The Case Against The Case Against Education: Pre-Employment Testing

In the continuing saga…wait. Before I dive in, I want to reiterate something. Sending fewer kids to college is an excellent goal. But we need a realistic case to argue, one that understands how we arrived at this point, what the pressures are to keep it this way, and what are realistic alternatives. Caplan’s 0 for 3. That’s irritating, particularly since Caplan is personally in favor of killing all public education funding, which I absolutely do not support. He makes all these wild statements while many reviewers go the chinstroker route, pretending to take him seriously but actually cherrypicking some of his arguments they agree  or disagree with–yes, this is all very interesting and we should think about it–without engaging with the consequences of his proposals.

The most common explanation for the deep emphasis on credentialing in America is  that employers use college degrees as a proxy for cognitive ability for fear that they’ll be sued. In most circles, this is referred to as the Griggs problem, for the Griggs v Duke Power decision. In the past, employers routinely gave cognitive ability tests for jobs not requiring college degrees, to ensure the applicant has a baseline ability level–or even just to hire the smartest candidate. However, the  Griggs decision severely constrained their ability to test employees if it resulted in a disparate impact by race or gender, so employers began using education credentials as a proxy for ability. Caplan calls it “IQ laundering”; take the IQ, stick it in college for a few years, and then hey, presto, that dirty cognitive ability has been converted into a shiny new, entirely legal, credential, since credentials are not held to the disparate impact ruling.

Caplan thinks IQ laundering proponents are wrong. He thinks it’s obvious that employers “fear” high IQ people who don’t go to college–it signals non-conformity and low conscientiousness. He argues that IQ laundering has to face an “awkward fact”:

10-30% of large employers admit they use cognitive ability tests. (page 89)

Then he continues:

“…the total number of employment discrimination cases filed in federal court peaked at about 23,000 in 1998, then gradually declined to about 14,000 in 2007. The average cash award if you win a trial is large–about 1.1 million for 1990-2000. But only 2% of plaintiffs acutally go to trial and win, so annual awards sum to less than $600 million. Most plaintiffs–58%–manage to get an out of court settlement. Settlements are usually confidential, but the average settlement is about 5% as large as the average trail award. Annual settlements therefore sum to less than $800 million. If plaintiffs’ lawyers work for a 40% contingency fee, and defense outpsends them by a factor of three, employers’ legal costs still sum to less than 1.7 billion. Updating these mid-1990s figures for inflation, employers’ total legal burden sums to under $5 billion per year.

Compared to total labor costs, $5 billion is trivial…[But] Only 4% of federal discrimination cases brought between 1987 and 2003 alleged disparate impact. That amounts to under a thousand annual cases against any form of employment testing. If disparate impact cases cost the usual amount, employers’ total test tax is under $200 million a year. (page 89)

So to restate, Caplan thinks employers aren’t interested in finding high IQ people, but only people who have managed to go through college, which presumably signals a decent IQ. Employers don’t have any interest in cognitive ability testing. If they did, they would, because the pittance they’d pay in lawsuits would dwarf the savings they’d find in high IQ workers. They don’t do this. Ergo, they don’t want high IQ workers. They want conforming conscientious folks.

So first, on the 10-30% of corporations testing. I actually heard about this argument several months before, on Twitter,  and called bullshit. I’m amazed no one else noticed. The article, The Benefit of a Degree in I-O Psychology or Human Resources, lists 2 prior surveys and does one of their own:

• Terpstra, Rozelle, 1993:  201 companies, 20% did cognitive ability testing
• Drogan, Yancy, 2011: 122 credit unions, 27% did cognitive ability testing
• Wang, Yancy, 2012: 94 credit unions, 11% did cognitive ability testing.

I do not see how Caplan can use these three papers to assert that 10-30% of all corporations do cognitive ability testing. The papers themselves make no such claims.

