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Archive for the tag “verdict”

Following the ‘Wiseman’ Standard in Pa. Custody Battles Is Unwise

Although the so-called Wiseman standard, the standard by which shared custody arrangements were determined, stood for many years, the recent Pennsylvania Superior Court case of P.J.P. v. M.M., 2018 Pa. Super. 100, has officially declared the Wiseman standard obsolete and no longer applicable to Pennsylvania child custody matters.

In the matter of P.J.P., a custody case, the father appealed a decision in the trial court regarding his petition to modify a custody order that he believed was not sufficiently favorable for his custody goals.

The father and the mother are a divorced couple who obtained a child custody order in April 2016. This order granted the mother primary physical custody of the child. In January 2017, the father sought more custody, specifically shared physical custody, and filed a petition to modify.

At the trial, in August 2017, the court made many findings of facts that are directly relevant to its ultimate decision to deny granting shared custody to the father. For example, when the mother has custody she sends the father many photographs and videos and encourages the child to call the father. By contrast, the father does not want to call the mother during his custody times and sends no photographs and videos to the mother. The mother further claimed, and the father admitted, that he has insulted the mother in the presence of the child. He also admitted to telling the child to be sure to look up the instant case on Google Scholar when he is older to know what happened during the case. The mother is also conscientious in ensuring that the father has nice gifts from the child for holidays and such, while the father makes only modest efforts to reciprocate. The parties also had disagreements over the procedure and process for dropping the child off at preschool in the morning. The mother claimed the father refused to get the child ready and just dropped him off at her house, while the father claimed the mother “unilaterally” changed the procedure. Co-parenting counseling was also attempted by the parties. Unfortunately, while the mother was trying to fully invest herself in said counseling, The father refused to meaningfully participate, and the counselor believed the counseling was “not going anywhere.” Of course, the father has a different interpretation of much of the above, but the court made its findings, which favored the mother, after a complete review of the facts, testimony and evidence.

On appeal, the father challenged the denial of shared custody, arguing it was contrary to the best interests of the child. The Superior Court first noted that the trial court made certain credibility determinations that were within its discretion. The court then mentioned that child custody is governed by 23 Pa.C.S.A. Section 5328, which lays out 16  factors for the court to consider when making a custody determination. Superior Court observed that the trial court analyzed each factor and noted that most were either inapplicable or weighed equally for both; however, there were four factors (namely the likelihood to encourage and permit contact with the other party, availability of extended family, attempts to turn the child against the other parent, and the level of conflict and willingness to cooperate with the other party) which weighed heavily on the mother’s side. No factor weighed heavily on the father’s side.

The father argued that the trial court abused its discretion by failing to apply the Weisman standard. In Weisman v. Wall, 718 A.2d 844 (Pa. Super.1998), the court ruled that courts must make four findings when ruling on shared custody “both parents must be fit, capable of making reasonable child rearing decisions and willing and able to provide love and care for their children; both parents must evidence a continuing desire for active involvement in the child’s life; both parents must be recognized by the child as a source of security and love; a minimal degree of cooperation between the parents must be possible.” The father further argued that since he and the mother, in his view, meet the above four factors, shared custody should be awarded.

Superior Court ruled that the father’s reliance on Weisman is misplaced. As noted above, Weisman was decided in 1998 while Section 5328 became law in 2011. The court does not believe the difference between Weisman and Section 5328 is trivial. Specifically Weisman “required the court, before awarding shared custody, ‘to make at least a minimal finding that the parties were able to cooperate before awarding shared custody” while, under Section 5328, the court “must determine the best interest of the child by considering all relevant factors, including but not limited to, ‘the level of conflict between the parties and the willingness and ability of the parties to cooperate with one another.”’

Superior Court noted that the plain language of Section 5328 contradicts Weisman. Unlike Weisman, the court is not obliged to make any specific findings before awarding shared custody. Instead, the court must consider all 16 of the relevant factors, and poor cooperation need not be dispositive. In sum, therefore, Superior Court specifically described Weisman as obsolete.

Finally, the court explained that its citing to Weisman in the recent case of R.S. v. T.T., 1133 A.3d 1254 (Pa.Super.2015) does not belie the above analysis. In R.S., the court used the Weisman factors to supplement its own analysis where it seemed Section 5328 did not appear to lead to a reasonable conclusion in light of the available evidence. Moreover, the court in R.S. never once said trial courts “must” make Weisman findings. Instead, Weismanmerely holds persuasive value as the its factors have been assimilated into Section 5328.

