplus accrues to both owners of capital and high-skilled workers when immigrants are low-skilled” (Blau & Mackie, 2016, p. 137). The National Academy of Sciences concluded that across the various studies, low-skilled natives may be slightly negatively affected by immigration, but middleskilled and high-skilled natives generally get a wage boost when immigration increases. Indeed, as mentioned previously, “[t]he group whose wage was most negatively affected by immigration is…the group of previous immigrants; however, it is they who probably receive the largest non-economic benefits from the immigration of spouses, relatives or friends, making them more willing to sustain those losses” (Ottaviano & Peri, 2006 p. 4). On the whole, Nowraseth (2013b) also concluded that even comparing the most pessimistic wage forecasts from Borjas and Katz (2007) against the more positive forecasts from Peri and others, immigration seems to have a negligible or small positive effect on wages, especially when considering that Borjas’s methodological assumptions may inflate his estimation of the harm. Figure 1 shows the comparison of the two major studies. In summary, unskilled immigrants tend to fill very different roles in the economy than their native counterparts, meaning that theoretically they should not significantly affect the wages of native workers. It is important to note that Ottaviano and Peri, Borjas, and the National Academy of Sciences studied immigration in general and not just undocumented workers; however, given that most undocumented workers are low-skilled, the analysis of the impacts of lowskilled immigrants is relevant. Furthermore, we must be careful not to commit an ecological fallacy by assuming that wage increases will be seen generally in all areas.
12 • Spring 2019
U N D E R T H E TA B L E
Figure 1. Comparison of the long-run impacts of immigration on native wages (Borjas & Katz, 2007; Ottaviano & Peri, 2008). Some cities and localities where certain industries are more dominant or that have disproportionately high numbers of undocumented workers may see differences in the effect on the wages of native workers. However, the weight of the research seems to at least mitigate concerns about undocumented immigrants “stealing American jobs” or depressing wages. To the contrary, they may even help American workers by boosting the value of complementary work.
The second question is the fiscal impact of low-skilled illegal immigrants. This directly affects the budgets and deficits of the state, local, and federal governments; however, it also indirectly affects the economy, as increased use of government programs may necessitate tax increases. At the very least, such increased use may drain government capital that could be used for other individuals or more economically beneficial projects. It is first important to note that undocumented workers pay a significant amount of taxes. Contrary to the stereotype that undocumented workers generally make money under the table, untraced and tax-free, at least 50% of the undocumented workforce pays taxes (Institute on Taxation and Economic Policy, 2013). They either use Individual Tax Identification Numbers (ITINs) or fake Social Security numbers. However, estimates vary on exactly how much they have paid
Spring 2019 • 13
GEORGE WYTHE REVIEW
in taxes. The Institute on Taxation and Economic Policy estimated in 2013 that undocumented workers paid $10.6 billion in state and local taxes. Others think that number is higher. For example, Stephen Goss, the chief actuary of the Social Security Administration, noted that undocumented workers have paid approximately $13 billion into the Social Security fund alone each year (Goss et al., 2013). Camarota (2004) estimated that undocumented households have paid $16 billion in total taxes. Many immigrants are incentivized to pay taxes because they believe following the laws in this way will increase their chances of citizenship or amnesty in the future. When nonprofits have targeted cities with programs that encourage undocumented workers to pay taxes, many file returns (Campbell, 2016). Despite paying these taxes, undocumented families cannot avail themselves of most of these social services. Lipman (2006) described: Undocumented immigrants are barred from almost all government benefits, including food stamps, Temporary Assistance for Needy Families, Medicaid, federal housing programs, Supplemental Security Income, Unemployment Insurance, Social Security, Medicare, and the Earned Income Tax Credit (EITC). Generally, the only benefits federally required for undocumented immigrants are emergency medical care, subject to financial and category eligibility, and elementary and secondary public education. Many undocumented immigrants will not even access these few critical government services because of their ever-present fear of government officials and deportation. (pp. 5-6) Goss (2013) believed that somehow undocumented workers had received about $1 billion in benefits from Social Security, but this was only a fraction of their $13 billion contribution. The question is, does the undocumented workforce cost governments more than it contributes? The majority of the evidence available suggests that immigrants are a net cost to the federal government and to state and local authorities. The most extreme estimate of the cost of immigrants comes from Heritage Foundation experts Richwine and Rector (2013), who concluded that “[i]n 2010, the average unlawful immigrant household received around $24,721 in government benefits and services while paying some $10,334 in taxes. This generated an average annual fiscal deficit (benefits received minus taxes paid) of around $14,387 per household" (p. vi). A more conservative estimate comes from Camarota (2004), who calculated that “[h]ouseholds headed by illegal aliens imposed more than $26.3 billion in costs on the federal government in 2002 and paid only $16 billion in taxes, creating a net fiscal deficit of almost $10.4 billion, or $2,700 per illegal household” (p. 5). The National
14 • Spring 2019
U N D E R T H E TA B L E
Academy of Sciences study used a methodologically rigorous approach and came up with eight different models to estimate the fiscal cost of immigrants with a variety of different assumptions. Under all eight models, immigrants were concluded to use more in social services then they paid in taxes (Blau & Mackie, 2016). Other studies have come to different conclusions, but these alternative analyses seem to have significant flaws. Many organizations have touted the fiscal contributions of immigrants without a serious analysis of how much they cost in social services (Gee et al., 2017). Lipman (2006) asserted that immigrants cannot take advantage of most of the social services they pay into: “As a result of all these factors, undocumented immigrants provide a fiscal windfall, and may be the most fiscally beneficial of all immigrants” (p. 7). This facially makes logical sense; however, when considering how little immigrants take from the social services they are taxed to fund, Lipman does precious little statistical work to prove that immigrants truly do not have a fiscal impact. Others have tried to criticize the methodologies of the studies claiming a net fiscal loss. The Heritage Foundation study especially was criticized by both conservatives and liberals. Alex Nowraseth of the Cato Institute said it never adequately considered the economic benefits that immigrants provide (2013a), and Contreras appropriately noted that Richwine and Rector assumed that low-skilled workers and their children will always remain uneducated and ignored any contributions that immigrants make to the economy (Contreras, 2013). Costa et al. (2014) emphasized the large discrepancy between undocumented immigrants’ contribution to federal programs and the amount they take out, but he seemed to not consider state and local costs as well as incidental burdens to infrastructure, public programs, and others. However, while alternative projections may be deficient, there are several mitigating factors to consider that make the costs projected by Camarota and others less significant. First, there is a distinction between state, local, and federal costs. A majority of immigrants do contribute to federal programs and yet cannot take advantage of Social Security, Medicare, Medicaid, and others. Therefore, they may contribute more than they take at the federal level. However, immigrants primarily use infrastructure, education, and medical relief at the local level, which seems to be a bane to public budgets. The Congressional Budget Office’s (2007) analysis showed that states incur invariable costs due to the presence of undocumented immigrants that they do not recoup in taxes. Second, demographics and locality will significantly affect these statistics. One cannot infer from the national data whether each individual state experiences shortfalls as a result of immigration. Especially in areas of Arizona and Texas with large amounts of children and high rates of crime in immigrant communities, education and policing costs are higher (Davidson, 2013). Third, future generations may offset current costs. While children initially perpetuate the fiscal problem by draining public resources without contributing
Spring 2019 • 15
GEORGE WYTHE REVIEW
anything, the children of undocumented immigrants born in the United States are citizens and future taxpayers. They may eventually contribute more in taxes than their parents. The NAS report concluded: For the 2011-2013 period, the net cost to state and local budgets of first generation adults is, on average, about $1,600 each. In contrast, second and third-plus generation adults create a net positive of about $1,700 and $1,300 each, respectively, to state and local budgets. These estimates imply that the total annual fiscal impact of first generation adults and their dependents, averaged across 2011-13, is a cost of $57.4 billion, while second and third-plus generation adults create a benefit of $30.5 billion and $223.8 billion, respectively. (Blau & Mackie, 2016, p. 12) Fourth and finally, the economic productivity of immigrants can offset the fiscal burden on local and state governments by enriching the economy. Less expensive labor provides capital to businesses and more consumers for an economy. Estimates vary significantly as to how much economic growth should be weighed against the fiscal drain, but it is a factor that must be considered. Perhaps Camarota summarized it best: “In my view, the best way to think about immigration is that it is primarily a redistributive policy, transferring income from some workers to owners of capital and from taxpayers to lowincome immigrant families” (2016, para. 21). It seems clear that, at least when fiscal impacts are observed in a vacuum, undocumented immigrants are a net cost to public budgets. However, it remains possible that such costs could be outweighed either by the other two indicators of wages and economic growth or by the productivity of future generations of immigrants. Economic Productivity At least at the macro-level, the research indicates that immigrants contribute significantly to the overall economy, making it more productive. Even Borjas and Camarota, the largest skeptics of the economic benefits of undocumented labor, acknowledged that undocumented workers increase the Gross Domestic Product (GDP) of the United States. According to Borjas (2013), immigration makes the U.S. economy 11% larger each year, which equates to a growth of approximately $1.6 trillion dollars. Camarota (2016) estimated that undocumented immigrants increase the GDP by $395-472 billion. However, simple GDP increases do not tell the whole story, as they do not consider how that capital is spent or where it goes. Does most of this money go back to immigrants in wages or is it reinvested? Moreover, do other considerations offset the advantages of GDP growth?
16 • Spring 2019
U N D E R T H E TA B L E
There is much evidence that suggests the economic growth brought about by undocumented workers produces substantive gains. There are individual case studies on immigration that show economic growth is strongly correlated with high levels of immigration. California’s economy grew exponentially as a result of immigration in the 1990s (McCarthy & Vernez, 1997). Georgia’s economy grew as a result of heightened immigration. Conversely, when Arizona cracked down on immigration in 2007, its economy shrank by 2% (“Wage War,” 2016). If the undocumented labor force disappeared, it would result in $651.511 billion in annual lost output and 8.1 million lost jobs (Perryman, 2008). Nowraseth (2013) simulated that the GDP would shrink by $2.6 trillion over a decade if the undocumented workforce were removed. Additionally, these increases in economic growth help offset costs to the public. In both taxes and goods and services produced and spent, immigrants living and working in the United States “make significant contributions to the overall prosperity of local economies” (HinojosaOjeda, 2012, p. 186). Indeed, CBO estimates of the relationship between GDP and public debt suggest that over 10 years, for every 0.1% increase in economic growth, the federal deficit is reduced by $300 billion (Holtz-Eakin, 2013). However, none of these numbers take into account where the capital that immigrants produce goes. 97.8% of the money that immigrants produce is returned to them in the form of wages and government benefits; the remaining money that goes to benefit businesses and the native-born population is referred to as the “immigration surplus” (Borjas, 2013). Borjas summarized the calculation: The immigration surplus or benefit to natives created by illegal immigrants is estimated at around $9 billion a year or 0.06 percent of GDP — six one‐hundredths of 1 percent. Although the net benefits to natives from illegal immigrants are small, there is a sizable redistribution effect. Illegal immigration reduces the wage of native workers by an estimated $99 to $118 billion a year, and generates a gain for businesses and other users of immigrants of $107 to $128 billion. (2013, p. 2) Camarota (2013) added: “Thus the net gain from immigration is 0.24 percent of GDP. (Expressed as decimal it is .0024.) If GDP is $15 trillion, then the net benefit would be about $35 billion” (para. 33). Camarota argued that this meager eventual gain in GDP is outweighed by the drain on public resources, which he currently estimates as approximately $30 billion dollars based on data from the NAS study. However, while this certainly mitigates any quixotic beliefs about the overwhelming economic productivity of undocumented immigrants, it is not enough evidence to suggest they drag down the overall economy. First of all, both
Spring 2019 • 17
GEORGE WYTHE REVIEW
Camarota and Borjas’s numbers assume their higher estimates for the negative effect of illegal immigrants on wages. If one adopts Ottaviano and Peri’s more reasonable estimates about the effect on the wages of native workers—and certainly if one accepts the evidence that the wages of complementary workers are increased— then the value of the economic production of immigrants increases. Second, some of the wages made back by immigrants return to the economy through investment. One study estimated that undocumented workers invest up to 6.5% of their income (Orrenius & Zavodny, 2004). Camarota (2016) contested this, arguing that illegal aliens are not significantly more entrepreneurial because the self-employment rate of immigrants and natives is essentially the same. However, this still means that undocumented immigrants are entrepreneurial and any increase in consumption or money invested in businesses is beneficial to an economy. Lastly, the fact that low-skilled undocumented workers are so economically productive at such a low cost means that firms expand: As a consequence of the availability of more workers, firms invest: they expand their productive capacity and build more establishments. The productive capacity (capital) per worker has grown in the U.S. economy at a constant rate during the period from 1960 to 2009. If anything, capital per worker was higher when immigration was at its peak in 2007 than it was in 1990 before the immigration boom began. Investments, that is, were responsive to the predictable inflows of workers. Hence, immigrants did not crowd out existing firms over the long run. Rather, they increased the size and number of firms providing investment opportunities. (Peri, 2013, p. 15) Not all of this data is specific to undocumented workers, but there are several generalizations that can be made. Even accepting the most negative numbers from Camarota and Borjas, undocumented immigrants do not significantly slow economic growth. Alternatively, the increased capital they provide to businesses and the labor they give the economy suggests that they are vital to economic productivity and contribute marginally if not significantly to national economic growth.
Conclusion Even though the number of undocumented immigrants coming to the United States has slowed over the past decade, the question of immigration reform remains unresolved. With increasing attention being given to immigration policy in national discussions, it is likely to be a significant issue moving forward. Perhaps more
18 • Spring 2019
U N D E R T H E TA B L E
importantly, there are millions of people like Pedro Chan living in the United States. They work laborious jobs, accept lower wages, pay taxes, and raise families—but always live under the threat of deportation. For them, there are no domestic policies more meaningful than the ones that concern their status in this country. This study does not attempt to answer any of the policy questions surrounding immigration, to advise policymaking concerning these millions of undocumented workers, nor to weigh in on the legitimacy of any specific solutions. However, a stronger understanding of the economic impacts of illegal migration should help legislators craft more efficacious and prudent policies. While the economics of immigration still remains opaque at points, the pattern of the research suggests that low-skilled undocumented workers provide modest economic benefits. Concerning the first indicator of wages, undocumented workers seem to have marginal effects on native incomes. Immigrants may slightly decrease the wages of native low-skilled workers, but they increase the wages of complementary workers and increase the capital of businesses to hire more people. When the market adjusts to the influx of labor and native workers specialize in other fields, the wage impacts are negligible at worst and promote growth at best. The second indicator is less positive, suggesting that undocumented workers—especially low-skilled workers with low incomes—are a net drain on state and local economies. However, they contribute much to the federal level, and these losses could be offset with more robust economic contributions. With regards to the last indicator of economic productivity, the data is less clear; however, the negative drains on the economy have the potential to be offset by economic growth. Taken together, lowskilled undocumented immigrants do not unequivocally help every economy they participate in, but there seem to be modest and predictable economic gains associated with high levels of undocumented immigration. Future research must attempt to better quantify the less tangible economic consequences of immigrants, such as how they spend their money, how they impact business growth, and how they affect shifts in the labor market. Furthermore, as the demographics of immigration change and Mexicans no longer make up the majority of undocumented immigrants to the United States, more skill set comparisons must be done to reexamine whether such immigrants are interchangeable and if they affect wages similarly. As it stands, however, the research on undocumented immigrants provides a rich picture that should encourage policymakers to treat immigrants— even undocumented immigrants—more beneficently. Undocumented immigrants are already benefiting the United States economically: individuals, states, and industries rely on the undocumented workforce for their wages and profitability. We can and must do more to mitigate the ways in which this immigration does drain our resources while maximizing the ways in which it promotes growth.
Spring 2019 • 19
GEORGE WYTHE REVIEW
Reference List Blau, F. D., & Mackie, C. (Eds.). (2016). The economic and fiscal consequences of immigration. Washington, DC: The National Academies Press. Borjas, G. (2003). The labor demand curve is downward sloping: Reexamining the impact of immigration on the labor market (Working Paper No. 9755). National Bureau of Economic Research. Retrieved from http://www.nber. org/papers/w9755.pdf Borjas, G. (2013). Immigration and the American worker. Center for Immigration Studies. Retrieved from https://cis.org/Report/Immigrationand-American-Worker Borjas, G., & Katz, L. (2007). The evolution of the Mexican-born workforce in the United States. In G. Borjas (Ed.), Mexican immigration to the United States (13-56). Chicago, IL: University of Chicago Press. Camarota, S. (2004). The high cost of cheap labor. Center for Immigration Studies. Retrieved from http://cis.org/articles/2004/fiscalexec.html Camarota, S. (2013). The fiscal and economic impact of immigration on the United States. Center for Immigration Studies. Retrieved from http://cis.org/ node/4573 Camarota, S. (2016, September 22). So what is the fiscal and economic impact of immigration? The National Review. Retrieved from http://www. nationalreview.com/article/440305/us-immigration-policy-economic-fiscalimpact-essentially-redistributive Camarota, S., & Zeigler, K. (2013). Are there really jobs Americans wonâ&#x20AC;&#x2122;t do? Center for Immigration Studies. Retrieved from http://cis.org/are-therereally-jobs-americans-wont-do Camarota, S., & Zeigler, K. (2016). Immigrants in the United States: A profile of the foreign-born using 2014 and 2015 Census Bureau data. Center for Immigration Studies. Retrieved from http://cis.org/sites/cis.org/files/ immigrant-profile_0.pdf
20 â&#x20AC;˘ Spring 2019
U N D E R T H E TA B L E
Campbell, A. F. (2016, September 12). The truth about undocumented immigrants and taxes. The Atlantic. Retreived from https://www.theatlantic. com/business/archive/2016/09/undocumented-immigrants-andtaxes/499604/ Card, D. (2001). Immigrant inflows, native outflows, and the local labor market impacts of higher immigration. Journal of Labor Economics, 19(1), 22-64. doi:10.1086/209979 Card, D., & Peri, G. (2016). Immigration economics: A review. Retrieved from http://davidcard.berkeley.edu/papers/card-peri-jel-april-6-2016.pdf Card, D., & Shleifer, A. (2009). Immigration and inequality. American Economic Review, 99(2), 1-21. Retrieved from http://www.nber.org/papers/w14683 Chassambouli, A., & Peri, G. (2014). The labor market effects of reducing the number of illegal immigrants. Review of Economic Dynamics, 18(4), 792-821. Chomsky, A. (2007). “They take our jobs!”: And 20 other myths about immigration. Boston, MA: Beacon Press. Congressional Budget Office. (2007). The impact of unauthorized immigrants on the budgets of state and local governments (Report No. 2500). Retrieved from https://www.cbo.gov/sites/default/files/110th-congress-2007-2008/ reports/12-6-immigration.pdf Contreras, R. L. (2013, May 12). Why Heritage’s Rector and Richwine are very, very wrong. Fox News. Retrieved from http://www.foxnews.com/ opinion/2013/05/13/why-heritages-rector-and-richwine-are-very-verywrong.html Costa, D., Cooper, D., & Shierholz, H. (2014). Facts about immigration and the economy. Economic Policy Institute. Retrieved from http://www.epi.org/ publication/immigration-facts/ Davidson, A. (2013, February 12). Do illegal immigrants actually hurt the U.S. economy? The New York Times. Retrieved from http://www.nytimes. com/2013/02/17/magazine/do-illegal-immigrants-actually-hurt-the-useconomy.html
Spring 2019 • 21
GEORGE WYTHE REVIEW
Edsall, T. B. (2016, September 29). What does immigration actually cost us? The New York Times. Retrieved from https://nyti.ms/2dmt3wt The effects of immigration on the United States’ economy. (2016). Penn Wharton Budget Model. Retrieved from http://www.budgetmodel.wharton.upenn.edu/ issues/2016/1/27/the-effects-of-immigration-on-the-united-states-economy Enchautegui, M. E. (2015, October 13). Immigrant and native workers compete for different low-skilled jobs. The Urban Institute. Retrieved from http:// www.urban.org/urban-wire/immigrant-and-native-workers-competedifferent-low-skilled-jobs Federation for American Immigration Reform. (2011). Immigration facts: United States. Retrieved from http://www.fairus.org/states/united-states Friedberg, R., & Hunt, J. (1995). The impact of immigrants on host country wages, employment and growth. The Journal of Economic Perspectives, 9(2), 23-44. doi:10.1257/jep.9.2.23 Gee, L. C., Gardener, M., Hill, M., & Wiehe, M. (2017). Undocumented immigrants’ state & local tax contributions. Institute for Tax and Economic Policy. Retrieved from http://www.itep.org/immigration/ Goodman, H. A. (2014, April 23). Illegal immigrants benefit the U.S. economy. The Hill. Retrieved from http://thehill.com/blogs/congress-blog/foreignpolicy/203984-illegal- immigrants-benefit-the-us-economy Goss, S., Wade, A., Skirvin J. P., Morris, M., Bye, K. M., & Huston, D. (2013). Effects of unauthorized immigration on the actuarial status of the social security trust funds. Social Security Administration: Baltimore, MD. Retrieved from https://www.ssa.gov/oact/NOTES/pdf_notes/note151.pdf Hanson, G. H. (2007). The economic logic of illegal immigration. Council on Foreign Relations. Retrieved from www.cfr.org/content/publications/ attachments/ImmigrationCSR26.pdf Hinojosa-Ojeda, R. (2012). The economic benefits of comprehensive immigration reform. The Cato Journal, 32(1), 175-199.
22 • Spring 2019
U N D E R T H E TA B L E
Holtz-Eakin, D. (2013). Immigration reform, economic growth, and the fiscal challenge. American Action Forum. Retrieved from https://www. americanactionforum.org/wp-content/uploads/sites/default/files/ Immigration%20and%20the%20Economy%20and%20Budget.pdf Institute on Taxation and Economic Policy. (2013). Undocumented immigrants’ state and local tax contributions. Retrieved from https://itep.org/wp-content/ uploads/undocumentedtaxes.pdf Jaeger, D. A. (2006). Replacing the undocumented work force. Center for American Progress. Retrieved from https://www.americanprogress.org/ issues/immigration/news/2006/04/04/1905/replacing-the-undocumentedwork-force/ Krogstad, J. M., Passel, J. S., & Cohn, D. (2016). 5 facts about illegal immigration in the U.S. Pew Research Center. Retrieved from http://www.pewresearch. org/fact-tank/2016/11/03/5-facts-about-illegal-immigration-in-the-u-s/ Lalonde, R. J., & Topel, R. H. (1997). Economic impact of international migration and the economic performance of migrants. In M. Rosenweig and O. Stark (Eds.), Handbook of Population and Family Economics (799-850). Amsterdam: Elsevier. Lewis, E. (2011). Immigrant-native substitutability: The role of language ability (Working Paper No. 17609). National Bureau of Economic Research. Retrieved from http://www.nber.org/papers/w17609.pdf Lipman, F. J. (2006). The taxation of undocumented immigrants: Separate, unequal, and without representation. Harvard Latino Law Review, 9(1), 1-58. McCarthy, K. F., & Vernez, G. (1997). Immigration in changing economy: California’s experience. Santa Monica, CA: RAND. Misra, T. (2015, October 21). Immigrants aren’t stealing American jobs. The Atlantic. Retrieved from https://www.theatlantic.com/politics/ archive/2015/10/immigrants-arent-stealing-american-jobs/433158/ Nowraseth, A. (2013a). Immigration’s clear benefits. The Cato Institute. Retrieved from https://www.cato.org/publications/commentary/immigrations-clearbenefits
Spring 2019 • 23
GEORGE WYTHE REVIEW
Nowraseth, A. (2013b). How does immigration impact wages? The Cato Institute. https://www.cato.org/blog/how-does-immigration-impact-wages Orrenius, P. M., & Zavodny, M. (2004). What are the consequences of amnesty for undocumented immigrants? (Working Paper No. 2004-10). Federal Reserve Bank of Atlanta. Retrieved from https://www.econstor.eu/ bitstream/10419/100940/1/wp2004-10.pdf Ottaviano, G., & Peri, G. (2006). Rethinking the effects of immigration on wages (Working Paper No. 12497). National Bureau of Economic Research. Retrieved from https://www.nber.org/papers/w12497.pdf Ottaviano, G., & Peri, G. (2008). Immigration and national wages: Clarifying the theory and the Empirics (Working Paper No. 14188). National Bureau of Economic Research. Retrieved from http://www.nber.org/papers/w14188 Peri, G. (2013). The economic benefits of immigration. Berkeley Review of Latin American Studies, 14-19. Retrieved from http://clas.berkeley.edu/research/ immigration-economic-benefits-immigration Peri, G. (2016). Immigrants, productivity, and labor markets. Journal of Economic Perspectives, 30(4), 3-30. doi: 10.1257/jep.30.4.3 Peri, G., & Sparber, C. (2009). Task despecialization, immigration, and wages. American Economic Journal: Applied Economics, 1(3), 135-169. doi: 10.1257/ app.1.3.135 Perryman, M. R. (2008). An essential resource: An analysis of the economic impact of undocumented workers on business activity in the US with estimated effects by state and by industry. Perryman Group. Retrieved from https://www.perrymangroup.com/wp-content/uploads/Impact_of_the_ Undocumented_Workforce.pdf Republican presidential debate [Speech Transcript]. (2015, November 11). New York Times. Retrieved from https://www.nytimes.com/2015/11/11/us/ politics/transcript-republican-presidential-debate.html Richwine, J., & Rector, R. (2013). The fiscal cost of unlawful immigrants and amnesty to the U.S. taxpayer. The Heritage Foundation. Retrieved from http://thf_media.s3.amazonaws.com/2013/pdf/sr133.pdf
24 â&#x20AC;˘ Spring 2019
U N D E R T H E TA B L E
Samuelson, P. (1964). Economics: An introductory analysis (6th ed.). New York, NY: McGraw Hill. Wage war. (2016, August 25). The Economist. Retrieved from http://www. economist.com/news/united-states/21705699-who-are-main-economiclosers-low-skilled-immigration-wage-war
Spring 2019 â&#x20AC;˘ 25
GEORGE WYTHE REVIEW
EFFECTIVENESS OF PRIVATE AND PUBLIC SCHOOLING: ANALYZING THE NATIONAL ASSESSMENT OF EDUCATIONAL PROGRESS Keith Zimmerman This paper was written by Keith Zimmerman in the spring of 2017, while he was still a student at Patrick Henry College. The paper has not been substantively revised since May 1, 2017. The final product published in this journal does not include any information that the author gained access to during employment following the composition of the paper.
