What’s Luck Got to Do with It?

It’s December 2012. I’m a 2L. I’m on my way to take my Federal Jurisdiction exam and meet what I think to be my fate, when I run into a well-intentioned faculty member. He asks me where I’m heading. “To my Fed. Jur. exam,” I manage to get out. His response? “Yikes. Tough class. Well . . . good luck!”

If there’s an inauspicious way to kick off an exam, I’m pretty sure that’s it. 

Fast forward two summers: I had graduated from law school, and my entire life had become about (1) studying for the bar exam, (2) not overdrawing my checking account, and (3) Chipotle burritos. Left and right, people were wishing me good luck on the bar. Every time they did so, the pressure mounted, as did my conviction that my professional future rode entirely on either luck or some God-given ability—neither of which I felt particularly flush with at the time. From these experiences, I began to think “good luck”—even when offered with utmost sincerity—might not the best way to send someone into a high-pressure moment.[i]

But we all do it. We say “good luck” to friends before they start a trial or to students before they take an exam because we wish them well. Behind the two simple words, though, seems the implication that we are mere pawns, our fate left to the caprice of the gods. Luck’s sister concepts are, after all, fortune and chance.[ii] Expounding on the etymology of luck, University of Cambridge Professor Robert S. C. Gordon has written that the word’s etymological roots imply that “[l]uck, good luck at least, brings happiness . . . , and this much seems uncontroversial. But conversely, there is already a more sombre . . . implicitly secular philosophy embedded in this lexical chain . . . : happiness is a matter of pure luck, and the path from one to the other is steeped in doubt.”[iii] In other words, the notion of good luck—or the wish of it—might just imply that our happiness, our success is out of our hands.

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New Marquette Lawyer Magazine Focuses on Attorneys at the Heart of Policing and Prosecution, Eviction Proceedings, Courts, and Medical Malpractice

Fall 2023 CoverTrust. It’s an important word to Milwaukee Police Chief Jeffrey Norman, L’02. He wants the city’s police department to have the trust of residents because of what he believes is a new culture in the department. And he wants to work with the community as a whole in a trusting relationship to help Milwaukee deal with some of its big issues.

“Jeffrey Norman Wants Your Trust,” the cover story in the Fall 2023 issue of Marquette Lawyer, Marquette Law School’s magazine, offers an engaging and insightful conversation with Norman. He discusses his goals as police chief, how he came to hold the position, and his thoughts on some of major issues that Milwaukee, its police force, and Norman personally are dealing with. A Milwaukeean through and through—a graduate of North Division High School and the University of Wisconsin–Milwaukee and a long-time member of the police department—Norman loves the city and thinks that building a different and constructive relationship between police and residents can make it better. The interview with Norman may be read by clicking here.

Speaking of trust, we trust that other articles in the new magazine will provide a wide range of valuable insights and information. Consider these pieces in the issue:

“Complexity and Contradiction in American Law” is a lightly edited text of the E. Harold Hallows Lecture delivered at Marquette Law School in March 2023 by Judge Gerard E. Lynch, of the U.S. Court of Appeals for the Second Circuit and Columbia Law School. Lynch maintains, contra Dworkin, “that that there isn’t and can’t be a single overall vision that fits together all of American law.” He also makes practical observations about the work of the federal courts. Lynch concludes that an American system where judges have differing philosophies and sometimes reach conclusions different from what other judges would decide is, in fact, a good thing. The article may be read by clicking here.

“Democracy in the Criminal Justice System” offers the insights of Carissa Byrne Hessick, Ransdell Distinguished Professor of Law and Director of the Prosecutors and Politics Project at the University of North Carolina. Hessick assesses the American criminal justice system, which she characterizes as “uniquely democratic.” Hessick last fall delivered Marquette Law School’s annual Barrock Lecture, which serves as the basis for the article. To read her perspective, click here.

“Eviction—So Simple, So Complex, So Human” describes the growing role of attorneys in eviction proceedings in Milwaukee Country, starting from 2016 when a Pulitzer Prize-wining book focused on the impact of evictions in the city of Milwaukee. The article canvasses both support and criticism of trends that have seen more attorneys becoming involved, particularly in representing tenants facing evictions. The article may be read by clicking here.