Upon full review of the decision, it appears that P.J.P. has hammered the final nail into the casket of the Weisman analysis. Weisman, for all intents and purposes, no longer appears to be the law for Pennsylvania child custody.

Originally published in The Legal Intelligencer on July 5, 2018 and can be seen here.

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Don’t Like An Award From Compulsory Arbitration? You Must Appeal

Can a party to a case where a judgment has been entered in compulsory arbitration have that judgment modified without appealing? This is the underlying question in the recent matter heard by the Pennsylvania Superior Court, captioned as Blucas v. Agiovlasitis, 2018 Pa.Super. 25.

In Blucas, tenants brought suit against their former landlord for the return of their security deposit. The landlord, of course, claimed the leasehold had damages for which he incurred expenses and he needed compensation/reimbursement from the tenants.

The case was tracked into compulsory arbitration pursuant to 42 Pa.C.S.A. Section 7361. After a hearing before a panel of arbitrators, a judgment was entered awarding the tenants $10,000 and the landlord $1,450, for a net award to the tenants of $8,550.

Pursuant to Pa.R.C.P. 1307 and established case law, the entry of an award following compulsory arbitration has the force and effect of a final judgment. The court contrasted an award flowing from compulsory arbitration with one following statutory or common law arbitration. Unlike an award from compulsory arbitration, a party must petition the trial court to confirm an award from statutory or common law arbitration 30 days or more following the date of the award. For an award from compulsory arbitration neither party must file a præcipe to enter judgment on the award.

In July 2016, an award and notice of the same was entered on the docket in this matter, and was final (unless appealed). A judgment on the award was entered in November 2016. Within less than two weeks following the entry of the judgment in Blucas, the landlord remitted a check to the tenants for the full amount of the judgment ($8,550). Pursuant to Pa.R.C.P. 1307, a party must file an appeal within 30 days from when the award and notice are entered on the docket in order to further litigate the matter. No appeal was ever filed. Instead of appealing, the tenants, in April 2017, filed a motion for costs and prejudgment interest (motion) requesting a recalculation of the award.

The court reviewed the various case, statutory, and procedural laws applicable to the instant matter, and unequivocally concluded that the sole remedy for an adverse or unsatisfactory compulsory arbitration award is an appeal within 30 days from the award and notice. The only exception to the above the court could discern is Pa.R.C.P. 1307(d), which provides for a means to “mold” a previously entered award for obvious errors, in either arithmetic or language, that do not go to the substance and/or merits of the award.

The tenants’ motion did not address basic errors in arithmetic and language but, rather, asked the trial court to award them additional damages in prejudgment interest and costs. Inexplicably, and without citing support, the trial court granted the tenants’ motion, which led to the landlord’s appeal to Pennsylvania Superior Court, resulting in the decision, cited above, that is the subject of this article.

Superior Court noted that the motion did not comply with the law and procedure cited above.  The motion clearly is not an example of “molding.” More importantly, it was not filed within 30 days of the award.  The trial court was unclear as to precisely how it calculated the award and what the figures in the award exactly represented (e.g., interest and costs? security deposit? pet deposit? etc.). As a result, there is no way for Superior Court to even attempt to “mold” the award regarding prejudgment interest, even if it could. Consequently, as the tenants did not file an appeal of the compulsory arbitration award, the trial court was without authority to attempt to revisit the award with regard to prejudgment interest.

As always, it is absolutely critical for practitioners to be totally cognizant of the applicable deadlines and time periods mandated by law or procedure and act accordingly to ensure compliance with the same and opportunity to litigate a matter as fully as possible.

Originally published in The Legal Intelligencer on March 19, 2018 and can be found here.

A Collection of Traffic Law Writings by James W. Cushing

Over the course of my career, I have written extensively on traffic law.  These writings have been published in The Legal IntelligencerUpon Further Review, and The Pennsylvania Family Lawyer as well as posted onto my blog.  I have collected these articles and blog posts and have listed them below.  Thanks for reading!

