May 2012

—As CEI’s prez Fred Smith will tell you. Over the holiday, our friend Sally Pipes at the Pacific Research Institute penned a Washington Post oped called “Brave New Diet” on the growing food police movement in America, pointing out some bugs in the “BMI” calculus and making other observations about sensible, healthy behavior. Indeed, a lot of us are overweight and don’t exercise. But as Sally says:

People make choices. And government should protect — not restrict — the freedom to make those choices so long as we’re not harming others.

While we may not always like the choices others might make, it is essential that we all have the freedom to choose for ourselves. Once we accept the idea that the Nanny State should step in when it’s “for our own good,” we’ve taken a very big step down the road to something like the scene painted in George Orwell’s “1984″ — when citizens wake each day to mandatory exercise classes on the Telescreen.

Imagine you are going on vacation and you pay your neighbor to tend to the hanging plants you have outside of your house. While you’re gone the weather turns and a frost sets in, eventually killing all of your plants. You return home and are understandably distraught to find out that your neighbor neglected to bring your plants indoors,  allowing them to perish in the harsh elements.  You promptly file vandalism charges against your neighbor for the damage done to your plants.  I’d wager that no court, (even one in California) would agree to hear a case on those grounds. I am willing to bet, however, that California courts will entertain the murder charges that the family of Nataline Sarkisyan plans to file against their health care provider, CIGNA.

Suffering from leukemia, complications from a previous procedure, and a failing liver, 17 year old Nataline died on Thursday December, 20th after her family removed her from life support.  The family plans to sue CIGNA becuase they claim that she would not have died had CIGNA approved coverage for the liver transplant that she needed. CIGNA, at first denied the request, claiming that because of Nataline’s illness, the complications from a previous surgery, and likely interaction of medications, that a liver transplant in her case would be “experimental” and the likelihood of success small–putting the surgery beyond the scope of the family’s coverage under CIGNA.   But, after protests and loads of negative publicity, CIGNA decided to reverse it’s decision and grant the transplant. Nataline died hours after the decision  (after her family removed her from life support).

As we don’t yet know all the details surrounding Nataline’s death, I will abstain from assigning blame, but I want to address those other commentators who place responsibility for her death squarely on CIGNA. Put simply, insurers have no responsibility to save lives. That is not what we pay them for. The only duty an insurer has is to pay for medicine and procedures agreed upon in the contract. If CIGNA broke the contract it had with the Sarkisyans, then by all means they ought to be sued, but not for murder, manslaughter, nor negligent homicide. CIGNA did not cause Nataline’s leukemia, and it did not prevent the family from receiving the transplant they claim would have saved her life, they simply declined to pay for it. The family had no right to CIGNA’s funding beyond the contract that they signed with the insurer, and by CIGNA’s account, the surgery was beyond their plan. Understanding that the surgery would have cost a massive amount of money, potentially a hundred thousand dollars or more, the family still had a choice to find alternative means of funding for the surgery.

The bottom line is that CIGNA, and any other insurer, is only responsible for providing financial coverage as their contract stipulates; nothing more.

Employers pay a lot of money for diversity training and sexual harassment training, but often the training backfires and blows up in the face of the employer that paid for it.  In Hartman v. Pena (1995), the Federal Aviation Administration got sued for sexual harassment after it subjected employees to three days of diversity training that scapegoated white males.  After a federal judge refused to dismiss the case against it, the agency had to pay out a settlement to the white male employee who sued.

Diversity training often imparts bad legal advice to managers and employers that can come back to haunt them in court. 

Gail Heriot, a law professor and member of the U.S. Civil Rights Commission, reports on the sexual harassment training she received at the University of San Diego, in a state (California) where such training is mandatory under state law.  She points out that the training sent the message that criticisms of affirmative action by white male employees are something that the employer should “nip in the bud” through investigations.

This is exceedingly dumb legal advice, since criticism of affirmative action is protected against retaliation by Title VII of the Civil Rights Act, 42 U.S.C. 1981, and other laws, even when the affirmative action program criticized turns out to have been perfectly legal.  Even the very court rulings that have upheld private-sector affirmative action programs, such as Sisco v. J.S. Alberici Const. Co. (8th Cir. 1981), have allowed employees to sue employers who retaliate against them for criticizing affirmative action.