 “A Glimpse into a Challenging Area of Practice” profiles J. Michael End, L’73, and describes the uphill battle for a plaintiff’s lawyer in medical malpractice cases in Wisconsin. End, whose practice is based in Milwaukee, has represented medical malpractice plaintiffs for decades. Plaintiff’s-side attorneys lose 90 percent of the time at trial in medical malpractice cases, for reasons that include the state of the law, and there are now only 10 or so lawyers in Wisconsin who take these cases for plaintiffs, End says. The article may be read by clicking here.

In the Law School News section of the magazine, we introduce two new members of the Marquette Law School faculty: Christine Chabot, an associate professor of law, and Jason Reinecke, an assistant professor of law. Chabot’s research focuses on federal administrative law, and Reinecke’s on patent law, while they also teach more generally in the curriculum. The Law School News section also reports on remarks by Maha Jweied, CEO of the Responsible Business Initiative for Justice, a nonprofit organization based in Washington, D.C., at the Posner Pro Bono Exchange program at Eckstein Hall this past April. The program recognized the pro bono work of dozens of Marquette Law students. And the news section features four current Marquette Law School students who took part in the Law School’s now-decade-old Summer Youth Institute. The Law School News section may be read by clicking here.

In his column titled “Drawing On—Even Dwelling in—the Past,” Dean Joseph D. Kearney muses about Sensenbrenner Hall, the home of Marquette Law School for many decades. He offers thoughts about what has changed and what has not in the transition to Eckstein Hall, the school’s home since 2010, and how the Law School community continues to benefit from the work of its forebears. The column may be read by clicking here.

Finally: the Class Notes describe recent accomplishments of more than two dozen Marquette lawyers and may be read by clicking here, and the back cover (here) spotlights the success of lawyers who were part of the Law School’s sports law program in meeting career goals.

The full magazine may be read by clicking here . 

 

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How You Define a Public School Says a Lot about Your Education Views

This piece ran as a column in the Milwaukee Journal Sentinel on November 4, 2023.

The definition of a public school? For a third of a century, Wisconsin has stretched it and bent it into new shapes — and fought about it. The state is still doing all of these, especially the fighting.

How people define a public school often says a lot about where they stand on big education issues. Look at some of the current controversies in Wisconsin:

  • A major lawsuit challenging the funding mechanisms and even the existence of the state’s voucher and charter school programs.
  • Decisions on funding the different sectors of schools in Wisconsin that were pivotal in reaching agreement over a state budget for the next two years.
  • Disputes over rules about how much private schools need to disclose publicly.
  • Enforcement of public regulations on private schools.

At their heart, each involves the definition of a public school. (Oh, and money.)

When you say “public school,” do you limit that to schools that are part of a traditional school system? Is a charter school, which operates in a somewhat independent fashion, a public school? Is a private school, including a religious school, a public school in some ways if it enrolls students whose education is paid for with tax dollars?   

Many advocates of the conventional public school system argue that Wisconsin can’t afford to pay for two major school systems, one public, one private, and that the financial health of the public system is getting worse, to a worrisome degree.

Many voucher advocates call traditional public schools “government schools” and say children who go to other schools are still part of the public, that they and their parents are making their own choices about what is best for schooling, and that they should get public support for their education.   

The definition of a public school was once simple. Neighborhood public schools offered general education, were funded by tax dollars, and operated as part of a system led by an elected school board. Private schools — Catholic or Lutheran or whatever else — were often religious, were funded by private entities, parents and individual donors, and were overseen by a private board or religious organization.

This now seems quaint. In Milwaukee, almost half of all kindergarten through 12th-grade children who are getting publicly funded education are not enrolled in the Milwaukee Public Schools system. The first urban school voucher program in America began small in Milwaukee in 1990, with a few hundred students in seven private schools. Now, publicly funded school choice options beyond conventional public schools involve several hundred schools and more than 66,000 students statewide.

Nationwide, there has been a surge of legislation allowing public money to support the education of students not in conventional public schools. About 10 states now have laws offering payments for any and all students to go to the schools of their choice.    