Articles:

Blog Posts:

A Collection of Law and Religion Writings by James W. Cushing

Over the course of my career, I have written extensively on how law and religion intersect.  These writings have been published in The Legal IntelligencerUpon Further Review, and The Pennsylvania Family Lawyer as well as posted onto my blog.  I have collected these articles and blog posts and have listed them below.  Thanks for reading!

Articles:

Musings:

 

A Collection of Personal Injury Writings by James W. Cushing, Esquire

Over the course of my career, I have written extensively on a wide variety of personal injury legal principles.  These writings have been published in The Legal IntelligencerUpon Further Review, and The Pennsylvania Family Lawyer as well as posted onto my blog.  I have collected these articles and blog posts and have listed them below.  Thanks for reading!

Musings:

My Articles:

Death, Divorce and the Division of Property and Estates

When a party dies during the pendency of a divorce matter, a question immediately arises: will the matter be resolved pursuant to the Divorce Code (i.e.: 23 Pa.C.S.A. Section 3323(d.1)) or the Probate Code (i.e.: 20 Pa.C.S.A. Section 6111.2)? While the statutes are fairly clear, there are times where a circumstance still needs to be sorted out by the court. Such a case arose in the Superior Court of Pennsylvania matter of In re Estate of Michael J. Easterday, Deceased, 171 A.3d 911 (2017).

In the Easterday matter, the decedent, Michael Easterday, passed from this life on Sept. 21, 2014, and was survived by his two sons, a daughter and his second wife. About a year before Easterday’s death (Aug. 13, 2013), the wife filed for divorce against Easterday. In or about December 2013, Easterday and the wife entered into a postnuptial agreement in which the parties agreed to waive any and all rights to the pension and retirement plan of the other, including any and all rights possibly available as a surviving spouse or beneficiary. The agreement also specifically states that it would remain in full force and effect without regard to future reconciliation, change in marital status, and entry of divorce decree absent a future written agreement.

 In November 2013, the wife furnished Easterday with an affidavit of consent to divorce pursuant to 23 Pa.C.S.A. Section 3301(c). Not long after, Easterday executed the aforesaid affidavit and returned it to the wife. The wife, for an unknown reason, retained the aforesaid affidavit for approximately six weeks (until mid-January 2014) before providing it to her attorney for filing. Pursuant to Pennsylvania law, an affidavit of consent must be filed within 30 days of its execution (i.e., approximately December 2013). Later in January 2014 the wife proceeded with the divorce and filed for a final decree, but Easterday died before a decree was entered. A decree in divorce was ultimately never entered as Easterday’s affidavit of consent was stale.

Critically, at the time of Easterday’s passing, the wife remained the beneficiary of his pension and life insurance policy. Upon Easterday’s death, the wife immediately withdrew the divorce matter and collected on Easterday’s pension and life insurance policy.

In response to the wife’s petition with the court seeking to compel the wife to preserve and return the pension and insurance money she received. The estate contended that the postnuptial controlled the distribution of the aforesaid funds (specifically that the wife was not entitled to receive them) and Easterday’s designation of the wife as beneficiary of his insurance policy became ineffective pursuant to 20 Pa.C.S.A. Section 6111.2. In response, the wife argued that the postnuptial did not apply as the beneficiary designations were never changed, that 20 Pa.C.S.A. Section 6111.2 did not apply as the affidavit of consent was “stale,” that the parties were reconciling at the time of his death, and because of those reasons, Easterday intended that the wife remain his beneficiary.

After a hearing, the trial court ruled that the estate was entitled to Easterday’s pension, as it was addressed in the postnuptial, while the wife could retain the life insurance proceeds as they were not addressed in the postnuptial. Both parties filed exceptions, which were unsuccessful, leading to appeals by both parties to Superior Court which issued the decision described herein.

