Video Game Curbs to Be Reviewed

By Kenneth Jost
Associate Editor
      Violent video games are the latest free speech issue for the U.S. Supreme Court.
      The justices agreed on April 26 to hear an appeal by the state of California seeking to reinstate a 2005 law that bans the sale or rental to minors of video games that depict “killing, maiming, dismembering or sexually assaulting” human images in “patently offensive” ways. The case is Schwarzenegger v. Entertainment Merchants Association, 08-1448.
      California is one of nine states or localities to enact similar laws. So far, federal judges have struck down all of the statutes challenged in court, including California’s.
      Under the California law, retailers could have been fined as much as $1,000 for any violation. The law permits a minor’s parent or guardian to buy or rent games for minors even if the game would violate the law.
      Federal courts blocked California’s law before it could go into effect. U.S. District Court Judge Ronald Whyte in San Jose issued a preliminary injunction in 2005 before the law was to take effect and made the injunction permanent in August 2007. In both rulings, Whyte said that the state had not proven that video games cause harm to minors.
      The Ninth U.S. Circuit Court of Appeals upheld the decision in February 2009. The appeals court also said the state had not shown that parental controls were ineffective in protecting children from any potential harms.
      In seeking to reinstate the law, lawyers for California are seeking to expand a Supreme Court ruling, Ginsberg v. New York (1968), that permits the government to keep sexually explicit material from minors even if it would not be deemed legally obscene for adults. “Violent video games can be just as harmful to minors as sexual material and should receive no greater protection under the First Amendment,” the state told the justices in seeking review of the appeals court decision.
      Lawyers for the video game dealers challenging the law urged the justices to leave the case alone, calling the appeals court ruling “a routine application” of established free-speech law. They pointed to the industry’s voluntary rating system for video games and to evidence showing parents are involved in most purchases of games for children.
      But the video game dealers also argued that minors do not need special protection from depictions of violence. “Violence . . . is a regular part of children’s literature and stories,” they told the justices.
      The high court rejected a similar effort to expand the scope of unprotected speech in an 8-1 decision earlier this month [April 20] that struck down a federal law banning depictions of animal cruelty. Writing for the majority in United States v. Stevens, Chief Justice John G. Roberts Jr. said the court’s precedents do not establish “a freewheeling authority to declare new categories of speech outside the scope of the First Amendment.”
      The justices apparently waited until the Stevens decision was released to decide whether to hear the video game case themselves, leave the appeals court decision in place or ask the Ninth Circuit to reconsider its ruling in the light of the high court decision.
      The high court has had a number of tricky First Amendment-related cases on its calendar for the current term, which runs through the end of June.
      In January, the court struck down on free-speech grounds an important provision of the McCain-Feingold campaign finance law that barred corporations and labor unions from using their own funds in federal elections. The 5-4 ruling in Citizens United v. Federal Communications Commission was praised by Republicans but sharply criticized by Democrats. President Obama denounced the ruling in his State of the Union address with six of the justices seated below him.
      The justices heard arguments on Feb. 23 in a case, Holder v. Humanitarian Law Project, challenging broad interpretations of a federal law making it a crime to provide “material support” to groups designated by the government as terrorist organizations. U.S.-based groups are seeking a ruling that the law does not apply to efforts to teach the use of international law to terrorist-designated organizations in Kurdistan and Sri Lanka.
      The court heard arguments on April 19 in a case, Christian Legal Society v. Martinez, challenging a decision by a state law school in California denying recognition to a Christian group because of religious qualifications for membership. And the justices are to hear arguments on Wednesday [April 28] in an appeal, Doe v. Reed, seeking to prevent disclosure of the names of signers of an initiative petition in Washington that would overturn parts of the state’s domestic partner law. Supporters of the initiative say they would be subject to harassment if their names were disclosed.
      Rulings in the remaining cases this term are expected by the end of June, when the justices customarily start their summer recess. Arguments in the video game case are likely to be scheduled in November or December.

      For more information, see Sarah Glazer, “Video Games,” CQ Researcher, Nov. 10, 2006.


Is the VA benefits system broken beyond repair?

To follow is the "Overview" section of this week's CQ Researcher report on "Caring for Veterans" by Peter Katel, April 23, 2010.

The car bomb exploded at dusk. Its target – a seven-ton U.S. Army personnel carrier – was blown about six feet by the force of the blast. Infantryman John Lamie came out alive, thanks to armor plating around his machine-gunner’s cupola, but three of his buddies died in the Aug. 3, 2005, attack in Baghdad. Lamie went to Iraq a second time in 2007-2008, before the cumulative effects of combat eventually pushed him out of the Army.

Now he’s fighting another kind of battle – with the Department of Veterans Affairs (VA). “I did two tours in Iraq and half my squad died,” he says from his home in Cecil, Ga., only to “come home and get treated like a piece of crap in my own state.”

Because of a series of complications over the validity of disability exams Lamie took for post-traumatic stress disorder (PTSD), traumatic brain injury (TBI) and other conditions, Lamie’s most recent disability check amounted to $83.19. He and his wife have three children, and he’s paying child support for a fourth child with his ex-wife.

Lamie says that when he tried to straighten out his case with staff of the VA’s Veterans Benefits Administration (VBA), he ran into a wall of indifference. “The vet has no power, you are left to the wind,” Lamie says. “You have to call and beg – I don’t mean ask nicely, I mean beg – and I don’t feel any vet should have to beg somebody to do their damn job.”

However, by late April, Lamie had found a VA staffer who was trying to straighten out bureaucratic confusion involving multiple files shipped among multiple offices. “Fingers crossed,” Lamie says. “Within another two months something might work itself out.” He emphasizes “might.”

Veterans’ advocates, the Government Accountability Office (GAO) and the VA’s own inspector general have all reported similar communications breakdowns and wildly varying standards for evaluating disability claims among VBA regional offices, even as a steady stream of new claims pours into the VA.