Abstract This study performs secondary qualitative analysis on several studies that measured effectiveness of private schools in comparison to public schools by using the 2000 and 2003 National Assessment of Educational Progress (NAEP). The two studies analyzed most in-depth are the well-known Lubienski study and the National Center for Education Statistics study. The studies use mean NAEP reading and mathematics scores to measure this effectiveness. In addition to this, some of the tests weight and adjust their results to reflect student socioeconomic status (SES). These assumptions and factors affect whether the study shows public or private schools in a positive light. This study finds that, while many studies of the National Assessment of Educational Progress (including the Lubienski study and the National Center for Education Statistics study) claim that public schools are just as effective or more effective than private schools, their assumptions and methods are likely flawed. Additionally, this study finds that because the NEAP is cross-sectional, studies based off it may not be representative. ___________________________________
26 â&#x20AC;˘ Spring 2019
P R I VA T E A N D P U B L I C S C H O O L I N G
Introduction The state of Ohio spent over $400 million to help fund private schools during the 2016/2017 school year. Many were horrified by how much public money went to fund private institutions, with State Representative Teresa Fedor articulating: “If we were to put that same amount of money into those [urban] public schools, we would have the resources to do even better” (Sparling & Balmert, 2017, para. 9). She later lamented that private schools in Ohio receive public funding but do not have to submit to public records laws. Others in Ohio found the $414 million funding private schools to be a reasonable number since it was a small portion of the $7.6 billion fund for public education in the state (Sparling & Balmert, 2017). Cy Smith, the superintendent of Mansfield Christian School explained, “Our parents see these programs as a way to recover some of those taxes they’re already paying” (McNaull, 2017, para. 6). Jon Blazak, business manager of St. Peter’s School, added that “from a statewide standpoint it makes a lot of sense” because it costs the state less for a student to attend a private school than a public school (McNaull, 2017, para. 8). At the core of the disagreement was the question: are private schools better than public schools for America? In fact, one of the major reasons that Democrats did not like President Trump’s choice for Secretary of Education, Betsy DeVos, was that neither she nor any of her children had attended any public schools (Hurst, 2017). DeVos, however, comes from a different background than her Democrat opponents. She sees her position as Secretary of Education as an opportunity to sell the idea of school choice to America (Hefling & Wermund, 2017). The first step would thus be to prove that private schools are more effective at educating students than public schools. To do so, many studies examine national testing, such as the National Assessment of Educational Progress, using the scores to make general statements about the outcomes of private and public schooling. This study found that, while many studies of the National Assessment of Educational Progress (including the Lubienski study and the National Center for Education Statistics study) claim that public schools are at least equally as effective as private schools, their assumptions and methods are likely flawed. When studying the National Assessment of Educational Progress with alternative models, private schools appear to perform better than public schools. However, because the National Assessment of Educational Progress is cross-sectional, any study based off it may not be representative; therefore, a longitudinal study should be performed to provide more accurate results.
Spring 2019 • 27
GEORGE WYTHE REVIEW
Literature Review There is a plethora of academic literature concerning comparative statistics between public and private schools. The first serious study of a “private school effect” was conducted by James Coleman, Thomas Hoffer, and Sally Kilgore in 1982 (p. 72). They concluded that even when controlling for socioeconomic status, students at private schools performed better than their public school counterparts. Almost immediately after being published, Coleman’s study was widely criticized on methodological grounds. An article in the Sociology of Education published in 1983 summarized these criticisms well by saying, “The concerns that most trouble us about Coleman, Hoffer and Kilgore’s analysis are their reliance upon crosssectional data and their inability to deal satisfactorily with the issue of selection biases” (Alexander & Pallas, p. 170). James Coleman and Thomas Hoffer responded to the criticisms by reanalyzing the national data they used in their 1982 study, this time conducting a longitudinal study instead of a cross-sectional study. While following students from 10th to 12th grades, they found that private school students experienced growth more rapidly than their public school counterparts (Coleman & Hoffer, 1987). There were many other studies concerning this comparison in the decade after Coleman’s first study, culminating in a high profile study that concluded that Catholic schools produced better educational results because of better academic and social environments (Bryk, Lee, & Holland, 1993). During the 1990’s, research generally turned from comparing private and public schools directly to focusing on the effectiveness of school vouchers. While many of the studies conducted found gains in academic achievement for voucher students, the results are far from conclusive. In 1998, Cecilia Rouse evaluated the Milwaukee Parental Choice program to determine whether vouchers led to improved test scores. While she did conclude that those enrolled in the Milwaukee Parental Choice Program scored an average of 1.5-2.3 more percentile points per year in math than those in public schools (the results for reading scores were mixed), Rouse eventually declared that “the results using the quasi-experimental applicant control group and the random sample of students from the Milwaukee public schools as a comparison group are remarkably similar” (Rouse, 1998, p. 592). Rouse’s entire study was based on data collected by University of Wisconsin-Madison professor John Witte in his study two years earlier (1996). Witte found similarly mixed results. Another study initially seemed to find vouchers having a positive effect on minority students (Peterson & Howell, 2001), but a follow-up study found mixed results and no real effect (Howell & Peterson, 2002). A Florida study took a much different approach, claiming that voucher systems actually had a positive effect on public schools in the area. The study found that the prospect of vouchers being instituted for schools with poor test scores raised
28 • Spring 2019
P R I VA T E A N D P U B L I C S C H O O L I N G
math and writing test scores by statistically significant amounts (Greene, 2001). The researchers concluded that it was likely a result of the prospect of competition creating positive marketplace-like effects on public schools. An accountability system of vouchers for failing schools caused Florida public schools to take the necessary steps to keep their students (Greene, 2001). Early studies comparing public and private schools and analyzing voucher programs tend to support the excellence of private schools. However, the data is far from conclusive, and many of the studies have a number of methodological issues that undercut the legitimacy of their findings.
Data and Methods This study performs secondary qualitative analysis on studies analyzing the effectiveness of private high schools at educating students in comparison to the effectiveness of public schools. It also relies on quantitative analysis conducted by other researchers. The analyzed studies were selected because they were all high profile national studies that used data from the 2000 and 2003 National Assessment of Educational Progress (NAEP). NAEP is a “cross-sectional survey that assesses what America’s students know and can do in various subject areas” (National Assessment of Educational Progress, 2017, para. 1). This study operationalizes the abstract concept of “effectiveness” as mean NAEP reading and mathematics scores, as compared between public and private schools. Different studies analyzed effectiveness in relation to the students’ socioeconomic status. Each study defined socioeconomic status differently, which contributed to much of the differences in findings. The term “public school” is defined in this study as “a free tax-supported school controlled by a local governmental authority” (Merriam-Webster, n.d.). The term “private school” is defined as “a school that is established, conducted, and primarily supported by a non-governmental agency” (Merriam-Webster, n.d.).
Research The National Assessment of Educational Progress
The National Assessment of Educational Progress (NAEP), also known as “The Nation’s Report Card,” is “the largest nationally representative and continuing assessment of what America’s students know and can do in various subject areas” (“An overview,” 2018, p. 1). It is run by the Commissioner of Education Statistics, who serves as the head of the National Center for Education Statistics. The National Assessment Governing Board, which is appointed by (but independent
Spring 2019 • 29
GEORGE WYTHE REVIEW
of) the Secretary of Education, sets the specifications for the assessments (“NAEP Overview,” 2016). The assessment applicable to this study is the NAEP Long-Term Trend Assessment. The long-term trend assessment measures are nationally administered tests for 9, 13, and 17 year olds (4th, 8th, and 12th grade) that have used substantially the same assessments since 1973 (“More About the NAEP,” 2013). The assessments measure mathematics through a variety of age-appropriate questions designed to measure students’ knowledge of mathematical facts and basic formulas, their ability to carry out computations using paper and pencil, and their ability to apply mathematics to daily-living skills (“More About the NAEP,” 2013). The assessments also measure reading through a variety of age-appropriate questions designed to measure students’ ability to “locate specific information in the text provided,” “identify the main idea in the text,” and “make inferences across a passage to provide an explanation” (“More About the NAEP,” 2013, para. 12). The questions are multiple-choice, and just over 26,000 students took the assessments in 2012. Finally, the sample is selected “using a complex multistage sampling design that involved sampling students from selected schools within selected geographic areas across the country” (“More About the NAEP,” 2013, para. 22). The long-term trend data is restricted and only available for licensed researchers, so this paper will focus on analyzing studies conducted using restricted-use data from 2000 and 2003 by licensed researchers.
The first major study released using data from the NAEP to compare public and private schools, “A New Look at Public and Private Schools: Student Background and Mathematics Achievement,” was conducted by Sarah Theule Lubienski and Christopher Lubienski and published in May 2005. The study used survey data from the 2000 NAEP assessment from a restricted-use CD-ROM because it was the most recent assessment with raw data available to researchers. The study focused solely on mathematical achievement in fourth graders and eighth graders. The Lubienskis explained that they stumbled upon the idea for this study while undertaking a broader study of mathematics instruction and equity. As a result, the socioeconomic status (SES) variable used in this study was actually created for a broader study, reducing the chance of bias when it came to creating the SES variable. Under their statistical models, mathematics achievement in public schools appeared higher than in private schools (Lubienski & Lubienski, 2005). For fourth grade students, they formed one student-level SES variable by combining six SES-related variables: "reading material in students’ homes, computer access at home, internet access at home, extent to which a student’s
30 • Spring 2019
P R I VA T E A N D P U B L I C S C H O O L I N G
studies are discussed at home, school lunch eligibility, [and] Title I eligibility" (all self reported, save the school lunch and Title I eligibility, which were from school records) (Lubienski & Lubienski, 2005, p. 697). For eighth grade students, variables of “mother’s education level” and “father’s education level” were added to create the one student-level SES variable. According to the Lubienskis, this SES variable was much stronger than the previously used school lunch variable (which only had three levels: free, reduced, and ineligible). Instead, four quartile groups were created: “low SES,” “low-mid SES,” “mid-high SES,” and “high SES” (Lubienski & Lubienski, 2005, p. 698). Their examination of overall, unweighted mathematics achievement was not surprising at all, since it is fairly common knowledge in the United States that private school students score better than public school students on standardized tests. The mean mathematics achievement of private schools was significantly superior to the achievement of public schools. On average in fourth grade, private schoolers scored a 233, while public schoolers only scored 227 (see Figure 1). In eighth grade, the difference increased slightly, with private schoolers scoring an average of 281, compared to the public school average of 274 (see Figure 2) (Lubienski & Lubienski, 2005).
Figure 1. Fourth-grade mean mathematics achievement by school sector (Lubienski & Lubienski, 2005, p. 698).
Spring 2019 • 31
GEORGE WYTHE REVIEW
Figure 2. Eighth-grade mean mathematics achievement by school sector (Lubienski & Lubienski, 2005, p. 698). Instead of stopping at this conclusion, the Lubienskis decided to take a route that would make their study more influential than they could have ever imagined: However, we also found, not surprisingly, that private schools enrolled larger concentrations of high-SES students. For example, at each grade level, while less than 40% of the public schools were of high SES (meaning that their SES was above the median for all schools sampled), over 80% of private schools were of high SES. So we wondered whether the public-private school achievement difference was due simply to SES differences, or if the private school advantage would persist within each SES group. In order to examine this, we compared the mean mathematics achievement of public and private schools within each of the four SES quartiles (Lubienski & Lubienski, 2005, p. 698) Figures 3 and 4 show the results of the new results (see next page):
32 â&#x20AC;˘ Spring 2019
P R I VA T E A N D P U B L I C S C H O O L I N G
Figure 3. Fourth-grade mean mathematics achievement within each SES quartile by school sector (Lubienski & Lubienski, 2005, p. 699).
Figure 4. Eighth-grade mean mathematics achievement within each SES quartile by school sector (Lubienski & Lubienski, 2005, p. 699).
Spring 2019 â&#x20AC;˘ 33
GEORGE WYTHE REVIEW
Interestingly, the Lubienskis (2005) found that the public school mean was actually higher than the private school mean in each SES quartile. This is called Simpson’s Paradox: although each subgroup shows the public school mean as higher than the private school mean, the overall private school mean is higher than the public school mean because they have a larger proportion of high-SES students than the public schools have. While the Lubienskis (2005) noted that the data is cross-sectional and mostly self-reported, meaning that the correlations between the type of school and the achievement earned are not necessarily causal, it sparked a number of other studies and critical responses. The second major study to come out using data from NAEP to compare public and private schools, “Comparing Private Schools and Public Schools Using Hierarchical Linear Modeling,” was conducted by Henry Braun, Frank Jenkins, and Wendy Grigg and published in July 2006 by the National Center for Education Statistics (NCES). The study used survey data from the 2003 NAEP assessment from a restricted-use CD-ROM because it was the most recent assessment with raw data available to researchers, and it focused on both reading and mathematical achievement (Braun, Jenkins, & Grigg, 2006). Like the Lubienski study, the NCES study examined results from Grade 4 and Grade 8. It also adjusted the private and public school test scores based on socioeconomic status (SES). However, it used different variables to measure SES. While the Lubienski study used six student-level variables to determine SES, the NCES study split the standard NAEP weight into a student factor and a school factor. The variables used are listed in Table 1 (see next page). Braun, Jenkins, and Grigg (2006) found similar results to the Lubienskis (2005). The unadjusted mean reading achievement of private schools was significantly superior to the achievement of public schools. On average in fourth grade, private schoolers scored 14.7 points higher than public schoolers. In eighth grade, the difference increased slightly, with private schoolers scoring an average of 18.1 points higher than public schoolers. When adjusted for SES, the difference in means was near zero and not significant for Grade 4. However, in Grade 8, the difference in means was 7.3 points after adjusting for SES, meaning that private schools still performed better than public schools (Braun, Jenkins, & Grigg, 2006, pp. iii-iv). The unadjusted mean mathematic achievement of private schools was also significantly superior to the achievement of public schools. On average in fourth grade, private schoolers scored 7.8 points higher than public schoolers. In eighth grade, the difference increased slightly, with private schoolers scoring an average of 12.3 points higher than public schoolers. When adjusted for SES, the difference in means was -4.5 for Grade 4, meaning that public schools actually performed
34 • Spring 2019
P R I VA T E A N D P U B L I C S C H O O L I N G
Students with disabilities
English language learners
Percentage of students excluded
Computer in the home
Percentage of students by race/ ethnicity
Eligibility for free/reduced-price school lunch
Participation in Title I
Number of books in the home
Region of the country
Number of absences
Percentage of students eligible for free/reduced-price lunch Percentage of students with a disability Percentage of English language learners Percentage of students in the Title I program School size
Table 1. NCES student and school variables (Braun, Jenkins, & Grigg, 2006, p. 7). better than private schools. In Grade 8, the difference in means was nearly zero and not significant (Braun, Jenkins, & Grigg, 2006, pp. iii-iv). Braun, Jenkins, and Grigg (2006) concluded that private schools generally tested higher than public schools, but when the scores were adjusted for SES, the public schools performed just as well as private schools. In three out of the four areas studied, public schools performed just as well or better than private schools. In addition, “the combination of selected student and school characteristics accounted for about one-third of the total variance for grade 4 and about twofifths of the total variance for grade 8” (Braun, Jenkins, & Grigg, 2006, p. iv). Other recent but less high profile studies using NAEP data have come to similar conclusions (Lubienski & Lubienski, 2014; Wenglinsky, 2007). However, this group of studies has attracted a wide amount of criticism.
Spring 2019 • 35
GEORGE WYTHE REVIEW
Criticisms of Studies Based on NAEP Data
In 2014, the Cato Institute summarized four criticisms of these studies, specifically focusing on Sarah and Christopher Lubienski’s most recent book, “The Public School Advantage: Why Public Schools Outperform Private Schools,” which built on data from their first study. First, Patrick Wolf, a professor in the department of education reform at the University of Arkansas, pointed out: [T]he Lubienskis ignore numerous performance measures—including graduation rates, college matriculation, future income, parental satisfaction—that give a decided advantage to private schools, even after controlling for student characteristics. They narrowly define performance as math scores on two national tests, ignoring the reading data that also show higher private-school performance. (Bedrick, 2014, para. 4) Even for the NCES study, which includes reading data as well, performance measures outside the test scores are not examined, despite the researchers bringing in other factors to measure SES. Second, Wolf revealed that prior to the NAEP data collection, the math tests were altered to more closely align with the way math is taught in public schools as opposed to private schools. The Lubienskis admit that “the professional development of math teachers changed in the late 1980s to emphasize math reasoning and problem solving and de-emphasize math facts and computations” (Bedrick, 2014, para. 3). In general, public schools embraced the new curriculum, while private schools emphasized more traditional math content. As such, the NAEP tests studied how well private and public schools learned the new brand of math, rather than truly measuring math skills. Third, Jay P. Greene, head of the Department of Education Reform at the University of Arkansas, noted that the Lubienskis and NCES ignored evidence from randomized controlled trials: The net effect of these three methodological choices, plus the fact that standardized math results are more closely aligned with how the subject is taught in public than private schools, strongly skew the results in favor of public schools. The beauty of randomized experiments is that their results are not so easily manipulated by bizarre choices of what is controlled. But the Lubienskis don’t like randomized experiments. Advocates for quack medicine also tend not to like randomized experiments. They don’t let you selectively
36 • Spring 2019
P R I VA T E A N D P U B L I C S C H O O L I N G
control for things until you get the answer you want. (Bedrick, 2014, para. 5) Fourth, none of the studies bring up the question of monetary efficiency (academic achievement per dollar spent per pupil). For example, while the test scores of students in the Milwaukee voucher program mentioned in the literature review were not statistically superior to the control group of public school students, the private schools achieved these results at approximately half the cost per pupil of the public school (Rouse, 1998, pp. 592-593). An article in the Journal of School Choice found that “[t]here are only 13 statistically insignificant findings among market [private school] versus monopoly [public school] comparisons, and every finding comparing the efficiency of market and monopoly schooling is both statistically significant and favors markets” (Coulson, 2009, p. 48). Mark Dynarski, a Senior Fellow at the Brookings Institution, also commented on the fact that costs were not mentioned in the studies in his article, “Public or Private School? It Shouldn’t Matter” (2014). He added that the findings are disconnected from the choices that parents actually have to make. Dynarski (2014) explained that “[p]arents see real schools, not hypothetical ones,” so they would prefer to send their children to schools with better test scores and graduation rates even if those statistics are largely a result of the SES of the students at these schools (para. 7). Dr. Paul E. Peterson and Dr. Elena Llaudet, professors of government at Harvard University and Suffolk University, respectively, published a paper “On the Public-Private School Achievement Debate” that pointed out a number of issues with the NCES study (that also apply to the Lubienski study). First, they argued that [i]nstead of making use of information provided by the students themselves, the report relies heavily upon administrative data collected for other purposes. As a result, the study, in its statistical analysis, “under-counts” the incidence of low income and educationally disadvantaged students within the private sector while “over-counting” the frequency of the same in the public sector. (Peterson & Llaudet, 2006, pp. 2-3) Second, they claimed that while taking an NAEP test, some students are allowed special accommodations like extended time, one-on-one administration, and use of magnifying equipment. According to Peterson and Llaudet (2006), such accommodations were used much more frequently in the public schools being tested than in the private schools being tested.
Spring 2019 • 37
GEORGE WYTHE REVIEW
Third, Peterson and Llaudet said that classification decisions were not made consistently for both sides of the comparison. Many of the background characteristics of students were inferred from their participation in the Title I program for disadvantaged students, the National School Lunch Program, programs for Limited English Proficient students, and the Individualized Education Program. However, many private schools do not use these federal government funded programs, and public and private school officials have differing incentives to classify students in these programs (Peterson & Llaudet, 2006). Finally, the NCES study suffers from post-treatment bias, which is when “one controls for a factor that is itself a consequence of the intervention one is studying” (Peterson & Laudet, 2006, p. 14). Peterson and Llaudet (2006) focused on three variables in the NCES study which may be affected by the type of school the student attended (and thus are affected by post-treatment bias): the students’ absenteeism rate, number of books in a student’s home, and availability of a computer in the home.
In response to this laundry list of issues with the NCES and Lubienski studies, Peterson and Llaudet created a number of alternative models that relaxed the questionable assumptions made in the aforementioned studies. The models they created are as follows: Alternative Model I uses as its measure of family background the parental education and school location (region and urban/suburban/rural) variables in lieu of NCES’s Title I and Free Lunch variables. Model II also excludes the LEP and IEP variables, replacing them with variables based on student reports of the frequency with which a language other than English is spoken at home and teacher reports of whether the child suffers from a profound or moderate disability. Model III resembles Model II, except that it eliminates the potential for post-treatment bias by deleting the absenteeism, computer, and books in the home variables. Some may think that Model III suffers from omitted variable bias, as it does not include sufficient indicators of the student’s family background. Those for whom this is a concern should place greater weight on Model II, which contains these variables, despite the risk of post-treatment bias. (Peterson & Llaudet, 2006, p. 22) After replicating the NCES study, Peterson and Llaudet applied the alternative models to the data. For Eighth Grade Math, Model I (introducing Parental
38 • Spring 2019
P R I VA T E A N D P U B L I C S C H O O L I N G
Education as a substitute for Title I and Free Lunch variables) showed students at private schools outperforming their public school peers by 3 points. Model II (replacing the LEP and IEP variables with Language Spoken at Home variable and Severe or Moderate Disability indicator) showed private schools outperforming public schools by 5 points. For Model III (removing post-treatment bias), the private sector advantage was 6.5 points. All three of these models represent a stark contrast to the parity between public and private schools that the NCES study found (Peterson & Llaudet, 2006). For Fourth Grade Math, Model I showed students at private schools performing at approximately the same level as their public school peers. Model II showed private schools outperforming public schools by 2 points. For Model III, the private sector advantage is 3 points. All three of these models contradict the 4.5 point advantage for public schools that NCES reported (Peterson & Llaudet, 2006, p. 44). For Eighth Grade Reading, Model I showed students at private schools outperforming their public school peers by 9 points. Model II showed private schools outperforming public schools by 11 points. For Model III, the private sector advantage is 12.5 points. All three of these models have significantly higher results than even the 7 point private sector advantage that the NCES study revealed (Peterson & Llaudet, 2006). For Fourth Grade Reading, Model I showed students at private schools outperforming their public school peers by 7 points. Model II showed private schools outperforming public schools by 8 points. For Model III the private sector advantage is 10 points. All three of these models call into question the parity between public and private schools that the NCES study found (Peterson & Llaudet, 2006). In the end, Peterson and Llaudet concluded that while their data seemed to indicate that private schools are superior to public schools, the NAEP data is too fragile to serve as the foundation for any inferences about school sector effects. However, it can be concluded that the conclusions by the Lubienskis and NCES that public schools perform statistically better than private schools are ultimately unfounded (Peterson & Llaudet, 2006).
Conclusion Studies that use national data, such as the National Assessment of Educational Progress, are attractive because they feel comprehensive and final; however, in actuality, they are riddled with flaws. It is difficult to draw any meaningful conclusions from the Lubienski study, the National Center for Education Statistics study, or the alternative models presented by Peterson and Llaudet because of two
Spring 2019 â&#x20AC;˘ 39
GEORGE WYTHE REVIEW
major flaws: the NAEP is a cross-sectional study, and the variables chosen to adjust for socioeconomic status will always be influenced by researcher bias. Two routes could be taken to remove these problems. To remove the first flaw, a longitudinal study should be performed to provide more accurate results. For the second flaw, instead of adjusting data on a national level for socioeconomic status, a study should be done comparing data between schools of comparative socioeconomic status. Comparing the test scores of poor private schools with the test scores of poor public schools, and doing the same with rich private and public schools, will provide a much better comparison than adjusting the scores of poor students and giving rich students a handicap for their socioeconomic status.
