GULPING POWER

In this holiday season – I've always been partial to this week between Christmas and New Year's – let me offer a short posting. I want to address a controversy that The New York Times refers to as Bloomberg's nanny state. That venerable paper asks whether Mayor Michael Bloomberg's efforts to dictate a healthier life style among New Yorkers was ultimately good for them or just overly intrusive. What I find interesting is the question: upon what authority did the mayor and his Board of Health act? Were his policies, in this area, constitutional? Can government, at any level, tell us how big a soda I can buy? Can hizzoner really tell us we can't have a big gulp?

Okay, I know, the ban is not presently being enforced since the New York Supreme Court ruled the city did not have the legal authority to impose the restriction. But the City is appealing that decision. And yes, with the new administration coming into power, who knows what the future of the policy will be? But that still makes me wonder what in the law led Bloomberg to think he and his Board of Health had the authority in the first place? After all, the court's decision against the ban was based on a determination that the legal restriction per se was not beyond the limits of government, but that the particular ban was determined by a body of the executive department of government, not its legislative department. The policy was initially passed by the City's Board of Health, not the State Legislature or even its city council. As such, the policy violates the “separation of power” principle. The court did not question the City's power to issue such a regulation. Therefore, the question remains: on what basis does New York have this authority?

During the holiday season, students are particularly aware of consuming festive foods and drinks. Perhaps it is even a more appropriate time to teach about a state's police powers, and this case in New York seems particularly well-suited to bring the lesson home. Let me quote from the court's decision on the matter:

There is no reasonable opposition to the long established proposition that a legislative body may vest in an administrative body certain authority. However, as stated in [the former case,] Boreali:

“A legislative grant of authority must be construed, whenever possible, so that it is no broader than that which the separation of power doctrine permits … Even under the broadest and most open ended of statutory mandates, an administrative agency may not use its authority as a license to correct whatever social evils it perceives” And “While the separation of powers doctrine give the Legislative considerable leeway in delegating its regulatory powers, enactments conferring authority on administrative agencies In broad or general terms must be interpreted in light of the limitations that the constitution imposes [NY const. Art 111 …]

In this quote we have a clear acknowledgment that the state does have the power, the police power, to pass legislation to promote health – as it does to also promote safety, education, and morals – of the state. The state's foundational compact, its constitution, spells out the limits of such powers. This is within our constitutional conception and when such public figures, who claim to be devotees of our constitutional system, then mock a state's prerogative to exercise that power, one questions either the sincerity of the devotion or the level of understanding that figure possesses about how our system works. Who might that be? Sarah Palin comes to mind.

My point is that our constitutional foundation is not a marker for libertarian ideals. Our history of individuality vs. collectivity, in terms of our public policy, has been an active and vibrant tension in which, until relatively recently, has sided in favor of collectivity. This case of New York City trying to ban soft drink size is an interesting and relevant case by which to demonstrate this tension. I recommend that teachers get the New York Supreme Court decision¹ so that students can see what all is at stake and of concern not only to the courts, but to bureaucratic officials who deal with these types of issues.

1See http://online.wsj.com/public/resources/documents/sodaruling0311.pdf .

WHICH CONTROVERSIES?

A question every teacher should ask, on a recurring basis, is: what is worth teaching? Unfortunately, in my experience most teachers don't ask this question at all. What is chosen is just what is next in the course's textbook. As I was training to become a teacher, my teacher preparation instruction encouraged me to think about introducing controversial issues into my social studies teaching strategy. The use of controversial issues or problems makes most sense under the general rubric of inquiry teaching. I was taught that inquiry was central to good teaching. It would engage students in the content I would be presenting. The use of controversial issues was but one way to introduce that content; its use would have the backdrop of a problem area people were concerned with and in which students could find contemporary materials. Such issues as civil rights, the Vietnam War, poverty, labor relations, the economy, and the like, would enhance the interest of students. I'm not arguing with this contention; success, though, depends on many factors and introducing a controversial issue or problem will not guarantee it. But issues should be considered for their intrinsic value and not merely as a way to garner student interest. I will agree that their use is better than just presenting what happens to be next in the textbook.

I will go even further: the use of controversial issues and problems needs to be part of any responsible approach to social studies. This includes civics and government. But how should controversial issues be chosen? In the political environment of today, for example, should the issue of gun control be included; should the issue of pornography be chosen; should abortion be chosen? Should the fact that wealth and income, which is heavily skewed to the upper classes, be chosen? What criterion(a) should be applied when trying to choose the issues? I think these are very important questions. I believe this to be true because how one answers them will give whatever is taught a particular bias. That is, by asking one set of questions, what students will delve into will be quite different from what other students will address if given a different set of questions.