Soldiers wounded while serving their country “are waiting – and waiting – for the help they have been promised,” said Rep. Bob Filner, D-Calif., chairman of the House Veterans’ Affairs Committee, after meeting with agency officials and veterans’ organizations in March. “Frankly, it’s an insult to our veterans and their service.” [Footnote 1]

About 1 million claims of all kinds are backlogged at the VA, according to veterans’ organizations, some of which help veterans on behalf of the VA, which says the backlog of initial claims alone totals 500,000, using a different calculation method.

While VA medical care, delivered through the Veterans Health Administration, tends to earn high marks from vets, the VBA presents a different picture. In 2007-2008, staff at VBA regional offices compiled an overall accuracy record on initial claims decisions of only 77 percent, Belinda J. Finn, VA deputy inspector general, told the House Veterans’ Disability Assistance and Memorial Affairs Subcommittee in early March. “This equates to approximately . . . 203,000 total claims where veterans’ monthly benefits may be incorrect,” Finn told the subcommittee. [Footnote 2]

The VA’s scramble to meet mounting demand for its services is occurring amid continuing warfare on two fronts: Since U.S. forces entered Afghanistan in 2001, at least 5,190 service members have been wounded, 425 of them this year. Since the 2003 U.S. invasion of Iraq, 31,176 service members have been wounded there. [Footnote 3]

Yet the VA’s difficulties providing adequate care for veterans got only sporadic attention until 2007, when a prize-winning Washington Post series pushed them to the top of the national agenda. With the issue in the spotlight, Congress in 2008 authorized free medical care for all Iraq and Afghanistan veterans for five years after leaving the military. And GI Bill educational benefits were expanded for veterans who entered the service after the Sept. 11, 2001, terrorist attacks.

Vets welcomed the new benefits, but questioned the VBA’s ability to process all the new claims. The VA’s new boss, retired Gen. Eric K. Shinseki, is vowing to shake up the agency. “2010 is my year to focus on finding and breaking the obstacles that deny us faster and better processing and higher quality outcomes,” he told the Veterans of Foreign Wars in early March. To break the backlog while dealing with a rush of expected new claims, he proposes adding 4,000 claims examiners in the 2010-2011 fiscal year. [Footnote 4]

His appointees aren’t mincing words about what they found when they took over. “In my judgment, it cannot be fixed,” Peter Levin, the VA’s chief technology officer, said of the benefits claims system during a March meeting on Capitol Hill with veterans’ organizations. “We need to build a new system, and that is exactly what we are going to do.” [Footnote 5]

Veterans’ advocates cheered Levin’s comments and praise Shinseki’s vision, but some wonder if he can put his stamp on the VA. A West Point graduate who lost most of a foot in Vietnam combat, Shinseki has earned a reputation for speaking out regardless of consequences. As Army chief of staff, he told the Senate Armed Services Committee in 2003 that securing Iraq after invading it would require “something on the order of several hundred thousand soldiers.” Shinseki’s civilian boss, Defense Secretary Donald Rumsfeld, contemptuously brushed that assessment aside and marginalized its author. But time proved Shinseki more accurate than Rumsfeld, who endorsed a forecast of 30,000-50,000 troops in Iraq after the invasion. By fiscal year 2008, U.S. troop strength had reached nearly 160,000. [Footnote 6]

Now, Shinseki’s leading an agency trying to adjust to the special demands created by 21st-century warfare. Vast advances in battlefield care are enabling thousands of vets to survive injuries that would have been fatal in the past. But those injuries, often caused by homemade bombs, or so-called improvised explosive devices (IEDs), can be crippling.

“IED blasts alone often cause multiple wounds, usually with severe injuries to extremities, and traumatic brain and other blast injuries, and they leave many . . . with serious physical, psychological and cognitive injuries,” the government-funded Institute of Medicine (IOM) reported to Congress in a lengthy study published in March. [Footnote 7]

Today’s all-volunteer military is far smaller than past draftee-fed forces, requiring troops to be repeatedly recycled through combat zones. About a third of those who have been deployed to combat more than once have suffered from PTSD, TBI or major depression, and about 5 percent suffered from all three, according to the RAND Corp, a California think tank. Multiple deployments can double the risk of PTSD and other psychological problems, the Army surgeon general concluded in a 2008 report, which found mental health problems in 12 percent with one deployment and 27 percent with three or more deployments. [Footnote 8]

Retired Army Capt. Anthony Kennedy, who attempted suicide after two tours in Iraq, described the nature of the fighting there and the psychological effects of the constant threat of being blown up by an IED. “One of my friends . . . had a friend whose arms and legs were blown off,” Kennedy says. “All of us combat guys are thinking, ‘Why do I want to go through life with no arms and no legs?’ Our consensus: ‘Can my battle buddy just put a bullet in me?’ We talk about that.”

Kennedy has had problems with the VA benefits system as well, but obtained a volunteer lawyer’s help in pushing his PTSD rating from 30 percent to 70 percent disability. He says his 17 years in the service taught him how to deal with military-style bureaucracy. “I have the maturity and the knowledge to know that there’s 100,000 applications out there, and I’m just one cog in the wheel,” he says. “But I can imagine that if someone is completely disabled, and their father or mother comes in, the system can be a shock.”

Even military reservists, accustomed to part-time service, can be taken aback by the VA system they encounter after active duty. Naval reservist Richard Sanchez of New York, a former paralegal for a Wall Street law firm, was discharged after his second deployment, which took him to Kuwait, where he was injured when an ammunition and weapons container fell on him in 2005.