Next, Caplan thinks that, since corporations spend billions in labor costs, they should shrug off a few hundred millions in court settlements in exchange for more efficient hiring. But labor costs will be in the billions no matter what. Suppose hiring the perfect employee every time saves employers collectively $1 billion each year.  Tests are expensive. Developing a test that will pass muster in the event someone sues would be extremely expensive. The tradeoff isn’t billions against $200 million, but more like $1 billion against $200 million and the cost of developing a test that passes EEOC in the event of a lawsuit. Morever, $200 million might be the total test tax for all corporations, but it’s not spread out among them evenly. Just ask Target ($2.8 million) or Federal Express ($54.9).

But the gaping hole in Caplan’s case is government hiring. The Civil Service exam was one of the great achievements of the late 19th century governance, but it didn’t last 100 years before the federal government abandoned it under pressure of a consent decree rather than lose at trial because of the test’s disparate impact. Teacher credential tests are routinely challenged for disparate impact and although they’ve been winning for 30 years, every so often a test is rejected for disparate impact and content that can’t be directly linked to the needs of the position.  But teachers have it easy next to  firefighters and cops–in no small part because firefighters and cops get promotions that have to be defensible and racially balanced.

Caplan doesn’t mention the extensive case history on government employment testing and disparate impact, possibly because he is unaware of it, possibly because it interferes with his easy, brief dismissal or, most likely, because he has some glib reason that he’ll use to argue in favor of ignoring it. But I find it difficult to justify his failure to take into account the hundreds of government cases on testing and disparate impact. The cases weren’t cheap, certainly, and it’s quite possible many large employers are scared off testing because of the many times courts have thrown out even carefully calibrated tests for seemingly random reasons. Toss that in with the $200 million “test tax” and the huge expense of developing a test against the likelihood of a loss–which happens to governments all the time, reminding corporations of what they could be wasting–and it’s far more reasonable, contra Caplan, to think that perhaps corporations don’t want the risk of cognitive ability testing.

Caplan occasionally mentions the “defenders of the IQ laundering theory”–those misguided souls who think Griggs had any sort of impact. For those looking for an excellent argument otherwise, see  Griggs vs. Duke Power: Implications for College Credentialing (O’Keefe/Vedder).  As Vedder and O’Keefe point out, employment tests were ubiquitous in this country before the Griggs decision. Now they’re very rare, other than in the EEOC-approved college credential path. In contrast to this history, Caplan’s simplistic, skeletal treatment of Griggs‘ potential impact on the rise of college credentialism undercuts his already weak argument for the employment value of conformity and conscientiousness.

Furthermore,  Caplan erred in saying that Griggs was codified in the Civil Rights Act of 1991. It was codified in the Equal Opportunity Employment Act of 1972, a distinction that matters because the court cases immediately following this codification supported Griggs. But  (Note: The Equal Opportunity Act didn’t codify Griggs, it just expanded the scope. I was misled by wording in the Vedder/O’Keefe piece. Thanks to Robert Verbruggen for pointing this out.)

But those of us blaming Griggs are focusing on the wrong target. In 1989, the Supreme Court threw out key elements of Griggs in a case known as Wards Cove , restoring the original 1964 understanding of the requirement.

Congress was much better at getting things done back then, and President Bush was running for re-election. So Teddy Kennedy proposed an amendment that resulted in the Civil Rights Act of 1991, overruling the Supreme Court’s decision and reinstating disparate impact.

This strikes me as important for a several reasons. First, it shows again that Caplan’s not a reliable narrator. He read the O’Keefe/Vedder article; it’s in his (excellent) bibliography. But he presented the information in such a way that utterly evades the complexity and controversy behind the disparate impact requirement.  Naw, it’s just like the 55 mph speed limit–a formality. Everyone breaks it. And that’s just not true.

Next, the Supreme Court appears to be once again forcing the conversation back towards equity and away from reverse discrimination–and this time, Congress and the President aren’t inclined towards swift action. What happens if disparate impact is ruled discriminatory in some future case?

