Systemic Civic Dysfunctions

Economists and political scientists have long understood that people tend to favor behaviors that result in the greatest immediate personal rewards.

This principle manifests itself in many practical aspects of civic life. For example, the federal government has been able to use federal revenue sharing to exert powerful control over state government decision-making, even in areas where the federal government has no direct constitutional mandate. As another example, many laws in the United States prohibit bribery of government officials, professionals, political candidates, voters, and business leaders, because payments or favors can be used to induce many people to abuse their official authority or prerogatives.

Sometimes the practical rewards for short-term personal or departmental behavior run counter to what is in the long-term best interest of a community, or to bedrock principles of ethics and morality. When such a situation arises, it can produce a systemic civic dysfunction.

Perverse pecuniary incentives are simply one manifestation of this principle. Sometimes a statutory scheme will encourage (intentionally or unintentionally) certain choices made in an official capacity, by lacing the provisions with budgetary rewards or penalties.

For example, if a state department of child and family services is granted ten thousand dollars in federal funds for every abused child under its care, the department might be inclined to officially determine that more children are abused. The motivation for doing so might be to pad the departmental budget or hire new social workers, rather than to look after the best interests of the children. As another example, per-head pupil funding of public schools can produce a powerful incentive for administrators to seek coercive enrollment of home-educated students, even if the students are already prospering. Likewise, during the slavery era, the personal property tax revenue derived from slavery helped ensure broad state-government support for that particular form of human trafficking.

Perverse non-pecuniary incentives, which are often punitive in nature, can produce similar dysfunctions. For example, during the famous Salem Witchcraft Trials in the Massachusetts Bay Colony, many colonialists made false reports against alleged “witches” in order to avoid being fingered themselves. As a modern example, a physician who fears prosecution for failing to report child abuse (but faces no penalty for filing unsubstantiated reports) will quite naturally find that it is in his interest to over-report potential child abuse, lest he be identified as an accessory to it. As another modern example, a parent might be financially penalized for seeking care for a disabled or ill child, even in some circumstances where the care seems appropriate to her.

Conflicts-of-interest are another category of civic dysfunction, closely related in nature and effect to perverse incentives. For example, a complaint filed by a parent against a department of child and family services could directly impair the collective budget, political reputation, or career record of officials within the department. A department official could not properly serve as the final arbiter of such a complaint.

Undue concentrations of power are another form of civic dysfunction. For example, in a criminal court system which is processing a felony criminal case, law enforcement officers make arrests, a prosecutor (often elected) decides what criminal charge (if any) should be filed, a judge (often elected) makes findings of law, and a jury of peers makes findings of fact to acquit or convict.

Each of these features is a check and a balance against the others. It is considered highly improper, and often a violation of due process, for any of these official roles to be consolidated under the control of one person or department. Sometimes a judge will make findings of law and fact in a felony trial, but only if the defendant freely consents to hold a bench trial. Defendants may not, in general, be penalized for exercising procedural or constitutional rights.

Unfortunately, however, many parents and children do not receive these protections when contesting government intervention calculated to involuntarily sever family relationships. Criminal defendants with lengthy conviction records receive far more procedural deference than parents with clean records defending against permanent deprivations of custody. Often innocent parents end up losing more, both economically and otherwise, than a criminal defendant convicted of a felony.

Lack of accountability is another serious civic dysfunction. Governmental officials often set a high standard of care for parents, but a very low standard of care for themselves, even though the child’s best interest should require the same standard of care regardless of the custodian.

Due to the doctrine of sovereign immunity, public schools are not held liable for students who cannot read or write (alternative educators can be imprisoned or deprived of custody for educational neglect). Social services departments are often not held liable for abuse or neglect of children in their care. In practice, and often by statute, the definition of “abuse” is much more stringent for children in parental custody than for children under the supervision of public schools or social services departments. Children abused or neglected by government agencies are, in many cases, retained under the control of the abusive agency, even after severe abuse has been discovered.

Shield laws and selective statistical reporting also contribute to lack of accountability. Social services departments typically do a poor job of reporting internal child abuse to biological parents, courts, and other independent officials. Often the reporting, monitoring, and investigative mechanisms are inadequate. In many cases, shield laws prevent government officials and the public from hearing about the abuse, as they would when a parent is the accused. Similarly, public schools often collect and distribute selective data about academic performance, preventing studies, statistical analysis, and performance reviews that might portray the educators in a negative light.

Evidentiary distortion occurs when government officials rely upon materially-faulty collections of evidence to make adjudicative or professional judgments. For example, social workers used to forcibly remove Native American children from their families on the ground that the children could not prosper in a culturally and socially inferior environment. Mistakes of this kind are readily made, since many social workers have had dysfunctional childhoods, over-privileged childhoods, or a lack of personal experience acting as a long-time parent or guardian.