After discharge, Sanchez began to suffer intense back pain, failing memory and depression. In his confused state, the VA system overcame him, he says. Eventually, he encountered a VA counselor who helped him straighten out a long series of bureaucratic complications, and in March received a letter from the VA apologizing for erroneous ratings and promising to reevaluate claims for PTSD, TBI and depression.

“I don’t hate the VA,” says Sanchez, who is attending college thanks to VA education benefits. “There are some faults there, but you can’t blame the whole system.”

That system is about to be tested even more forcefully. The VA is predicting that its claims workload will rise 30 percent next fiscal year, to about 1.3 million, in part because the department added three new ailments to the list of illnesses presumed to result from exposure to the Vietnam-era defoliant known as Agent Orange. And more “presumptive” illnesses associated with exposure to other battleground chemicals in more recent wars may be added later this year. [Footnote 9]

Still, it won’t be easy to convince veterans that the VA has turned a new page. In Georgia, Iraq vet Lamie is trying to keep his family fed, his lights on and his car running on the small checks he receives now. “I’ve still got no faith in VA” – for now, he says.

The Issues:
*Is the VA benefits system broken beyond repair?
*Is the VA adjusting to the needs of 21st-century combat and technology?
*Is the VA improving rapidly enough?

For more information see the CQ Researcher report "Caring for Veterans" [subscription required] or purchase the CQ Researcher PDF.

[1] “Radical Change Needed for Veterans Disability Claims Process,” House Committee on Veterans Affairs, press statement, March 18, 2010.
[2] “Statement of Belinda J. Finn, Assistant Inspector General for Audits and Evaluations, Office of Inspector General, Department of Veterans Affairs,” VA Office of Inspector General, March 24, 2010.
[3], updated regularly.
[4] “Remarks by Secretary Eric K. Shinseki,” Veterans of Foreign Wars National Legislative Conference, March 8, 2010; “Fiscal 2011 Budget: VA,” Committee Testimony, Senate Veterans' Affairs Committee, Feb. 26, 2010; “FY 2011 Budget Submission,” Department of Veterans Affairs, pp. 2B-4, 2C-2.
[5] Quoted in Rick Maze, “VA official: Disability claims system ‘cannot be fixed,’” Federal Times, March 18, 2010 .
[6] Quoted in Philip Rucker, “Obama Picks Shinseki to Lead Veterans Affairs,” The Washington Post, Dec. 7, 2008; Bernard Weinraub and Thom Shanker, “Rumsfeld's Design for War Criticized on the Battlefield,” The New York Times, April 1, 2003, p. A1; Amy Belaso, “Troop Levels in the Afghan and Iraq Wars,” Congressional Research Service, July 2, 2009, Summary page; “US Forces Order of Battle,”, undated.
[7] “Returning Home from Iraq and Afghanistan: Preliminary Assessment of Readjustment Needs of Veterans, Service Members, and Their Families,” Institute of Medicine of the National Academies (2010), p. 52.
[8] Terri Tanielian and Lisa H. Jaycox, eds., “Invisible Wounds of War: Psychological and Cognitive Injuries, Their Consequences, and Services to Assist Recovery,” RAND Center for Military Health Policy Research, 2008, p. xxi; U.S. Army Surgeon General study cited in Kline, Anna, et al., “Effects of Repeated Deployment to Iraq and Afghanistan on the Health of New Jersey Army National Guard Troops: Implications for Military Readiness,” American Journal of Public Health, February 2010.
[9] The three are Parkinson's Disease, ischemic heart disease and B-cell leukemias. “FY 2011 Budget Submission,” op. cit., p. 1A-3; Gregg Zoroya, “VA to automate its Agent Orange claims process,” USA Today, March 9, 2010, p. 4A.

Faith and politics make for explosive mix

By Thomas J. Billitteri

Sarah Palin fired another shot in the culture wars last week, claiming that the United States is a “Christian nation,” and it didn’t take long for the return fire to come her way. The pyrotechnics are reminiscent of the strong views I heard earlier in preparing my January report on government and religion.

Speaking at a three-day Women of Joy Conference on Friday in Louisville, Ky., Palin declared that America must return to its Christian roots and, as reported by the Louisville Courier Journal, rejected the idea that “God should be separated from the state.”

“Hearing any leader declare that America isn’t a Christian nation and poking at allies like Israel in the eye—it is mind-boggling to see some of our nation’s actions recently,” she declared in an apparent allusion to a comment President Barack Obama made in Turkey last year in which he said “we do not consider ourselves a Christian nation or a Jewish nation or Muslim nation” but a “nation of citizens who are bound by ideals and a set of values.”

Palin also denounced a federal court ruling in Wisconsin last week declaring government observance of a National Day of Prayer unconstitutional because its sole purpose is to encourage citizens to engage in a religious exercise lacking a secular function.

According to a separate account by ABC News, Palin declared that “God truly has shed his grace on thee—on this country. He’s blessed us, and we better not blow it.” And, she said, “Lest anyone try to convince you that God should be separated from the state, our founding fathers, they were believers. And George Washington, he saw faith in God as basic to life.”

But Palin’s remarks invited a swift rebuttal from advocates of church-state separation. “The United States is not officially ‘Christian,’ wrote Rob Boston, senior policy analyst for Americans United for Separation of Church and State, a Washington advocacy group. “There’s a handy document, Sarah, that explains all of this. It’s called the Constitution.”

Barry Lynn, executive director of Americans United, told ABC News that “it’s incredibly hypocritical that Sarah Palin, who disapproves of government involvement in just about anything, now suddenly wants the government to help people be religious.”

A spokesman for the Secular Coalition for America told ABC that the Constitution “established a secular government and has no mention of Jesus, Christianity, or a god of any kind, despite the false message spread by figures such as Sarah Palin.”

Don’t look for the battle over history, politics and religion to go away, though. It’s been raging since the nation’s founding, and it continues to brew in 2010.

As Palin said of the court ruling on the National Day of Prayer, “I think we’ll be challenging that one.”