Because, finally, Congress’s reaction to the Ward’s Cove decision overruled the Supreme Court, which doesn’t happen very often. What made this case special? Similarly, employers flagrantly violate all sorts of laws, but most of them are very leery of taking on the cognitive ability test and disparate impact. It’s almost as if institutionally, there might be a powerful counterforce pushing political and business leaders away from cognitive ability testing.

Hmm. What on earth could that counterforce be? But I’m at 1600 words already, so that’s the next article.

I can’t prove Caplan is wrong about employers and disparate impact. Caplan doesn’t take the long view, and it’s quite possible that today, given the ubiquitous nature of college attendance, employers do see failure to attend college as a sign of either low intellect or low conformity. But because Caplan elides or omits a great deal of importance from his argument, he makes the issue seem simple  when it clearly isn’t. Again, I don’t get the sense he’s making a serious case. Griggs wasn’t decided by stupid people. They had a reason for trying to stop employers from using cognitive ability as a hiring criterion.

I learned a great deal in fact-checking Caplan in this section. Most importantly, I learned that those of us who blame Griggs aren’t telling the whole story. Griggs was declared unconstitutional and then its elements were explicitly forced back into law by Congress and President Bush I. Disparate impact might not be similarly rescued in the future.

The Case Against The Case Against Education: How Did We Get Here?

“But why, some say, the moon? Why choose this as our goal? And they may well ask why climb the highest mountain? Why, 35 years ago, fly the Atlantic? Why does Rice play Texas?

We choose to go to the moon. We choose to go to the moon in this decade and do the other things, not because they are easy, but because they are hard, because that goal will serve to organize and measure the best of our energies and skills, because that challenge is one that we are willing to accept, one we are unwilling to postpone, and one which we intend to win, and the others, too.”–John F. Kennedy, 1962

“That something is hard is not an argument against doing it.”

“I say it is. It’s not a decisive argument, but it’s one of the better ones.”––Sean Illing and Bryan Caplan, 2018

For at least four months, I’ve been struggling with the best way to take on Bryan Caplan’s woefully simplistic argument about the uselessness of education. What do you do when someone with a much bigger megaphone takes up a position similar to one you hold–but does it with lousy data and specious reasoning, promoting the utterly wrong approach in seeming ignorance about the consequences?

Bryan Caplan wants to eradicate public funding for education because he thinks most of the spending is wasted. He’d like to eliminate all public school, but will settle for killing all post-secondary education as a reasonable first step.  He thinks too many people spend far too much money to learn very little or nothing.

Now, much of this was caught up in a whole rather tedious economics debate as to whether education is signaling, ability bias, or human capital. I don’t care at all about this aspect; for what it’s worth, I think education historically built human capital and the level that one could benefit from it was based on ability and access. For about 20 years, we had something close to perfect–access for all races, incomes, and creeds. And then we blew it. For the past 20 years, our education policy has been, either by accident or design, focused entirely on eradicating human capital and eliminating the advantage given ability in order that that everyone, regardless of ability, can signal the same meaningless credential.

So Caplan–who likes to say he cares about history–cares about none of the history that got us to this point (and he doesn’t accurately capture “this point”, but more on that later).

It’s customary for liberals to decry America’s social safety net as obviously and uniquely inferior to other Western countries, but rarely does our country get credit for its obvious and unique dedication to public education. For most of our history public education–a facet of our society much remarked upon as early as de Tocqueville– was focused on providing basic reading and writing skills to everyone.  In 1910, that focus expanded to the “high school movement” an unprecedented investment in secondary education that Europe took the better part of the 20th century to catch up to. (Best read on the high school movement is Goldin/Katz, who went on to write a highly regarded book on the topic. Caplan barely mentions their work in the footnotes.)

Call me crazy for wondering why Caplan doesn’t mention this history. He treats public education as some flukish fad that we just took on because of Social Desirability Bias and by golly, no one ever realized that not all students were learning what we taught until he showed up to point this out. Maybe that’s the arrogance you need to get book deals.

But public education is thoroughly baked into America’s history, and Caplan is proposing a massive change in American policy without in any way considering how it is we arrived at this point.