23 Pa.C.S.A. Section 3323(g), which is part of the Divorce Code, states: “(g) Grounds established . . . (2)  In the case of an action for divorce under section 3301(c), both parties have filed affidavits of consent or, if the presumption in section 3301(c)(2) is established, one party has filed an affidavit of consent … (3)  In the case of an action for divorce under section 3301(d), an affidavit has been filed and no counter-affidavit has been filed or, if a counter-affidavit has been filed denying the affidavit’s averments, the court determines that the marriage is irretrievably broken and the parties have lived separate and apart for at least one year at the time of the filing of the affidavit.” In the Probate Code, 20 Pa.C.S.A. Section 6111.2(a)(3)(ii) states “this section is applicable if an individual … dies during the course of divorce proceedings, no decree of divorce has been entered pursuant to 23 Pa.C.S. Section 3323 (relating to decree of court) and grounds have been established as provided in 23 Pa.C.S. Section 3323(g).” When evaluating the applicable law mentioned above, the court raised Pa.R.C.P. 1920.17 as also applicable herein. Rule 1920.17 prohibits the withdrawal of a divorce (and its economic claims) if divorce grounds have been established and the Estate does not the consent. While the aforesaid Rule directly applies to 23 Pa.C.S. Section 3323, the court opined that the Rule should also apply to 20 Pa.C.S.A. Section 6111.2(a)(3)(ii) as it would be inappropriate to allow a surviving spouse the power to negate 20 Pa.C.S.A. Section 6111.2(a)(3)(ii) by simply discontinuing the divorce action unilaterally.

In reviewing the underlying facts of this matter, the court took note of the fact that the affidavit of consent was not filed within thirty days of its execution. As a result, the lower court determined that divorce grounds were never established. Although the Estate argued that the lateness of the affidavit does not negate what it argued was an intent to consent to the divorce, the court, relying on public policy considerations, ruled that a strict compliance with the Divorce Code is required. In the court’s view, the integrity of the family is to be protected and the seriousness of the dissolution of marriage warrants strict compliance with the deadlines and requirements laid out in the statute. Indeed, the court pointed out, the establishment of divorce grounds takes on an added significance when, not only is the dissolution of a marriage at issue, but, in this case, it would also determine whether the Divorce Code or the Probate Code applies. Furthermore, the court observed that Easterday had an extended opportunity of several months to rectify the “stale” affidavit before his passing, but chose not to do so. Based on the above, the court ruled that a “stale” affidavit of consent is insufficient to establish divorce grounds, especially in a matter where it is, in its estimation, far from clear that the decedent possessed an intent to divorce at the time of his death.  As a result, the Probate Code controls this case.

Ultimately, the court, applying 20 Pa.C.S.A. Section 6111.2, ruled that Easterday’s beneficiary designation on his life insurance is, therefore, valid, and the wife may retain the proceeds from the same.

In opposition to the estate’s arguments, the wife asserted that Easterday made a deliberate and conscious choice to give his pension to her through an irrevocable election that she be his beneficiary. Of course, the above is in direct conflict with the postnuptial, which, by its terms described above, definitively prohibits the wife from being such a beneficiary. The estate pointed out that the postnuptial was executed after the beneficiary election was made.

In reviewing the above, the court first noted that spouses may waive their right to the pension of the other if the waiver is specific. In its estimation, the postnuptial in the instant matter was clear and unambiguous, therefore its terms, namely that the wife waived her right to Easterday’s pension without regard to reconciliation, which could only be changed by a subsequent signed agreement, applies hereto.

Perhaps the most significant legal challenge to the postnuptial was the requirements of the Employment Retirement Income Security Act (ERISA). Pursuant to ERISA, a pension must be administered, and the proceeds therefrom distributed, according to the terms of the plan documents, and not alternative agreements, such as a postnuptial agreement. While acknowledging the applicability of ERISA to the pension in this matter, the court also indicated that, although ERISA may require the pension to be distributed to wife, the terms of the postnuptial can also apply by requiring Wife to turn over to the estate any and all sums she receives as a pension beneficiary.

In the end, the court entered a Solomonic decision to cut the pension “baby” in half: the wife can keep the life insurance policy proceeds while the estate is to receive from the wife the pension proceeds she received.

Originally published on December 26, 2017 in The Legal Intelligencer and can be found here and was reprinted in the Pennsylvania Family Lawyer for its March 2018 edition. (see here).

A Collection of Family Law Writings by James W. Cushing, Esquire

Over the course of my career, I have written extensively on a wide variety of family law issues and legal principles.  These writings have been published in The Legal Intelligencer, Upon Further Review, and The Pennsylvania Family Lawyer as well as posted onto my blog.  I have collected these articles and blog posts and have listed them below.  Thanks for reading!

Articles:

Musings:

Sex Negative

Every now and again I come across a fantastic article the warrants posting here; I recently came across one in First Things which, I thought, was pretty insightful.  Be edified.

