Differential Treatment

One of the cases Cass and I have tangled over a few times back in 2012 is the case of Rick Santorum's children going to a Pennsylvania public school though he spent most of the year living in Leesburg, VA. I thought Santorum's point was valid -- he owned a house in the appropriate district, paid the taxes on that home which funded the school system, and the fact that his official duties as a senator from Pennsylvania kept him near Washington most of the time shouldn't imply that he ceases to be a citizen of the state (and city) which elected him to represent them in Washington. Cass thinks it's a violation of the rules, and breaking the rules for your personal advantage is dishonest and dishonorable.

The saga ended with the Santorums withdrawing their children and homeschooling them. The state of Pennsylvania tried to get them to pay its estimate of what it cost to have those students in the school, but failed to collect. (It is unclear to me why the Santorums should be asked to pay in any case: they'd already paid their taxes, both there and in Leesburg. At most the one school district should have billed the other, not asked for a third payment on top of the two sets of property taxes already paid, either of which should have guaranteed access to education. But I digress)

I bring it up today not to tug at Cassandra's braids, but to inquire after the very different treatment encountered in a similar case.
A mother who pleaded guilty to fraudulently enrolling her six-year-old son in the wrong school district has been sentenced to five years in prison. Tonya McDowell sent her son to an elementary school in Norwalk, Connecticut, instead of her home city of Bridgeport. The 34-year-old, who was homeless when she was charged with felony larceny last year, said she wanted the best education possible for the boy.
There are differences in the cases.

1) McDowell is black, Santorum white. It is not clear that this difference is relevant, but a great deal of internet commentary has focused on the fact that she is black, so it's necessary to mention it.

2) She is poor, and he is rich. Rich enough to afford good lawyers, for example, who could keep the matter at bay. She seems to have plead largely because of the stress of the process (as Mark Steyn often says, when it comes to American law, the process is often the punishment).

3) She was homeless, and so paid no property taxes anywhere. Santorum paid property taxes in both school districts. Her child's right to a free education does not actually depend on her paying any taxes, or owning any homes, but the fact that she paid nothing to anyone does create a differential with the Senator, who had in fact paid everything he would have been asked to pay.

4) It is difficult to say where a homeless person's district properly is. The state elected to proceed with this method presumably out of a desire to keep homeless people from living in vans parked in the districts of richer citizens -- a kind of anti-vagrancy method. In the Santorum case, they did actually own property in both districts, paid the taxes on both, and lived in both places during different parts of the year. So the difficulty came not from them not having a home, but from interpreting the rules governing someone who owns more than one home.

5) She is a nobody, and he is a sitting Senator.

6) Different state laws are relevant: her case happened in Connecticut, not in Pennsylvania or Virginia.

In any case, the different outcomes are noteworthy. In the case of Santorum, the punishment was a lot of news stories that tarnished (for some) his standing as a candidate for President. Even if they'd gotten what they wanted out of him, it would have been a repayment of costs. In the case of McDowell, she also didn't repay the costs -- because she couldn't possibly, not because she won the argument. But nobody seems to have even suggested that the Senator should go to jail for fraud over the matter, whereas McDowell is going down for five years.

That last fact strikes me as madness, even given all the differentials in the cases. What is it going to benefit the state of Connecticut to pay to feed and house and guard her for five years? Clearly she is no danger to anyone, and the motive for her crime -- if crime it really ought to be -- was merely to seek what any mother ought to want for her child.

We don't have a very good answer to homelessness, especially not to trying to help the children of the homeless escape a similar fate. Even so this is a terrible stab at an answer, separating a mother who loves her child from that child, sending the mother to prison for half a decade, and sending the child to whatever the state's uncaring institutions devise.

Perhaps Senator Santorum ought to lobby for a pardon for her. It would be just for him to do so.


raven said...

This appears to be a crime- by the State. 5 years for a victimless
"crime". Yet the perpetrators of the biggest financial robbery in history walk, uncharged.

Joseph W. said...

It shows what tyranny public education can be...not a "free service" offered to the public, but a means of state control.

douglas said...

One would assume that the children of Senator Santorum live in the school district (and not Virginia) if they are going to school there- if so, isn't that good enough? Why does he (personally) have to live there- and this is putting aside the perfectly reasonable issue of work requiring being elsewhere much of the time).

Five years is insanity. Raven is right, the crime is being committed by the prosecutor.

Tom said...

We really should add a constitutional amendment guaranteeing citizens the right to tar and feather public officials who do things like this.

Cass said...

The children lived in Virginia with their parents and much of the time the house he claimed as proof of residency was either rented out or empty.