In the public sector, the employer also faces a First Amendment lawsuit.  The California Department of Corrections attempted to fire John Wallace after he angrily denounced its affirmative action plan to the Hispanic female employee he perceived as benefiting from it.  The California Court of Appeal, however, found that his criticisms of the plan were protected by the First Amendment, and barred Wallace’s firing, in California Department of Corrections v. State Personnel Board, 59 Cal.App.4th 131 (1997).  

Employers are often quite gullible about the claims made by “diversity” trainers.  For example, they permit minority trainers to promote racial stereotypes that would provoke outrage if they were subsequently repeated by white managers or employees.  For example, Glenn Singleton, a wealthy “diversity” trainer, teaches that “white talk” is “impersonal, intellectual, verbal” and “task-oriented,” while “color commentary” is “emotional.” 

If a white person said this, it would rightly be regarded as a ridiculous, racist stereotype that relegates black people to inferior status.  But because Singleton himself is African-American, and he sugarcoats his racist stereotypes about black people by coupling them with ideologically trendy attacks on white people (whom he depicts as “impersonal” and “racist”), liberal school superintendents eat it up. 

Superintendents in places like Arlington, Virginia hire him to give their staffs mandatory “diversity” training.  The Arlington Public Schools Superintendent, Dr. Robert G. Smith, admitted to me that Singleton’s racial theories were “provocative,” but defended his hiring as a way of addressing the minority achievement gap.  That makes absolutely no sense, since Singleton’s racial theories reinforce the idea that studying is “acting white,” a terrible notion that fosters the minority achievement gap.  If any white teacher or school administrator repeats what Singleton claims about minorities not being “intellectual,” he and the school system that employs him will be publicly denounced as a racist, and people will say that the school system itself is to blame for fostering such racist ideas because it hired Singleton to promote them.  (California Superintendent Jack O’Connell, a white liberal, was recently embarrassed, and called racist, after he repeated a belief that Glenn Singleton shared with him: that black people are loud.  Singleton also embarrassed the Seattle Schools in a landmark Supreme Court case).

Major employers have paid out millions of dollars in discrimination claims because of diversity-training programs.  One Fortune 500 company paid out tens of millions of dollars in response to a class-action racial discrimination suit by minority employees, which was fueled by remarks management employees made after undergoing mandatory diversity training (they joked about jelly beans used in the training to represent minority employees.  That, coupled with a poor quality recording in which a manager’s reference to “Saint Nicholas” was misinterpreted as the N-word, created a furor).

Diversity training often triggers workplace conflict and lawsuits, by compelling employees to talk about contentious racial or sexual issues, with resulting acrimony, and remarks that are misinterpreted or perceived as racially or sexually biased.  For example, in Stender v. Lucky Stores (1992), statements made by managers during sensitivity training were held by a court to be admissible as evidence of discriminatory intent within the organization.  That prevented the employer from getting a lawsuit dismissed. 

Many judges take a dim view of diversity training in general.  In Fitzgerald v. Mountain States Tel & Tel. Co. (1995), where employee reactions to diversity training gave rise to a lawsuit, the Tenth Circuit Court of Appeals noted that “diversity training sessions generate conflict and emotion” and that “diversity training is perhaps a tyranny of virtue.” 

NOTE: THE FIRM IDENTIFIED AS PROVIDING THE TRAINING DESCRIBED IN PROFESSOR HERIOT’S POST SAYS THAT HER UNIVERSITY IS NOT ONE OF ITS CLIENTS, AND THAT THE TRAINING DESCRIBED ABOVE APPEARS TO BE FROM A DIFFERENT PROVIDER THAN IT.

It’s Christmas Eve (although you probably won’t read this until some time after) and I’m sitting in front front of the television now watching the St. Olaf College Christmas Festival. This morning I listened to the radio broadcast of the Festival of Nine Lessons and Carols from the famous King’s College Chapel at Cambridge University. Both festivals date from the early decades of the 20th century, both are widely listened to around the world, and both involve lots of wonderful Christmas music. For professionalism and pomp, however, Cambridge’s presentation beat St. Olaf’s.