For more on faith and politics, see Thomas J. Billitteri, “Government and Religion,” CQ Researcher, Jan. 15, 2010.

“Animal Cruelty” Law Struck Down

By Kenneth Jost
The Supreme Court has thrown out on free speech grounds a 10-year old federal animal cruelty statute aimed at outlawing so-called crush videos - graphic depictions of intentional killing of small animals marketed to people who find the videos sexually arousing.

In a forceful opinion, Chief Justice John G. Roberts Jr. led an 8-1 majority in concluding that the 1999 law risked criminalizing too much constitutionally protected speech to survive First Amendment scrutiny. Roberts described the law as creating “a criminal prohibition of alarming breadth” and discounted the government’s assurances in briefs and oral argument to apply it narrowly.

Roberts left open the possibility of a narrower law aimed solely at crush videos, dog fighting or “other depictions of extreme animal cruelty.” In a lone dissent, Justice Samuel A. Alito Jr. argued that the law could have been upheld under a narrow construction. He warned that the decision would result in renewed production of crush videos, which had largely disappeared since the law was passed.

The law, codified as 18 U.S.C. § 48, prohibited any “depiction of animal cruelty,” broadly defined to include still photographs or audio or video recording of “conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed.” The prohibition applied if the conduct was illegal under federal law or the law of the state where the conduct took place or the material was found. It included exceptions for material with “serious religious, political, scientific, educational, journalistic, historical, or artistic value.”

The ruling threw out the conviction and 37-month prison sentence handed down to a Virginia man, Robert Stevens, in 2005 for selling to federal undercover agents two videos depicting organized dog fights in the United States and a third showing a wild boar hunt. Stevens, the first person convicted under the law after a trial, had operated a business called “Dogs of Velvet and Steel” and maintained a Web site devoted to the pit bull breed of dogs.

Congress passed the law after hearing testimony from animal protection groups and others about the extensive market in crush videos and the difficulty of prosecuting people involved in their production. Roberts quoted a House committee report on the bill describing the videos as typically featuring women using their feet or high-heel shoes to slowly crush to death “helpless animals,” including dogs, cats, mice, monkeys and hamsters. The videos “appeal to persons with a very specific sexual fetish,” the House committee report said.

The justices agreed to hear the government’s appeal after the Third U.S. Circuit Court of Appeals in Philadelphia reversed Stevens’ convictions in October 2006. The appeals court divided 2-1 in holding that the law failed the so-called “strict scrutiny” test because it did not advance a compelling government interest nor was it narrowly tailored for that purpose. The high court heard arguments at the start of its current term in October 2009 and kept the case under advisement for an unusually long time, six-and-a-half months.

In a 20-page opinion, Roberts rejected the government’s call to define depictions of animal cruelty as categorically outside the First Amendment and then applied a well recognized “overbreadth doctrine” to find the law unconstitutional. The law could even apply to hunting magazines, Roberts said, because the District of Columbia’s ban on hunting would criminalize any publications possessed within its borders.

During arguments, deputy U.S. solicitor general Neal Katyal repeatedly said the law did not apply to depictions of hunting. But Roberts said hunting magazines and possibly other legitimate depictions of killing or wounding of animals could not be saved by what he described as the government’s “unrealistically broad reading” of the act’s exceptions clause. And he dismissed the government’s promise to apply the statute only in cases of “extreme” cruelty. “We would not uphold an unconstitutional statute,” the chief justice wrote, “merely because the Government promised to use it responsibly.”

In his dissent, Alito said the court should have sent the case back for a specific ruling on whether the three videos cited against Stevens were constitutionally protected. “I do not think the present record supports the Court’s conclusion that §48 bans a substantial quantity of protected speech,” he wrote.

The Humane Society of America voiced “disappointment” with the ruling but urged Congress to move “swiftly” to pass a narrower law. “The Supreme Court's decision gives us a clear pathway to enact a narrower ban on the sale of videos depicting malicious acts of cruelty, including animal crush videos and dogfighting,” said Wayne Pacelle, the society’s president and CEO.

Stevens’ effort to overturn the law attracted support from an unusual coalition of First Amendment advocates, media organizations and hunting groups, including the National Rifle Association. In a statement, the Professional Outdoor Media Association applauded the ruling. “The First Amendment rights of traditional outdoor sports journalists, those who cover legal hunting and fishing and promote the enjoyment of these American heritage sports, are protected,” the group said.

For more on animal-protection policies, see Marcia Clemmitt, “Animal Rights,” CQ Researcher, Jan. 8, 2010.

Should teachers be held more accountable for students' performance?

To follow is an excerpt from the CQ Researcher report on "Revising No Child Left Behind" by Kenneth Jost, April 16, 2010

When teachers at chronically underperforming Central Falls High School in Rhode Island balked at agreeing to extend the school day by 25 minutes without any additional pay, the school board and school superintendent decided on Feb. 23 to fire the entire staff. Termination notices were read aloud at a contentious school board meeting for 93 people altogether, from the principal and assistant principal down through 74 classroom teachers and other educational or administrative aides.

The episode gained national attention when President Obama — echoing earlier favorable comments from Education Secretary Duncan — endorsed the board's action. “If a school continues to fail its students year after year after year, if it doesn't show signs of improvement, then there's got to be a sense of accountability,” Obama said on March 1. “And that's what happened in Rhode Island last week.” [Footnote 15]

The mass firings are now on hold, pending mediation between the school board and the local teachers' union. But the cooling-off came only after heated comment from NEA and AFT leaders and many individual teachers. Anthony J. Mullen, a Greenwich, Conn., teacher and the current teacher of the year, said the call for firing teachers to improve schools reflects an “off-with-their-heads mentality.” [Footnote 16]

The focus on tenure for individual teachers represents a significant policy change from No Child Left Behind in its present form. “Teachers were not really accountable under No Child Left Behind; schools were,” says McGuinn, the Drew University political scientist. “There were no consequences for teachers if students didn't perform.”