But that's all really beside the point (as is the issue of where taxes were paid).

The issue is: what did the law say, not "Can a public servant come up with self-serving reasons why it's OK for him to ignore the law and claim benefits he is not entitled to under the law".

That said, jailing this woman is just plain nuts.

Texan99 said...

Vouchers and home-schooling. When the public school system gets this crazy, it's time to ditch it and try something else. We sure can make things crazy by making them "free," can't we?

Joseph W. said...

It's all for the chilllldren...in ways that will come to me later.

E Hines said...

The cynic in me sees a parallel with another black woman: single mother from one state caught in a traffic stop with a pistol she legally owned and for which she was CCW licensed in her home state, just over the state line from where she was stopped. The possession was illegal in the traffic stop state, and she was about to go to trial, facing several years in jail over the unlawful possession, when publicity finally shamed the prosecutor, and she got probation (still an overreach IMNSHO, as the matter already had cost her her job).

These were both black women who'd escaped, or were trying to escape the Liberal plantation (one for acting to see to her own defense, rather than relying on The Man; the other for trying to get her child an education, rather than relying on the State for her family's welfare), and they had to be punished.

Eric Hines

Tom said...

We used to have the Fugitive Slave Act, of course, if we're being cynical.

Anonymous said...

Her child's right to a free education does not actually depend on her paying any taxes, or owning any homes...

I am pretty sure there is no "right" to an education in our Constitution. I'm not quite sure there is a natural right to that as well that incurs an obligation for me to educate or pay for the education of someone else's children.

Grim said...

I only meant a legal right, not a Constitutional or a natural right. Although education is a pretty good candidate for a natural right, depending on how you define "natural right."

If you want to define natural rights as rights that follow from our nature, then you have in some sense a right to eat and to sleep and to obtain education. You need all of these things to prosper as a human being, because of human nature: we have to eat, we have to sleep, and (unlike animals with strong instinctive behaviors) we need a long and careful process of support and education to move from being children to adults.

Now in terms of someone being forced to provide that naturally-needed stuff, we might have said that the parents are obligated to provide it: that if they don't feed you, they are guilty of a crime. Likewise if they should devise some scheme that made it impossible for you to sleep (like the psychological tortures involving blasting music and flashing strobes and denial of access to natural light).

So what about denying you an education? Well, we would in fact say that the parents were responsible to some degree. We might consider the parent as having done something illegal if they refused to teach you how to use a toilet. These days, though, we've come to think of the parent's duties in education as belonging only to that very early period, and we expect the state to do the rest of it.

That's probably unwise. But it does sound like there's a kind of natural right at work, even to the degree that we could say that someone -- probably the child's family, which is the natural institution for providing the child's natural needs -- has a duty to provide for that education in some way.

Tom said...

The Constitution itself says that not every right is listed in the Constitution.

IX: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

MikeD said...

Nor does it grant them. I've got a serious problem with any claim that an individual has any "right" that necessitates someone else to surrender their life, liberty, or property. Medical care? Not a right. Because unless you're saying you have a claim on the time of medical professionals as well as a right to the medicines, equipment, and facilities used to treat you, then it cannot be a right. And I find the idea that because of a chosen profession, that obligates you to indentured servitude to be horrific.

A right to housing? Provided by whom? The State? They can only build such a housing unit by seizing property from their citizens. Not a right.

The right to food? Again, who grew it? Who transported it? What right do you think you have to someone else's labor?

The right to free speech? Requires no one else surrender a single thing. If they do not wish to listen to you, they're under no obligation to do so. Absolutely a right.

Right to bear arms? Again, no one must surrender their life, liberty or property for you to bear arms. Now, it's important to recognize that no one is under any obligation to provide you with said arms. That's on you.

Grim said...

In philosophy, Mike, the distinction you're making is usually called the distinction between "positive" and "negative" rights. I get some flak when I point that out, because some among us think that this is a trick by liberal academics to make us call the ordinary Constitutional rights "negative," but it's important to know the lingo if you want to look up arguments on either side.

Nevertheless we do believe in some "positive" rights, a few examples of which I listed above. Someone has to provide a child with food -- that someone is usually the child's family. That's a duty, a responsibility, and we will punish them at law if they let their child starve to death.

I think it's possible to recognize some natural, positive rights. But what's important to note is that the duty is not universal: it's a duty on the parents, not on you or just anyone. If the parents allow the child to starve to death, they go to prison. You don't, and shouldn't.

Texan99 said...

In Constitutional terms, a "right" (in my view) refers to a limitation on the state's authority.