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The attitude toward sex in our secular culture is simultaneously tedious and disturbing. Tedious because of its predictability. Disturbing because of its profound negativity, despite absurd claims to the contrary.

A good example was provided last week by Aimee Byrd. Over at her Housewife Theologian blog, Byrd highlighted an online interview with a woman called “Gracie X.” The lifestyle Gracie describes will probably surprise no one. Her promiscuity and the fluidity of her relationships are nothing new. In the ’70s, people like Gracie were known as swingers. Today they are respectable members of the “ethical non-monogamy community.” The nomenclature is oxymoronic, the underlying attitude merely moronic.

As is conventional when today’s hard-hitting journalism deals with fringe lifestyles that mock traditional mores, the interviewer asks no hard questions and makes no critical observations. Such would be impolite and judgmental, I guess. Well, let me break once again with the contemporary canons of journalistic social commentary and offer a few impolite and judgmental observations of my own.

The language of the interview is revealing. The omnipresence of the first-person singular is quite remarkable, reminiscent of The Beatles song, “I, Me, Mine.” Yes, this really is all about Gracie. To be fair, she does claim that her refusal to control her libido is good for her children—but she also makes it very clear that even if they asked her to stop, she would not, because she is her lifestyle.

The best parts of the interview are those involving pious sub-Oprah psychobabble, such as this gem: “The biggest burden you can put on your child is an unfulfilled life. We really have to make sure we’re living.” Really? I suspect the burden of not having any kind of stable parental relationship to rely on might rank somewhere. But as long as a mature ten- to eleven-year-old is able to offer wise and informed support to an ethically non-monogamous parent, all will be well.

Most sadly disturbing is Gracie’s use of the term “sex positive” to describe her lifestyle. Clearly she enjoys sex. But that hardly amounts to being “sex positive.” Her view of sex seems so truncated and so emptied of any real meaning, so centered on herself, so reducible to physical pleasure, that it becomes little more than an act of mutual masturbation. To say that such represents a “positive” view of sex is akin to saying that the person who enjoys cluelessly bashing out random notes on a piano has a positive view of music. Sex with no deeper relational context is sex with no positively meaningful content, as Henry Miller demonstrated over eighty years ago in the tragicomic nihilism of the myriad encounters recounted in Tropic of Cancer.

There was once a time when sexual intercourse was thought to be full of rich social and emotional significance. Now, even our language betrays our impoverished and negative attitudes. That we speak of “having sex” and not of “making love”—that the latter phrase can even evoke sniggers—is significant. A man can have sex with a prostitute. He can only make love to a woman he knows and about whom he cares.

So is Gracie X “sex positive” in her attitude? Well, sexual intercourse used to mark the transition from childhood to adulthood. That has been taken away. Sex has been reduced thereby, as indeed has adulthood—the childish obsession of Gracie with herself is surely no accident. There was also a time when sexual intercourse was only considered legitimate between a man and woman committed to a lifelong partnership. It marked their exclusive relationship to each other. That too has been taken away. Sex is no longer the consummation of an exclusive bond. Now it is just a form of recreation. A bit like golf, but usually cheaper and generally without the plaid pants.

Fortunately, Gracie is an extremist, even by today’s standards. But she is the logical end term of our culture’s simplistic, pornographic, selfish, abusive, mechanistic, and, yes, negative view of sex. Sex’s sole significance is what it does for Gracie as an individual, and damn the consequences if that hurts anyone else. It is who she is, after all. Indeed, I imagine that even now some liberal Episcopalian bishop is desperately wrestling with how to be open and welcoming to the “ethical non-monogamous community.” Might I suggest that a minor change to the marriage liturgy is all that is needed? “With thy body I me worship.”

Joking aside, such a vow would be entirely appropriate because, superficial as Gracie’s understanding of sex is, she is actually advocating in practice the rather more sophisticated philosophy of the Marquis de Sade, whereby the other’s body is a mere instrument for her own personal satisfaction and nothing more. That we live in a time in which de Sade’s approach can be described as “sex positive” is not something to be celebrated. That we describe it that way simply reveals the impoverished, mendacious, and ultimately lonely view of sex and relationships that we are passing on to our children. We have robbed our children not only of stable families but also of the real joy of sex—of sex that exists as a vital part of a committed relationship and thus has more than mere momentary, physical significance.