Nor is he looking at the enormous transformation that occurred fifty years ago.

The high school movement, and all the tremendous investment in public education that predated it, was almost entirely a state and local affair. We have thousands upon thousands of school districts from little to large because communities formed to achieve common goals. State public universities were also first funded (by sale of federal lands) in no small part to provide teachers for public schools, but also originally to encourage industrial education. But apart from offering land, the federal government had stayed out of public education for a very long time.  Catholic interests, southern politicians, and anti-communists (as Diane Ravitch put it in my favorite of her books, “race, religion, and fear of federal control”) blocked all attempts at federal funding for years. Catholics and urban politicians refused to vote for federal funding unless their private schools were included, Southern politicians refused to treat students of each race equally, and I dunno, anti-communists thought teachers would turn everyone red.

So American investment in education was unprompted, unprecedented, and entirely uncoordinated at the national level. Goldin and Katz say the purpose was not to create a “literate citizenry”, but rather an “intergenerational loan”. It doesn’t appear to have been designed for employers; in fact, area economies strong in manufacturing saw less investment in education.

Then, Brown vs. Board of Education began the federal intervention into public education, followed by the Civil Rights Act of 1964 and finally the big kahuna known as the Elementary and Secondary Education Act of 1965. Ever since then, public schools have been crushed with demands, most of them entirely unrealistic and unfunded, many of them imposed by court decree,  and very few of them ever voted on by the citizenry, local or national.

It’s hard to study the history of public education and not be struck by all these contrasts. See the early generosity of local communities, the belief in an educated citizenry almost entirely for its own sake, with little debate about its purpose, and it’s easy to understand the resonance this issue has, the heart and the soul we imbue into this history. And yet inequity underlines the entire enterprise–inequality of funding, of access, of opportunity. But the grand effort to undo that inequity hasn’t succeeded to the degree that anyone expected it to and god knows we haven’t been learning from our mistakes.

But then, why would we? Every time we’d expanded education in the past, we saw the benefit. We didn’t have the same data we have today. We didn’t see the failures. We only saw the many people who benefited from access. Who can blame us for thinking this expansion would go on forever? I don’t think I’m alone in noting that the last fifty years of public education policy, the ones when the feds have been in charge, have failed not only the country, but the people we were most trying to help. By turning education into a massive federal program in which the public’s voice was almost completely eliminated, we’ve wasted a fortune and a great deal of good will in exchange for improved test scores that never seem to last through high school.

So maybe look at what our expectations are, and ask if they are realistic. Surely an economist who understands data might spend a page or two talking about the ludicrous nature of a federal education bill that demands everyone–literally everyone–must achieve proficiency in a dozen years. Perhaps he might ask whether a federal program that insists on  mainstreaming children with severe mental disabilities into regular classrooms might possibly lead to students feeling trapped and and bored in school.

But such nuances are beyond Caplan.  The problems he outlines aren’t new, and  if you want a real idea of the depth and breadth of our education system, to determine whether or not we should kill funding, I recommend Larry Cuban, David Tyack, David Labaree, Diane Ravitch, Goldin and Katz and a host of other serious scholars before coming to any conclusions.

I can’t remember when or where he did this, but at some point Caplan has complained that no progressive has taken on his book seriously (or few did, I forget which). But he’s clearly unhappy that his book hasn’t made even the slightest ripple in the education “blob”.

Speaking from within the blob, I can say that Caplan’s book never got close enough to the water to make a ripple. The book is utterly without any of the understanding that would cause the blob the smallest frisson of fear. If Caplan wants to make a serious argument about defunding public education, he needs to understand this history,  the belief in education that is hardcoded into America’s DNA. He needs to understand the degree to which public education has been straitjacketed, for better and mostly worse, for the past 50 years by court order. He needs to understand the mandates that ensure his simplistic proposal to defund education will go nowhere.