40 â&#x20AC;˘ Spring 2019
P R I VA T E A N D P U B L I C S C H O O L I N G
Reference List Alexander, K. L., & Pallas, A. M. (1983). Private schools and public policy: New evidence on cognitive achievement in public and private schools. Sociology of Education, 56(4), 170-182. Alt, M. N., & Peter, K. (2002). Private schools: A brief portrait. National Center for Education Statistics. Retrieved from https://nces.ed.gov/ pubs2002/2002013.pdf An overview of NAEP. (2018). Retrieved from https://nces.ed.gov/ nationsreportcard/subject/about/pdf/NAEP_Overview_Brochure_2018.pdf Bedrick, J. (2014, March 28). Yes, private schools beat public schools. The Cato Institute. Retrieved from https://www.cato.org/publications/commentary/ yes-private-schools-beat-public-schools Braun, H., Jenkins, F., & Grigg, W. (2006). Comparing private schools and public schools using hierarchical linear modeling. National Assessment of Educational Progress. Retrieved from https://nces.ed.gov/nationsreportcard/ pdf/studies/2006461.pdf Bryk, A. S., Lee, V. E., & Holland, P. (1993). Catholic schools and the common good. Cambridge, MA: Harvard University Press. Coleman, J. S., & Hoffer, T. (1987). Public and private high schools: The impact of communities. New York, NY: Basic Books. Coleman, J. S., Hoffer, T., & Kilgore, S. (1982). High school achievement. New York, NY: Basic Books. Coulson, A. J. (2009). Comparing public, private, and market schools: The international evidence. Journal of School Choice, 3(1), 31-54. doi:10.1080/15582150902805016 Dynarski, M. (2014, June 12). Public or private school? It shouldnâ&#x20AC;&#x2122;t matter. The Brookings Institution. Retrieved from https://www.brookings.edu/research/ public-or-private-school-it-shouldnt-matter/
Spring 2019 â&#x20AC;˘ 41
GEORGE WYTHE REVIEW
Greene, J. P. (2001). An evaluation of the Florida A-plus accountability and school choice program. New York, NY: The Manhattan Institute. Retrieved from https://www.manhattan-institute.org/pdf/cr_aplus.pdf Hefling, K., & Wermund, B. (2017, March 17). Can DeVos sell school choice to America? Politico. Retrieved from http://www.politico.com/story/2017/03/ devos-becomes-saleswoman-in-chief-for-school-choice-236276 Howell, W. G., & Peterson, P. (2002). The education gap: Vouchers and urban public schools. Washington, DC: Brookings Institution. Hurst, K. W. (2017, January 19). Betsy DeVos, Trump’s education pick, shouldn’t be anywhere near our children. The Root. Retrieved from http:// www.theroot.com/betsy-devos-trump-s-education-pick-shouldn-t-beanywh-1791359760 Lubienski, C., & Lubienski, S. T. (2005). A new look at public and private schools: Student background and mathematics achievement. Phi Delta Kappan, 86(9). Retrieved April 19, 2017, from Christopher Lubienski at Researchgate. net. Lubienski, C., & Lubienski, S. T. (2014). The public school advantage: Why public schools outperform private schools. Chicago, IL: The University of Chicago Press. McNaull, C. (2017, March 20). Local private schools use public funds in variety of ways. Mansfield News Journal. Retrieved from http://www. mansfieldnewsjournal.com/story/news/local/2017/03/20/local-privateschools-use-public-funds-variety-ways/99139988/ More about the NAEP long-term trend assessment. (2013). National Center for Education Statistics. Retrieved from https://nces.ed.gov/nationsreportcard/ ltt/moreabout.aspx NAEP Overview. (2016, March 30). National Center for Education Statistics. Retrieved from https://nces.ed.gov/nationsreportcard/about/ National Assessment of Educational Progress, 2003 [Data set]. (2017). National Center for Education Statistics. Retrieved from https://catalog.data.gov/ dataset/2003-national-assessment-of-educational-progress
42 • Spring 2019
P R I VA T E A N D P U B L I C S C H O O L I N G
Peterson, P. E., & Llaudet, E. (2006). On the public-private school achievement debate (Working Paper No. RWP06-036). Program on Education Policy and Governance. Retrieved from https://papers.ssrn.com/sol3/papers. cfm?abstract_id=902389 Peterson, P., & Howell, W. (2001). Exploring explanations for ethnic differences in voucher impacts on student test scores. In T. Loveless & J. E. Chubb (eds.), Ending the test-score gap. Washington, DC: Brookings Institution. Private school. (n.d.). In Merriam-Webster. Retrieved from https://www. merriam-webster.com/dictionary/private+school Public school. (n.d.). In Merriam-Webster. Retrieved from https://www.merriamwebster.com/dictionary/public%20school Rouse, C. E. (1998). Private school vouchers and student achievement: An evaluation of the Milwaukee Parental Choice Program. Quarterly Journal of Economics, 113(2), 553-602. Sparling, H., & Balmert, J. (2017, March 9). Private schools $400M public check. The Enquirer. Retrieved from https://www.cincinnati.com/story/news/ politics/2017/03/08/private-schools-400m-public-check/97659884/ Wenglinsky, H. (2007). Are private high schools better academically than public high schools? Center on Education Policy. Retrieved from https://www.cepdc.org/displayDocument.cfm?DocumentID=121 Witte, J. F. (1996). Who benefits from the Milwaukee choice program? In B. Fuller, R. Elmore & G. Orfield (eds.), Who chooses? Who loses? Culture, institutions and the unequal effects of school choice. New York, NY: Teachers College Press.
Spring 2019 â&#x20AC;˘ 43
GEORGE WYTHE REVIEW
EFFECTIVE AID: PRINCIPLES AND PITFALLS Manus Churchill Abstract This study considers the impact of foreign aid on recipient localities, taking into account the various forms and sources of foreign aid and the impact that these differences have on the effectiveness of the aid administered. This study attempts to discover factors that make foreign aid more or less helpful by exploring what both the givers and the receivers can do to maximize the benefit of foreign aid. These considerations support the studyâ&#x20AC;&#x2122;s finding that helpful and sustainable aid must focus on long-term effects, discover the assets and needs of the recipient before reaching a solution, and enable the recipient to be self-sustaining rather than dependent. ___________________________________
44 â&#x20AC;˘ Spring 2019
Introduction A story is told of a man who, growing concerned about the rapid decline in his wife’s hearing, decided to do something about it. After discussing the matter with his doctor, he decided to find out just how bad her hearing was before bringing her in for treatment. That night, while his wife was cooking dinner, the man called out from the living room and asked, “What’s for dinner?” Hearing no response, the man moved to the dining room and repeated his question, but he received no reply. He asked once more, this time from the kitchen door, but still, only silence. Shocked and upset at her apparent deafness, he stood directly behind her and asked the same question a fourth time. His wife turned around and replied, “Honey—for the fourth time now, I said we are having chicken!” While the story of the deaf man may be apocryphal, its moral is sadly applicable to many real-life attempts at poverty alleviation. Misdiagnosis and a lack of self-awareness consistently derail poverty alleviation endeavors all over the world, and these counterproductive efforts come at a very real cost to both the givers and the recipients of the aid. Hundreds of billions of dollars of aid flow over international borders every year, but much of it is later found to have ultimately hurt its recipients (Adleman, Schwartz, & Riskin, 2016). The Organization for Economic Cooperation and Development is a group of countries that gather over the common purpose of facilitating the efficient distribution of international aid. OECD member countries allocate approximately $150 billion in aid every year (Organization for Economic Cooperation and Development/Development Assistance Committee, 2016). According to official Congressional Research Service numbers, the United States alone annually spends in the range of $50 billion (Tarnoff & Lawson, 2018). This money goes to foreign assistance programs and initiatives designed to support “myriad objectives, including promoting economic growth, reducing poverty, improving governance, expanding access to health care and education, promoting stability in conflictive regions, countering terrorism, promoting human rights, strengthening allies, and curbing illicit drug production and trafficking” (Tarnoff & Lawson, 2018). Here, the Congressional Research Service includes counter-terror military spending in its definition of foreign aid without explanation, but this inclusion is a contentious one. An organization dedicated to encouraging cooperation among its member countries, the OECD has created certain standards to facilitate efficiency, including an official definition of foreign aid that specifically excludes military spending (Organization for Economic Cooperation and Development, 2018). The United States passed the Mutual Security Act of 1957 the same year OECD was founded, similarly excluding military spending from the United States’ own definition of foreign aid. However, certain pockets of the U.S. government
Spring 2019 • 45
GEORGE WYTHE REVIEW
persist in including such spending in their calculations of foreign aid. In the latest Congressional Research Service (CRS) report, military spending amounts to over $16 billion of the purported $49.46 billion spent on foreign aid (Tarnoff & Lawson, 2018). While the CRS’s inclusion of military spending as a form of foreign aid may be contentious, research indicates that—regardless of how it is defined—official government aid constitutes only a tiny portion of total global poverty alleviation efforts. According to the Hudson Institute, private aid dwarfs official governmental aid at a ratio of more than five to one worldwide, bringing aid from the $150 billion range to the $800 billion to $1 trillion range (Adleman et al., 2016). Regardless of the source, attention must be paid to the manner in which aid is distributed. Fortunately, much research has been done in recent years on the characteristics of productive aid. The last two decades especially have produced a significant body of research on how to avoid repeating common mistakes in aid administration. It is largely from this body of research that this study attempts to discover the principles behind helpful and sustainable foreign aid.
Data and Methods This study employs both quantitative and qualitative methods as it searches for the principles behind helpful and sustainable aid. Discovering these principles and applying them thoughtfully and thoroughly is an important endeavor given the vast and increasingly large amounts of money being invested by prosperous countries into aid efforts all around the world. Aid is considered by many to be an action intended to improve the economic condition of the recipient, and economic actions are to some degree inherently
Figure 1. Graph illustrating worldwide spending on aid, broken down between private and official aid (Adleman et al., 2016).
46 • Spring 2019
quantitative in nature. While there is disagreement about how best to distribute and receive aid, it is generally accepted that the successful administration of aid quantitatively lifts the economic condition of recipients whereas unsuccessful aid fails to do so. Thus, quantitative economic analysis is important in the search for the principles behind effective aid. Because aid is a historical and personal matter as well as an economic one, it is also necessary to utilize qualitative analysis. Improving the quality of life of those receiving aid is probably the strongest personal appeal behind aid efforts, especially with private aid; qualitative factors of this sort cannot be ignored. This study will emphasize the theoretical and qualitative side in an attempt to provide balance to the heavily quantitative-leaning perspective offered by most current research. This study begins its search by discussing the problem of poverty itself. Before examining specific efforts to alleviate poverty, it is necessary to discuss the nature of poverty. Poverty is an economic realityâ&#x20AC;&#x201D;but it is also intensely personal. Poverty cannot be holistically understood by the mere acknowledgment of low incomes or economically subpar standards of living. Thus, understanding poverty requires a mixed approach that incorporates a measure of both quantitative and qualitative analysis. The study then attempts to identify common mistakes in the administration of aid. As the initial story of the deaf man illustrates, nothing can compensate for a lack of self-awareness when it comes to helping others effectively. This is very often the source of the problem, as the givers of aid have an undeniably vital role in determining the outcome of the aid that they administer. On the other hand, the recipient cannot escape scrutiny either. Recipients, likewise, play a very significant role in determining whether the aid they receive is ultimately helpful or harmful. These factors will again be considered from a mixed quantitative and qualitative standpoint. Finally, this study considers what ought to be done given the problem of poverty itself and the common issues in addressing it. It identifies viable models for aid reform, explores how they operate and function, and proposes that certain elements be emphasized in aid, both personal and organizational, going forward.
The Problem of Poverty Before poverty can be addressed, it must first be defined. Defining poverty is not as simple as it may initially seem. The World Bank officially defines the poverty line as resting at $1.90 USD per day; however, this statistic is not sufficient to define poverty. A multitude of other factors must be taken into consideration as wellâ&#x20AC;&#x201D;the cost of rent, the cost of access to clean water, and the cost of saving and borrowing money in a locality, among others (World Bank Group, 2018).
Spring 2019 â&#x20AC;˘ 47
GEORGE WYTHE REVIEW
Attempts have been made to create an official definition of poverty accounting for these factors. One such approach, advocated by David Gordon writing for the United Nations, takes many factors into account, including access to food, water, healthcare, shelter, education, information, and other social services (Gordon, 2005). The United Nations Development Program itself takes a different approach, defining poverty as any income that rests below 60% of the median income in the country. This effectively makes poverty a product of income inequality within a given political jurisdiction rather than a measurement of the actual living conditions or incomes of those being classified as poor (Bradshaw et al., 2012). In an informal study, the vast majority of middle to upper-class Americans defined poverty in terms of a lack of material goods such as food, water, housing, medicine, etc. (Corbett & Fikkert, 2012). This makes sense, as the prosperity that many Americans enjoy is marked by the presence of such amenities in abundance. Americans—and those in the Western world in general—enjoy the benefits of staggeringly high personal incomes and prosperous national gross domestic products and thus tend to have superior access to food, water, medicine, and education when compared to the developing world. An economically-centered approach to understanding poverty is not without merit. Each definition of poverty referenced above is essentially economic in nature and reflects a crucial aspect of poverty. An individual or a family unit that does not earn enough money to pay for the basic necessities of life can reasonably be considered poor. Indeed, it is hard to imagine defining an individual who is earning less than a dollar per day without access to clean water or proper sanitation as living above the poverty line; however, that reality does not simplify the task of creating a single economic definition of poverty. In contrast to the middle and upper-class Americans who tend to define poverty in almost exclusively economic terms, the poor themselves tend to define poverty in intensely personal terms (Corbett & Fickert, 2012). The World Bank once conducted an extensive study of 30,000 poor individuals from 30 countries asking them to define poverty. It found that the poor have a strong tendency to describe their poverty in social and psychological terms rather than the economic terms that wealthier Americans use (Narayan & Walton, 2000). Respondents used terms such as “ill,” “humiliated,” “shamed,” “fearful,” “depressed,” “unhappy,” “inferior,” “unsatisfied,” and “stuck” to describe their situations (Narayan & Walton, 2000). Though these people were themselves suffering from hunger, thirst, lack of medical care, and insufficient income, such characteristics did not immediately come to mind when they were asked to define their state. This is an important reality to consider for those attempting to offer aid. An influx of money and other resources can certainly help to alleviate the economic side of poverty; however, such a tactic may not alleviate the personal
48 • Spring 2019
realities of poverty. This study thus proceeds with an understanding of poverty that includes the economic reality of poverty while at the same time considering the equally real psychological and social realities of poverty by which the poor themselves define poverty. The insufficient incomes, limited access to food and water, and inferior education experienced by the world’s poor are important aspects of poverty that the Western world is relatively well equipped to combat. At the same time, while not as easily addressed, the fear, helplessness, and humiliation experienced by the world’s poor must be recognized as equally integral parts of the experience of poverty (Büthe, Major, & Souza, 2012). The difficulty with precisely defining poverty suggests that there may be different types of need being studied. Rather than argue in support of a single definition of poverty, some researchers propose that the need that exists in poverty comes in very different forms and that the differences between these forms are substantial enough to warrant very different approaches. While different categorizations are possible, poverty can be meaningfully divided into two large categories based on how directly it threatens the lives of those experiencing it. The first of these large categories is urgent need—the type that immediately threatens the lives of those subjected to it. This acute kind of need is often seen after a natural disaster such as a tsunami or an earthquake or a flood. Real, acute poverty is a hallmark of the immediate aftermath of these types of emergencies. Resources are needed urgently for the survival of those impacted: clean water may need to be shipped in, medical attention given, food distributed, and temporary shelter provided. Those needing this emergency aid are experiencing a unique and acute type of poverty and have little to no ability to assist themselves. Economists are fond of repeating the maxim that there are no needs, only necessary means to desired ends; in these types of situations, outside aid is the necessary means to the desired end of survival (Sowell, 2015). Aid in response to urgent need often comes in the form of dumping resources on the impacted area. Whether that translates to convoys of food trucks, medical supplies, and doctors being sent to help the ailing, or cash money to local authorities responding to the crisis, this type of aid is the most practical and aims to address very tangible and short-term needs. This type of aid must be delivered quickly, given the urgency of the situation. There is no time to worry about supporting local tent-makers when people will rapidly begin to die of exposure if they are not provided with some sort of shelter. Though highly impactful, genuinely urgent need accounts for only a small portion of the need addressed by aid efforts. By far the larger of the two categories of need is non-urgent need. This second category includes needs that arise from the lack of certain standards of sanitation, poor education, long distances to potable water, relatively low incomes, and other genuinely important but non-life-
Spring 2019 • 49
GEORGE WYTHE REVIEW
threatening matters. Poor people around the world experience heartbreaking need in all of these areas and more, and outside help in these areas may not only be helpful but necessary. In contrast to the speedy, eminently practical type of aid that urgent need calls for, non-urgent need calls for a relatively measured approach. It is not enough to pour resources into an area suffering from systemic poverty, crippling corruption, or a stifling sense of inferiority and helplessness. In fact, it is very often actively harmful to simply dump resources on these areas. A single dump of resources, or even a string of dumps, does not fix the roots of systemic poverty. Resources can encourage rather than eradicate corruption, and the inferiority and helplessness of those who feel stuck in poverty is likely to be deepened rather than alleviated by that type of outside help (Corbett & Fickert, 2012). This study aims to distinguish between urgent and non-urgent need, especially with regards to non-urgent need being falsely classified as urgent need to the detriment of both the giver and the recipient.
Common Pitfalls in Aid This study aims to discover the principles behind the delivery of effective aid. Prior to embarking on this task, it is important to consider some of the most common pitfalls in aid. These pitfalls are seen in all sorts of aid, from the personto-person aid that might be offered to a homeless man by a commuter all the way up to the large-scale donations of international aid organizations and the most prosperous governments in the world. It is not a simple matter of reforming the way that aid is given or working harder to find the ideal recipientâ&#x20AC;&#x201D;pitfalls lie at every corner. The effectiveness of aid can be hampered on both sides of the equation, and both the giver and the receiver must look to themselves first if aid is going to be delivered effectively. Beginning with an exploration of the negative principles of aid will ease the search for the positive principles. Given the limited nature of this study, this exploration is not exhaustive by any means. However, this section does consider large categories of commonly-made mistakes and attempts to tie them back to a framework that will prove helpful for the discovery of principles of effective aid. This section is divided into three subsections: the first deals with the problem of improperly matching solutions to problems, the second with problems in the givers of aid, and the third with problems in the recipients.
Misdiagnosing and Improperly Treating the Problem
The wrong remedy to a conflict is often applied when a non-urgent need is misidentified as an urgent need. Because both urgent and non-urgent situations
50 â&#x20AC;˘ Spring 2019
deal with important needs, it is easy to falsely attribute an equal sense of urgency to both types of situations and to then treat them identically. This can have devastating consequences for the communities receiving the unnecessarily urgent aid as researchers Steve Corbett and Brian Fikkert (2014) explored in their book, When Helping Hurts. Corbett and Fikkert (2014) built off the concept of urgent and non-urgent needs and divided aid into three categories: relief, rehabilitation, and development. Relief is aid given in response to urgent needsâ&#x20AC;&#x201D;convoys of food trucks, medical supplies and doctors, and one-off cash assistance to impacted jurisdictions. This type of aid is usually the most appropriate immediate response to devastating natural events. Relief inherently focuses on the short-term. Rehabilitation and development both focus on the long-term good of the communities receiving the assistance. Rehabilitation focuses on helping individuals and communities return to their pre-crisis state, whether economically, socially, or otherwise. The timeline of rehabilitation is flexible, as the goal of restoration is not contingent on a particular time-frame. Development focuses on helping individuals and communities move closer to the ideal economic or social state, regardless of their current or previous state. Development requires the active participation of the recipient, as it aims to work with rather than for the people and communities. Applying relief tactics when rehabilitation or development would have been more appropriate is destructive because it removes the recipient from the aid process. Relief is a giver-centric model and is thus designed to achieve goals determined by the giver rather than by the recipient. Outsiders are under-equipped to accurately identify the most important problems in communities that they do not themselves live in. Even if they were to correctly identify the main problems facing the recipient, the tackling of a local problem by an outsider can further ingrain local senses of inferiority and helplessness. Locals may feel that they have been labeled incapable of solving their own problems. Given that the poor understand their own poverty as a sense of humiliation and helplessness, actions performed on the poor that end up adding another layer of helplessness on top of preexisting feelings are counterproductive at best and genuinely harmful at worst. Though harmful when misapplied, relief is by far the easiest method of aid to administer. The results are immediate, easily recognizable, and easy to report to those funding the program. Relief is also very often the form of aid requested by the locals. In addition, much aid comes in the form of short-term humanitarian aid trips. Given the long-term investment in time and resources required to perform rehabilitation and development, it is nearly impossible for a short-term trip to meaningfully administer either of these types of aid. Locals are generally
Spring 2019 â&#x20AC;˘ 51
GEORGE WYTHE REVIEW
equipped to build latrines for themselves; yet outsiders regularly appear on shortterm trips and build these things for the locals. This furthers paternalistic attitudes in the givers and helplessness in the recipients, deepening the poverty of the poor by their own attitudinal definition.
Failed attempts at assisting an individual or community are often traceable to the givers themselves. Those administering aid have a responsibility to do everything in their power to give aid in a responsible, helpful, and sustainable manner. Aid that fails to help the recipient in the long-term is simply failed aid, except in the occasional situation where short-term relief is genuinely required to keep the recipients alive or free from some extraordinary consequence. Though the recipient indisputably bears much responsibility in ensuring the effective distribution of aid, the majority of research on the topic of maximizing the effectiveness of aid focuses on the giver’s responsibility. This study explores three of these pitfalls: cookie-cutter giving, short-term focuses, and savior complexes. Hundreds of billions of U.S. dollars are given in aid every single year (Adleman et al., 2016). Considering the scale of the aid given worldwide annually, it is impossible to completely personalize every act of aid to the needs of the individual recipient, the nuances of their culture, and their particular goals. Even within a given community, there will never be complete agreement as to the source of or solution to a problem. The difficulty of personalizing aid and including recipients in the solutions to their own problems does not in any way negate the harm of applying cookie-cutter solutions to problems. It is certainly easier to treat all similar crises the same; however, applying farming solutions that work in Nebraska to the problems faced by farmers in Thailand is an inefficient use of resources and runs the same risk of furthering the poverty mindset of the poor without necessarily delivering the benefit of improved crop yields. Stories abound of cookie-cutter approaches and the havoc that they bring. Homes lie empty in areas desperately in need of shelter because the bathroom is built in a culturally inappropriate part of the house; perfectly good tractors rust away in parts of the world that have no use for them while fields lay fallow in other parts of the world that need tractors badly; food rots away while people starve nearby because the corruption in the area was not considered when the food was donated (Chang, 2007). Each scenario reveals the potential for harm and waste when a cookie-cutter approach to aid is used. The cookie-cutter approach has been dubbed “McDevelopment” to reflect its cheap, chintzy nature and the lack of lasting satisfaction that comes from its practice. Careless McDevelopment has wasted countless billions of dollars over the years and has harmed local communities in the process.
52 • Spring 2019
A focus on short-term results is another common pitfall. Short-term results bring in donations quickly. Such a focus gives the appearance of efficiency, allowing an organization to move from community to community delivering goods and making great photo shoots without giving thought to the impact of their actions on the local people after they leave. Focus on the short term essentially limits efforts to relief, making it impossible to rehabilitate or develop an individual or community. A shortened time frame also cuts the discovery process short, making it difficult for the giving individual or organization to identify the real root of the problem or the best long-term solution to the issue at hand. A community may reach out and make it known that they lack water. If an organization immediately steps in to dig a deep well with a state-of-the-art solar-powered pump, it may spend all these resources without realizing that wells already abound in the area and that the real need is for political stability to enforce the rules surrounding water rights. In addition, a deep well with a fancy solarpowered pump may not be the best solution, especially if no local expertise exists to maintain that pump. Effective aid requires a long-term view and thoughtful exploration of the root of the problem, not just raw resources or responsiveness to apparent needs (Hazlitt, 2014). Corbett and Fikkert (2014) emphasized that aid that stems from a “savior complex” hurts both the giver and recipient. Savior complex driven giving leads to inferiority complexes on the part of recipients. This deepens the recipient’s poverty, as he is told through the actions of a wealthier individual with a savior complex that he is incapable of helping himself and must instead rely on outside help. Paternalism leads people and organizations to do for the impoverished what they could have done for themselves. Paternalism is stepping in to help others in a way that actually impedes their own efforts to help themselves. It is a destructive and self-perpetuating cycle in which the paternalistic giver continually intervenes to help the poor person, furthering the poor person’s perception that he cannot help himself. This in turn furthers the giver’s perception that he is the poor person’s savior and the source of any eventual success. To escape the cycle, the giver should instead search for ways the poor can help themselves rather than distributing handouts as if the poor are somehow incapable of helping themselves.