Conservative education experts are applauding the administration's approach. Increasing teacher accountability is “a good thing,” says the Fordham Institute's Finn. “While any given teacher may not have huge control over a kid, the cumulative effect of teachers is the single most important influence on what a kid learns — or maybe the second most important after home and neighborhood.”

Leaders of the two national teachers' unions sharply disagree with the administration's approach. They say firing teachers is a punitive approach with no sound basis that ignores other factors in student performance and in the end does little if anything to help students improve.

“The idea that you can measure a teacher's work or a student's work on the basis of a test on a single day is absurd,” says the NEA's Van Roekel. “There's no test that you can give that can evaluate what I've taught over the year.”

Obama's plan “seems to be holding teachers 100 percent responsible for students' success,” says the AFT's Weingarten, “without giving teachers any authority or leverage to get the tools they need to do their jobs and any countervailing responsibility on anyone else.”

School management groups also view the administration's approach as too severe. “I would like to see more latitude in terms of model intervention,” says Wilhoit of the state education chiefs' group, specifically referring to teacher dismissals. But, he adds, “we need to get serious as a country to turn around these chronically underperforming schools.”

“We don't think there are any data out there that show that those remedies will help,” says Felton of the school boards association. Some principals or teachers may need to be reassigned, Felton says, but the administration's blueprint “doesn't focus on the skill sets that you need to really turn around any program.”

Criticism also has come from Ravitch, the supporter-turned-critic of conservative versions of school choice and accountability. “Wouldn't it make more sense to send in help instead of an execution squad?” Ravitch writes on an Education Week blog. [Footnote 17]

The administration's blueprint ties the firing of teaching staffs with the implementation of “a research-based instructional program” along with a “new governance structure” and “extended learning time.” Interestingly, Obama strikes a more supportive tone in the two-page introduction to the blueprint. “We must do better to recruit, develop, support, retain, and reward outstanding teachers in America's classroom,” the president writes.

“Some of these schools have real numbers of teachers who either are ineffective or have become discouraged,” says American Enterprise Institute expert Hess. “Replacing teachers can bring in more effective teachers and create a necessary sense of urgency. What bothers me is that there's some stock playbook and that somehow this is going to take a consistently underperforming school and put it on a better trajectory.”

The Issues:
*Should states adopt the proposed “common core standards” for English and math?
*Should the Education Department focus remedial efforts on the worst-performing schools?
*Should teachers be held more accountable for students' performance?

For more information see the CQ Researcher report "Revising No Child Left Behind" [subscription required] or purchase the CQ Researcher PDF.

[15] See Steven Greenhouse and Sam Dillon, “A Wholesale School Shake-Up Is Embraced by the President, and Divisions Follow,” The New York Times, March 7, 2010, p. A20. For local coverage of the school board action, see Jennifer D. Jordan, “Teachers fired, labor outraged,” Providence Journal-Bulletin, Feb. 24, 2010, p. 1.
[16] Quoted in Greenhouse and Dillon, op. cit.
[17] Diane Ravitch, “Try Again, Secretary Duncan, It's Not Too Late,” Bridging Differences, March 23, 2010.

Obama's Task in Replacing Stevens

By Kenneth Jost
      Justice John Paul Stevens’ decision to retire from the Supreme Court gives President Obama a problem more than an opportunity in choosing a successor. As the leader of the court’s liberal bloc, Stevens will be not simply hard but impossible to replace, at least in the short term.
      Stevens conveyed his decision to end his 34-year tenure in a one-paragraph letter to President Obama delivered on Friday [April 9]. Stevens said that he would retire one day after the court starts its summer recess at the end of June in order to ensure that his successor can be appointed and confirmed “well in advance of the commencement of the Court’s next term,” which begins in October.
      In making his second Supreme Court appointment, Obama will be working with a list of contenders who finished as also-rans last year to Justice Sonia Sotomayor. The three candidates being widely described as front-runners now include two whom Obama personally interviewed last year — Solicitor General Elena Kagan and federal appeals court judge Diane Wood — and Judge Merrick Garland of the federal appeals court for the District of Columbia.
      Garland was on the long list of possible candidates last year, but from the outset Obama was known to be looking for a woman to join Ruth Bader Ginsburg as a second female justice.
      All three of the supposed front-runners are given high marks for collegiality, one of the important skills for working effectively on a court with nine members who have to work together over a span of many years. As dean of Harvard Law School, Kagan was widely praised for working with high-profile faculty members from one end of the ideological spectrum to the other. Garland and Wood have both served as judges on ideologically fractious federal appeals courts for more than a decade — Wood since 1995, Garland since 1997.
      All three candidates are viewed as generally liberal in their legal views, with Wood seen as the most liberal of the three and Garland perhaps the one least likely to prompt a confirmation fight with Senate Republicans. With a 59-vote majority, however, Senate Democrats are well situated to get Obama’s nominee confirmed, probably before the congressional recess in August.
      Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., called on senators from both parties to make the confirmation process “a thoughtful and civil discourse.” Leahy presided over Sotomayor’s four-day confirmation hearings last July. The Judiciary Committee divided along party lines in approving Sotomayor’s nomination, with only one Republican — South Carolina’s Lindsey Graham — joining Democrats in supporting her. With Democrats then enjoying a 60-vote majority, Sotomayor was confirmed by a vote of 68-31, with all but nine Republicans casting all the no votes.
      Stevens’ decision comes 11 days before his 90th birthday. He is the second oldest justice in history, after Oliver Wendell Holmes Jr., and ranks fourth in longevity on the court, after Justices William O. Douglas and Stephen Field and Chief Justice John Marshall. Among the three leading contenders for the seat, Wood and Garland are both in their late 50s; Kagan turns 50 later this month.
      As the senior justice, Stevens speaks second, after Chief Justice John G. Roberts Jr., in the post-argument conferences where the justices lay out their positions on cases and take a preliminary vote. If the chief justice is in the minority and Stevens in the majority, Stevens assigns the writing of the majority opinion.
      Over the past few years, Stevens has taken some of the most important decisions for himself — including two of the decisions that rejected Bush administration positions dealing with Guantanamo detainees. But he has also given some major decisions to other justices. For example, Stevens assigned a third Guantanamo-related decision and the 2003 ruling that overturned anti-sodomy laws to Justice Anthony M. Kennedy, who occupies a swing-vote position between the opposing blocs of four conservative and four liberal justices.
      With Stevens’ departure, the dynamic in the conference will change. Justice Antonin Scalia will become the second most senior justice followed by Kennedy and Justice Clarence Thomas. Ginsburg, fifth in seniority, will be the first of the liberal justices to have a chance to speak in conference. The impact on decision-making is hard to predict, but liberal advocates cannot help but be concerned.