Having thoroughly trashed the higher end value of a high school diploma, our country is currently in the midst of doing the same to an undergraduate degree. It’s appalling and we need serious, honest people who aren’t afraid of disapproval to take on this problem and, I desperately hope, stop it. Caplan’s not that guy. He’s smart, and I think he knows what would be required to actually engage in this conversation. But he won’t. He once bragged that Steve Sailer’s views were much closer to the public’s than his were, but that Steve is treated “like a pariah”, but is “very sweet” to him. He says he finds this bizarre, but my guess he knows exactly why he gets the better treatment. He loves floating shocking ideas, but “float” is exactly what he does.

I included the JFK quote and the exchange not because I think public education is one of the “hard” things we choose to do, but because Illing and Caplan’s exchange should have spurred some…I don’t know, some ironic sense in either of them that they were touching on a famous speech. Alas, these two public intellectuals didn’t recognize the connection at all. Typical these days to use history in the shallowest possible manner. But their exchange is also interesting because it captures Caplan perfectly.  A genuine, realistic argument to rethink public education in this country in a way to address the problems Caplan reports would be hard. So he dodges it entirely.  Not only is this easier, but it insures he’ll still get kid gloved by the media.

I can’t even really recommend the book, because anyone who comes away thinking that public education is a waste of time and money for the reasons Caplan outlines is doomed to be disappointed. But the bibliography is great, so maybe see what you can get from the googlebooks index.

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I spent months trying to figure out how to capture all this in one review, and I just can’t. I’ve had a tough time focusing on writing this year–not sure why. But I decided to just chunk off the thoughts about Caplan as they come up. Consider this a long throat clearing, but also the context. In my next piece, I will be talking about the stuff that Caplan gets flatly wrong or incomplete. I hope to have it done soon. Wish me luck. Nag me.

A Few Words on Janus

I’ve always thought the free speech aspect of the Janus case was purely nonsense. Eugene Volokh argued that Abood was wrongly decided in granting that free speech objection in the first place, observing that “compelled subsidy of others’ speech happens all the time”.   How many state-  or CDC-funded ads do we have to sit through, watching people smoke through their breathing tubes?  Or the various “join the military” ads?

I’m not a big fan of unions,although teachers unions come in for a lot of undeserved criticism. But my dislike of unions is professional–totally unrelated to the bizarro conservative hate-on which, I guess, has to do with the unions shoveling millions of easily collected dollars straight into Democrat coffers.

Still, I’m amazed, as always, at the utter cluelessness of the post-Janus gloating–which, typically, focuses almost exclusively on teacher employment, as if there’s no other public employee. I don’t think anyone’s focused on Janus’s impact on cops, for example–unsurprising, really, since the GOP likes cops and doesn’t want to fuss them.

But I’ll go with the flow and talk teachers, since that’s what I know.

First, left or right,  anyone who thinks education reform’s failure has anything to do with unions is kidding themselves. As I’ve written many times, education reform got everything it wanted for sixteen years–and as a result support for charters has plummeted,  support for unions and tenure has increased, and the ESSA deliberately and specifically targeted all the reform “advances” and ripped them into shreds.

So whatever changes Janus brings, I’d bet against Bill Bennett and Fordham Foundation.

We are in the middle of a teacher shortage, so good luck with cutting salaries, raising credential cut scores, or ending tenure. And has often been noted, the recent teacher walkouts have been in weak union states: Oklahoma, West Virginia, Kentucky. Colorado’s governor refused to sign a law that would fire striking teachers.

You know how conservatives and others say look, we don’t hate teachers, we just hate unions. Well, specific union objectives, unlike their political spending, are pretty much in line with what teachers want. In a scarce labor market, killing unions won’t make it any easier to push teachers around.

I’m likewise unconvinced that the billions of dollars the unions send to the Dems has anything to do with Democrat political success. Lordy, did you all learn nothing from Trump? Dave Brat? Alexandria Ocasio-Cortez?

So sure, Janus will lead to less money for unions. But dream on if you think Dems are crippled or the public will suddenly sign on for teacher merit pay.