While much of the existing research on the topic of effectiveness in aid centers around the giver of aid, some research has also been conducted on the recipient’s role. It makes sense that the recipient would play a significant role, especially in ensuring the long-term effectiveness of aid. One’s well-being is not entirely dictated by one’s environment or the actions of others, and the poor are
Spring 2019 • 53
GEORGE WYTHE REVIEW
no exception to this rule. Their well-being—both economically and otherwise—is deeply impacted by their own decisions. Even the most carefully planned attempt at long-term aid will fail in its execution if the intended recipients are unwilling to participate in its administration. Corbett (2014) illustrated this point through personal stories of short-term trips he took to build and rebuild houses in impoverished regions of North America. On two of these trips, he looked down from his ladder to see young, able-bodied men watching him work to help them while they sat about drinking or smoking (Corbett & Fikkert, 2014). His efforts to help rebuild their houses, even if well-intentioned, were ultimately harmful to both himself and those young men because of their unwillingness to participate in the process. Part of responsible planning is identifying and avoiding the types of situations where the administration of aid further deepens the psychological and social poverty of those being “helped.” At the same time, a large degree of responsibility lies with the recipient to do his own part, whether that means actively participating in the planning or distribution of the aid or simply refusing to see the aid as an indictment of his ability to help himself. It is impossible for givers of aid to control the attitudes of those that they help. They can monitor their own attitudes for hints of paternalism that could further the psychological and social poverty of the poor, but it is ultimately the duty of the recipient to have a healthy perspective on the aid that they receive. Without that healthy perspective, it is almost impossible for even the most informed and wellintentioned of givers to administer aid without doing harm. As applied to this discussion, an inferiority complex refers to a sense of helplessness and powerlessness combined with a belief that any good outcome requires external intervention. The inferiority mindset of the poor is a crippling perspective on life. It leads the poor to believe that they cannot escape the cycle of dependency and that the best they can do is welcome the rich who come to improve their living conditions. When an individual or a community is caught in this cycle of inferiority, it is difficult to help them without furthering this attitude. While it is necessary to tailor the administration of aid in a way that minimizes this cycle—by avoiding the administration of unnecessary relief, for example—any type of aid has the potential to be understood by the poor as an indictment of their ability to help themselves. Developing a healthy mindset on aid is ultimately the responsibility of the recipient. A more common avenue of research into the role of the recipient is the matter of corruption, misuse, and underutilization of donated resources (Schudel, 2008). Some of the responsibility for misused and underutilized resources certainly does fall to the giver, who should aim to give aid in a useful and practical form. The
54 • Spring 2019
useless tractors rusting away in a part of the world that has no use for tractors illustrates this point. It is equally true, however, that the recipients ought to make every effort to fully and responsibly utilize the resources donated to them. Corruption eats away at the effective delivery of aid by taking resources intended for the public good and using them instead for an individualâ&#x20AC;&#x2122;s corrupted private end. Corruption can happen at any level along the chain. Research shows that corruption often begins with the giver but is frequently visible at lower levels as well. The same research indicates that corrupt givers tend to turn a blind eye to corruption in the recipient: corruption enables further corruption (Schudel, 2008). Resources are then misused, with private parties redirecting resources flowing into a certain area for their personal gain. Misuse of resources in the form of corruption leads to huge amounts of wasted resources every year. Though it often goes undetected, corruption and misuse of resources is relatively easy to define and understand at a theoretical level. Corruption and misuse occur when there is a deviation from the intended purpose for which a resource is given. Food is sent into an area to help flood victims survive until they can plant and harvest more crops, but the food gets intercepted by a local government official and sold to another region. This is an example of both corruption and misuse: the resource was intercepted and then misused for the private gain of the government official who sold the food elsewhere. The recipient of a resource also bears the duty to responsibly use the resources given him. A responsible giver trying to avoid paternalism cannot micromanage the recipient. In the best giving models, the giver cannot completely control the helpfulness of his gift. Recipients must be given a degree of freedom, which inevitably means that resources may at times be underutilized, at least compared to the expectations of the giver. Whether due to a lack of proper education or a personal or cultural inhibition, the recipient bears significant responsibility for the ineffective implementation of aid. However, underutilization is not always the fault of the recipient. It also occurs when the giver fails to understand the need or recognize the proper solution and ultimately gives the recipient an unhelpful resource. Underutilization is thus a somewhat subjective concept, as an objective standard by which the use of aid can be assessed is often elusive. Unlike corruption, where resources are used for an unintended private purpose, a resource may be underutilized simply because the resources are not needed and attempting to use them would harm rather than help the locals. The example of the useless tractor is illustrative. If the terrain is such that a tractor is not helpful or if fuel for the tractor is unavailable or if performing maintenance on the tractor is prohibitively expensive, it may very well be
Spring 2019 â&#x20AC;˘ 55
GEORGE WYTHE REVIEW
irresponsible for the locals to use their own resources to keep the tractor running when they could be using their time and money more efficiently.
Effective Aid Having examined a few of the most glaring mistakes that lead to ineffective aid, it is now time to begin in earnest a search for the principles that contribute to effective aid. At a simplistic level, it could be accurately said that effective aid is that which avoids the aforementioned principles of ineffective aid. Beyond the mere avoidance of harm, there are also positive principles that one should seek. However, it is important to remember that there is no single foolproof approach to effective aid. Given the inconsistent nature and competing values of the people involved, it is impossible to create a sure recipe for success. That being said, here are several major principles for the successful administration and reception of aid.
Aid with a Long-term Focus
One of the main qualities of helpful and sustainable aid is that it is administered with an eye to its long-term effects. Attending to long-term implications is a tedious and expensive task compared to the relative ease of simply inserting resources into an area and moving on to the next project. This concept touches on several areas discussed above, such as the difference between relief, rehabilitation, and development. Relief necessarily has a short-term focus because it deals with provision for immediate needsâ&#x20AC;&#x201D;shelter, water, food, and medical attention. Relief seeks to fill urgent needs that cannot be filled in more organic ways, and as organic means of filling those needs grow back, the relief scales back to allow the local source to grow and flourish. Rehabilitation takes a longer-term perspective because it is concerned not with addressing temporary emergency situations but with individual and community restoration. Rehabilitation seeks to restore the community to their pre-crisis state of wellness, not only in the economic sense but also with regards to their self-sufficiency and their psychological and social wellness. While relief is mostly performed by the giver of the aid, rehabilitation relies on the participation of the recipient. It also requires the recipient to be willing to move past the relief stage and take ownership of their condition; this necessarily takes time and requires a longer time-frame than relief does. Development tries to help the individuals and communities receiving aid to surpass their previous levels of wellness, both economically and personally. It comes alongside those who are struggling and seeks to work with them to facilitate growth. Of all three types of aid, development calls for the greatest amount of recipient participation. An individual or community cannot be truly developed
56 â&#x20AC;˘ Spring 2019
without participation and ownership on the part of the recipients. Givers of aid cannot force or control the process of taking ownership. Development simply takes time and consequently must be approached with a long-term perspective. Relief is the only type of aid that has a significant short-term focus; even then, the giver should consider the long-term effects of the relief and should aim to minimize the potential psychological and social harm of dumping outside assistance into an area of need. Rehabilitation and development are longer term by nature and require an ongoing commitment of time and resources in order to be performed successfully. Sustainable aid requires long-term focus and commitment from both the giver and the recipient.
Aid that Discovers
Another principle of helpful and sustainable aid is that it seeks to discover before it seeks to fix. The discovery process is slow and multi-dimensional, adding to the need for a long-term perspective; however, it plays an essential role in the development of effective aid. Aid that seeks to provide solutions before the problems are properly identified or before the solutions are adequately considered is severely limited in its effectiveness. Discovering the nature of the need at hand is the essential first step in administering any type of aid. Thoughtful discovery takes time and cannot be done entirely from the outside. While an outside perspective may be helpful, a robust understanding of the problem can only be reached with the help of the individual or community in need. Otherwise westerners may be hampered by their tendency to define poverty in different terms than the poor themselves define it. Once the problem is identified, an appropriate solution must still be discovered. This can be a difficult step in the process and can be just as time consuming as problem discovery. Previous experience in distributing aid can be an asset, but a solution that worked in one area may not be equally effective in another. Even striking similarities in the economic condition of two recipients does not guarantee that the same economic solution will be effective, as the World Bank and many other organizations have illustrated (Corbett & Fikkert, 2014). In the wake of World War II, the World Bank discovered lending money to struggling economies for cheap to be remarkably effective. When it went into struggling European countries and began to lend money at low interest rates, the World Bank found that the recipients responded extremely well. In light of this success in Europe, the World Bank later tried implementing the lending strategy outside of Europe. However, they quickly discovered that this type of lending had very little positive effect on the economies of non-European places, such as India (Narayan, 2000).
Spring 2019 â&#x20AC;˘ 57
GEORGE WYTHE REVIEW
Prior to the determination of solutions and perhaps even the realization of needs, there is a more foundational area of discovery. This step is the discovery of an individual or community’s assets—their skills, abilities, and inherent resources. Corbett and Fikkert (2014) suggested that it is better to start by discovering a recipient’s existing assets rather than simply their needs. They called this approach the Asset-Based Community Development (ABCD) model. Corbett and Fikkert (2014) are proponents of this model because it avoids deepening the psychological and social poverty of inferiority and helplessness among the poor. When the initial and primary focus of a giver is to discover and facilitate the recipient’s own gifts and talents, it changes the dynamic of the aid entirely. Rather than the giver sending a message of inferiority or helplessness, ABCD begins with the abecedarian principle that every individual and community has some abilities and resources with which they can help themselves. From there, givers can craft a solution that incorporates the recipient’s existing assets into the solution.
Aid that Enables
While aid should have a long-term focus and should be based on a full knowledge of the situation, it is important to recognize that aid is not intended to be permanent. Within a specific area of need the goal of aid is, ironically, to put itself out of business. Aid efforts will never be rendered wholly unnecessary, as needs will always exist worldwide. However, a particular community or individual can certainly become independent of the need for aid (Adleman et al., 2016). Effective aid will be given with the ultimate goal of independence in mind. The long-term health and sustainability of a community is far greater when that health is based on their own actions rather than dependent on the generosity of an outside entity. A prosperous, thriving community does not depend on outsiders for its continued existence. That is not to say that outside assistance should never be given—such assistance is a helpful and often vital tool in the long-term recovery and development of a struggling individual or community. However, a community should not be considered stable if it is still dependent on outside help for its survival or wellbeing. Even if such a community is deemed a success story by the wealthy westerners who view poverty in purely economic terms, it could still be considered impoverished by its own residents, who may view poverty as the state of fear, dependence, and inferiority. Empowering recipients to stand on their own feet is not just a nice goal to which the giver should tip his hat. Enabling self-sustainability is integrally fundamental to the successful administration of truly helpful aid. Effective aid must always be directed towards this goal—it must aim to relieve not only dire economic conditions but also the poverty of heart and mind.
58 • Spring 2019
Conclusion It is not enough to merely administer aid. Much harm can be done by the careless use of resources, beyond the mere loss of resources to the giver. Whether through misdiagnosis, arrogance, lack of self-awareness, short-term focus, corruption, or a host of other pitfalls, it is all too easy for both the givers and the recipients to hurt rather than help. Since aid has such potential to be harmful, those involved in the distribution of aid must proceed thoughtfully and judiciously. Aid is given at the rate of over $800 billion a year and has the potential to cause a great deal of harm if caution is not taken (Adleman et al., 2016). Responsible giving does not focus solely on the potential benefit of an action but also considers the potential harm. Aid is usually given with the best of intentions; however, it is often plagued by a lack of information, a failure to attend to side-effects, and an inadequate understanding of the problem from both sides of the equation. In order to avoid the embarrassing mistake of the proverbial deaf man, givers must intentionally invest time and resources into determining the best approach. One does not simply stumble upon the proper approach to aid, and aid given without intentionality may harm rather than help. An effective approach to aid understands poverty as a multi-dimensional problem, not just an economic one, and acts accordingly. It seeks to enable rather than take over. Helpful and sustainable aid considers the long-term rather than just the immediate. Effective givers administer aid with the recipients, not to them.
Spring 2019 â&#x20AC;˘ 59
GEORGE WYTHE REVIEW
Reference List Adleman, C., Schwartz, B., & Riskin, E. (2016). The index of global philanthropy and remittances. The Hudson Institute. Retrieved from https://www.hudson. org/research/13314-index-of-global-philanthropy-and-remittances-2016 Bradshaw, J., Chzhen, Y., Main, G., Matorano, B., Menchini, L., & De Neubourg, C. (2012). Relative income poverty among children in rich countries. UNICEF/ Office of Research-Innocenti. Retrieved from https://www.unicef-irc. org/publications/655-relative-income-poverty-among-children-in-richcountries.htm Brett, E. A. (2016). Explaining aid (in)effectiveness: The political economy of aid relationships (Working paper No.16-176). Department of International Development, London School of Economics and Political Science. BĂźthe, T., Major, S., & Souza, A. D. (2012). The politics of private foreign aid: Humanitarian principles, economic development objectives, and organizational interests in NGO private aid allocation. International Organization, 66(4), 571-607. doi: 10.1017/S0020818312000252 Chang, H. (2007). Kicking away the ladder: Development strategy in historical perspective (2nd ed.). New York, NY: Anthem Press. Corbett, S., & Fikkert, B. (2014). When helping hurts: How to alleviate poverty without hurting the poor...and yourself. Chicago, IL: Moody Publishers. Gordon, D. (2005). Indicators of poverty & hunger. PowerPoint presentation at the meeting of the Expert Group on Youth Development Indicators, United Nations Headquarters, New York. Retrieved from http://www.poverty.ac.uk/ sites/default/files/indicators-of-poverty-and-hunger_UNpoverty.pdf Hazlitt, H. (1988). Economics in one lesson: The shortest & surest way to understand basic economics. New York, NY: Three Rivers Press. Narayan, D., & Walton, M. (2000). Voices of the poor: Can anyone hear us? Washington, DC: World Bank Publications. Organization for Economic Cooperation and Development. (2018). Official development assistance. Retrieved from http://www.oecd.org/dac/stats/ officialdevelopmentassistancedefinitionandcoverage.htm
60 â&#x20AC;˘ Spring 2019
Organization for Economic Cooperation and Development/Development Assistance Committee. (2016). Triangular co-operation: Emerging policy messages and interim findings from analytical work [Committee Report]. Retrieved from https://www.oecd.org/dac/dac-global-relations/DAC%20 HLM%20Technical%20document%20Triangular%20Co-operation.pdf Schudel, C. J. (2008). Corruption and bilateral aid. Journal of Conflict Resolution, 52(4), 507-526. doi: 10.1177/0022002708316646 Sowell, T. (2015). Basic economics: A common sense guide to the economy (5th ed.). New York, NY: Basic Books. Tarnoff, C., & Lawson, M. (2018). Foreign aid: An introduction to U.S. programs and policy [Report No. R40213]. Congressional Research Service. Retrieved from https://fas.org/sgp/crs/row/R40213.pdf World Bank Group. (2018). Piecing together the poverty puzzle. Retrieved from https://openknowledge.worldbank.org/bitstream/ handle/10986/30418/9781464813306.pdf
Spring 2019 â&#x20AC;˘ 61
GEORGE WYTHE REVIEW
THE RELIGIOUS FREEDOM RESTORATION ACT: FORMULATION, PASSAGE, AND MODERN EVALUATION J. Michael Patton Abstract In 1993, Congress passed the Religious Freedom Restoration Act (RFRA) in response to Employment Division, Department of Human Resources of Oregon v. Smith (1990). Smith essentially nullified the Free Exercise Clause by allowing the government to establish laws that burdened religious practices as long as they were not targeted at a specific religious group. In response to this crisis, Congress passed RFRA with a unanimous vote in the House and a 97-3 vote in the Senate. This study uses Dye’s process model to examine what caused this rare phenomenon. It also uses Kingdon’s “three streams” model to examine how RFRA was set on the policy agenda. This qualitative study analyzes RFRA mainly through primary sources. ___________________________________
62 • Spring 2019
R E L I G I O U S F R E E D O M R E S T O R AT I O N AC T
Introduction On April 17, 1990, the Supreme Court announced its decision in Employment Division, Department of Human Resources of Oregon v. Smith (1990). Smith (1990) allowed the government to establish laws that restricted religious practices provided the laws did not target a specific religious group. Almost immediately, advocates for religious liberty were concerned (Baptist Joint Committee, 2013). Oliver Thomas, a young lawyer serving as the General Counsel of the Baptist Joint Committee, called Marc Stern, a prominent Jewish Advocate for Religious Freedom. “Have you read the Smith opinion?” he asked. “Yes I have,” replied Stern. “Are you as worried about it as I am?” Thomas responded. “Yes I am,” Stern said bluntly. (Baptist Joint Committee, 2013, 1:50) From there, the two men formed the team behind the idea of the Religious Freedom Restoration Act (Baptist Joint Committee, 2013). Congress ultimately passed the Religious Freedom Restoration Act in 1993 (Bomboy, 2014). According to the Act, its purpose was “to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and to provide a claim or defense to persons whose religious exercise is substantially burdened by government” (42 U.S.C. § 2000bb). In other words, the Religious Freedom Restoration Act (RFRA) nullified the Smith decision and re-established strict scrutiny as the standard of review for cases in which the Free Exercise Clause has been abridged. RFRA’s formulation, passage, and modern application is a crucial topic that must be understood by anyone seeking to effectively defend religious freedom in the United States. As such, this study will analyze RFRA, examining why it was passed and how it applies to the government today. More specifically, this study will use Thomas Dye’s (2013) process model to examine the Religious Freedom Restoration Act. In accordance with the process model, this study will examine the following stages: problem identification, agenda setting, policy formulation, policy legitimation, policy implementation, and policy evaluation as applied to RFRA. The analysis on the agenda setting and policy formulation phases will be conducted using Kingdon’s (2011) “three streams” model. Finally, the modern application of RFRA will be analyzed in the policy implementation and policy evaluation sections. These sections will focus primarily on how RFRA was implemented in federal courts, how RFRA’s application changed after City of Boerne v. Florez (1997), how state versions of RFRA were implemented, and the opinions of today’s interest groups regarding RFRA.
Spring 2019 • 63
GEORGE WYTHE REVIEW
Literature Review Numerous organizations have written short articles on the passage and effect of the Religious Freedom Restoration Act. Bomboy (2014) documented that RFRA’s story began in 1963 with the case Sherbert v. Verner (1963). According to Bomboy (2014), Sherbert stated that “if a person claimed a sincere religious belief, and a government action placed a substantial burden on that belief, the government needed to prove a compelling state interest, and that it pursued that action in the least burdensome way” (para. 6). The Sherbert test was later affirmed by Wisconsin v. Yoder in 1972 (Carter, 2018). In 1989, the Supreme Court heard the case of Employment Division v. Smith, in which drug counselors were fired for ingesting drugs as part of a religious ceremony. The Supreme Court upheld the firing. In his majority opinion, Justice Scalia wrote that “using a religious exemption in conflict of a valid law ‘would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind’” (Bombay, 2014, para. 4). Justice Scalia’s opinion severely limited religious liberty protections under the First Amendment (“History of RFRA,” n.d.). In response to this crisis, a broad coalition of 66 interests groups began to push for the passage of RFRA (“History of RFRA,” n.d.). Carter (2018) recorded, “The legislation was introduced by Rep. Chuck Schumer (D-NY) on March 11, 1993 and passed by a unanimous U.S. House and a near unanimous U.S. Senate with three dissenting votes. The bill was signed into law by President Bill Clinton” (para. 2). RFRA expressly stated that its purpose was to restore the constitutional protections for religious liberty found in Sherbert v. Verner and Wisconsin v. Yoder (Carter, 2018). More precisely, RFRA reinstated the compelling interest test for cases involving the Free Exercise Clause (“RFRA Info Central,” n.d.). The Becket Fund for Religious Liberty put it this way: under the compelling interest test, RFRA requires courts to go through three steps before they uphold a law that burdens the free exercise of religion. A court first asks, “Does the individual have a sincere religious belief that is being substantially burdened?” (“RFRA Info Central,” n.d., para. 1). If the answer is “Yes,” then the court moves to the second part of RFRA and asks, “Does the government have a compelling reason (e.g. health or safety) to suppress this right?” If the answer is still affirmative, the court then asks, “Is there a reasonable alternative to serve the public interest?” (“RFRA Info Central,” n.d., para. 2-3). If all three of these questions are answered in the affirmative, then the government action restricting religion is prohibited (“RFRA Info Central,” n.d.). However, in 1997, the Supreme Court ruled that RFRA could not be applied to the states. In City of Boerne v. Florez, Justice Kennedy wrote that Congress had exceeded its authority by attempting to apply RFRA to state jurisdictions (Bomboy, 2014). In response, some states passed state-level versions of the Religious Freedom
64 • Spring 2019
R E L I G I O U S F R E E D O M R E S T O R AT I O N AC T
Restoration Act (Carter, 2018). Based on data from Carter (2018), 62% of states are covered by a “Sherbert-like” protection for religious liberty. The most high profile case involving RFRA was Burwell v. Hobby Lobby (2014) (Carter, 2018). In that case, Hobby Lobby objected to a portion of the Affordable Care Act that required for-profit companies to “provide [its employees] insurance coverage for morning-after pills and similar emergency birth control methods and devices” (Bomboy, 2014, para. 13). Their objection was based on the fact that the leadership of Hobby Lobby held a religious belief that abortion was wrong. The Supreme Court combined the Hobby Lobby case with the Conestoga Wood Specialties Corp. v. Health and Human Services Department case (3rd Cir. 2013). Conestoga was a Mennonite, for-profit business that also objected to the Affordable Care Act’s birth control mandate (Bomboy, 2014). RFRA applied to the portion of the decision in the Hobby Lobby case that dealt with Conestoga (Bomboy, 2014). Carter (2018) summarized the Court’s RFRA related findings: The Court found that the HHS mandate violated RFRA because it imposed a substantial burden...The government also failed to satisfy RFRA’s least restrictive-means standard, since the government could assume the cost of providing the four contraceptives to women unable to obtain coverage due to their employers’ religious objections or extend the accommodation that HHS has already established for religious nonprofit organizations to non-profit employers with religious objections to the contraceptive mandate. (p. 6) The Hobby Lobby decision was a crucial victory for religious liberty in which RFRA played a large role.
Data and Methods Many short articles have been written regarding RFRA’s passage and modern application. However, no expert has analyzed RFRA through the lens of Dye’s (2013) process model. Furthermore, no formal research has been conducted to explain how RFRA gained such sudden prominence on the policy agenda. This study will perform such analysis by applying Kingdon’s (2011) “three streams” model. This study is primarily qualitative in nature and will mainly use primary sources. For the purposes of this study, primary sources will include news articles written during the time period that RFRA was passed, law review articles by RFRA’s authors, congressional hearings and reports, video interviews, speeches by important figures,
Spring 2019 • 65
GEORGE WYTHE REVIEW
court cases, records from interest groups, and the Religious Freedom Restoration Act itself.
Problem Identification As documented in the literature review and the introduction, the Religious Freedom Restoration Act was primarily a response to the Supreme Court’s ruling in Employment Division, Department of Human Resources of Oregon v. Smith (1989). In an interview, Oliver Thomas, former General Counsel of the Baptist Joint Committee and the former Chair of the Coalition for the Free Exercise of Religion, recounted that the press initially missed the importance of what happened in the Smith case but that “[t]he religious community figured [the problems with Smith] out pretty quickly” (Baptist Joint Committee, 2013, 1:34). Thomas contacted Marc Stern, and the two agreed that something needed to be done to address the Smith decision. The two men established a nationwide meeting with leaders of interest groups that represented multiple different faiths (Baptist Joint Committee, 2013). Smith was reinforced in the 1993 case Church of the Lukumi Babalu Aye v. City of Hialeah, which was the first Free Exercise case that the Court heard after Smith (“The Religious Freedom Restoration Act: 20 years,” n.d.). The Supreme Court invalidated a Florida city statute that prohibited animal sacrifices performed as part of religious rituals. The law was struck down because it was clear that the city had passed a statute specifically designed to limit the religious practices of the Church of the Lukumi Babalu Aye. The regulations were neither neutral nor generally applicable and thus warranted strict scrutiny under Smith. While Church of the Lukumi resulted in a victory for religious liberty in the short term, religious liberty was ultimately harmed because the case reinforced Smith. Primary source documents reveal that it was initially difficult to obtain large public support for RFRA’s cause. A New York Times article published shortly after RFRA was passed detailed, “Although supporters of the Religious Freedom Restoration Act saw [the Smith] ruling as having wide implications, especially for small religious groups without political muscle, they said they at first found it hard to rouse public concern about a case involving hallucinogenic drugs” (Steinfels, 1993, para. 16). However, this problem did not exist for very long. Shortly after the Act was passed in 1993, supporters of RFRA explained that cases abridging religious liberty abounded (Steinfels, 1993). Advocates for RFRA consistently pointed to these cases to showcase the problem. Steinfels (1993) wrote, “Supporters of the law say that 50 to 60 cases of government infringements on religious practices have been justified in the courts on the basis of the [Smith] 1990 ruling” (para. 8). Interest groups across the nation realized the danger of Smith and joined the Coalition for the Free Exercise
66 • Spring 2019
R E L I G I O U S F R E E D O M R E S T O R AT I O N AC T
of Religion. Even the American Civil Liberties Union (ACLU) supported the passage of RFRA (Melling, 2015).
Agenda Setting and Policy Formulation According to J.W. Kingdon (2011), there are “three streams” that fuel agenda setting and alternative specification (policy formulation): the problem stream, the policy stream, and the political stream. This study utilizes Kingdon’s three streams model to analyze RFRA’s agenda setting and policy formulation stages. This is because Kingdon’s model accurately explains the agenda setting process and provides a convenient framework by which political scientists can succinctly but holistically analyze the emergence of a policy on the decision agenda.
The Problem Stream: RFRA
Under Smith (1990), the government could pass a neutral and generally applicable law restricting the free exercise of religion as long as the law passed the rational basis test, which simply required proof of a legitimate reason for establishing the regulation. This gave the government license to abridge religion in almost any manner, as long as the law was not targeted at a specific religion. Oliver Thomas explained the detrimental effects of the Smith decision through the following hypothetical: So let’s just say that you had an orthodox Jewish kid at a public school who needed to wear his yamaka to school because God requires it. If the school had a policy that said, “Nobody can wear caps to school,” he couldn’t even complain about it even though… we know a yamaka is different from a baseball cap. So the landscape changed for everybody overnight. (Baptist Joint Committee, 2013, 1:10) While this illustration was a hypothetical, Congress had seen many similarly concerning cases. Regarding the problem stream, Congress saw a need to embrace the Religious Freedom Restoration Act for two main reasons. First, it was clear that past cases involving the First Amendment would have seen different results if Smith was in place (Laycock & Thomas, 1994). Second, many Americans were losing cases where their Free Exercise rights were improperly abridged (Laycock & Thomas, 1994). Each of these problems should be covered in further detail. Related to the first problem, Congress was concerned that Smith was inadequate because “throughout much of our history, facially neutral laws…severely
Spring 2019 • 67
GEORGE WYTHE REVIEW
undermined religious observance” (S. Rept. No. 111, 1993). Congress recognized that past Free Exercise cases upholding religious liberty would have gone differently had Smith been in place (Laycock & Thomas, 1994). This caused great concern. Laycock and Thomas (1994) commented: America's history of sporadic religious intolerance shows the need for vigorous enforcement of the Free Exercise Clause. But this history also makes a more specific point. Facially neutral laws of general application—the kind that raise no constitutional issue after Smith—were central to some of this country's worst religious persecutions. Both the polygamy law that underlay much of the Mormon persecution, and the flag salute law invoked against Jehovah's Witnesses,' were facially neutral, generally applicable laws. A facially neutral law in Oregon would have required all children to attend public school; the underlying motive was to suppress Catholic schools. (p. 213) Congress and RFRA advocates saw this history as proof that more generally applicable laws would burden the Free Exercise clause in the future. Since Smith could not provide sufficient protection against these laws, Congress knew that a more robust restraint was needed. Additionally, Congress was concerned by multiple cases that suggested that Smith was allowing unconstitutional restrictions of religious liberty. The negative effects of Smith were seen almost immediately. Within a week after the Smith decision was announced, the Supreme Court cited Smith to vacate a Minnesota judgment that exempted an Amish man from a law requiring him to put a bright orange triangle on his horse-drawn carriage (Minnesota v. Hershberger, 1990). The Amish man rejected the law on religious grounds. He believed that the bright orange triangle was a “worldly” symbol that conflicted with his religious belief. The Minnesota Supreme Court noted, “Appellants have demonstrated a willingness to be incarcerated to avoid using a symbol whose color and meaning are antithetical to their faith, establishing that their religious belief in opposition to the SMV symbol is sincere” (State v. Hershberger, 1990, at 396). On remand, the Minnesota Supreme Court protected Hershberger under the Free Exercise Clause of the state constitution and “rejected Smith’s persuasive authority” (Laycock & Thomas, 1994, p. 214). Laycock and Thomas (1994) further noted, “Hershberger was only the beginning for the new federal law of religious liberty; dozens of reported cases have been decided against religious claimants since Smith” (p. 214). As mentioned earlier, advocates for RFRA cited 50-60 other cases where religious liberty had been abridged due to Smith (Steinfels, 1993).