As another example, educators and social workers deprived home educators of child custody, relying solely upon sheer speculation that the home-education would result in inferior academic performance (virtually all studies show that home-educated students score above average on tests of academic performance and social adjustment). In many cases, the educators and prosecutors were motivated by labor unions who wanted to suppress competition.

Evidentiary distortion can occur in one of three ways. First, evidence can be fabricated by tampering with files, tampering with child witnesses, relying upon anonymous sources, or using of false testimony. Second, evidence can be preempted, by using shield laws to prevent investigation and by denying parents of modest means access to competent expert witnesses. Third, evidence can be obscured, by denying parents of modest means adequate access to a competent attorney, by denying courtroom exploration of fruitful avenues of inquiry, or by eliminating opportunities for meaningful cross-examination.

Detached compromise, a final kind of evidentiary distortion, occurs when law-making entities reach an agreement designed to placate competing constituences rather than maximize efficiency or comply with ethical principles. The tendency of group members to agree to an irrational consensus, called groupthink, is a very important component of this dysfunction. Often groupthink is combined with administrative simplicity bias. Administrative simplicity bias refers to a preference for solutions which optimize administrative convenience, rather than constituency well-being. Often this bias leads to a preference for standardized processes, such as standardized educational curriculum, over customized private solutions like alternative education.

Detached compromise can lead to curriculum and certification requirements which are nonsensical, or even harmful to individual students. Detached compromise can also prevent correction or curtailment of massive civil rights violations, because many people feel uncomfortable discussing such matters in a candid way. Detachment created through the group process can provide plausibility for perpetrators of civil rights abuses or other unethical activities. In addition, forcible imposition of norms tends to suppress activity by segments of the population which are more intelligent than the population mean, thereby curtailing the rate of innovation for the population as a whole.

At the federal level, there are many statutory schemes, some with other laudatory effects, with some provisions that currently tend to engender systemic dysfunctions in state social services and education. A full discussion is beyond the scope of this web page, but the statutes include the Adoption and Safe Families Act of 1997, Public Law 105-89, amending 42 U.S.C. 601, 603, 629, 653, 670 - 679, 1320a-9; the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. 670; the Abandoned Infants Assistance Act of 1988, Section 104, Public Law 101-505, as amended, Public Law 104-235, 42 U.S.C. 670; the Americans With Disabilities Act, 42 U.S.C. 12101 - 12213; the Child Abuse Prevention and Treatment and Adoption Reform Act (CAPTA), Title 42 Chapter 67, 42 U.S.C. 5101 - 5119c; the Family Educational Rights and Privacy Act of 1974 (FERPA), 88 Stat. 571, 20 U.S.C. 1232g; the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1400 - 1487; National and Community Service, 42 U.S.C. 12501 - 12682; and Social Security, Title 42, Chapter 7, Subchapters IV, V, VI, VII, X, XIV, XVI, XVII, XIX, XX, XXI, 42 U.S.C. 601 - 1397jj.

The federal government has made some efforts to combat systemic civic dysfunctions, with mixed success. See, e.g., Tumey v. Ohio, 273 U.S. 510 (1927); Simmons v. United States, 390 U.S. 377 (1968); Ward v. Village of Monroeville, 409 U.S. 57 (1972); Gibson v. Berryhill, 411 U.S. 564 (1973); Withrow v. Larkin, 421 U.S. 35 (1975); Connally v. Georgia, 429 U.S. 245 (1977); Caban v. Mohammed, 441 U.S. 380 (1979); Parham v. J.R., 442 U.S. 584 (1979); Santosky v. Kramer, 455 U.S. 745 (1982); Young v. United States ex rel. Vuitton et Fils S. A., 481 U.S. 787 (1987); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); M.L.B. v. S.L.J., 519 U.S. 102 (1996); Bracy v. Gramley, 520 U.S. 899 (1997); Troxel v. Granville, 530 U.S. 57 (2000). With respect to Native Americans, Congress enacted the Indian Child Welfare Act (ICWA) Subchapter I, 25 U.S.C. 1901 - 1963, and the Supreme Court upheld certain portions of the statute in Mississippi Choctaw Indian Band v. Holyfield, 490 U.S. 30 (1989).

In various states, some reformers have addressed systemic civic dysfunctions in the social services and education with proposals for corrective action. Often they would require videotaping of child testimony, afford parents the option of a jury right in custody cases, clarify the definition of "abuse" and "neglect," afford parental access to attorneys and paid experts in custody cases, prohibit unfunded state mandates to parents regarding the care of their children, require exterior reporting of government-supervised child abuse, limit the time a state can hold children without an adversarial hearing, eliminate certification and curriculum requirements for parents that are clearly designed only for public schools, raise evidentiary standards along the lines of the Indian Child Welfare Act (ICWA) Subchapter I, 25 U.S.C. 1912 (beyond a reasonable doubt), and require child placement or custody with the child's extended relatives whenever feasible.