Are Americans prepared for a catastrophic earthquake?

To follow is an excerpt from the CQ Researcher report called "Earthquake Threat" by By Thomas J. Billitteri, April 9, 2010.

Last October some 6.9 million people participated in a statewide “Great California Shake Out” drill aimed at helping residents and businesses prepare for a quake in one of the world's most seismically vulnerable regions. Another drill is set for this October, and organizers have high hopes that participation will grow.

Still, disaster-preparedness officials worry that too many Americans are complacent about seismic danger. “As a society we are not prepared,” says John Harrald, research professor at the Center for Technology, Security and Policy at Virginia Tech University and chair of the Disasters Roundtable at the National Academies of Science. “As we showed in Katrina” — the 2005 Gulf Coast hurricane and flood that devastated New Orleans — “part of what we're not prepared for is the very broad and deep impacts of such an event. Other than a few areas, it's not really on people's radar screens.”

That's even true in quake-prone California. In Los Angeles, nearly half of adults polled recently said they would not be prepared if an earthquake hit.Footnote 9 A 2006 survey by San Jose State University found that seven in 10 Californians expected a big quake to strike the state and affect them, but only 22 percent considered themselves well-prepared.Footnote 10 Another survey found that fewer than a fifth of households have structurally reinforced their homes or had them inspected for quake resistance. [Footnote 11]

Patterson, at the Memphis quake-research center, says Americans often ignore the possibility of a catastrophic temblor because it's simply too horrible — or, on the other hand, too remote — to contemplate. “Earthquakes can easily cause a sense of dread, almost like a nuclear accident,” he says. “People want to put it out of their mind” because the consequences of a big quake are poorly understood and such events can't be predicted.

But ignoring the threat doesn't minimize it. “The biggest issue is the existing building stock,” says seismologist Mary Lou Zoback, vice president for earthquake risk applications at California-based Risk Management Solutions. The age and style of construction of the area's structures are the biggest predictors of what the potential devastation will be like, she says.

In California, building codes are “very good” for structures put up after the early 1970s, when modern earthquake standards were adopted, Zoback says. But, she and other experts say, huge vulnerability remains.

In San Francisco, Zoback says, 84 percent of residential structures were built before 1970, and 50 percent predate 1930, when the very first seismic building codes were introduced.

What's more, many multifamily residential buildings in California are two- to-four-story wood-frame structures open on the first floor for parking. “The whole ground floor is pillars,” Zoback says. “When you shake the building sideways, it's not strong enough to hold up against the [sideways] shear force.” Most of the estimated 60 people who died in the 1994 Northridge quake near L.A. were in those kinds of buildings, she notes.

Many California buildings have been retrofitted to better withstand quakes, though cities such as San Francisco keep no systematic records of such work, Zoback says.

Pedro Silva, an associate professor of civil and environmental engineering at George Washington University, in Washington, D.C., says one retrofit technique is to put reinforcement “jackets” around key support columns, a job that in some buildings can be done quickly without forcing tenants to move.

But many older buildings remain vulnerable because it is difficult to retrofit them. “People are taking [retrofitting] seriously, but retrofitting one of these buildings would require moving people out of those buildings. It means if you are the owner of an apartment building, it's going to be very costly,” Silva says. Plus, he adds, if a building requires major damage to retrofit it, the owner may be better off bringing the structure down and rebuilding it.

Bridges can be somewhat easier to reinforce than many older buildings, Silva says, “plus there's a much stronger political drive to retrofit those structures.”

The magnitude 6.9 Loma Prieta earthquake, which hit the San Francisco Bay Area during a 1989 World Series game, damaged more than 80 bridges and caused more than 40 deaths in bridge-related collapses. [Footnote 12] In the 1994 Northridge quake, which disrupted travel on major freeways, six of 2,000 bridges in the region failed and four others were badly damaged, mainly because of failure in support columns built before 1971. [Footnote 13] Silva notes that after the Northridge quake, many people pushed to reinforce area bridges. “People were just tired of all the business disruptions for three to six months and said we're not going to take it anymore.”

Ghilarducci of Witt Associates says that despite robust planning efforts in the Midwest and other areas, “a lot more could be done” to mitigate the inevitable destruction from a big quake. More focus should be placed on “the low-hanging fruit,” he says: strengthening unreinforced buildings, hardening bridges and other infrastructure and developing plans for business continuity after a big temblor.

A key predictor of how regions may fare economically after a quake is how well they are insured against loss. Zoback says that while insurance covered 55 percent of economic losses from Hurricane Katrina, only 10 to 15 percent of losses from a catastrophic earthquake in California would be insured. Many Californians have shunned earthquake insurance because premiums have risen — in many cases sharply to reflect the damage risk from ground shaking — while coverage levels have declined and deductibles have shot up.