68 • Spring 2019
R E L I G I O U S F R E E D O M R E S T O R AT I O N AC T
The Policy Stream: RFRA
The Smith decision and the Religious Freedom Restoration Act were common topics of discussion in the policy community. By the time RFRA was passed, Smith had been the topic of over 50 different articles in academic journals (Laycock & Thomas, 1994). Laycock (1993) wrote a piece defending Congress’s constitutional authority to pass RFRA. The idea of the Religious Freedom Restoration Act came from a meeting with experts who represented various special interest groups (Baptist Joint Committee, 2013). The meeting took place shortly after the Smith decision was announced. The original group that came up with the idea included Marc Stern, Douglas Laycock, and Dean Kelly, among other experts (Baptist Joint Committee, 2013). After the idea of RFRA was formulated, word about the Act spread rapidly. Brent Walker and Oliver Thomas became the faces of RFRA and led a coalition of many faiths to pass the Act (Baptist Joint Committee, 2013). The Religious Freedom Restoration Act itself was formulated by a broad coalition of special interest groups known as the Coalition for the Free Exercise of Religion. President Clinton recognized this on the day that he signed RFRA into law, saying, “Let me especially thank the Coalition for the Free Exercise of Religion for the central role they played in drafting this legislation and working so hard for its passage” (White House/Office of the Press Secretary, 1993, para. 1). The Act was written carefully in order to ensure that all religions would be protected equally. It established broad standards and had no sections containing endorsement or prohibition of specific religious practices. Laycock and Thomas (1994) wrote: Congress was not being irresponsible in refusing to legislate about particular religious practices or particular governmental interests. The logical conclusion of doing that would have been a committee report evaluating every known religious practice in light of every imaginable governmental interest, and a bill listing which religious practices are permitted and to what extent, and which may be forbidden. Instead of a charter of religious liberty, the bill would have become a religious licensing act. (p. 219) Furthermore, legislating general principles enabled the Act to be politically viable. Because RFRA established broad principles, a large coalition of interest groups and congressmen supported the bill (Laycock & Thomas, 1994).
The Political Stream: RFRA
Advocates for RFRA did a masterful job of gathering support for the bill that transcended common party lines and conflicts between interest groups. Sixty-six interest groups came together to support RFRA by forming the Coalition for the
Spring 2019 • 69
GEORGE WYTHE REVIEW
Free Exercise of Religion (“The Religious Freedom Restoration Act: 20 years,” n.d.). Interest groups across the political spectrum joined. Politicians also worked together with remarkable unity. Steinfels (1994) captured this well: In the Senate, where the bill was approved 97 to 3 on Oct. 27, it was sponsored by Senators Edward M. Kennedy, Democrat of Massachusetts, and Orrin G. Hatch, Republican of Utah. In the House, which passed the bill last May by a voice vote without objection, it was sponsored by Representative Charles E. Schumer, Democrat of Brooklyn, and Representative Christopher C. Cox, Republican of California. President Clinton voiced wonder today at this alliance of forces that are often at odds across religious or ideological lines. "The power of God is such that even in the legislative process miracles can happen," he said. (para. 12) Steinfels (1993) also recorded details about the “unusual coalition of liberal, conservative and religious groups that had pressed for the new law” (para. 11). Organizations that had historically been bitter enemies united to pass RFRA. Steinfels (1993) explained that “[t]he coalition included the National Association of Evangelicals, the Southern Baptist Convention, the National Council of Churches, the American Jewish Congress, the National Conference of Catholic Bishops, the Mormon Church, the Traditional Values Coalition and the American Civil Liberties Union” (para. 11). Oliver Thomas also detailed noteworthy political unity by recounting that President Clinton (D) and Congressman Newt Gingrich (R) played important roles in forcing RFRA onto Congress’s agenda (Baptist Joint Committee, 2013). Advocates from across the political spectrum ardently fought for RFRA. The statement of the American Jewish Congress to the House Judiciary Committee said: All religious minorities must be alarmed when the courts are stripped of the power to require government to accommodate those religious practices, to use Justice Scalia's phrase, "not widely engaged in." The Religious Liberty Restoration Act returns that power to the courts and, with it, ensures that government does not arbitrarily interfere with religious freedom. (Religious Freedom Restoration Act, 1990, at 67)
70 • Spring 2019
R E L I G I O U S F R E E D O M R E S T O R AT I O N AC T
Vice President Al Gore also commented: Those whose religion forbids autopsies have been subjected to mandatory autopsies…Those who want churches close to where they live have seen churches zoned out of residential areas. Those who want the freedom to design their churches have seen local governments dictate the configuration of their building. (Steinfels, 1993, para. 7) The overwhelming support for RFRA was not just a Washington phenomenon. As President Clinton noted, the majority of United States citizens supported RFRA (“The Religious Freedom Restoration Act: 20 years,” n.d.).
Policy Legitimation RFRA was introduced in the 101st and 102nd Congresses but never made it out of committee (“The Religious Freedom Restoration Act: 20 years,” n.d.). The Act encountered opposition for three primary reasons. First, pro-life groups were concerned that RFRA could be used to make a religiously motivated claim about abortion rights (“The Religious Freedom Restoration Act: 20 years,” n.d.). Secondly, some believed that the Act could be construed to challenge the tax-exempt status of religious organizations. This would prevent religious organizations from participating in government programs (“The Religious Freedom Restoration Act: 20 years,” n.d.). Finally, some were worried that RFRA would improperly restrict the ability of prisons to effectively control prisoners (Laycock & Thomas, 1994). The first two concerns were remedied, while the final concern was ultimately dismissed. Changes ensuring that RFRA could not be construed to support abortion rights or challenge the tax-exempt status of religious organizations ultimately “paved the way for RFRA’s passage” (“The Religious Freedom Restoration Act: 20 years,” n.d., para. 2). Each of these three concerns, as well as the processes used to remedy them, will be addressed in further detail.
Concern 1: Abortion
Laycock and Thomas (1994) recorded that the most common criticism of RFRA concerned whether or not the Act could be construed to support abortion rights. In the early 1990’s, pro-life advocacy groups believed that the overturning of Roe v. Wade (1973) was imminent. There was concern that RFRA could be used to specifically challenge subsequent restriction of abortion (Laycock & Thomas, 1994). Critics specifically cited McRae v. Califano (1980) in which a district court upheld a Free Exercise challenge to the Hyde Amendment, a ban on federal funding
Spring 2019 • 71
GEORGE WYTHE REVIEW
of abortion (Laycock & Thomas, 1994). Even though the decision was overturned on appeal, both the Catholic Conference and the National Right to Life maintained that the case demonstrated that there was sufficient risk that RFRA could be construed to uphold abortion rights (Laycock & Thomas, 1994). In their view, a woman could consult with her minister, rabbi, or imam and claim that her religious convictions led her to seek an abortion (Laycock & Thomas, 1994). Abortion concerns related to RFRA produced opposition to the bill in Congress. Lead Republican sponsors in the House, Representatives Paul Henry and Henry Hyde, withdrew their support for the Act (Laycock & Thomas, 1994). Simultaneously, the Religious Freedom Act (RFA) was introduced by Representative Chris Smith. The Religious Freedom Act was similar to RFRA in most respects with one exception. The RFA contained a provision stating, “Nothing in this Act shall be construed to authorize a cause of action by any person to challenge…any limitation or restriction on abortion, on access to abortion services or on abortion funding” (H.R. 4040, 1991). However, the Religious Freedom Act was deemed unnecessary after the Supreme Court’s decision in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). After Casey, it became clear that Roe was not going to be overturned anytime soon (Laycock & Thomas, 1994). This paved the way for the brokering of a compromise that would allow pro-life groups to support RFRA. To remedy the problem, RFRA supporters agreed to make perfectly clear within the legislative record that the Act could not be construed to support abortion. The House Report on RFRA in the 103rd Congress stated: There has been much debate about this bill's relevance to the issue of abortion. Some have suggested that if Roe v. Wade were reversed, the bill might be used to overturn restrictions on abortion.…To be absolutely clear, the bill does not expand, contract or alter the ability of a claimant to obtain relief in a manner consistent with free exercise jurisprudence, including Supreme Court jurisprudence, under the compelling governmental interest test prior to Smith. (H. Rep. 103-88, 1993, at 8) Because the legislative record was clear concerning congressional intent on this matter, pro-life groups no longer had reason for concern.
Concern 2: Tax-Exempt Status and Government Funding for Religious Organizations
The United States Catholic Conference was also concerned that RFRA could be used to challenge government funding and tax exemption for religious organizations ("The Religious Freedom Restoration Act," 1992). Laycock and Thomas (1994)
72 • Spring 2019
R E L I G I O U S F R E E D O M R E S T O R AT I O N AC T
attributed concern that arose regarding tax exemption status to fear of a repeat of the case United States Catholic Conference v. Abortion Rights Mobilization, Inc. (1988). In Abortion Rights Mobilization, Inc., pro-choice groups attempted to overturn the tax-exempt status of all groups linked with the Roman Catholic Church. The United States Catholic Conference was also concerned that RFRA could affect the ability of religious organizations to participate in government funding of social services. Mark Chopko, the General Counsel on behalf of the United States Catholic Conference, stated: Another area where S. 2969 [RFRA] could cause great harm is in the operation of government programs.…The threat of litigation in this area is real, and the basis for predicting success or failure is untested.…In any event, challenges brought under S. 2969 [RFRA] could seriously disrupt a myriad of federal and state programs where legislatures, including the Congress, have wisely concluded that the participation of religious providers contributes to the successful operation of government programs and thus to the public good. ("The Religious Freedom Restoration Act," 1992, pp. 110-111) As Laycock and Thomas recounted (1994), the Coalition for the Free Exercise of Religion sought to remedy these problems by adding Section 3(c) to RFRA, which commented on standing. Section 3(c) states, “Standing to assert a claim or defense under this section shall be governed by the general rules of standing under Article III of the Constitution” (42 U.S.C. § 2000bb-1(c)). However, the United States Catholic Conference was still concerned that RFRA could be construed to allow challenges to government funding of religious institutions (Laycock & Thomas, 1994). In order to settle the matter once and for all, RFRA was amended in the 102nd Congress (Laycock & Thomas, 1994). The Amendment stated: Nothing in this chapter shall be construed to affect, interpret, or in any way address that portion of the First Amendment prohibiting laws respecting the establishment of religion (referred to in this section as the “Establishment Clause”). Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, shall not constitute a violation of this chapter. (42 U.S.C. § 2000bb-4)
Spring 2019 • 73
GEORGE WYTHE REVIEW
Once this amendment was added to RFRA, along with the pro-life language added to the House and Senate records, the U.S. Catholic Conference agreed to endorse the Act.
Concern 3: Prisons
Some state and federal government leaders were concerned that RFRA would negatively affect the ability of prisons to effectively control their prisoners (Laycock & Thomas, 1994). In May of 1993, multiple state attorneys general wrote a letter to each member of the Senate Judiciary Committee stating their concern about RFRA’s application to prisons (Laycock & Thomas, 1994). The letters proposed that RFRA be amended to exempt prisons from the Act. Under the view of the state attorneys general, a provision could be added to the bill that would allow prisons to restrict the free exercise rights of prisoners only if the restrictions are "reasonably related to a legitimate penological interest" (Laycock & Thomas, 1994, p. 239). Many of the bill’s sponsors responded in opposition to the proposal of the attorneys general (Laycock & Thomas, 1994). They maintained that Congress had no business picking and choosing who would have the right to free exercise. In their view, freedom of religion should be based on a unitary standard for all Americans (Laycock & Thomas, 1994). Additionally, there was concern that exemption for prisons would lead to the exemption of other programs. This would have jeopardized the bill’s passage (Laycock & Thomas, 1994). In this way, an amendment exempting prisons would have been politically untenable. Janet Reno, the Attorney General of the United States, strongly supported RFRA’s sponsors in this debate. Since she oversaw the nation’s largest prison system, numerous senators came to her for expert advice (Laycock & Thomas, 1994). Reno wrote letters to Sen. Joe Biden, Chairman of the Senate Judiciary Committee, and Rep. Jack Brooks, Chairman of the House Judiciary Committee. She stated: Concerns have been expressed that the standard of review of H.R. 1308 will unduly burden the operation of prisons and that the bill should be amended to adopt a standard more favorable to prison administrators when confronted with the religious claims of prisoners. These concerns have been presented by knowledgeable and sincere individuals for whom I have great respect, but I respectfully disagree with their position and urge the Committee to approve the bill without amendment. (Reno, 1993) As the attorney general, Reno was an expert in the needs of U.S. prisons and prison management. Given her knowledge, some congressmen were persuaded by Reno to dismiss prison concerns.
74 • Spring 2019
R E L I G I O U S F R E E D O M R E S T O R AT I O N AC T
The debate over prison exemptions was ultimately resolved through legislative history. Laycock and Thomas (1994) explained: This legislative history indicates that the Senate Judiciary Committee expected context to play an important role when applying RFRA to specific cases. Although the Committee recognized that threats to safety and security pose a unique risk in prisons, and that the government has a compelling interest in responding to bona fide dangers," it nevertheless insisted that prison authorities prove the existence of actual dangers when religious liberty is at stake. (p. 242) Legislative sponsors of RFRA also emphasized that prisons would have a compelling interest to restrict free exercise in circumstances where people could be endangered (Laycock & Thomas, 1994). In this way, prisons would still have a reasonable ability to restrict the free exercise right of prisoners in circumstances where safety was jeopardized. After the three aforementioned concerns were addressed, RFRA passed unanimously in the House and 97-3 in the Senate (Steinfels, 1993).
Policy Implementation After RFRA was passed, Laycock and Thomas (1994) published an article in the Texas Law Review to discuss the history of RFRA and its legislative intent. Given that Laycock and Thomas were two of the masterminds behind the bill, the article was ostensibly intended to further instruct courts about how the Act should be interpreted. From the outset, Laycock and Thomas realized that RFRA would have to be implemented by the Courts in order to be truly successful. They wrote: RFRA is not a mere technical change from Smith. Rather, it restores a fundamentally different vision of human liberty. Religious believers…are exercising a fundamental human right, and the American commitment is to let them exercise it unless there is an extraordinary reason to interfere-not a rational reason, or even a substantial reason, but a compelling reason.…RFRA can achieve its purpose only if the courts enforce this vision. (Laycock & Thomas, 1994, pp. 244-245) In order to make the intent of RFRA abundantly clear to the courts, Laycock and Thomas (1994) took care to define certain terms in the bill. They noted, “The
Spring 2019 • 75
GEORGE WYTHE REVIEW
future of the Act depends principally on judicial interpretation of three terms: ‘compelling interest,’ ‘substantially burden,’ and ‘exercise of religion’” (Laycock & Thomas, 1994, p. 221). Laycock and Thomas (1994) defined each of these three terms in depth. While courts clearly understood the intent of RFRA, the Supreme Court ruled that portions of RFRA were unconstitutional in City of Boerne v. Florez (1997). In Boerne, the Archbishop of San Antonio sought to sue the City of Boerne for violating his free exercise rights. Boerne had a zoning ordinance that prohibited the archbishop from expanding his church building. The Archbishop sued on the basis that the City of Boerne had not satisfied the compelling interest test, which was established under RFRA. In his majority opinion, Justice Kennedy wrote that it was an unconstitutional use of Congress’s power to apply RFRA to the states. As it currently stands, RFRA is enforceable against federal statutes but not against state and local statutes. In Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal (2005), the Supreme Court strictly applied the compelling interest test to a federal statute. This was done in accordance with RFRA. Gonzales was the first case after Boerne v. Florez in which RFRA was applied by the Supreme Court (“The Religious Freedom Restoration Act: 20 years,” n.d.). As the Baptist Joint Committee wrote, “The Court [in Gonzales] reject[ed] the government’s argument that it ha[d] a compelling interest in applying the Controlled Substances Act without allowing exceptions for a small religious sect that ingests a prohibited substance as part of its religious ceremonies” (“The Religious Freedom Restoration Act: 20 years,” n.d., para. 5). In this way, Gonzales affirmed that RFRA was applicable to federal statutes. RFRA was most recently applied to protect freedom of religion in Burwell v. Hobby Lobby (2014). In his majority opinion, Justice Alito wrote that RFRA could be applied to corporations since corporations are composed of individuals with sincerely held religious beliefs. Furthermore, Justice Alito wrote that accommodations provided to religious corporations could also be applied to closely-held, for-profit organizations. Because of this interpretation of RFRA, Hobby Lobby successfully received an exemption from the Affordable Care Act’s contraceptive mandate. Finally, in the wake of Boerne, multiple state legislatures have passed laws similar to RFRA. Carter (2018) wrote: In response to [Boerne v. Florez]…some individual states passed state-level Religious Freedom Restoration Acts that apply to state governments and local municipalities. Currently, there are 21 states that have passed a Religious Freedom Restoration Act that is based on or is similar to the federal act…Ten other states have religious
76 • Spring 2019
R E L I G I O U S F R E E D O M R E S T O R AT I O N AC T
liberty protections that state courts have interpreted to provide a similar (strict scrutiny) level of protection. (para. 5) State versions of RFRA have caused controversy in certain states. The City of Indianapolis lost $60 billion in convention business due to a state RFRA controversy (Bender, 2016). State RFRAs supposedly caused tension because some proponents of the bills said that the new laws could be used to protect religious individuals with objections to same-sex weddings. After the law was passed in Indiana, there was a strong wave of business cancellations. Bender (2016) wrote: After the law passed on March 26, 2015, reaction was swift, strong and negative, with cancellations of planned events and business expansions, travel bans and denunciations from across the spectrum: companies including Salesforce, Apple, Eli Lilly and Angie's List; sports leagues including the NCAA, NBA and WNBA; states and municipalities coast to coast; rock concerts; comedy shows and church groups. (p. 4) A week later, Indiana’s state RFRA was amended so that it did not give protection for religious individuals with objections to same-sex weddings.
Policy Evaluation Twenty-five years later, RFRA has received mixed reviews. While RFRA originally had a broad coalition of supporters from across the political spectrum, it is now supported primarily by conservatives. In 2015, Louise Melling, the deputy legal director of the ACLU, wrote in an op-ed published in The Washington Post: The ACLU [originally] supported the RFRA’s passage…because it didn’t believe the Constitution, as newly interpreted by the Supreme Court, would protect people…whose religious expression does not harm anyone else. But we can no longer support the law in its current form. For more than 15 years, we have been concerned about how the RFRA could be used to discriminate against others…it is now often used as a sword to discriminate against women, gay and transgender people and others. Efforts of this nature will likely only increase should the Supreme Court rule — as is expected — that same-sex couples have the freedom to marry. (para. 5)
Spring 2019 • 77
GEORGE WYTHE REVIEW
Given also what occurred with Indiana’s state RFRA, it appears that there is less support for the general idea of giving strict scrutiny to cases where someone’s right to free exercise has been violated. Many liberals rescinded their support for RFRA when people with Judeo-Christian religious beliefs started objecting to supporting same-sex weddings. Organizations like the Becket Fund for Religious Liberty strongly support RFRA and have attempted to dispel liberal fears about the bill (“Religious Freedom Restoration Act Information Central,” n.d.). The organization wrote that RFRA is not a trump card for religious people to use in court (“Religious Freedom Restoration Act Information Central,” n.d.). Becket emphasized that no side is guaranteed a win and that the Act established a reasonable test that religious organizations must satisfy in order to qualify for constitutional protection. Becket also said that it is a myth that RFRA was created to discriminate based on sexual orientation and that RFRA spells disaster for LGBT rights (“Religious Freedom Restoration Act Information Central,” n.d.). Becket strongly supports RFRA even though it does not identify itself with the conservative response to homosexual marriage. On the 20th anniversary of RFRA’s passage, the Baptist Joint Committee published a report discussing RFRA’s history: Two decades later, opinions about RFRA vary. Some prior RFRA advocates now express concerns about its application in particular contexts, such as its interaction with civil rights and health care laws; others argue RFRA has not lived up to its promise of providing meaningful protection for religious liberty for all. Others conclude that RFRA, while not perfectly applied in every case, has on balance provided much needed protection against governmental interference with the exercise of religion. ("The Religious Freedom Restoration Act: 20 years," n.d., para. 2) Conservative organizations such as Alliance Defending Freedom (ADF) fall into the last category of evaluators of RFRA. They clearly support RFRA’s mandate that courts give free exercise cases strict scrutiny (“Will you take,” n.d.). Additionally, Michael Farris (2015), the CEO of ADF, expressed that he only wished that the federal RFRA remain applicable to states.
Conclusion The Religious Freedom Restoration Act is a remarkable law for several reasons. First, RFRA brought together special interest groups from across the political spectrum. Groups such as the ACLU and groups that support traditional values rarely
78 • Spring 2019
R E L I G I O U S F R E E D O M R E S T O R AT I O N AC T
come together to advocate for a singular cause. Furthermore, cooperation among various interest groups translated into cooperation amongst leaders in Washington, D.C. Republicans and Democrats united together to ensure that religious liberty was protected. RFRA ultimately passed unanimously in the House and 97-3 in the Senate. Given the unique cooperation seen in RFRA, political scientists should do further research into the reasons for the Actâ&#x20AC;&#x2122;s success. RFRA is also important because it majorly affects current policy regarding religious liberty in the United States. Without RFRA, religious corporations like Hobby Lobby would be forced to provide contraceptive services to their employees. Anyone who hopes to defend religious liberty in the future needs to understand RFRA and what it does. Finally, further research ought to be conducted about what can be done in light of Boerne v. Florez. Congress should attempt to pass more laws, such as the Religious Land Use and Institutionalized Persons Act (RLUIPA), to systematically restore rights that were lost due to Smith and Boerne. Additionally, more states should pass state versions of RFRA in order to safeguard religious liberty for all Americans.
Spring 2019 â&#x20AC;˘ 79
GEORGE WYTHE REVIEW
Reference List 42 U.S.C. §§ 21B-2000bb (1993). Baptist Joint Committee (Producer). (2013). Oliver “Buzz” Thomas on the Religious Freedom Restoration Act [Vimeo]. Retrieved from https://vimeo. com/99046873 Bender, A. (2016, January 31). Indiana's Religious Freedom Act cost Indianapolis $60 million in lost revenue. Forbes. Retrieved from https://www.forbes. com/sites/andrewbender/2016/01/31/indianas-religious-freedom-act-costindianapolis-60-million-in-lost-revenue/#3903fdb02e2a Bomboy, S. (2014, June 30). What is RFRA and why do we care? [Blog post]. Retrieved from https://constitutioncenter.org/blog/what-is-rfra-and-whydo-we-care Burwell v. Hobby Lobby, 573 U.S. __ (2014). Carter, J. (2018, January 18). 5 facts about the Religious Freedom Restoration Act. ERLC. Retrieved from https://erlc.com/resource-library/articles/5-factsabout-the-religious-freedom-restoration-act Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993). City of Boerne v. Florez, 521 U.S. 507 (1997). Conestoga Wood Specialties Corp. v. Health and Human Services Department, 723 F.3d 377 (3rd Cir. 2013). Dye, T. (2013). Understanding public policy (15th ed.). Upper Saddle River, NJ: Pearson Education, Inc. Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006). H. Rep. No. 88 (1993). History of RFRA. (n.d.). Becket. Retrieved from https://www.becketlaw.org/ research-central/rfra-info-central/history/#numberone
80 • Spring 2019
R E L I G I O U S F R E E D O M R E S T O R AT I O N AC T
Kingdon, J. W. (2011). Agendas, alternatives, and public policies (2nd ed.). Glenview, IL: Pearson Education, Inc. Laycock, D., & Thomas, O. (1994). Interpreting the Religious Freedom Restoration Act. Texas Law Review, 73(2), 209-245. McRae v. Califano, 491 F.Supp. 630 (1980). Melling, L. (2015, June 25). ACLU: Why we can no longer support the federal ‘religious freedom’ law. The Washington Post. Retrieved from https://www. washingtonpost.com/opinions/congress-should-amend-the-abusedreligious-freedom-restoration-act/2015/06/25/ee6aaa46-19d8-11e5-ab92c75ae6ab94b5_story.html?utm_term=.7f3e36fc80b2 Minnesota v. Hershberger, 495 U.S. 901 (1990). Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 US 833 (1992). Religious Freedom Restoration Act of 1990: Hearing on H.R. 5377 before the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary, House of Representatives, 102d Cong. 2 (1992). Religious Freedom Restoration Act of 1990: Hearing on H.R. 5377 before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 101st Cong. 2., at Appendix 1 (1990) (statement of the American Jewish Congress). The Religious Freedom Restoration Act: 20 years of protecting our first freedom. (n.d.). Retrieved from https://bjconline.org/rfra-symposium/ The Religious Freedom Restoration Act: Hearing on S. 2969 Before the Senate Committee on the Judiciary, 102nd Cong. 2, (1992) (Testimony of Mark Chapko). Reno, J. (1993, May 5). [Letter to Joseph Biden, Jr.]. Copy in possession of the Texas Law Review. RFRA info central. (n.d.). Becket. Retrieved from https://www.becketlaw.org/ research-central/rfra-info-central/ Roe v. Wade, 410 U.S. 113 (1973).