Anyway, I look forward to Part II of the interview, scheduled for when Gracie turns seventy-five. That’s my own sadistic streak speaking. You see, I have a sneaking suspicion that growing old is going to be especially cruel for members of the “ethical non-monogamy community.”

By: Carl R. Trueman and published on August 31, 2016 in First Things can be seen here.

Students’ Broken Moral Compasses

Every now and again I come across a fantastic article the warrants posting here; I recently came across one in The Atlantic which, I thought, was pretty insightful.  Be edified.

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A few months ago, I presented the following scenario to my junior English students: Your boyfriend or girlfriend has committed a felony, during which other people were badly harmed. Should you or should you not turn him or her into the police?

The class immediately erupted with commentary. It was obvious, they said, that loyalty was paramount—not a single student said they’d “snitch.” They were unequivocally unconcerned about who was harmed in this hypothetical scenario. This troubled me.

This discussion was part of an introduction to an essay assignment about whether Americans should pay more for ethically produced food. We continued discussing other dilemmas, and the kids were more engaged that they’d been in weeks, grappling with big questions about values, character, and right versus wrong as I attempted to expand their thinking about who and what is affected—and why it matters—by their caloric choices.

I was satisfied that students were clearly thinking about tough issues, but unsettled by their lack of experience considering their own values. “Do you think you should discuss morality and ethics more often in school?” I asked the class. The vast majority of heads nodded in agreement. Engaging in this type of discourse, it seemed, was a mostly foreign concept for the kids.

Widespread adoption of the Common Core standards—despite resistance by some states—arguably continues the legacy of the No Child Left Behind Act. The 2002 law charged all public schools to achieve 100 percent proficiency in reading and math by 2014, meaning that all students were expected to be on grade level. This unrealistic target forced schools to track and measure the academic achievement of all students, a goal lauded by most, but one that ultimately elevated standardized testing and severely narrowed curricula. Quantifying academic gains remains at the forefront of school-improvement efforts to the detriment of other worthwhile purposes of schooling.

As my students seemed to crave more meaningful discussions and instruction relating to character, morality, and ethics, it struck me how invisible these issues have become in many schools. By omission, are U.S. schools teaching their students that character, morality, and ethics aren’t important in becoming productive, successful citizens?

For many American students who have attended a public school at some point since 2002, standardized-test preparation and narrowly defined academic success has been the unstated, but de facto, purpose of their schooling experience. And while school mission statements often reveal a goal of preparing students for a mix of lifelong success, citizenship, college, and careers, the reality is that addressing content standards and test preparation continues to dominate countless schools’s operations and focus.

In 2014, an annual end-of-year kindergarten show in New York was canceled so students could focus on college-and-career readiness. Test-prep rallies have become increasingly commonplace, especially at the elementary level. And according to a 2015 Council of the Great City Schools study, eighth-graders spend an average of 25.3 hours a year taking standardized tests. In Kentucky, where I teach, high schools are under pressure to produce students who are ready for college, defined as simply reaching benchmark scores in reading, English, and math on the ACT.

Talking with my students about ethics and gauging their response served as a wakeup call for me to consider my own role as an educator and just how low character development, ethics, and helping students develop a moral identity have fallen with regard to debate over what schools should teach. The founders of this country, Jessica Lahey wrote in The Atlantic, would “likely be horrified by the loss of this goal, as they all cite character education as the way to create an educated and virtuous citizenry.” According to Gallup polling, Lahey added, 90 percent of adults support the teaching in public schools of honesty, acceptance of others, and moral courage, among other character traits. What adults hope occurs in schools, however, is in sharp contrast to observations provided by teens themselves.

The 2012 Josephson Report Card on the Ethics of American Youth reveals a pressing need to integrate elements of character education into the country’s public-school curriculums. According to the study, 57 percent of teens stated that successful people do what they have to do to win, even if it involves cheating. Twenty-four percent believe it is okay to threaten or hit someone when angry. Thirty-one percent believe physical violence is a big problem in their schools. Fifty-two percent reported cheating at least once on an exam. Forty-nine percent of students reported being bullied or harassed in a manner that seriously upset them.

In the recently released Unselfie: Why Empathetic Kids Succeed in Our All-About-Me World, Michelle Borba claims narcissism is on the rise, especially in the Western world, as more teens concur with the statement: “I am an extraordinary person.” If empathy is crucial to developing a moral identity, then this trend should be troubling to parents and educators who hope that students foster the ability to see the world through others’s eyes.