In a recent study, Zoback found huge variations around the country in both potential quake losses and levels of insurance. For example, a magnitude 7 quake along the full Hayward Fault in California would cause an estimated $160 billion in economic loss, including damage to private buildings and contents and business interruptions. The bill would run $200 billion if the Pacific Northwest were struck by a magnitude 9 quake like one that hit there in 1700.

If a magnitude 6.5 quake hit Manhattan, losses could total more than $1.5 trillion, according to Zoback's calculations. [Footnote 14] Manhattan sits atop a zone of ancient faults, including a small one running down Harlem's legendary 125th Street, according to Applegate. He calls a quake underneath New York City an example of a low-probability, high-consequence event.

Neither New Yorkers nor Californians are well-insured for quakes. In both places, less than 20 percent of the economic loss would be covered, Zoback found. Conversely, in the New Madrid zone, where losses from a magnitude 7.7 quake would run nearly $200 billion, according to Zoback's calculations, insurance would cover more than 70 percent of the loss because of a much higher penetration of earthquake insurance.

The Issues:
* Are Americans prepared for a catastrophic earthquake?
* Is a catastrophic earthquake likely in the United States?
* Should development occur along earthquake faults?

For more information see the CQ Researcher report "Earthquake Threat" [subscription required] or purchase the CQ Researcher PDF.

[11] “Study Reveals Californians Need to Increase Earthquake Preparedness Efforts,” California Emergency Management Agency, March 5, 2010,
[12] James D. Cooper, et al., “The Northridge Earthquake: Progress Made, Lessons Learned in Seismic-Resistant Bridge Design,” U.S. Department of Transportation, summer 1994,
[13] Ibid.
[14] Mary Lou Zoback, et al., “National Seismic Hazard and Risk-The Problem,” presented at ATC-SEI Conference, “Improving the Seismic Performance of Existing Buildings,” Dec. 9–11, 2009.

Teen Birth Rates Dropped in 2008

By Marcia Clemmitt

A decade-and-a-half steep drop in the U.S. teen birth rate may have essentially hit bottom in 2005, with upticks in 2006 and 2007 representing only a statistical “bouncing around” of the rates rather than harbingers of a longer-term rise.

University of Pennsylvania Graduate School of Education professor Rebecca A. Maynard advanced that theory in our March 26 Researcher report on teen pregnancy, and new data from the Centers for Disease Control and Prevention (CDC) suggests she may be right. In 2008, teen births declined by 2 percent, the CDC reports. (

The 2008 drop doesn’t necessarily mean that the 2006-2007 birth-rate increase was a fluke, but it does suggest that it might be. Several more years of data will be needed before analysts really understand the current trends. The 2008 drop itself is undeniable good news, however.

Despite news on teen birth rates that’s been almost uniformly encouraging for two decades, Americans remain bitterly divided over what schools should teach students about sex, however.

For example, a law passed in Wisconsin in February with strong support from both Democratic and Republican state legislators directs school districts that have sex education programs to tell students how to use condoms and other contraceptives.

But one district attorney opposes contraceptive education and has put five school districts on notice that they must either disobey the new law or see their schools’ sex-ed teachers charged with criminal activity.

"Forcing our schools to instruct children on how to utilize contraceptives encourages our children to engage in sexual behavior, whether as a victim or an offender," Juneau County District Attorney Scott Southworth wrote to the schools last month. The law “promotes the sexualization – and sexual assault – of our children.” "If a teacher instructs any student aged 16 or younger how to utilize contraceptives under circumstances where the teacher knows the child is engaging in sexual activity with another child -- or even where the 'natural and probable consequences' of the teacher's instruction is to cause that child to engage in sexual intercourse with a child -- that teacher can be charged" with contributing to the delinquency of a minor, wrote Southworth.

Others accuse the DA of overreaching.

“Using condoms isn’t a crime for anyone,” said Rep. Kelda Helen Roys, D, who helped develop the new law.

State legislators generally agree that educating students about both the value of abstaining from sex and the proper usage of condoms and other contraceptives is the most effective means of encouraging responsible behavior and preventing teen pregnancies and sexually transmitted diseases, Roy said. (

Do chemicals in the environment cause breast cancer?

The following is an excerpt from this week's CQ Researcher issue on "Breast Cancer" by Barbara Mantel, April 2, 2010

There is no single cause of breast cancer. Yet understanding the etiology of this complex disease is essential to understanding how to prevent it. While 5 to 10 percent of breast cancer cases are thought to be hereditary, the majority of women who develop the disease will never know why.

Scientists have identified certain risk factors, like early menstruation and late menopause, alcohol consumption and obesity, but “most of these risk factors account for very small increases or decreases in a woman's chances of developing breast cancer,” according to the National Breast Cancer Coalition. [Footnote 28]

Environmental chemicals may play a role, say some researchers, by damaging DNA, by mimicking hormones that signal tumor cells to grow or by altering mammary gland development early in life. They say the size of the dose may not be what matters most but how early in life and for how long the exposure occurs and to whom; some women may be more susceptible than others. “Breast cancer rates increased enormously over the decades since World War II at the same time that we have had increasing exposure to a wide variety of chemicals and radiation in the environment,” says Janet Gray, director of the program in science, technology and society at Vassar College in Poughkeepsie, N.Y., who wrote an extensive review of the research on breast cancer and the environment for the Breast Cancer Fund, an advocacy group in San Francisco, Calif.