Spring 2019 • 81
GEORGE WYTHE REVIEW
S. Rep. No. 111 (1993). Sherbert v. Verner, 374 U.S. 398 (1963). State v. Hershberger, 462 N.W.2d 393 (1990). Steinfels, P. (1993, November 17). Clinton signs law protecting religious practices. The New York Times. Retrieved from https://www.nytimes. com/1993/11/17/us/clinton-signs-law-protecting-religious-practices.html United States Catholic Conference v. Abortion Rights Mobilization, Inc., 487 US 72 (1988). White House/Office of the Press Secretary. (1993, November 16). Remarks by the President at signing ceremony for the Religious Freedom Restoration Act [Press Release]. Retrieved from https://clintonwhitehouse6.archives. gov/1993/11/1993-11-16-religious-freedom-restoration-act-remarks.html Will you take a stand for religious freedom? (n.d.) Alliance Defending Freedom. Retrieved from https://www.adflegal.org/campaigns/stand-for-rfra
82 â&#x20AC;˘ Spring 2019
COUNTERING VIOLENT EXTREMISM
COUNTERING VIOLENT EXTREMISM IN THE UNITED STATES Claire Atwood and Sarah Jacob Abstract As the post-9/11 threat landscape has evolved, the United States has struggled to adapt its prevention and risk mitigation efforts accordingly. One such effort, countering violent extremism (CVE), captures the mixed success of the federal governmentâ&#x20AC;&#x2122;s efforts to prevent and protect against the threat of violent extremism. The reality of modern radicalization is fluid and complex, rendering CVE efforts ineffective at best and counterproductive at worst. This study examines the effectiveness of CVE efforts within the United States in light of the current threat environment, similar lines of efforts by the United Kingdom, and comprehensive research by field experts. It concludes that CVE efforts are constrained by ambiguity and tenuous relationships with key communities. Ultimately, this study recommends a holistic approach to countering violent extremism that begins with clearly defining the threat and culminates in a whole-of-society approach grounded in accessible research, strengthened community engagement, and balanced adjudication of offenders. ___________________________________
Spring 2019 â&#x20AC;˘ 83
GEORGE WYTHE REVIEW
Introduction In September 2014, President Barack Obama stood before the United Nations and demanded an escalation in global efforts to counter violent extremism (CVE): “It is time for a new compact among the civilized peoples of this world to eradicate war at its most fundamental source, and that is the corruption of young minds by violent ideology” (White House/Office of the Press Secretary, 2014, para. 30). Although the imperative was lauded internationally, it was a demand for a solution to a nebulous problem. Despite many policy efforts and trillions of dollars that have been poured into extinguishing violent extremism, the increasing potency and reach of terrorist groups has left United States law enforcement and intelligence officers scrambling for a cohesive strategy. The pursuit of such a strategy has spawned inadequate policies that this study seeks to address. This study aims to define the issue, examine the current and future threat environments, explore current United States and United Kingdom CVE policies, evaluate policy issues, and provide policy recommendations to address identified gaps and vulnerabilities.
Definition It is difficult to define what it means to “counter violent extremism” because there is not yet an agreed-upon definition of “violent extremism.” Generally, countering violent extremism (CVE) refers to the “soft” side of counterterrorism strategies (Frazer & Nunlist, 2015). This soft approach is characterized by a focus on the ideological, political, and social drivers that push an individual to radicalization. Radicalization is a fluid, nonlinear, and highly individualized process (Holmer, 2013). It is thought to be predicated upon a dynamic set of drivers, which can include structural conditions, psychological and emotional characteristics, the influence of group dynamics, and the allure of social messaging. However, these diverse factors are not predictive of radicalization and only provide a rudimentary understanding of the extremist psyche.
Background Although the United States can trace the formal genesis of CVE efforts to 2014, initiatives to counter violent extremism began over a decade earlier. The aftermath of the terrorist attacks on September 11, 2001, fostered a paradigm shift towards prevention. The attacks highlighted the evolving nature of warfare and terrorism, particularly the rise of decentralized actors, self-radicalized small groups, and lone wolves (Holmer, 2013). It also highlighted the inadequacy and damaging effects of Cold War era counterterrorism tactics. Governments began to realize that the
84 • Spring 2019
COUNTERING VIOLENT EXTREMISM
pursuit and apprehension of terrorists had to be addressed in conjunction with countering recruitment efforts. As early as December 2001, the Organization for Security and Cooperation in Europe (OSCE) demanded that global terrorism be countered not only with military and intelligence means, but also by identifying and eradicating its root causes (Frazer & Nunlist, 2015).
Current Situation and Future Threats Violent extremism is constantly changing in its form and methods. It is characterized by a broad range of actor profiles, motivating drivers, and manifestations. Violent extremists may commit violence in alignment with a cause, in reaction to a policy shift, or as a result of a myriad of other factors. While there is a concerning lack of a definitive equation for violence, there are identified triggers within the current threat environment that decision makers and their auxiliaries ought to consider. Overall, governments should expect growing competition among terrorist networks, infrequent and less sophisticated attacks, and a diverse array of recruits. In alignment with this future state, CVE efforts must anticipate new technologies, infrastructure, and innovation within the area of violent extremism (“The Future,” 2016). The widespread accessibility to and use of social media platforms has been a primary influence on the methods of violent extremism today. Extremists now have the ability to identify and directly recruit vulnerable individuals across the globe. Although YouTube, Twitter, and Facebook have been heavily touted as breeding grounds for recruitment, extremists are increasingly turning to platforms that provide greater anonymity and encryption capabilities, such as WhatsApp and Telegram. They have also experimented with lesser-known platforms such as Friendica, Diaspora, KIK, WICKR, and VKontakte (“The future,” 2016). Although it is expected that terrorists will continue to rely heavily on higher-profile platforms, these niche platforms are less porous and may gain sizeable memberships, posing a security vulnerability for governments that do not focus resources towards monitoring these platforms. Social media can also enable extremist groups, particularly in their efforts to recruit Muslim youth. As noted by Scott Atran, Muslim millennials throughout the world are suffering from a profound identity crisis (Green & Proctor, 2016). The resulting ennui is exploited heavily by terrorist recruiters. Atran elaborated, “Joining a violent extremist movement is, for many, an aspirational social act—an opportunity to gain power, prestige, and status; to address the abuses suffered by their coreligionists; or to participate in a utopian effort to remake the world” (as cited in Green & Proctor, 2016, p. 16). It should be noted, however, that terrorist groups have recognized the current Western focus on youth preservation and have
Spring 2019 • 85
GEORGE WYTHE REVIEW
thus begun to diversify their recruitment pool. They have increasingly reached out to women, as well as older and younger generations. Women in particular are assuming high-profile roles as supporters, mobilizers, and members of terrorist groups, and should be monitored as a key feature of the future landscape (“The future,” 2016). Furthermore, it is expected that the military campaign against ISIS in Syria and Iraq and improved intelligence and law enforcement efforts aimed at foreign fighters will prompt more concerted efforts towards homegrown extremism (“The future,” 2016). This will continue the trend of attacks perpetrated by lone actors or small groups against individuals and soft targets. The appeal of these attacks lies in their low-cost, high-benefit framework. The weapons are usually less sophisticated and are easy to acquire. Little training is required to use them. Due to the lack of a planning and coordination trail, such attacks are harder to anticipate and potentially more lethal. In order to properly evaluate and critique current U.S. CVE policies, it is important to examine both domestic and international efforts. This study examines both U.S. and U.K. CVE policies. This is primarily due to the U.K.’s tragic history of mass attacks and continuing struggle against violent extremists. Additionally, the U.K. shares a number of political and ideological characteristics with the U.S., making it an effective case study. This provides greater insight into gaps and vulnerabilities inherent to U.S. policy, as well as the broader applicability of lessons learned and best practices.
Lines of Effort in the United States In 2011, the Obama White House issued its “National Strategy for Empowering Local Partners to Prevent Violent Extremism in the United States.” The document marked the first formal national strategy to supplement law enforcement counterterrorism tactics with auxiliary prevention measures. Prior to the Strategy’s release, law enforcement efforts had largely been localized with little interoperability. These efforts were reactive in nature, including surveillance, investigations, and prosecutions (Patel & Koushik, 2017). A string of global attacks shed light on domestic vulnerabilities, primarily the lack of a concerted and coordinated offensive CVE strategy. The resultant National Strategy has three prongs. First, identifying vulnerable and at-risk individuals. Such individuals, often young people, tend to have exhibited signs of alienation and to have adopted “radical” ideas. Second, funding and facilitating programs that mitigate the socioeconomic factors that are thought to contribute to radicalization. This includes the provision of health, education, and social services to vulnerable communities. Third, developing and promoting counterpropaganda. Historically, this has also included monitoring and suppressing
86 • Spring 2019
COUNTERING VIOLENT EXTREMISM
messages that encourage extremism and pressuring social media platforms to remove extremist content and promote counter-messages (Patel & Koushik, 2017). In 2014, the Department of Justice (DOJ) piloted this multifaceted strategy in Boston, Los Angeles, Minneapolis, and Montgomery County, Maryland. Additionally, the Federal Bureau of Investigation (FBI) launched concomitant initiatives. The Department of Homeland Security (DHS) established the Office of Community Partnerships (OCP), which distributes $10 million in Congressionally-appropriated grant funding to police departments, academic institutions, and non-profit groups (Patel & Koushik, 2017). In October 2016, the White House released the “Strategic Implementation Plan for Empowering Local Partners to Prevent Violent Extremism in the United States.” The plan provides an updated actionable arm to the National Strategy that had been released five years earlier. It outlines a multi-tiered approach to CVE, with delineated efforts at the federal, local, and individual levels. The federal government’s role in CVE efforts is to act as “a convener, facilitator, and conduit for relevant information” (Executive Office of the President, 2016, p. 3). Local efforts aim to build resilient communities through local youth engagement, internet safety education, community service, and other community-led local initiatives. In order to maximize effectiveness and interoperability, these initiatives are to be integrated into existing programs and public safety strategies. At the individual level, CVE efforts focus on identifying behavioral indicators and reporting any suspicious behaviors. As stated, the National Strategy had identified three priority action areas: (1) enhancing engagement with and support to local communities, (2) building government and law enforcement expertise for preventing violent extremism, and (3) countering violent extremist propaganda while promoting American ideals (Executive Office of the President, 2016). The new Strategic Implementation Plan delineates four lines of effort that correspond to these priority action areas. These include Research and Analysis, Engagement and Technical Assistance, Interventions, and Communications and Digital Strategy (Executive Office of the President, 2016). The CVE Task Force, which is comprised of DHS, DOJ, FBI, NCTC and other federal departments and agencies, is tasked with managing these efforts. These federal entities are also responsible for “funding research, disseminating best practices, issuing grants, and building partnerships with non-government stakeholders” (Executive Office of the President, 2016, p. 3).
Research and Analysis
The research component of domestic CVE efforts is primarily tasked to DHS and DOJ. The plan harnesses the resources of federally-funded research and development centers (FFRDCs), academic partners, government analysts, and private-sector program implementers
Spring 2019 • 87
GEORGE WYTHE REVIEW
to build expertise on topics such as recruitment narratives and tactics, radicalization to violence, the role of the Internet in the radicalization process, youth radicalization and recruitment, behaviors commonly undertaken during mobilization to violence, and what motivates individuals to travel to conflict zones and join violent extremist groups. (Executive Office of the President, 2016, p. 5) There are three tasks outlined within Research and Analysis. The first is to map existing CVE-relevant research and analysis, identify gaps, and coordinate future projects. As part of this task, the CVE Task Force and Department of State jointly conduct CVE research with foreign partners through bilateral research and development agreements. The second task is to increase stakeholder access to research and feedback. This includes synthesizing and sharing research findings with stakeholders, increasing the applicability of CVE research and analysis, and ensuring that research products inform CVE training. The third task is to establish evaluation methods for CVE programs. This effort builds on previous assessments conducted by DHS, DOJ, and USAID to develop benchmarks that measure program effectiveness.
Engagement and Technical Assistance
Engagement and Technical Assistance focuses on building community outreach and engagement programs to foster information sharing and coordination between local communities and the federal government. Prior engagement efforts have included local â&#x20AC;&#x153;roundtableâ&#x20AC;? discussions featuring officials with special expertise to address the unique challenges facing a jurisdiction. In addition to these prior efforts, the CVE Task Force now coordinates regional CVE engagements to provide training and technical assistance. This assistance includes sponsoring regional support staff to provide CVE-specific expertise to local community authorities, providing customized trainings and presentations (i.e., Community Awareness Briefings and Community Resilience Exercises), and stewarding direct government grants and funding assistance (Executive Office of the President, 2016).
The fourth line of effort, Interventions, is perhaps the most controversial. Designed to identify alternative pathways for individuals who are progressing towards violent extremism, intervention approaches are multidisciplinary and are applied on a case-by-case basis (Executive Office of the President, 2016). For instance, a mentally-ill individual who has progressed to virulent expressions of extremist thought on social media would benefit from a rehabilitation program, whereas a teenager who has only recently begun their foray into extremism would
88 â&#x20AC;˘ Spring 2019
COUNTERING VIOLENT EXTREMISM
benefit from a disengagement plan. The first step of intervention is identifying the candidate. This is to be accomplished by disseminating resources and training to American citizens to educate them on the signs of radicalization. The second step is developing local intervention models, which are supported by multidisciplinary teams of mental health professionals, local law enforcement officials, and nongovernment representatives (Executive Office of the President, 2016). The Strategic Implementation Plan ultimately aims to enable local officials to develop and maintain these teams independently of the federal government.
Communications and Digital Strategy
Digital communication is a primary and powerful recruitment tool in the violent extremist’s arsenal. The rapidly shifting digital environment and broad accessibility of platforms also makes it particularly challenging for the federal government to address. Instead of focusing resources on identifying and shutting down potentially dangerous actors and social media accounts, the Strategic Implementation Plan adopts a counter-narrative approach. To this end, the CVE Task Force seeks to develop a new online platform, including a public website to provide and adapt resources to local and individual contexts. This platform will centralize and streamline “access to: training; research, analysis, and lessons learned; financial resources and grant information; networks and communities of interest; and intervention resources” (Executive Office of the President, 2016, p. 13). Additionally, the Task Force will develop a social media strategy that promotes American ideals and provides a counter-narrative to extremist recruitment.
Lines of Effort in the United Kingdom The concept of CVE entered European political thought following the 2004 Madrid and 2005 London attacks. The attacks spurred widespread fears concerning homegrown Islamist terrorism and, as with the U.S., shed light on gaps and vulnerabilities within European security and counterterrorism approaches. The first precursor to an established “CVE” program was the Prevent initiative, which ran from 2005 to 2011 (Frazer & Nunlist, 2015). The project focused on developing local projects to hinder jihadist radicalization. The program was rooted in the European Union’s four-pillar counterterrorism framework: prevent, protect, pursue, and respond (Frazer & Nunlist, 2015). This complemented the United Nations' call in 2006 for a “holistic” approach to global anti-terrorism initiatives that would consider the socioeconomic factors of radicalization. Although the program was eventually shut down, its fundamental idea continues to frame U.K. CVE policies. This fundamental idea is the same idea that characterizes U.S. policy: that the
Spring 2019 • 89
GEORGE WYTHE REVIEW
terrorist profile, however ill-defined and spectral, can be identified and mitigated by community-led approaches (Cottee, 2015). This community-centric approach was mandated by the U.K.’s 2015 Counterterrorism and Security Act. The Act frames violent extremism as an illness of sorts; an ideological contagion to which vulnerable individuals helplessly fall prey (Cottee, 2015). This mentality removes any vestige of responsibility from the person and lays it entirely on his upbringing, education, and society. “Early intervention” has been the primary approach to coping with vulnerable individuals. The Act obligates community partners, such as teachers, social workers, and “credible community organizations,” to monitor their charges for vulnerability indicators (Cottee, 2015, para. 6). Once identified, these individuals are processed through the British government’s radicalization referral program. There were 796 referrals during the summer of 2015 alone, which aligns with the rapid ascension of ISIS in 2014 (Cottee, 2015). Like the U.S., the U.K. has also adopted a counter-narrative strategy. In 2011, the Home Office and a secretive government department called the RICU (Research, Information, and Communications Unit) began developing a grassroots network of Muslim voices to provide counter-narratives to British Muslim youth. These counter-narratives are disseminated through multimedia campaigns that target specific groups of internet users “chosen on the basis of their demographics, the websites they visit, the social media accounts they ‘follow,’ and the search terms they use” (Hayes & Qureshi, 2016, para. 6). These multimedia campaigns are provided with technical and financial assistance from the government and selected PR firms. Some of these campaigns contain headlines such as “Open Your Eyes: ISIS Lies,” “The Truth About ISIS,” and “Making a Stand” (Hayes & Qureshi, 2016, para. 6). This counter-narrative program was covert until it was discovered in 2016, with Parliament being entirely unaware of its existence. In its development of a CVE strategy, the U.K. also pioneered the censorship of “terrorist content” with the establishment of the first Counter-Terrorism Internet Referral Unit (CTIRU) in 2010 (Hayes & Qureshi, 2016). The CTRIU was modeled after the Child Exploitation and Online Protection Agency, which censors child pornography. It provides a central point of contact for law enforcement and intelligence officers seeking to block web pages or close social media accounts. CTRIU refers these requests to accommodating internet service providers, search engines, and content platforms who can elect to block or take down the content. These ad hoc public-private partnerships between CTRIU and Silicon Valley have resulted in the take-down of over 120,000 pieces of unlawful terrorist-related online content (Hayes & Qureshi, 2016).
90 • Spring 2019
COUNTERING VIOLENT EXTREMISM
Policy Issues Ambiguity of Terms and Focus
CVE programs suffer from a lack of clear terms and goals. Even before considering the subject’s particular ambiguities, policymakers and law enforcement officials have difficulty distinguishing CVE actions and goals from counterterrorism actions and goals (Challgren, Kenyon, Kervick, Scudder, Walters, & Whitehead, 2016). There is no international consensus on what can be defined as “violent extremism” (Anyadike, 2016). Even once actors settle on a working definition, the scale and complexity of the problem fluctuates greatly among different communities (McKenzie, 2016). The process of violent radicalization has limited universal indicators, thus reducing the probable success of any catch-all strategic response (Challgren et al., 2016). CVE actors, particularly law enforcement, have assumed that there are particular behaviors and backgrounds that radicalized persons will share in common. However, these factors are often extremely broad and subjective. This will likely result in a large number of false positives, which can potentially have lasting ramifications (Patel & Koushik, 2017).
Inconclusive Knowledge Base
An underlying assumption of CVE programs is that the process of radicalization is defined by a predictable framework. This framework is supposedly characterized by static signposts, or “red flags,” that law enforcement officials, peers, teachers, and family can identify (Patel & Koushik, 2017). However, this assumption is fundamentally flawed and disputed by established research. Empirical studies, including those funded by the U.S. government, have concluded that the path of radicalization is fluid and adaptable to the subject (Patel & Koushik, 2017). By forcing radicalization into preset parameters, the government has effectively ignored those aspects of radicalization that arguably require the greatest amount of study and resources. This includes studying homegrown terrorists who have no history of mental illness or religious affiliation—two “reliable” drivers ascribed to extremist behaviors (Patel & Koushik, 2017).
Stigmatization and Distrust
The Trump administration is seeking to focus U.S. CVE efforts explicitly and almost exclusively on Muslim communities. This effort results in the stigmatization of Muslim communities as inherently suspect (Patel & Koushik, 2017). Such a narrowly focused CVE strategy could undermine efforts to incentivize the very communities that the government is reliant on for assistance (Rosand, 2017a). Muslim community members are essential partners in preventing radicalization and recruitment to violence. They are unlikely to partner with government actors if
Spring 2019 • 91
GEORGE WYTHE REVIEW
they feel that law enforcement is conducting ideological policing and surveillance. Critical responses to the FBI program “Don’t Be a Puppet: Pull Back the Curtain on Violent Extremism” exemplify the fermenting division and distrust. The program is an interactive website that teaches teens how to recognize violent extremism messaging. Critics question why the FBI is in charge as opposed to an NGO or the Department of Education. They predict a chilling effect in schools and immigrant communities (Rosand, 2017a). Damaged relationships between law enforcement and Muslim communities will undermine the mutual goal of preventing terrorism. If Muslim community members feel pressure to restrict discourse and debate, terrorist narratives will be driven underground and thus be harder to combat (Patel & Koushik, 2017). Community-level programs have begun to recognize and adjust based on these concerns. Rather than using the term “CVE” for fear of community backlash, local programs are increasingly using labels like “building community resilience” or “preventing targeted violence” (Rosand, 2017a, para. 5).
Confused and Constrained Actors
CVE efforts in the United States also suffer from a lack of coordination and defined roles. Multiple federal agencies are involved in CVE on the national level. They are expected not only to work with one another but also to work with state and local law enforcement, NGOs, and community leaders. Partners are easily confused, and there is no clear division of labor (Rosand, 2017a). This can lead to duplication of efforts or, even worse, gaps in coverage. The federal government has yet to fully develop measures to handle young persons who are sympathetic to extremist causes. For example, federal law enforcement is currently limited to arresting and prosecuting young people suspected of supporting the Islamic State who do not yet pose a security threat (Rosand, 2017a). Government funding for CVE efforts is also limited to short-term, tactical efforts (Rosand, 2016).
Ethical Issues Undermined Relationships
When used by the government, CVE soft tools risk becoming a system of soft surveillance, to the detriment of crucial social compacts. Even when not run by government actors, many CVE programs closely cooperate with law enforcement officials without safeguards to prevent the exchange of confidential information (Patel & Koushik, 2017). Through CVE programs, law enforcement receives reporting from community members traditionally bound by confidentiality— counselors, doctors, social workers, etc. As community members become aware of these connections, they may withhold information that they believe will be reported to the police. This undermines relationships and limits effective service.
92 • Spring 2019
COUNTERING VIOLENT EXTREMISM
The American Federation of Teachers, the country’s second largest teachers’ union, warned that any CVE program verging on “ideological profiling and surveillance” will have “a chilling effect on our schools and immigrant communities, jeopardizing children’s sense of safety and well-being and threatening the security and sense of trust of entire communities” (Patel & Koushik, 2017, p. 17).
Abuse of Ambiguities
Conceptual clarity is crucial as the government further explores the purpose and desired effects of CVE strategies and policies. As indicated in the earlier section on ambiguous terms and focus, there is no clear definition of who constitutes an “extremist.” This term’s ambiguity could allow actors to impose their personal or political agendas (Hadra, 2016). CVE officials must carefully avoid misusing or abusing the term “extremist.” Additionally, politicians should be cautious in labeling programs as “CVE,” as misinterpreted intentions or crossed boundaries could further destabilize vulnerable communities (Hadra, 2016). Overly broad interpretations of CVE will likely exacerbate feelings of stigmatization or marginalization in suspect communities, thus heightening community-level tensions (Rosand, 2016).
The government’s CVE efforts obscure the intentions and roles of community members and suspected radicalized persons. As CVE strategy seeks to prevent religiously-motivated or ideologically-motivated violence, it risks flagging innocuous activity as pre-terrorism and suppressing religious speech (Patel & Koushik, 2017). There is a temptation to equate protest, rebellion, and unfamiliar religious beliefs with “violent extremism” (Anyadike, 2016). Even with obvious radical movements, federal actors may apply broad assumptions to distinct movements without first disaggregating them. As law enforcement works with key community members, it also risks transforming CVE programs into intelligence collection operations. Community members may be pressed to serve as conduits for the personal information of individuals who are not even suspected of involvement in terrorism (Patel & Koushik, 2017). These community members should not be placed in a position where they feel forced to choose between neighbor and country.
Recommendations Recommendation 1: “Whole of Society” Partnerships
Following Canada’s lead, the United States should take a “whole of society” approach to CVE efforts. Commenting on Canada’s new CVE coordination body, Prime Minister Justin Trudeau explained its purpose as providing “national leadership, coordination, and support to prevent the radicalization of young people”
Spring 2019 • 93
GEORGE WYTHE REVIEW
(Rosand, 2017b, para. 10). The body’s explicit purpose indicates the government’s effort to attract broad-based community and non-law enforcement support. As the United States continues to adjust its CVE efforts under the Trump administration, it must emphasize diversity of governmental and nongovernmental stakeholders and the formation of durable, trust-based partnerships (Rosand, 2016). Governmental CVE efforts cannot be viewed as exclusively serving a security agenda. Government officials should partner with local communities, strengthening relationships to build trust between all levels of government and society. As initiatives emerge at the local and state levels, the federal government should encourage the creation of a range of reinforcing networks outside the law enforcement sphere (Rosand, 2017a). Throughout this process, CVE actors should consult experts from other fields including development programming, conflict and peacebuilding, communications campaigns, counterterrorism, and public health campaigns for lessons learned (Glazzard & Rosand, 2017). The utilization of such wide-ranging expertise acknowledges the complexity and many remaining unknowns of CVE.