My own observations support the data. I’m frequently unnerved by the behaviors I see in classrooms and hallways every day, from physical and verbal bullying, to stereotyping, to students leaving trash strewn all over the outdoor cafeteria courtyard.

“Teaching character education in schools is actually unavoidable … [E]verything the school chooses to do or not do in terms of curriculum choices” influences the culture of a school and the character of its students, Steve Ellenwood, the director of Boston University’s Center for Character and Social Responsibility (CCSR), wrote in an email. His words resonated with me. During my 12 years in education, I can’t recall a single meeting in which the discussion of student character and ethics was elevated to anything close to the level of importance of academics within school curricula.

Groups like the CCSR and the Josephson Institute of Ethics’ Character Counts! initiative strive to enhance existing school programs and curricula to address these issues, proof that efforts do exist to transform schools into places where character education is elevated within traditional curricula. But Ellenwood laments that many educators “blithely accept that schools must be value-neutral,” adding that there is legal precedent for teaching about religions (and not imposing any set of beliefs), character, and ethics. And divisive national politics have left many educators with difficult choices about addressing certain issues, especially those who teach immigrant students who are actively afraid of their fates if Donald Trump wins the election.

A reluctance to teach about religions and value systems is coinciding with a steady decline of teen involvement in formal religious activity over the past 50 years, according to research led by San Diego State Professor Jean Twenge. And while attending church is only one way young people may begin to establish a moral identity, schools don’t seem to be picking up the slack. There’s undoubtedly a fear about what specific ethical beliefs and character traits schools might teach, but one answer might be to expose students to tough issues in the context of academic work—not imposing values, but simply exploring them.

At a recent convening of 15 teacher-leaders from around the country at the Center for Teaching Quality in Carrboro, North Carolina, I spoke to some colleagues about the balance between teaching academic content and striving to develop students’ moral identities. Leticia Skae-Jackson, an English teacher in Nashville, Tennessee, and Nick Tutolo, a math teacher in Pittsburgh, both commented that many teachers are overwhelmed by the pressure and time demands in covering academic standards. Focusing on character and ethics, they said, is seen as an additional demand.

Nonetheless, Tutolo engages his math students at the beginning of the school year by focusing on questions of what it means to be a conscientious person and citizen while also considering how his class could address community needs. His seventh-grade class focused on the issue of food deserts in Pittsburgh and began a campaign to build hydroponic window farms. While learning about ratios and scaling—skills outlined in the Common Core math standards—students began working to design and distribute the contraptions to residents in need, a project that will continue this fall as Tutolo “loops” up to teach eighth grade.

William Anderson, a high-school teacher in Denver, takes a similar approach to Tutolo, but told me that “most teachers haven’t been trained to design instruction that blends academic content with an exploration of character and ethics.” He emphasized that schools should promote this approach to develop well-rounded students. Addressing academic skills and challenging students to consider ethics and character should not, he argued, be mutually exclusive.

When I reflect upon my own education, two classes stand out with regard to finding the balance between imparting academic skills and developing my own moral identity. My high-school biology teacher Phil Browne challenged us to think about the consequences of our consumer choices and individual actions as they related to ecosystems and the environment in a way that challenged us to think about ourselves as ethical actors.

A couple years later, I signed up for a freshman seminar in college titled “Education and Social Inequality” at Middlebury College in Vermont. I remember being moved by Jonathan Kozol’s Savage Inequalities and his moral outrage at dilapidated, underfunded, and understaffed schools in impoverished areas; early on in the course, I struggled to articulate my thoughts during essay assignments. My professor, Peggy Nelson, would sit quietly during seminars, watching us squirm in our seats while we grappled with big ideas such as personal responsibility, systemic injustice, and racism.

Entering my 13th year in the classroom this fall, I hope to continue striving to capture the dynamic that Browne, Nelson, Tutolo, Skae-Jackson, Anderson, and other skilled educators have achieved by blending academic instruction with the essential charge of developing students as people. It’s time for critical reflection about values our schools transmit to children by omission in our curriculum of the essential human challenges of character development, morality, and ethics. Far too often, “we’re sacrificing the humanity of students for potential academic and intellectual gain,” Anderson said.