This shouldn’t surprise anyone: the Cambridge event takes place at one of the world’s top universities, in an ancient and iconic building, and involves the 100 or so top musicians from a student body of about 25,000 (16,000 undergraduates.) St. Olaf’s event, on the other hand, takes place in a field house and involves 500 musicians drawn from an all undergraduate student body of 3,000. Although St. Olaf would make most lists of the 50 best liberal arts colleges in the United States, it’s not even the wealthiest or most academically selective school in its small hometown of Northfield, Minnesota. (That honor goes to Carleton College.)

I think this actually reveals a lot about the United States. Unlike virtually every other country in the world, no city, no corporation, no individual, and, in this case, no university can claim leadership in all things. The college leading the Christmas festival in the U.S. doesn’t take place at Harvard or Yale or even a top music school like Juilliard or NYU. It takes place at a very good small college that puts on a top notch show.

Monsanto has talked the federal government into giving farmers a break on their crop insurance if they use crops that produce pesticides. If other companies are involved in this too, it is a good thing–it is reasonable that lower risk crops should have a lower premium. It is not reasonable that only Monsanto’s pesticide producing crops should be considered lower risk.

The greens are crying foul though; they claim this is rent seeking and corruption, government should not “endorse a product” they argue.

I would have to agree, but they have defined the problem wrong. The government should not be involved in crop insurance in the first place. If this was a private market, the risk assessment would not be considered a political move on the part of USDA.

There may be no less appreciated industry than insurance.  We hate paying for it and hope never to use it.  If we make a claim, the company is devoted to protecting its own interest irrespective of what we want.

The health insurance industry naturally yields up more than a few “Roger Moore” moments, examples of denial of benefits which, no matter the justification, look like examples of greedy corporations sacrificing helpless people.  Cigna has recently been hit over its initial denial of a liver transplant to a young leukemia patient.

But there are no easy choices, and a government takeover of the medical system doesn’t make the decisions any easier.  Observes Investor’s Business Daily:

Any insurer, public or private, would have had to make the same tough calls that Cigna did. It’s natural for patients and their families to want to try anything to save lives. It’s natural for physicians to want to at least give experiments a chance. But the public can’t expect to allow these desires full rein unless it is willing to pay much more — in premiums or taxes. It needs economic gatekeepers, whether or not it likes their decisions.

And when it comes to the business of gatekeeping, there are really only two models. One is private insurance, which works best when many insurers vie for the consumer’s business and are judged on how cost-effectively they meet the consumers’ needs. A national market for health insurance, which won’t happen until Congress ends the balkanized state regulation of insurance, would give the public a real choice among competitive firms.

The other model is a government-run system, in which insurers are either replaced by a monopoly public payer or they are reduced to contractors given allotments of a government-run risk pool.

In both models, the tough calls would still have to be made. The difference is that the first would give people a choice, and the second would not.

Now the Italian food police are after my cultural heritage!

The Italian version of FDA is concerned that Swedish gingerbread has too high levels of coumarin. Coumarin constitutes the skeleton of many flavanoid compounds, or to put it more succinctly, coumarin is the building block of many flavorings we use in our food, such as cinnamon. The Swedes don’t really think it is a problem, but then the Italians probably haven’t discovered Surströmming yet, which is fermented herring, the smell alone should concern the food police.

I have an issue with this holiday fuzzy feeling piece from Marketplace, because the anchor’s intro goes as follows: “Crisco is a staple in many American kitchens and a must-have for homemade pies. But it’s also an invented food made by chemists …”

An invented food made by chemists, how little does a reporter have to know about the history of food to know that most all of it is made by chemists? Those chemists are often called, mom, pop, grandma, and grandpa, but they are chemists none the less.

Beer and wine are two items that were “invented and made by chemists”, the same goes for pickling and curing and canning and most other cooking and preservation techniques.

And while we are on the subject of pies and Crisco, here’s my friend Miranda baking Lemon Meringue pie while she is chatting with me via Skype on Yule Day.

Don’t you love modern technology? Now, all I need is a Skype with smell and tasting functions!