Moreover, the idea that “millions of public employees” are being forced–yea, forced!–into paying to receive union-negotiated salaries just strikes me as bogus. I don’t like my dollars going to progressive causes, and as an immigration restrictionist, I get really annoyed at union shills wailing about family separations or the travel ban. But when Republican-leaning public employees growl about unions, they are, like me, unhappy about the waste of dollars sent to left-leaning organizations. How many public workers are actively opposed to the fundamentals of public employment? I’m skeptical. If  millions of public employees were outraged by job protections and pensions, conservatives wouldn’t have had to wait so long for the odd ball public employee to hang their case on. It took them years to find Friedrichs and then Janus out on the fringes to make the case.

But why should unions be required to negotiate contracts and protect employees who don’t pay for their services? The Supreme Court waved off the “free rider” problem, but who’s to say there will be paying riders? What’s stopping all teachers from saving hundreds of dollars a year, if the unions will work the contracts no matter what?

Considering that the state laws requiring unions to represent non-members have just been declared unconstitutional by the Supreme Court, the unions have a logical next step.

Unions should refuse to work for free. They won’t  provide any service to non-members.

Some services can be easily split between members and non-members. Job protections and other benefits, for example, are easily managed. Non-members who oppose job protections can just live with a greater risk of termination, while members can still ask for union representation.

But contract and salary negotiations apply to all employees, members or not. So unions should refuse to engage in these activities for any salary schedule that has less than 100% membership. Neither members nor non-members will get new salary schedules until someone else steps up to that task–and that someone else will want to be paid.

I can envision many ways out of the chaos that ensues, but certain truths seem obvious. Salary negotiation for millions of teachers, firefighters, police officers, DMV workers, prison guards and the rest is a labor (heh) intensive task. Right now, public employees pay for that task through their union representation. If unions refuse to do this, then how will public employees get raises? Fond fantasies aside, at some point the government is going to have to figure out how to replace that service.

While conservatives dream of a world in which government employees negotiate their salaries individually, absorbing the cost at a unit level, their dreams probably don’t include the onslaught of lawsuits that would follow in a world where local government officials decided salaries on merit. That’s why most charter and private schools use salary schedules, despite their ostensible freedom from these one-size-fits-all charts.

If unions just flatly ended all contract negotiations, the pressure for a Janus-fix would be immediate, particularly for teachers and cops. But wait! unions say–at least, this is what I think they should say. We’re not here to be obstructionist.  We’ll offer membership “tiers”.

Tier 1: Contract and salary negotiations only. Price: a couple hundred at most.
Tier 2: Tier 1 plus performance issues representation. Price: five hundred at most.
Tier 3: Tier 2 plus the cool bennies, political spending, other perks. Price: one thousand at most.

All employees on a given salary schedule must be at least a Tier 1 union member. No 100% membership, no contract and salary negotiations.

Some districts might not be able to get 100% membership. They could then contract to bring the union in for salary negotiations. Still other district employees might decide to do without unions entirely. Maybe they’ll figure out another means of negotiating salaries. Or maybe they’ll realize that union salaries are higher than non-union salaries for a reason.

Unions should not put the cost of their contract negotiations solely on their members. They should demand compensation for the services they perform that benefit all employees. If the employees don’t pay, then no union negotiations.

At the same time, unions could stop charging so much money, accept that they can’t use all teachers’ dues as a piggy bank for their political spending, and be more focused on offering services that all members can benefit from.

Those states with laws requiring unions to represent non-members are welcome to take them to court. However, I like to think that the same conservative jurists who hate unions also think it reasonable that unions get paid if they provide a service.

I’d be shocked, although pleased, if unions took this approach–with adjustments, of course, because I have no idea how much unions costs in other parts of the country, much less all of their many activities.  If they don’t, though, I’m ending my membership entirely. I’ve always refused to do the paperwork for agency fees–too much work for too little money. But I’ve paid nine years of union dues that went to political goals I not only don’t share but actively opposed. That’s enough to cover my next six years to retirement.