By Paul Barnwell and originally published in The Atlantic on July 25, 2016 and can be seen here.

Assimilate! How Modern Liberalism Is Destroying Individuality

Every now and again I come across a fantastic article the warrants posting here; I recently came across one in National Review which, I thought, was pretty insightful.  Be edified.

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Progressives claim to celebrate diversity, but demand that everyone fit their mold.
I was once called a “cracker” by a member of the Nation of Islam. It was in the mid-1980s and I was driving through Washington, D.C., in the kind of neighborhood that conservatives call dangerous and liberals call “transitioning.” I saw a member of the Nation of Islam, bow tie and all, on the corner hawking copies of The Final Call, the NOI’s newspaper. I rolled down the window and asked for a copy. That’s when he hit me with it: “F*ck off, cracker.”
I thought of this gentleman fondly when I was reading the new book, The Demon in Democracy: Totalitarian Temptations in Free Societies by Polish scholar Ryszard Legutko. The book is an intense read that argues that liberal democracies are succumbing to a utopian ideal where individuality and eccentricity might eventually be banned. As liberals push us towards a monoculture where there is no dissent, no gender, and no conflict, the unique and the great will eventually cease to exist. No more offbeat weirdoes, eccentric crazies, or cults. No more Nation of Islam there to call me a cracker. No more of the self-made and inspired figures of the past: Duke Ellington, Hunter Thompson, Annie Leibowitz.
Legutko’s thesis is that liberal democracies have something in common with communism: the sense that time is inexorably moving towards a kind of human utopia, and that progressive bureaucrats must make sure it succeeds. Legutko first observed this after the fall of communism. Thinking that communist bureaucrats would have difficulty adjusting to Western democracy, he was surprised when the former Marxists smoothly adapted — indeed, thrived — in a system of liberal democracy. It was the hard-core anti-communists who couldn’t quite fit into the new system. They were unable to untether themselves from their faith, culture, and traditions.
Both communism and liberal democracy call for people to become New Men by jettisoning their old faith, customs, arts, literature, and traditions. Thus a Polish anti-communist goes from being told by communists that he has to abandon his old concepts of faith and family to become a member of the larger State, only to come to America after the fall of the Berlin Wall and be told he has to forego those same beliefs for the sake of the sexual revolution and the bureaucratic welfare state. Both systems believe that societies are moving towards a certain ideal state, and to stand against that is to violate not just the law but human happiness itself. Legutko compares the two: “Societies — as the supporters of the two regimes are never tired of repeating — are not only changing and developing according to a linear pattern but also improving, and the most convincing evidence of the improvement, they add, is the rise of communism and liberal democracy. And even if a society does not become better at each stage and in each place, it should continue improving given the inherent human desire to which both regimes claim those found the most satisfactory response.”
Legutko argues that, of course, there are huge differences between communism and liberal democracy — liberal democracy is obviously a system that allows for greater freedom. He appreciates that in a free society people are able to enjoy the arts, books, and pop culture that they want. Our medical system is superior. We don’t suffer from famines. Yet Legutko argues that with so much freedom has come a kind of flattening of taste and the hard work of creating original art.
We’ve witnessed the a slow and steady debasement of our politics and popular culture — see, for example, those “man on the street” interviews where Americans can’t name who won the Revolutionary War. Enter the unelected bureaucrats who appoint themselves to steer the ship; in other words, we’re liberals and we’re here to help. Inspired by the idea that to be against them is to be “on the wrong side of history,” both communism and contemporary liberalism demand absolute submission to the progressive plan. All resistance, no matter how grounded in genuine belief or natural law, must be quashed.
Thus in America came the monochromatic washing of a country that once could boast not only crazies like Scientologists and Louis Farrakhan, but creative and unusual icons like Norman Mailer, Georgia O’Keefe, Baptists, Hindus, dry counties, John Courtney Murray, Christian bakers, orthodox Jews, accents, and punk rockers. The eccentric and the oddball, as well as the truly great, are increasingly less able to thrive. As Legutko observes, we have a monoculture filled with people whose “loutish manners and coarse language did not have their origin in communism, but, as many found astonishing, in the patterns, or rather anti-patterns that developed in Western liberal democracies.” The revolution didn’t devour its children; progressive-minded bureaucrats did.
By Mark Judge and originally published on August 11, 2016 and can be seen here.

 

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