During the history of this blog, I have introduced three different mental constructs that have been used in guiding educators as to what content will be studied in social studies courses. These constructs are the natural rights construct, the critical theory construct, and the liberated federalist construct. From the explanations I have shared, one can deduce a particular criterion for each construct – a criterion that can be used in choosing controversial issues. Before I identify each respective criterion, though, let me be a bit more clear as to what constitutes a controversial issue or problem. A controversial issue or problem is a situation or condition in which two or more parties are vying for, to some degree, mutually exclusive aims or goals. The competition for those aims or goals has the added attribute that at least one of the parties, if not all, is vying for some end or for putting into operation a strategy that is considered illegitimate by some party(ies) or faction(s). That is, the competition has an aspect to it that is considered unsavory by some portion of the population. For example, one such issue is whether workers should be able to establish a labor union while the owners of the affected businesses engage in actions to deny the workers their goal. Perhaps in the studied situation, the business owners or the labor leaders rely on strong-arm techniques or intimidation to advance their respective goal. The class can ask: in this conflict, what can the portrayed characters do? What should they do? But before any of this inquiry can take place, the initial issue has to be chosen and presented.

Let me state that the above labor question might be the focus of an inquiry under any of the three constructs I listed above. But the angle taken will vary according to the construct the educator is utilizing in making his/her choice. Perhaps after reviewing the following criteria, this variance will become self-evident.

In terms of an overall goal, the natural rights construct guides social studies instruction in leading the individual student to determine what his or her values are in relation to a particular content. This is true even when that content introduces a controversial issue. This does not, in itself, help in determining the issues to be included in instruction. But if the goal is to have students identify their own position, there needs to be some conscious relevance for the the students being taught. This consideration has a built in bias: problems or issues should be those that demonstrably affect a significant number of people or one in which a significant number of people are expressing a concern over the issue or problem. This type of selection leads to a sort of “popularity” list of problems. It limits a class's attention to conditions of which they are already aware. Usually, in order to get this attention, problem areas are probably identifiable to or affect at least ten percent of the population. Lesser known problems or problems that affect fewer numbers are ignored no matter how important they are. Importance of an issue can be one of growing intensity or one that is uncomfortable to address at a given time. Ten years ago, the prohibition of gay marriage fell into such a category. Therefore, the use of the natural rights construct introduces two detrimental qualities: the issues are “popular” or “hot” and the resulting curriculum develops a non-cohesive quality as attention jumps from one issue to another with no unifying, theoretical perspective. As such, students are left with a hodgepodge of images with little take away as to what constitutes a moral perspective on social issues.

Advancing to the next construct, the critical theory construct focuses on issues in which a perceived exploitation is occurring. In this case, a working understanding of what constitutes exploitation is essential in deciding the conditions that warrant study in a classroom. While a particular teacher might search or devise a suitable definition, at least by that teacher's, school administration's, or school district's acceptable standard, a standard needs to be adopted. For the sake of discussion, let me suggest the definition by Johan Galtung: exploitation exists when the income and wealth levels of an advantaged group(s) are growing at a faster rate or decreasing at a slower rate than that of other groups. In that case, the other groups are being exploited.¹ With this perspective, classroom materials will be channeled toward looking at cases or conditions – or imputed cases – in which there is “exploitation” among members of different classes. While many of the issues that face a society in a given time can be analyzed using this perspective, not all of them can. For example, one would be hard pressed to see whether a nativity scene should be displayed in front of a city hall as illustrative of the exploitation of the lower classes, between the haves vs. have nots. Yet this issue involving the freedom of religion is important and should be able to be studied without getting into the idea whether religion is or is not merely an opiate for the exploited classes.

The last construct is the federalist one. Here, controversial issues are defined as conditions that in one way or another offend federalist values. Let me quote from a previous posting:

The proposed code [of liberated federalism] not only holds a particular value as a trump value, but also presents a hierarchy of values. There are three levels of values: trump value, key instrumental values, and operational values. Here is a list of these values:

• Trump Value: Societal welfare (as experienced through societal survival and/or advancement)
• Key Instrumental Values: constitutional integrity (liberty), equality, communal democracy, democratic pluralism and diversity, compacted arrangements, critical and transparent deliberation, collective problem-solving, earned trust, loyalty, patriotism, expertise
• Operational Values (partial listing): political engagement, due process, legitimate authority, privacy, universality of human rights, tolerance, non-violence, teamwork, consideration of others, economic sufficiency, security, localism

As can be noted, lower level values are logically derived from higher level values. These values, other than the trump value, are not presented as a definitive set of values, but the code is fairly tied into the trump and instrumental values as central to its theoretical base – federalist theory.

Simply stated, a controversial issue, under this construct, is one in which the necessary illegitimacy involves action in opposition to one or more of these values. For example, in my last posting, I wrote about the practice of gerrymandering and how that practice, in effect, made the votes cast by millions not count. Here, the values include the constitutional integrity of those voters, a key value identified by the construct.

In all, I consider the federalist view or set of values the most productive basis by which controversial issues or problems should be chosen. Once the construct functions in this way, the instruction that is to follow does not dictate to students how they should arrange their values. It does not demand a verbal commitment by students to support a federalist value(s). Instead, the values function to guide a teacher in the choice of questions he or she should ask of students as they study and inquire into the chosen condition or situation.

1Galtung, J. (1971). A structural theory of imperialism. Journal of Peace Research, 8, pp. 81-117.