But correlation does not prove a link. For that, scientists turn to animal and human studies. One team of researchers reviewed hundreds of animal studies and found that 216 chemicals have been shown to cause mammary gland tumors, mostly through DNA mutations. There could be many others, since only a small fraction of the more than 80,000 chemicals used in the United States today have been tested in animals for carcinogenic potential. [Footnote 29]

“The laboratory evidence is very strong that there are environmental chemicals that affect biological processes linked to breast cancer,” says Julia G. Brody, who participated in the review of chemicals and is the executive director of the Silent Spring Institute in Newton, Mass., which researches the environment and women's health. The chemicals include benzene, found in gasoline; polycyclic aromatic hydrocarbons, found in vehicle exhaust, air pollution, tobacco smoke and charred foods; methylene chloride, a common solvent in paint strippers and glues; and some pharmaceuticals, like furosemide, a diuretic, and griseofulvin, an anti-fungal. [Footnote 30]

Most of the 216 chemicals also caused tumors in multiple organs, not just mammary tissue, and in multiple species of animals. “These characteristics are generally believed to indicate likely carcinogenicity in humans,” Brody's team reported. [Footnote 31]

A growing number of animal studies also implicate endocrine-disrupting compounds (EDCs) — found in certain plastics, pesticides, flame retardants and personal care products — which mimic or block hormones. “There are literally hundreds of studies demonstrating that low doses of endocrine disruptors in early development have profound effects on mammary tissue, breast development and incidence of breast cancer, especially in a variety of rodent models,” says Gray. [Footnote 32]

But extrapolating from animal studies to the human experience is tricky. “We're on very thin ice inferring from animal models that there's a high probability that a chemical is a carcinogen in humans,” says David Hunter, a professor of epidemiology at Harvard University in Cambridge, Mass. “There is a relatively low correlation between exposures that cause cancer in animals and those exposures causing cancer in humans,” says Hunter. “And if there is a relationship, it's a different type of cancer in the human compared to the animal.”

The gold standard would be human studies, but there haven't been many, and most that have been done have not found a link. Perhaps that's because human studies have mostly measured levels of a single chemical in adult women, while the critical period of exposure might be puberty, or early childhood, or even in utero. In addition, it might be exposure to a mix of chemicals that is important.

But it is extremely difficult to study early exposure to multiple chemicals. Most people don't know what chemicals they are exposed to now, let alone decades ago. And when interviewing women with breast cancer, “How do you know the diagnosis itself isn't influencing their recall of events?” asks James Lacey, a cancer epidemiologist at City of Hope, a comprehensive cancer center in Duarte, Calif. “People want to put a narrative to their experiences,” he says. Researchers also may not be able to find an unexposed control group, since many chemicals are pervasive. And finally, chemicals may increase breast cancer risk only for women with certain genetic mutations.

Instead, some researchers have combed through state environmental data and medical records looking for reliable information. One group found blood samples taken from young women at the time they gave birth, measured their levels of the pesticide DDT, and then followed the women for two decades. Early exposure to DDT was associated with a fivefold increase in risk of developing breast cancer before age 50. [Footnote 33] DDT, though banned in 1972, continues to linger in the environment.

“That is an important study, and it provides the kind of evidence that is very difficult to get,” says Brody.

Four human studies show higher breast cancer risk from exposure to polychlorinated bipheyls (PCBs) in women with a gene mutation that affects how they metabolize these now banned chemicals that were once used in electrical equipment, but still linger.

But Hunter cautions that no single epidemiological study is definitive. “We only accept something as likely to be causal if the majority of studies point in the same direction,” he says. Brody also calls the number of human studies sparse and says there are “huge knowledge gaps.”

Experts say more chemicals must be tested — both in the lab and in animals and in forward-looking human studies — not dependent on memory. For instance, the federal National Children's Study will examine the effects of environmental influences on the health and development of 100,000 children in the United States, following them from before birth until age 21. [Footnote 34]

“However, that doesn't help us right now,” says Gray. That's why she and Brody both advocate relying on the animal data to propel action in the short term. “I don't think most families want to take unnecessary risks with their daughters,” says Brody. A progressive policy, she says, would acknowledge that we know enough now to start reducing those exposures.

For Michael Thun, emeritus vice president of epidemiology and surveillance at the American Cancer Society, it's not so clear. “The precautionary principle says that if you have some evidence you should take action — you don't need conclusive evidence — but the question that remains unresolved is where do you draw the line?” says Thun.

Brody says the U.S. should look to Europe and Canada for a model of how to implement the precautionary principle. These countries have developed systematic programs for assessing the health consequences of synthetic chemicals — both old and new — as a prerequisite for use. [Footnote 35]

The Issues

  • Is mammography oversold?
  • Should “stage zero” cancer be watched and not treated?
  • Do chemicals in the environment cause breast cancer?
To highlight the importance of this issue, CQ Researcher is making this report available for free from our Facebook Page. Check out the full article, become a fan, let us know what you think!

[28] “Environmental Risk Factors for Breast Cancer,” National Breast Cancer Coalition, September 2006, p. 2.
[29] Ruthann A. Rudel, et al., “Chemicals Causing Mammary Gland Tumors in Animals Signal New Directions for Epidemiology, Chemical Testing, and Risk Assessment for Breast Cancer Prevention,” Environmental Factors in Breast Cancer, supplement to Cancer, June 15, 2007, pp. 2635–2636.
[30] Julia Green Brody and Ruthann A. Rudel, “Environmental Pollutants and Breast Cancer: The Evidence from Animal and Human Studies,” Breast Diseases: A Year Book Quarterly, Vol. 19, No. 1, 2008, p. 17.
[31] Rudel, et al., op. cit.
[32] Julia G. Brody, “Everyday Exposures and Breast Cancer,” Reviews on Environmental Health, Vol. 25, No. 1, 2010, p. 3.
[33] Janet Gray, ed., “State of the Evidence: The Connection Between Breast Cancer and the Environment,” Breast Cancer Fund, 2008, p. 9.
[34] “What is the National Children's Study?
[35] Brody, op. cit., p. 4.