“I do think there are some pretty blurry lines on what you can call public education when we’re putting millions of dollars into something that is not a traditional public school,” author Cara Fitzpatrick said during a recent program at Marquette Law School. Fitzpatrick, a Pulitzer Prize-winning education reporter, is the author of a book released in September: “The Death of Public School: How Conservatives Won the War over Education in America.” (I moderated the Marquette Law program.)

She said the book tells the history of the school choice movement and is not intended to advocate for who is right. Nor is she saying that public schools are literally dead or dying, given that about 90% of American schoolchildren continue to attend schools that are part of conventional public systems.

But, as a journalist, Fitzpatrick has a clear conclusion about who is winning the political wars over defining public education. The first sentence of Fitzpatrick’s book sets out her take: “Public education in America is in jeopardy.” She describes the book as “a story of how conservatives successfully advocated for an expansive version of publicly funded education — driven by the values of the free market — by adopting the language of civil rights while simultaneously attacking public schools.”

Milwaukee as the birthplace of vouchers plays a big role in the book. One of the book’s most prominent and interesting figures is the late state Rep. Annette Polly Williams. Williams was an early advocate of vouchers as a way of giving low-income children more choices in education.

But Williams, who was Black, became disaffected from the movement when she thought it was being taken over by white conservatives who weren’t interested in low-income children but who wanted vouchers for all children — including those who were already well off or in private school. The social equity goal that Williams favored has generally been pushed to the side nationwide.

The “sector wars” between public school advocates and school choice advocates continue to be heated in Wisconsin. If anything, the battles have become even more heated, fueled by the growth of school choice programs, the effects of the pandemic and increased partisan polarization. Consider five recent aspects of the continuing hostilities:

The Wisconsin state budget: Vouchers increase. So, to a lesser degree, did revenue caps for school districts.

The politics were complex, but the outcome was clear when it came to the deal between Republican legislative leaders and Democratic Gov. Tony Evers at the heart of the state budget passed in June. Payments per students for kids in charter schools or using vouchers in private schools went up a lot. The revenue cap, which goes far in shaping public school budgets, was increased a more modest amount.

The Minocqua Brewing suit challenges Wisconsin school vouchers

Kirk Bangstad, owner of the Minocqua Brewing Co. and a strong partisan of progressive causes, is a central figure in a broad legal challenge filed in October with the Wisconsin Supreme Court. The suit is labeled informally with the name of his northern Wisconsin brewery. The plaintiffs seek to have the state Supreme Court take up the case directly, rather than going through lower courts first. This is the broadest legal challenge to vouchers and charters in years. The plaintiffs hope the Supreme Court, with its new liberal majority, will see things their way.   

Requirements for Wisconsin schools to disclose financial data publicly

Backed by Republicans, the Legislature passed a law requiring schools to make a lot of their financial information more accessible online. Some private school advocates balked at being included in the requirements, arguing that they were different than public schools. Facing criticism that it’s hard to take public money and not be open about how it’s used, they backed down.  

Cutting off Holy Redeemer school in Milwaukee from voucher funds

Just before the school year began, the state Department of Public Instruction ordered that Holy Redeemer Christian Academy in Milwaukee be cut off from receiving voucher money for failing to meet financial requirements set by the state. The long-standing school, with leadership that is politically well connected, appears to still be operating (no one from the school has returned numerous phone calls) and is fighting the DPI decision.

Action such as this was more frequent 15 or so years ago, when accountability systems for voucher schools were developing, often in response to practices that were questionable or worse. These days, private schools generally act more responsibly, and such enforcement is rare.

New charter funding

Charter schools statewide generally draw less attention and heat. Many are staffed by public school employees, some are not. It’s a complicated picture — but it may be poised to grow. DPI announced in early October that it was awarded $58 million in federal funds to strengthen systems around charter schools. The money could allow dozens of new charter schools, or could allow existing charters to expand or open additional locations.   

The way the debate plays out in coming years over what is a public school and how different types of schools should be funded will be a key to the vitality of schools of all kinds across Wisconsin — which, ultimately, is a key to the educational outcomes of hundreds of thousands of Wisconsin children.  

Alan J. Borsuk is senior fellow in law and public policy at Marquette Law School. Reach him at alan.borsuk@marquette.edu. 

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