Grim said...

Originally, but not always. We talk about voting rights as a Constitutional right (see this discussion from yesterday), because of the 14th Amendment -- and of course because of the 19th. It's not just that the state must not stop you from voting: it has to positively provide an election, and thus an opportunity to vote. Somebody has to show up and count the ballots, somebody has to print them or otherwise provide them, and so forth. The Presidential election especially has to be conducted in a very specific way: whoever the state officials are have a positive duty to do that in order to support your voting rights as defined by the Constitution.

Grim said...

Now, the 14th is on my list of amendments we need to repeal, so it could be that you could restore an "only negative rights" concept to Constitutional rights. Then the 19th would not be a positive right to vote (or to have your vote counted), but a purely negative restriction on states to keep them from saying that women can't vote.

Texan99 said...

I look at voting as something I do, which the government may not prevent me from doing (without due process).

Equal protection under the laws is an important restriction on government, but I see it as a prohibition of playing favorites rather than as an individual right to receive one's share of goodies. If the government isn't handing it out, I don't have a right to my share of it. And the less of that, the better.

Anonymous said...

I didn't have the words before to describe the difference between rights that required action from me (positive) and rights that don't require action from me (negative). Thank you Grim!

I fully agree that my children have a positive right to food, clothes, education that I am obligated to provide them. Others do not have a responsibility to provide those things for my children. The inverse is true. Now, for children whose parents are not meeting those obligations, then that is where the law should step in and provide some "incentive" for parents to do right by their children. In the case of true orphans, then that falls on the Biblical command to provide for their needs, with the express motivation that as we care/do unto them, we are doing unto Christ.

Grim said...

It's not the equal protection aspect I was thinking of, but this part:

"But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state."

So the state isn't positively required to allow non-felon citizens to vote; but if it denies them a vote, it loses a right to claim them as citizens for the purpose of Federal representation.

What that means is that, practically, the state must provide a vote. So it's not just that 'voting is something you do,' meaning you; it's that the vote is required to be provided in a certain way, to ensure that right. It's a positive right, and not merely a negative one.

But again, as I said, I think we need to do away with the 14th. There may be aspects of it we want to keep. Its claims about birthright citizenship are probably in need of reform, though, and I think it gives the Federal judiciary much too much power in what Jefferson and the other Founders clearly intended to be State-led areas.

If we keep the voting rights language, though, it is clearly imposing a duty on the states. You have a right to have your vote counted, and the state has a duty to provide an election structured to allow you to exercise that right. Thus, the Federal constitution does protect this positive right of yours, where the duties related to providing for that right's exercise belongs to the state.

Grim said...

In the case of true orphans, then that falls on the Biblical command to provide for their needs, with the express motivation that as we care/do unto them, we are doing unto Christ.

I agree with that. In any case, I think education may be a good candidate for a natural right of this kind, though we might debate just who has the positive duties of provision. Caring for the orphans is not the state's duty, as the state is structured in such a way that it cannot accept religious duties; it must then be the duty of those who are able to provide charity, and who have accepted Christian duties into their hearts.

Texan99 said...

The reason I referred to "Constitutional" rights was, in part, to differentiate between them and the kind of "rights" you might say arise from the duties of individuals rather than government. I'd say a child has the right to support from his parent, but that's not a Constitutional issue.

We should take every opportunity to clarify our language so as to discourage people from confusing the state with Mommy and Daddy.

Tom said...

I've got a serious problem with any claim that an individual has any "right" that necessitates someone else to surrender their life, liberty, or property.

Really? So we've no right to courts, legislatures, or a president? Or, we have the right, but no one has to do anything to make sure we get them? Each of us has to provide his own courts, etc.? I'm not being facetious. You said "any claim."

The fact is, there are some things we are guaranteed that we all have to pay for, and give up some liberty for.

I'm fine with saying such things should be kept to a minimum, but they still exist and are a fundamental part of our system, both as planned originally and as it works now.

Tom said...

In the case of true orphans, then that falls on the Biblical command to provide for their needs ...

I'm not sure what you mean. Who is responsible for obeying this command? Is it left to individuals who care enough to take on the responsibility? Or does the government take it?

Grim said...

Psalm 82 gives it as a general command to those who would be good men. But James 1:27 suggests it is the duty of the religious community. That's explicitly not the state in America, due to the First Amendment; it might be a family, or it might be a church or religious organization.

Ymar Sakar said...

and sending the child to whatever the state's uncaring institutions devise.

The Left's child molestors had too many orders out unfilled. Thus they trumped up some charges, perhaps.