Recommendation 2: Community Engagement
America’s CVE strategy must move from a state-centric approach to a community-centric approach. Programs must be framed by community concerns rather than by the concerns of donors, national authorities, and international organizations (Rosand, 2016). They should be locally owned when possible and should always be responsive to local demands. When communities request federal assistance, it should come without bureaucratic or political strings attached (Rosand, 2017a). Specific agency participation should be transparent and clearly articulated. As efforts focus on the local level, CVE actors must acknowledge and learn from failed programs. Pilot programs in Boston, Los Angeles, and Minneapolis were widely criticized by Muslim communities for their lack of cultural and communal understanding. American Muslim leaders explained that most eventual attackers were radicalized in small, cloistered groups rather than in open, social settings (McKenzie, 2016). As government actors collaborate with Muslim communities, outreach efforts should be centered on community concerns without an explicit counterterrorism framework. For local governments who oppose the Trump administration but want to participate in CVE efforts, they should be encouraged to develop their own initiatives that can attract resources and other support from local businesses, leaders, and nonprofits (Rosand, 2017a).
Recommendation 3: Accessible Research
Federal government agencies should encourage and participate in expanded cross-disciplinary research on CVE. As new programs move past the implementation stage, actors should be transparent about CVE successes and failures. Knowledge
94 • Spring 2019
COUNTERING VIOLENT EXTREMISM
gained from pilot projects should be used both to expand what works and to contribute to the shared evidence base (Glazzard & Rosand, 2017). As evidence is compiled, the government should remain open to funding experimental efforts. Innovative ideas should be encouraged, particularly in a field where effectiveness and success are difficult to measure (Rosand, 2017b).
Recommendation 4: Trustworthy Alternatives
The government must develop clear alternatives to law enforcement where community members can report alarming behavior. Early intervention tools are most effectively utilized on the local level (Hadra, 2016). Teachers, family members, counselors, and other community members must feel comfortable conducting interventions without fear of prosecution. Even if intervention programs are funded by the federal government, they should be tailored to specific needs, replicating community drug courts that deal with addiction (McKenzie, 2016). Social and educational programs like conflict resolution and youth engagement must be situated explicitly outside the counterterrorism umbrella. When community members choose to report their suspicions to law enforcement, there should be clear, customized federal guidelines for such referrals (Rosand, 2017a).
Recommendation 5: Rehabilitation and Reintegration
The government must support the development of off-ramps for extremist offenders. The criminal justice system lacks adequate policies and programs to address extremist offenders. The traditional zero-tolerance approach towards terrorism inhibits the possible rehabilitation and reintegration of previously radicalized persons. Instead, the government should establish federal policy that allows judges greater sentencing authority (Rosand, 2017a). When appropriate, judges should have the ability to issue reduced or alternative sentences for extremist offenders who agree to participate in rehabilitation or reintegration programs (Rosand, 2016). Alternatives to criminal prosecution and incarceration are more likely to facilitate the cooperation of family, friends, and other community members to assist in the deradicalization process. For persons already imprisoned, the Federal Bureau of Prisons needs to do more. Although there is a growing number of persons in federal prison for nonviolent terrorism charges, there are no tailored plans for rehabilitating them in prison or reintegrating them into society upon release. Customized counseling and vocational training should be provided for this unique type of prisoner (Hadra, 2016). During the development of such programs, criminal justice officials and the public must understand that the government is not going â&#x20AC;&#x153;softâ&#x20AC;? on terrorism. Rather, it is implementing processes that will reduce the threat (Rosand, 2016).
Spring 2019 â&#x20AC;˘ 95
GEORGE WYTHE REVIEW
Recommendation 6: Name the Problem
A study of the National Strategy and its auxiliary documents reveals a tendency towards vague language and unhelpful platitudes. These documents delineate a number of drivers, ranging from the psychological to the conditional. Yet, there is no mention of what is arguably the most potent driver: religion—specifically, Islam. This is a stunning omission considering that former Secretary of State John Kerry used the term “Muslim majority countries” in his foreword to the Department of State & USAID Joint Strategy on Countering Violent Extremism (Simcox, 2016). From there, the document quickly retreated from any mention of Islamist extremism or Islam broadly. This highlights an overall dishonesty in the government’s policy approach to CVE. It is nearly impossible to address “root causes” when policymakers are unwilling to name and address a primary root cause in the name of political correctness. Islam is, and has been, a primary driver of violent extremism. It is a religion that encourages and incites violence among its radically devoted adherents. By failing to acknowledge the role of Islam in radicalization, policymakers create a knowledge gap in CVE strategy and thus fall short of fully understanding the root causes of extremism.
Conclusion Actors across all levels of government and society must continue to make strides in the CVE space. They must progress, however, with the awareness that CVE will always be controversial and that its success will be difficult to measure. Current problems with U.S. CVE efforts are not limited to lack of funding or poor coordination. Rather, the underlying problem is that CVE is an ambiguous concept that does not always adhere to the standard American method of fighting evil (McKenzie, 2016). The partisan divide has further impeded efforts to develop a comprehensive and sustainable plan to prevent future terrorist attacks. Politicians will inevitably ask for quantifiable successes, even in a field where success is difficult to quantify (Challgren et al., 2016). CVE successes are “non-events.” Effective CVE efforts in the United States will consist of community members looking out for one another, law enforcement foiling planned attacks, and the criminal justice system rehabilitating and reintegrating at-risk persons.
96 • Spring 2019
COUNTERING VIOLENT EXTREMISM
Reference List Anyadike, O. (2016, August 10). Does countering violent extremism work? IRIN. Retrieved from https://www.irinnews.org/analysis/2016/08/10/doescountering-violent-extremism-work Challgren, J., Kenyon, T., Kervick, L., Scudder, S.,Walters, M., & Whitehead, K. (2016). Countering violent extremism: Applying the public health model. Georgetown Security Studies Review, National Security Critical Issues Task Force. Retrieved from http://georgetownsecuritystudiesreview.org/ wp-content/uploads/2016/10/NSCITF-Report-on-Countering-ViolentExtremism.pdf Cottee, S. (2015, October 27). The pre-terrorists among us. The Atlantic. Retrieved from https://www.theatlantic.com/international/archive/2015/10/ counterterrorism-prevention-britain-isis/412603/ Executive Office of the President. (2016). Strategic implementation plan for empowering local partners to prevent violent extremism in the United States. Retrieved from https://www.brennancenter.org/sites/default/files/2016_ strategic_implementation_plan_empowering_local_partners_prev%20 %282%29.pdf Frazer, O., & Nunlist, C. (2015). The concept of countering violent extremism. Center for Security Policy Analyses in Security Policy, 183. Retrieved from http://www.css.ethz.ch/content/dam/ethz/special-interest/gess/cis/centerfor-securities-studies/pdfs/CSSAnalyse183-EN.pdf The future of the violent extremist threat. (2016). Center for Strategic & International Studies. Retrieved from https://medium.com/center-forstrategic-and-international-studies/the-future-of-the-violent-extremistthreat-780a86aaec5a Glazzard, A., & Rosand E. (2017, June 11) . Is it all over for CVE? Lawfare. Retrieved from https://www.lawfareblog.com/it-all-over-cve Green, S., & Proctor, K. (2016). Turning point: A new comprehensive strategy for countering violent extremism. Center for Strategic & International Studies. Retrieved from https://www.csis.org/features/turning-point
Spring 2019 â&#x20AC;˘ 97
GEORGE WYTHE REVIEW
Hadra, D. (2016, March 21). A how-to on countering violent extremism. Brookings Institution. Retrieved from https://www.brookings.edu/blog/ markaz/2016/03/21/a-how-to-on-countering-violent-extremism/ Hayes, B., & Qureshi, A. (2016). Going global: The UK government's 'CVE' agenda, counter-radicalisation and covert propaganda. OpenDemocracy. Retrieved from https://www.opendemocracy.net/ben-hayes-asim-qureshi/ going-global-uk-government-s-propaganda-and-censorship-silicon-valleyand-cve Holmler, G. (2013). Countering violent extremism: A peacebuilding perspective (Report No. 336). United States Institute of Peace. Retrieved from https:// www.usip.org/sites/default/files/SR336-Countering%20Violent%20 Extremism-A%20Peacebuilding%20Perspective.pdf McKenzie, R. L. (2016). Countering violent extremism in America: Policy recommendations for the next president. Brookings. Retrieved from https:// www.brookings.edu/research/countering-violent-extremism-in-americapolicy-recommendations-for-the-next-president/ Patel, F., & Koushik, M. (2017). Countering violent extremism. Brennan Center for Justice. Retrieved from https://www.brennancenter.org/sites/default/files/ publications/Brennan%20Center%20CVE%20Report.pdf Rosand, E. (2016). Communities first: A blueprint for organizing and sustaining a global movement against violent extremism. The Prevention Project. Retrieved from http://www.organizingagainstve.org/wp-content/ uploads/2016/12/Communities_First_December_2016.pdf Rosand, E. (2017a). Fixing CVE in the United States requires more than just a name change. Brookings. Retrieved from https://www.brookings.edu/blog/ order-from-chaos/2017/02/16/fixing-cve-in-the-united-states-requiresmore-than-just-a-name-change Rosand, E. (2017b). When it comes to CVE, the United States stands to learn a lot from others: Will it? Lawfare. Retrieved from https://www.lawfareblog. com/when-it-comes-cve-united-states-stands-learn-lot-others-will-it
98 â&#x20AC;˘ Spring 2019
COUNTERING VIOLENT EXTREMISM
Simcox, R. (2016). The unmentionable origins of terrorism. Heritage Foundation. Retrieved from http://www.heritage.org/defense/commentary/theunmentionable-origins-terrorism?_ga=2.80139415.141239306.1511484080439873825.1511484080 White House/Office of the Press Secretary. (2014, September 24). Remarks by President Obama in address to the United Nations General Assembly [Press release]. Retrieved from https://obamawhitehouse.archives.gov/the-pressoffice/2014/09/24/remarks-president-obama-address-united-nationsgeneral-assembly
Spring 2019 â&#x20AC;˘ 99
GEORGE WYTHE REVIEW
COMPROMISED CONFIDENTIALITY: DE-STIGMATIZING THE SILENT STRUGGLE OF OUR SERVICEMEN R. Shane Roberts, Jr. Abstract Mental health disorders permeate the military. When compared to their civilian counterparts, armed forces personnel experience a disproportionately high amount of mental illnesses but receive a disproportionately low amount of treatment. This study explores the inverse correlation between mental health disorders and treatment in the military and hypothesizes that the dangerously low amount of confidentiality afforded to the psychotherapist-patient relationship by current military laws contributes to a stigma that discourages armed forces personnel from seeking treatment for their mental health disorders. By consulting a variety of scholarly resources in the fields of political science, psychiatry, and law, this study explicates and analyzes the history, causes, and impacts of mental health disorders in the military and the stigma that accompanies it. Ultimately, this study confirms the initial hypothesis and offers several suggestions the military and policymakers could use to help wounded warriors back on their feet. ___________________________________
100 â&#x20AC;˘ Spring 2019
COMPROMISED CONFIDENTIALIT Y
Introduction As he sat in his psychotherapist’s office, Sgt. Russell reflected on the 14 years of service he had dedicated to the U.S. military. He could not stop replaying the images and re-experiencing the terror of five combat deployments in Iraq. He cried out for help in the only way he knew how—by talking to his psychiatrist, Michael Jones. Visit after visit, Russell told Jones how he—a seasoned veteran of war—could no longer sleep, eat, or think normally. The symptoms he described to Jones were more than enough to warrant a disability discharge, but Jones had no intention of giving Russell a “golden ticket” out of the army. Russell could not have been more frank: he told Jones in his penultimate visit that if he did not receive serious help, he would kill himself. Jones dismissed him by saying, “You’re fixed” (Murphy, 2013, para. 13). After this, Russell stormed out of the office to Jones yelling, “Soldier, you’ve made your decision” (Murphy, 2013, para. 13). On May 11, 2009, Russell returned to Jones’ office and sat in silence. After 10 minutes, Jones dismissed him under his zero tolerance policy and called the military police to escort him back to his unit. Russell and his escort rode back to his unit’s compound without exchanging any words. When they stepped out of the vehicle, the sound of Russell’s fist crushing the jaw of his escort broke the silence. Stunned, the army escort could not resist Russell from prying the M-16 from his fingers, and he gave Russell the keys to the army vehicle at gunpoint. Just after Russell stormed off in the stolen vehicle, the escort alerted the Camp Liberty military police. By the time the “armed and dangerous” warning reached Jones’ office in the combat stress clinic, Russell had arrived and kicked in the front door. Round after round escaped the muzzle of the M-16 as he murdered his way to Jones’ office. Maj. Matthew Housel, the lead psychiatrist, lost his life to a bullet fired through the window of his office. Pvt. Springle felt the searing pain of a shot in his torso—pain that a round to the back of his head quickly quieted. Sgt. Christian E. Bueno-Galdos ran for his life down the corridor of the combat stress clinic—a place designed to prevent crises like these. As he ran, Russell landed a round in his flank. Sgt. Bueno-Galdos looked on with terror until Russell finished him off with a round to the eye. After taking a total of five lives, Russell raced to Jones’ office. Fortunately, Jones escaped any injury at the hands of his crazed patient by jumping from the window (Murphy, 2013, para. 8). For Russell and many like him, the pressures of war are inescapable and uncontainable. The 2009 shooting at Camp Liberty is not an anomaly. Russell’s tragic story underscores the inherent tension between military necessity and confidentiality that complicates the military’s treatment of mental health issues (Neuhauser, 2011). The brave men and women who dedicate their lives to protecting the liberty and security of others historically face more mental health issues than their civilian counterparts (American Public Health Association, 2015). Accordingly, the military
Spring 2019 • 101
GEORGE WYTHE REVIEW
faces the unique challenge of managing the psychological well-being of its warriors. Sadly, the military’s stoic mindset affords little confidentiality to the psychotherapistpatient relationship and creates a pervasive stigma surrounding mental health care. When viewed in light of other tensions unique to the theater of war, this places an unnecessarily dangerous number of barriers in a serviceman’s path to psychological treatment. This study explicates, analyzes, and discusses the history of the military’s mental health stigma, the barriers that it creates, and possible solutions that would allow soldiers to get the care they need. Ultimately, this study seeks to determine whether the current amount of confidentiality surrounding the psychotherapistpatient privilege in the military context discourages servicemen from obtaining mental health treatment. This study hypothesizes that current military laws afford a dangerously low amount of confidentiality to the psychotherapist-patient relationship, contributing to a stigma that discourages armed forces personnel from seeking treatment for their mental health disorders.
Literature Review The military faces a difficult quagmire when dealing with mental health treatment. On the one hand, a certain amount of confidentiality must surround the psychotherapist-patient relationship so the soldier can open up about deep-seated issues plaguing his psychological composition. On the other hand, the military has a “need-to-know” ability to access the gamut of a soldier’s mental health records to ensure they are in fit condition to deploy at a moment’s notice. This delicate nexus of privacy and national security presents a difficult question for policy-makers and military members alike. To weigh the costs and benefits associated with the military’s current mental health policies, this study consults the expertise of several journals, articles, and scholarly studies in the fields of political science, psychology, and medicine. Some amount of explication on the severity of the mental health condition in the military is required to understand the balance between maintaining patient privacy and preserving the military’s ability to know whether its soldiers are fit for duty. To explain the mental health problem in the military, this study relies on Dr. Charles Hoge’s seminal study on the matter. In 2004, Dr. Hoge and several colleagues conducted the first major research effort aimed at “guiding policy with regard to how best to promote access to and the delivery of mental health care to members of the armed services” (p. 14). To do this, Dr. Hoge (2004) conducted a longitudinal study on the “prevalence of mental health problems among members of the U.S. armed services who were recruited from comparable combat units before or after their deployment to Iraq or Afghanistan” (p. 14). The study included 2,530 soldiers from three U.S. Army combat infantry units and one Marine Corps combat infantry unit
102 • Spring 2019
COMPROMISED CONFIDENTIALIT Y
selected at random by Dr. Hoge and his corresponding military contacts (Hoge et al., 2004). According to the study, 79% of the soldiers and Marines from the selected units completed the pre-deployment survey briefing, with 58% also completing the survey after deployment (Hoge et al., 2004). Dr. Hoge attributed the decrease in respondents to the “rigorous work and training schedules” of the soldiers and Marines (Hoge et al., 2004, p. 15). After comparing the pre-deployment and postdeployment surveys, Dr. Hoge’s study yielded several conclusions. First, combat conditions directly increase a serviceman’s odds of mental health disorders (MHD) like post-traumatic stress disorder (PTSD) (Hoge et al., 2004). Second, the individuals who screened positive for a MHD were twice as likely to show signs of treatmentdissuading stigma as individuals who screened negative for a MHD. Third, Dr. Hoge’s study was the first to identify specific kinds of stigma that discouraged psychological treatment. Therefore, Dr. Hoge’s results provide internally valid evidence suggesting a stigma enshrouding mental health issues in the military. Confirming the validity of Dr. Hoge’s work, the American Public Health Association (APHA) conducted a 2015 report on barriers to mental health treatment in the military. They found that “rates of trauma and mental illness are disproportionately high in the military” (American Public Health Association, 2015, para. 1). While it may be no surprise that soldiers have a higher risk of developing a MHD than their civilian counterparts, the study also found that they receive a disproportionately low amount of treatment for their psychological issues. The APHA attributed the invariable relationship between MHDs and treatment to the military culture. They noted that “[n]early one in four veterans who have screened positive for mental illness state that they did not seek care because their leaders discouraged the use of mental health services” (American Public Health Association, 2015, para. 22). This problem is compounded by the military’s psychotherapist-patient privilege policies. To assess the impact of the military’s current psychotherapist-patient policies, this study consults the work of Maj. Jennifer A. Neuhauser. As a Judge Advocate for the U.S. Army, Maj. Neuhauser offered her legal perspective on the causes behind the stigma surrounding mental health in the military. She argued that the Department of Defense’s (DoD) current provisions for psychotherapist-patient privilege are “vague and overbroad, thereby permitting the perception (and in some cases, the reality) that Commanders may access mental health records at will,” creating a barrier for some in their quest for treatment (Neuhauser, 2011, p. 2). To further explicate the seriousness of the privacy problem in the military and to understand the history of the problem, this study relies on the RAND Corporation’s exhaustive findings in Mental Health Stigma in the Military (Acosta et al., 2014). Dr. Acosta and his colleagues began their study by surveying different ways to define and operationalize the meaning of stigma in the context of military
Spring 2019 • 103
GEORGE WYTHE REVIEW
psychology. This study adopts the same methodology, as stigma may be one of the most important independent variables that can affect this study’s central dependent barrier: dissuasion from treatment. According to Dr. Acosta, even the DoD notes the plausibility of a “theoretical link suggesting that stigma may affect treatment-seeking and, ultimately, mental health recovery” (Acosta et al., 2014, p. 12). Using their operational definition of stigma and operating on the premise that stigma can affect mental health recovery, the RAND group consulted the Mental Health Advisory Team’s (MHAT) publicly available data on the causes of stigma in the military. RAND’s specific finding that stigma can stem from a soldier’s perception that a superior will access his mental health records and use them to damage his career highlights a possible link between privacy, or the lack thereof, and stigma (Acosta et al., 2014). In fact, the RAND study identified “key tensions between the privacy of service members seeking mental health treatment and the need for commanders to assess unit fitness” (Acosta et al., 2014, p. xviii). Dr. Acosta then explored the origin and impact of those tensions and offered useful advice that could help the military eradicate any possible stigma resulting from the lack of confidentiality in the psychotherapist-patient relationship. Despite the military’s current shortcomings, the DoD has developed an intensive strategy to combat the existence and impact of stigma in relation to mental healthcare treatment. Dr. Erin Miggantz (2015) at the Naval Center for Combat and Operational Stress Control explained: Military anti-stigma efforts include but are not limited to the following: (a) the Department of Defense’s (DoD) $2.7 million campaign focused on decreasing stigma in all military branches by inviting service members to share their stories of seeking help; (b) implementation of the combat and operational stress control continuum, allowing service members to be classified as “ready,” “reacting,” “injured” or “ill” rather than the dichotomous labels of “ready” or “ill”; (c) the “Real Warriors Campaign” anti-stigma initiative that invites successfully treated service members to share their experiences about the effective mental health treatments available; (d) the Operational Stress Control and Readiness (OSCAR) program developed by the Marine Corps that embeds mental health professionals in infantry regiments, logistics groups and air wings to aid in early identification and treatment of combat stress; and (e) the integration of psychology into primary care settings throughout all branches of service. (p. 1)
104 • Spring 2019
COMPROMISED CONFIDENTIALIT Y
Despite these efforts, Dr. Miggantz (2015) concluded that “mental illness and receipt of mental health treatment is still stigmatized within the military” (p. 5). The barriers created by stigma stemming from a lack of confidentiality warrant further research to elucidate possible solutions.
Data and Methods This study is primarily qualitative, relying on studies completed by respected experts in the fields of government, psychiatry, and medicine. The pervasive problem of stigma in the military is complex and comes from many sources. This study does not attempt to address all possible sources, instead narrowing the discussion to the relationship a military patient has with his psychotherapist and the amount of confidentiality that exists therein. In exploring the tension between psychotherapistpatient confidentiality and military necessity, this study discusses the reasons for the stigma, its impact as a barrier to mental health treatment, and possible policy solutions to help wounded warriors receive the care they need. To ensure the internal validity of this qualitative study, several terms need to be defined and operationalized. First and foremost, this study needs an operational definition for “stigma.” In the years of research on the issue, psychologists, political analysts, and military representatives have often used different definitions of “stigma.” For example, the DoD Task Force on Mental Health and the DoD Task Force on the Prevention of Suicide Among Members of the Armed Forces defined the stigma of mental illness as the “negative attitudes and beliefs about or associated with people labeled as mentally ill” (Acosta et al., 2014, p. 1). However, the RAND group took a different approach to describe the meaning of “stigma.” According to Dr. Acosta (2014) of the RAND group, “common conceptualizations of institutional and public stigma do not actually define 'stigma' but define instead the specific contexts in which stigma can arise” (p. 9). This means that stigma is not a “characteristic or object that one has or gives; it is a process by which someone perceives or internalizes interactions with specific people in specific contexts” (Acosta et al., 2014, p. 9). Therefore, the RAND group opted to define “stigma” as “a dynamic process by which a service member perceives or internalizes this brand or marked identity about himself or herself or people with mental health disorders. This happens through an interaction between a service member and the key contexts in which the service member resides” (Acosta et al., 2014, p. xiv). This study adopts RAND’s definition of stigma. Additionally, an operational definition of “mental health disorder” should provide clarity to the impact of stigma as a barrier to care. For this study, the term “mental health disorder” refers to any type of mental illness induced by activity in the military. Those mental illnesses can include post-traumatic stress disorder,
Spring 2019 • 105
GEORGE WYTHE REVIEW
substance abuse disorders, depression, and anxiety (American Public Health Association, 2015).
Research History of the Military’s Mental Health Stigma
When Pfc. Jeffery Meier arrived at a combat stress clinic in Colorado, he was asked to sign a waiver before his first session. Normally, people like Pfc. Meier glance at the terms and conditions, flip to the back page, and sign off without thinking. But for some reason, after hearing rumors that his Commanders could pull his records at a moment’s notice and without his consent, Pfc. Meier decided to read the waiver. To his surprise, it explained that under certain circumstances, “[including] if he admitted violating military laws, his conversations with his therapists might not be kept confidential” (Dao & Frosch, 2009, para. 2). Pfc. Meier refused to sign. Representing the Association for Psychological Science, Dr. Patrick Corrigan said that “the prejudice and discrimination of mental illness is as disabling as the illness itself. It undermines people attaining their personal goals and dissuades them from pursuing effective treatments” (Corrigan & Druss, 2014, para. 3). Dr. Dingfelder (2009) of the American Psychological Association chronicled the stigmatizing fears surrounding treatment for MHDs in the military when he observed that one out of every five soldiers returning from Iraq and Afghanistan reported MHD symptoms, yet only half of them sought treatment. To be sure, quantifying the exact origins, amount, and impact of stigma in the military is an impossible task. However, by using soldiers from the Iraq and Afghanistan wars as case studies, the source and scope of the military’s stigma problem become evident. Dr. Hoge’s study on MHDs in the context of the Iraq and Afghanistan war efforts provided the first probing glance at the scope of the military’s stigma towards mental health. The study found that time in combat zones created a direct increase in the likelihood of mental illness (Hoge et al., 2004). He noted that “the percentage of study subjects whose responses met the screening criteria for major depression, PTSD, or alcohol misuse was significantly higher among soldiers after deployment than before deployment, particularly with regard to PTSD” (Hoge et al., 2004, p. 13). This means that, absent intervening variables, the stress of war has a strong correlation to increased MHDs. Dr. Hoge’s most interesting finding was that soldiers did not seek treatment for their MHDs, despite the alarming presence of MHDs among them. He found that “concern about stigma was disproportionately greatest among those most in need of help from mental health services. Soldiers and Marines whose responses were scored as positive for a mental disorder were twice as likely as those whose responses were scored as negative to show concern about being stigmatized and about other barriers to mental health care” (Hoge et al., 2004,
106 • Spring 2019
COMPROMISED CONFIDENTIALIT Y
p. 20). Dr. Hoge recorded the various types of stigma by asking respondents why they avoided treatment and chronicling their responses in groups of key phrases. Such phrases included, but were not limited to: “[i]t would be too embarrassing,” “[i]t would harm my career,” “[m]y unit leadership might treat me differently,” and “[m]y leaders would blame me for the problem” (Hoge et al., 2004, p. 21). Nearly half of respondents who screened positive for MHDs cited one or more of the above reasons for shunning treatment (Hoge et al., 2004). Dr. Hoge concluded that a pervasive stigma exists in the military that prevents the mentally-ill from seeking help. To determine whether his 2004 findings applied to soldiers several months after their return from Iraq, Dr. Hoge and his colleagues conducted another study that relied on Post-Deployment Health Re-Assessment (PDHRA) tests, in addition to the Post-Deployment Health Assessment (PDHA) used in the initial study (Milliken, Auchterlonie, & Hoge, 2007). They found that the risk of mental illness increases after the initial post-deployment period while the amount of referrals for treatments—and patient commitment to those referrals—decreases. The bottom line is that military servicemen are at a higher risk of mental illness than comparable civilian populations; however, they are significantly less likely to seek treatment for their disorders. Building more recently on the work of Dr. Hoge, the American Public Health Association confirmed Dr. Hoge’s 2004 and 2007 assessments that “rates of trauma and mental illness are disproportionately high among American veterans” (American Public Health Association, 2015, para. 1). The APHA noted that nearly 50% of combat veterans from Iraq suffer PTSD and close to 40% suffer from problematic alcohol use. According to 2010 estimates, 22 veterans committed suicide every day as a result of their wartime mental illnesses. Worse, Blias and Renshaw (2013) identified studies that found that “56% to 87% of service members experiencing psychological distress after deployment report that they did not receive psychological help” (p. 77). To be sure, soldiers’ experiences in combat dramatically increase their chances of developing a severe mental illness. Instead of focusing on methods of preventing the mental illness or suggesting the impossible task of reducing the stressing conditions of war, this study will now turn its focus toward one salient similarity in the Hoge and APHA studies’ findings: soldiers avoid psychological treatment due to stigma despite the increased severity and scope of their mental illnesses. It would be naïve to point to one factor (e.g., a lack of confidentiality) as the sole culprit behind the military’s mental health stigma without first analyzing the types of stigma that prevent treatment. In 2014, the RAND Corporation compiled an exhaustive report chronicling the barriers to care for soldiers experiencing MHDs. Relying on seven longitudinal studies conducted by the Mental Health Advisory
Spring 2019 • 107
GEORGE WYTHE REVIEW
Team (MHAT), Dr. Acosta and his colleagues at RAND were able to track the causes that compel a soldier to avoid treatment for his MHD. The methodology behind the MHAT studies helps interpret and explain the resulting data. The most recent study, MHAT 7, “was conducted in 2010 in support of Operation Enduring Freedom (OEF) and was led by the Office of the Surgeon General of the Army with support from the Offices of the Surgeons General of the Navy and Air Force and the Office of the Medical Officer of the Marine Corps” (Acosta et al., 2014, p. 18). There was no lack of support from the military in the endeavor to seek out remedies to MHDs caused by combat warfare. The researchers retrieved their data from anonymous surveys completed by randomly selected platoons that together created an observable cluster sample (Acosta et al., 2014). The primary objective of the MHAT 7 research was to “assess behavioral health in land combat forces in Army and Marine Corps units” (Acosta et al., 2014, p. 18). A specific part of that objective was to determine the “factors that affected [a soldier’s] decision to receive mental health services” (Acosta et al., 2014, p. 18). The Acosta study divided the respondents into two main groups: those with MHDs and those without MHDs. Soldiers who screened positive for MHDs were then asked to answer an additional set of questions to determine whether they received treatment. Further, the MHD-positive respondents who did not seek treatment were asked another series of questions to ascertain the barriers they may have faced. While the precise responses from the Army and Marine Corps differed in some respects, a few themes remained consistent between the two study populations. For instance, a substantive percentage ranging between 19.8% and 48.9% of the affected population (those with MHDs) were deterred for reasons like “my leaders would blame me for the problem,” “my unit might have less confidence in me,” and “my unit leadership might treat me differently” (Acosta et al., 2014). These survey questions and the results they yielded were similar to Dr. Hoge’s findings in 2004 and 2007. Further detailing the barriers to treatment for MHDs in the military, the DoD conducted its own survey of active duty military personnel in 2011. The study relied on data collected from “39,877 active-duty members of the services who were not deployed at the time of the survey” (Acosta et al., 2014, p. 21). Unsurprisingly, the findings from this massive survey were consistent with the conclusions reached by Dr. Hoge and his colleagues, as well as the MHAT and its cohort of military sponsors. After looking at a brief history of MHDs in the military, several observations become evident. First, soldiers serving in combat situations have a higher risk of developing a MHD. There are consequently more MHDs per capita in the military when compared to the civilian population. Second, while soldiers suffer a disproportionatly higher amount of MHDs when compared to their civilian counterparts, they receive a disproportionately lower amount of treatment. Third, soldiers receive less treatment for their MHDs due to certain barriers like the anti-
108 • Spring 2019
COMPROMISED CONFIDENTIALIT Y
mental-health stigma that pervades the military. With these observations in mind, it seems problematic that stigmatic barriers prevent soldiers from receiving care. While the above explication outlines some of those barriers, it does not explain their origins. To determine possible sources of stigma and ways to protect against it, this study must analyze the cornerstone of mental health treatment: the psychotherapistpatient relationship.
History of the Military Psychotherapist-Patient Privilege
Confidentiality is the bedrock of the unique relationship between a soldier and his psychologist. Citing Manfred Guttmacher and Henry Wihofen’s Psychiatry and the Law, Maj. Neuhauser (2011) explained the amount of necessary vulnerability in the psychologist-patient relationship: The psychiatric patient confides more utterly than anyone else in the world: he exposes to the therapist not only what his words directly express; he lays bare his entire self, his dreams, his fantasies, his sins, and his shame. Most patients who undergo psychotherapy know that this is what will be expected of them, and that they cannot get help except on that condition. (p. 1030) To get any treatment for MHDs, a soldier must share the details of his troubles with his therapist. Understandably, a soldier will not do that unless he feels safe in the confines of his therapist’s office. A military psychologist himself, Charles Engel stated that “[c]onfidentiality is the foundation of effective mental health care.… Our patients' problems are deeply personal and private. Wherever we as mental health clinicians practice, our offices become the pain-strewn battlefields in prolonged wars of attrition fought against enormous personal hardships” (Engel, 2014, para. 1). He even goes so far as to call psychologists’ offices “the therapeutic bunkers within which our wounded patient-warriors hunker down against an unseen enemy” (Engel, 2014, para. 2). Together, Engel and Neuhauser highlight the important role a psychotherapist plays in treating soldiers’ MHDs. In many ways, therapists lead the charge in the war on mental illness—their words are their weapons, their offices are the battlefields, and the stigma their patients face is the perpetual enemy they must defeat. Despite the important role psychotherapists play in treating soldiers’ MHDs, their role becomes minimized if soldiers do not trust their ability to keep PHI confidential. To protect the sanctity of the psychotherapist-patient relationship, President Clinton signed the Health Insurance Portability and Accountability Act (HIPAA) into law in 1996. HIPAA ensures that citizens can have a confidential relationship with their psychotherapist and prevents unauthorized disclosures
Spring 2019 • 109
GEORGE WYTHE REVIEW
of PHI, barring circumstances where the patient poses a threat to self or others (Neuhauser, 2011). That year, the Supreme Court created legal precedent that recognized the importance of confidentiality for conversations that take place in a therapist’s office (Jaffee v. Redmond, 1996). This precedent led to the creation of Rule 501 in the Federal Rules of Evidence: psychotherapist-patient privilege (Flippin, 2003). However, because military cases are tried under the Uniform Code of Military Justice (UCMJ), the Federal Rules of Evidence do not apply. President Clinton wanted to afford soldiers the same privilege afforded to civilians. Accordingly, in 1999, he issued Executive Order 13,140 to create rule 513 in the Military Rules of Evidence (MRE)—a rule that established privilege for communications between psychotherapists and patients (Flippin, 2003). Despite the intention to extend this privilege to the military population, MRE 513 affords far less protection than FRE 501. Eight exceptions to MRE 513 nearly eclipse the rule itself. In fact, some of the exceptions are so overbroad and vague that they threaten the privacy between psychotherapist and patient. For example, the sixth exception notes that a psychotherapist must disclose a patient’s PHI without his consent so long as a military commander deems it necessary to “‘ensure the safety and security’ of military personnel or property, military dependents, mission accomplishment or classified information” (Flippin, 2003, p. 8). Moreover, the problem of insufficient privilege afforded to soldiers goes beyond the confines of a UCMJ courtroom. In an attempt to apply the privacy protection provisions of HIPAA to the various branches of the military, the DoD created DoD 6025.18-R—a directive that governs the disclosure of PHI for Armed Service Personnel (Department of Defense, 2003). Pursuant to DoD 6490.08 (titled “Command Notification Requirements to Dispel Stigma in Providing Mental Health Care to Service Members”), the DoD “aims to dispel stigma through the protection of the privacy of those seeking mental health care by requiring that care not be reported to a service member’s commander unless a specific duty-to-report event occurs” (Acosta et al., 2014, p. 86). However, the disclosure guidelines in DoD 6025.18-R “eventually eviscerate” the protection that DoD 6490.08 affords by requiring psychotherapists to disclose a soldier’s PHI without consent for “activities deemed necessary by appropriate military command authorities to assure the proper execution of the military mission” (Department of Defense, 2003, p. 69). According to Michelle Lindo McCluer, executive director of the National Institute of Military Justice, the provisions under the military command exception are so broad that “you could drive a truck through them” (Neuhauser, 2011, p. 1012). Despite the textual provisions of privacy described in HIPAA and DoD 6025.18-R, 29% of survey respondents in a study cited by Maj. Neuhauser believed that any information shared with the mental health professional would not be kept confidential.
110 • Spring 2019
COMPROMISED CONFIDENTIALIT Y
Using the DoD directive as a guideline, individual branches of the military created and implemented their own statutes to govern the amount of confidentiality given to patients seeking psychotherapy. Two specific branches, the Army and the Air Force, serve as helpful case studies to show the different ways DoD 6025.18-R can be interpreted. After the DoD issued 6025.18-R, the Army did nothing to limit the broad PHI disclosure allowances in AR 40-66. Under AR 40-66, a psychotherapist is obligated to disclose PHI without patient consent if there is an “official need for access” or if the military has reason to believe that the PHI relates to “any other activity necessary to the proper execution of the Armed Forces” (Department of Defense, 2003, p. 70). Notice that AR 40-66 does not define the requirements for an “official need for access” or “activity necessary to the proper execution of the Armed Forces.” This allows the Commander to be his own judge in determining what requests for PHI are necessary or unnecessary. AR 40-66 also clearly allows release of PHI without patient consent for “judicial or administrative proceedings,” which includes administrative or non-judicial forms of punishment (Neuhauser, 2011). Essentially, a Commander gets to decide when, where, and how to access confidential PHI and can use it to punish the patient in an administrative or nonjudicial capacity. By contrast, the Air Force’s PHI disclosure regulation, AF 44-109, offers an interpretation of DoD 6025.18-R more favorable to the patient. Unlike the Army, the Air Force revised AF 44-109 after the DoD issued 6025.18-R (Flippin, 2003). The Air Force regulation prohibits all forms of disclosure prohibited under both MRE 513 and DoD 6025.18-R (Flippin, 2003). This establishes a standard practice for patients seeking treatment for MHDs. While the provisions in MRE 513 and DoD 6025.18R still have many exceptions that can overwhelm the overarching non-disclosure rules, applying those rules and their exceptions in a uniform manner across the various branches of the military would be a step in the right direction. The lack of confidentiality in the context of mental healthcare may be a factor preventing soldiers from seeking care. The Second District Court of Appeals for California noted that “disclos[ing] that an individual is seeing a therapist may well serve to discourage any treatment and thereby interfere with the patient’s freedom to seek and derive the benefits of psychotherapy” (Scull v. Superior Court, 1988, at 790). Apart from the stigma created by commanders’ ability to access their soldiers' records without consent, the military’s disclosure of the mere fact that a soldier sees a psychotherapist is enough to create a stigmatized barrier to future care. For example, until Army officials released a Rapid Action Revision (RAR) of Army Rule 600-63, the Army required its “at-risk” soldiers (those experiencing a severe MHD) to wear bright yellow reflector jackets. One soldier described it by saying, “You’ve got the reason you’re on suicide watch to begin with on top of the fact that you stick out like a sore thumb. It’s like you’re walking around in a zoo, and you’re
Spring 2019 • 111
GEORGE WYTHE REVIEW
the animal” (Neuhauser, 2011, p. 1020). While the Army has since done away with this provision, it lends credence to the fact that soldiers avoid treatment to escape breaches in confidentiality, embarrassment, signs of weakness, or their commander’s disappointment. Unfortunately, the protection currently afforded to military patients in their therapists’ offices does not make them feel safe enough to talk. So instead of talking, they keep everything bottled up, causing the military to face a crisis of its own creation, much like they did at Camp Liberty.
Balancing Privacy and National Security
When assessing stigmatic barriers to mental healthcare, two interests must be weighed against one another: the soldier’s right to privacy and the military’s need to assess a soldier’s readiness for deployment. The RAND Corporation identified this difficult task in its study, reporting “a key policy tension between the need for commanders to assess the fitness of service members under their command and the need for privacy among service members with MHDs” (Acosta et al., 2014, p. 83). Understandably, the immediate objection to any policy that would enshroud military therapy in an increased amount of confidentiality would be concerns regarding national security. Even Maj. Neuhauser (2011) noted the difficulties of weighing policy proposals that would affect the nexus of a soldier’s relationship to his therapist, explaining that “tensions are inherent at the intersection of mental health treatment, military necessity, and confidentiality” (p. 1006). On the one hand, service members ought to have the constitutional right to privacy—especially when dealing with issues that plague their mental health. The U.S. Senate Subcommittee on Constitutional Rights recognized this obligation owed to servicemen, stating that “[n]o persons should be more entitled to protection of their constitutional rights than the servicemen engaged in protecting the sovereignty of the United States” ("Summary Report," 1963, p. iii). However, a soldier’s right to privacy cannot be absolute. According to Maj. Neuhauser, “Army officials recognize privacy in mental health treatment cannot be guaranteed because of the risk a troubled soldier will jeopardize a mission” (Neuhauser, 2011, p. 1007). The DoD observed in its Health Promotion, Risk Reduction, and Suicide Prevention pamphlet that the military has a legitimate “need to know” basis for determining the mental and physical capabilities of the men and women it depends on to carry out missions (Neuhauser, 2011). Without question, the military’s claim—in the ambiguous name of national security—that it should be able to require therapists to disclose PHI without a soldier’s consent does have merit. However, the silent soldiers suffering from MHDs have a legitimate need for increased privacy, especially since the indisputably stigmatized status-quo often deters them from treatment.
112 • Spring 2019
COMPROMISED CONFIDENTIALIT Y
De-stigmatizing Policy Language and Improving Accountability
Despite the tricky balance between private treatment and national security, there are some areas that clearly have room for improvement. First, experts have concurred that the military could decrease the stigma associated with receiving mental healthcare by removing any unsettling language from their policies (Acosta et al., 2014). Second, the military could revise its current policies that allow commanders to access PHI with little oversight or accountability. Third, the military could consider implementing a presumption of privilege similar to that which exists between a soldier and a chaplain or a soldier and a lawyer. Creating policy provisions that address these three key areas may be a good starting place to reduce barriers to care for soldiers seeking treatment. Turning to the first possible solution, the military needs to revise any language in its current policies that could possibly deter a soldier from treatment. For example, DoD directive 5105.21-V1 directs any person with a security clearance to report any “information that could reflect on their trustworthiness or on that of [others]” (Acosta et al., 2014, p. 97). Included in the possible characteristics of untrustworthiness are “apparent mental or emotional problems” (Acosta et al., 2014, p. 97). Such language conveys the unhelpful idea that a mental or emotional condition makes someone untrustworthy or undependable. In its survey of all military policies pertaining to the issue of mental health, the RAND Corporation discovered that 12% of the policies contained stigmatizing language that could be easily removed (Acosta et al., 2014) . If the simple revision of the text of military directives could foster a more welcoming atmosphere for treatment, then the military should seriously consider it. Second, the military command exception to the disclosure of PHI has very little oversight or accountability. Pursuant to DoD 6025.18-R, the appropriate command authority can “use and [require the] disclosure of protected health information of individuals who are Armed Forces personnel” (Department of Defense, 2003, p. 69). Currently, the command authority does not have to seek any sort of warrant from the UCMJ—they are their own final authority to determine what is and is not “necessary” or “need to know.” The present policies simply require the command authority to publish their action in the Federal Register (Department of Defense, 2003). No further measure of accountability exists. Since one of the most oft-cited barriers to care is “disappointing my unit commander” or “my unit commander will blame me,” it is crucial for soldiers to know that their commanders are prohibited from simply going on a “fishing expedition” through their PHI (Hoge et al., 2004). Furthermore, it would help counteract the current implication that soldiers have to be tough enough to conquer their internal demons alone. To do this, the military may consider requiring commanders to prove the necessity of their records request before a UCMJ court.
Spring 2019 • 113
GEORGE WYTHE REVIEW
Finally, when comparing the presumption of privilege a soldier has with their chaplain or their lawyer, the military may consider increasing the presumption of privilege that exists between a soldier and his psychotherapist. Currently, any dialogue between a soldier and his chaplain or lawyer is strictly confidential. The only provisions for disclosure arise under circumstances where the soldier poses a risk to himself or others or when disclosure is required at the order of a UCMJ judge (Flippin, 2003; Neuhauser, 2011). Soldiers should be afforded the same measure of privacy they receive when discussing matters with a pastor as a counselor, or a lawyer as counsel, when they receive treatment for life-altering MHDs.
Suggestions for Further Research
When conducting research on the effects of limited confidentiality vis-Ă -vis patients seeking treatment in the military, the academic community has a vast amount of resources at its disposal. The data seems expansive, the analysis seems valid, and the conclusions seem to concur: limited confidentiality in the context of psychiatric care stigmatizes military patients to the point that they avoid treatment. The military makes their justification for limited confidentiality clear; they must know the readiness of their soldiers at all times, even if that requires disclosure of PHI without consent or proof of necessity. In sum, the military plays the ambiguous and overused trump card of national security to gain unfettered access to PHI. The effects of that justification and its implementation have been studied intensely and, as this study shows, the academic consensus of its negative impacts is relatively clear. While much research has been done on the impact of limited confidentiality, little research or projection has been done regarding the impact increased privacy would have on national security. To date, no negative impacts have been recorded or projected as a result of the military giving the psychotherapist-patient relationship the same kind of privilege it extends to chaplains or lawyers. To be sure, the military has claimed that doing so would gravely endanger national security, but that risk has never been defined, operationalized, or measured in any way. At the very least, this study suggests that further research should be conducted on the correlation between increased psychotherapist-patient privilege and actual impacts on national security.
Conclusion Mental illness, without a doubt, pervades the military. The story of Sgt. Russell, the rogue shooter responsible for the crisis at Camp Liberty, paints an all-too-clear picture of this axiom. Unquestionably, the stigma soldiers face discourages them from seeking the mental healthcare they desperately need. Pfc. Jeffery Meierâ&#x20AC;&#x2122;s refusal to sign the confidentiality waiver required for treatment epitomizes the impact of the stigmatic barriers that the military has inadvertently erected in the name of national
114 â&#x20AC;˘ Spring 2019
COMPROMISED CONFIDENTIALIT Y
security. Sadly, the bravest men and women who dedicate their careers to protecting the interests of others do not feel safe enough to speak up for their own interests. At the outset of this study, the following hypothesis was proposed: current military laws afford a dangerously low amount of confidentiality to the psychotherapist-patient relationship, thus discouraging armed forces personnel from seeking treatment for their mental health disorders. To confirm or deny the initial hypothesis, this study analyzed the various military laws that govern the amount of confidentiality afforded to the psychotherapist-patient relationship and consulted studies in the fields of law, political science, and psychiatry to determine the impact those laws have on patients seeking treatment. By analyzing the history of MHDs caused by time in the military and linking those MHDs to tangible barriers identified in surveys and longitudinal studies, evidence of a pervasive anti-MHD stigma appears. Analysis of the psychotherapist-patient relationship elucidates possible reasons for the existence and scope of that stigma: soldiers avoid seeking treatment from providers they cannot trust. The military’s current policies, culture, and command structure undermine the nature of a therapist’s job to offer a safe and secure location to work through a soldier’s MHDs. Therefore, this study confirms the initial hypothesis. Current military laws afford military patients a dangerously low amount of confidentiality, dissuading them from receiving care. Hopefully, by de-stigmatizing the language in the current policies, increasing the amount of accountability in the PHI disclosure mechanism, and affording a greater measure of privacy to patients, the military will be able to wage a new front in its war on stigma so its soldiers can thrive to fight another day.
Spring 2019 • 115
GEORGE WYTHE REVIEW
Reference List Acosta, J. D., Becker, A., Cerully, J. L., Fisher, M. P., Martin, L. T., Vardavas, R.,â&#x20AC;Ś& Schell, T. L. (2014). Mental health stigma in the military. Santa Monica, CA: RAND Corporation. American Public Health Association. (2015). Removing barriers to mental health services for veterans [Policy statement]. Retrieved from https://www. apha.org/policies-and-advocacy/public-health-policy-statements/policydatabase/2015/01/28/14/51/removing-barriers-to-mental-health-servicesfor-veterans Blais, R., & Renshaw, K. D. (2013). Stigma and demographic correlates of helpseeking intentions in returning service members. Journal of Traumatic Stress, 26(1), 77-85. doi: 10.1002/jts.21772 Corrigan, P. W., & Druss, B. G. (2014, September 4). Stigma as a barrier to mental health care. Association for Psychological Science. Retrieved from http://www.psychologicalscience.org/news/releases/stigma-as-a-barrier-tomental-health-care.html Dao, J., & Frosch, D. (2009, December 6). Military rules said to hinder therapy. The New York Times. Retrieved from http://www.nytimes.com/2009/12/07/ us/07therapists.html?_r=1 Department of Defense. (2003). DoD health information privacy regulation (DoD Directive 6025.18-R). Retrieved from http://www.jag.navy.mil/distrib/ instructions/DoD%206025.18R.Health_Info_Privacy_Regulation.pdf Department of Health and Human Services. (2014). HIPAA privacy rule and sharing information related to mental health. Retrieved from http://www. hhs.gov/sites/default/files/ocr/privacy/hipaa/understanding/special/ mhguidancepdf.pdf Dingfelder, S. F. (2009). The military's war on stigma. Monitor, 40(6). Retrieved from http://www.apa.org/monitor/2009/06/stigma-war.aspx Engel, C. C. (2014, October 27). Compromised confidentiality in the military is harmful [Blog post]. The RAND Blog. Retrieved from http://www.rand.org/ blog/2014/10/compromised-confidentiality-in-the-military-is-harmful.html
116 â&#x20AC;˘ Spring 2019
COMPROMISED CONFIDENTIALIT Y
Flippin, S. E. (2003). Military rule of evidence (MRE) 513: A shield to protect communications of victims and witnesses to psychotherapists. The Army Lawyer. Retrieved from http://jpp.whs.mil/public/docs/03_Topic-Areas/03Victim_Privacy/20141010/13_ArmyLawyer_MRE513_AShieldToProtect_ Flippin_200309.pdf Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. ยง 300gg, 29 U.S.C. ยง 1181 et seq., 42 U.S.C. ยง 1320d et seq. (1996). Hoge, C. W., Castro, C. A., Messer, S. C., McGurk, D., Cotting, D. I., & Koffman, R. L. (2004). Combat duty in Iraq and Afghanistan, mental health problems, and barriers to care. The New England Journal of Medicine, 251(1), 13-22. doi: 10.1056/NEJMoa040603 Jaffee v. Redmond, 518 U.S. 1 (1996). Miggantz, E. L. (2015). Stigma of mental health care in the military. Navy Bureau of Medicine and Surgery/Naval Center for Combat & Operational Stress Control. Retrieved from https://ia801300.us.archive.org/7/items/ StigmaWhitePaper/Stigma%20White%20Paper.pdf Milliken, C. S., Auchterlonie, J. L., & Hoge, C. W. (2007). Longitudinal assessment of mental health problems among active and reserve component soldiers returning from the Iraq War. Journal of American Medical Association, 298(18), 2141-2148. doi: 10.1001/jama.298.18.2141 Murphy, K. (2013, May 11). Five killings at Camp Liberty in Iraq: Calculation or despair? Los Angeles Times. Retrieved from http://articles.latimes.com/2013/ may/11/nation/la-na-nn-camp-liberty-russell-20130511 Neuhauser, J. A. (2011). Lives of quiet desperation: The conflict between military necessity and confidentiality. Creighton Law Review, 44, 10031044. Retrieved from https://dspace2.creighton.edu/xmlui/bitstream/ handle/10504/40730/42_44 Scull v. Superior Court, 206 Cal. App. 3d 784 (3d Cal. 1988). Summary report of hearings by the Subcommittee on Constitutional Rights of the Committee on the Judiciary, United States Senate, 88th Cong. 1 (1963). Retrieved from https://www.loc.gov/rr/frd/Military_Law/pdf/const-rightsmil-pers.pdf
Spring 2019 โ ข 117
GEORGE WYTHE REVIEW
George Wythe was one of the premier scholars in early American history. The first law professor in America, he was a strong supporter of the War for Independence and a zealous patriot. Many of America’s most influential leaders, such as Thomas Jefferson, studied under his guidance. Furthermore, as a framer of the Constitution, Wythe left a legacy that the United States still honors to this day. The George Wythe Review adopted his name in memory of his brilliant scholarship and in hopes that this journal might emulate Wythe’s dedication to our country.
118 • Spring 2019
GEORGE WYTHE REVIEW
Acknowledgments The George Wythe Review would like to gratefully recognize the Collegiate Network for their contribution to the success of our publication.
Spring 2019 â&#x20AC;¢ 119
American Politics & Policy Program georgewythereview.com