Reason #16 to VOTE NO on ISSUE 3
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Because it fails technically as a constitutional amendment, Part II.
Read Part I (Reason 18) here.
In Part I, we only got through the very first phrase of the proposed text for the Learn and Earn Amendment (as the text titles it). This reason analyzes and demonstrates how the first sentence of the text, which includes the mandatory instruction to the Board of Regents to award scholarships and tuition grants, fails to accomplish the very purpose that the same sentence indicates to be the raison d'etre of the amendment.
The first full sentence of the text reads as follows:
For the purpose of inspiring students to aspire to college at an early age, to improve students’ academic preparation, and to make college affordable for students and their families, the Ohio Board of Regents shall award undergraduate higher education scholarships and tuition grants for United States citizens who are residents of this state commencing with the first high school class graduating two years following the approval of this amendment.
Wow. Who could argue with this, right? It sounds lofty, but it also sounds like something against which no one could argue. Who doesn't want to inspire students to aspire to college at an early age (though I think that means not that the amendment wants to inspire students to aspire to college AND inspire them to aspire to ATTEND college AT an early age, but rather that they want to inspire students to aspire, FROM an early age, to attend college; now, if you had a writer, or even a good lawyer writing this thing, that intent would be much more clear).
And who doesn't want to make college affordable for students and their families? Although again, the better way to have worded this would have been to put the emphasis on making OHIO public institutions of higher education more affordable for OHIO students and families (but I'm quibbling since "residents of this state" is in the next phrase).
That next phrase would be this one:
...the Ohio Board of Regents shall award undergraduate higher education scholarships and tuition grants for United States citizens who are residents of this state commencing with the first high school class graduating two years following the approval of this amendment.
You probably don't need to be a lawyer to figure this out, but the use of "shall" in legal documents is intended to make an action mandatory, as opposed to the use of "may" which makes an action discretionary.
So, the first part of this phrase introduces an action that the Ohio Board of Regents will be required to perform.
That action is to:
award undergraduate higher education scholarships and tuition grants for United States citizens who are residents of this state commencing with the first high school class graduating two years following the approval of this amendment.
In addition to what I pointed out yesterday as being, just in my opinion of course for whatever that's worth, lousy legal writing, especially for a state constitutional amendment, this phrase is not only more lousy (did you know that you are never supposed to use "lousy" or "swell"?), but it is legally problematic.
Here's why:
This part is okay, even though obviously it singles out the obligation as being limited to tuition (as opposed to all the other thousands of dollars of costs associated with college, such as housing, books, transportation, lab fees, materials, etc.): "award undergraduate higher education scholarships and tuition grants."
But it's this part that's truly legally weak:
"for United States citizens who are residents of this state commencing with the first high school class graduating two years following the approval of this amendment."
What's weak about it?
It fails to adequately designate the class of residents to whom the Ohio Board of Regents would have to, by law, award undergraduate higher education
Typically, certain words in this sentence (specifically, those words that we must understand unequivocally in order to identify, without legal challenge, which residents of this state shall- their words not mine - benefit directly and will or can be considered to receive the moneys) would be defined in a definitions section. For example, we would look up “resident” and “US citizen.”
Why? Because we need to know:
-how long do you have to have lived in Ohio to be considered a resident for the purposes of this amendment? Do you have to have been born here? And whose residency determines your residency (what if your parents are divorced and your residential parent isn't in Ohio - what proof will be required? what process will need to be followed?)
-with all the hubbub over illegal immigration and the statistically significant numbers of migrant workers in Ohio, who among those groups are included – do we want that – are those numbers figured in?
-are they in fact people we need to help, or do we feel that other residents deserve it more? (just asking, Not saying)
Even without a definitions section, at a minimum, the amendment would refer you back to wherever resident is in fact defined in the constitution. Just. So. We. Know. Who we’re talking about as having even the minimum requirements to think that they could benefit and to whom the Regents are obligated to give awards.
We’d also probably find some age requirements too – I think that would be appropriate, but obviously no one is worried about how long it takes a person to get through high school – so long as they do – or something.
Now, what makes this absence of definitions so glaring, especially around a concept as basic but litigious as residency, is that the last three paragraphs of the proposed amendment are, guess what?
Definitions.
For “slot machines.” For “permitted commercial horse racing track.” For “gross slot machine revenue.”
Wow. Somehow, those words – that have nothing to do with education, which, remember, is what Issue 3 proponents want Ohioans to believe the amendment is all about – got defined. Heh. And this amendment well, it’s not even supposed to really be ABOUT gambling – that’s just a … hmm – well…lie, really.
But I digress.
So whomever drafted and then okayed this proposed language saw fit to define "slot machines," "permitted commercial horse racing tract" and "gross slot machine revenue," but not resident or citizen.
Things that make you go, Hmmm.
Now, again, back to the phrase:
For United States citizens who are residents of this state commencing with the first high school class graduating two years following the approval of this amendment.
Let's look at this part – “commencing with the first high school class graduating two years following the approval of this amendment.”
That’s interesting – "approval" – what’s approval mean. That will be determined to be which day, exactly? The 2000 presidential election took almost a month to decide. When will the approval date be – given the election issues we know we’re going to have here?
According to today's Plain Dealer, "Learn and Earn...insists that the high school graduating class of 2009 would be the first eligible to collect the scholarships."
But the amendment requires the Ohio state legislature to pass laws within six months of the effective date of this amendment to facilitate the operation of this amendment. If that doesn't happen, the Lottery Commission takes over. And there's the matter of the Gaming Integrity Commission - but if it doesn't come into being, the Lottery Commission will CY its A too.
So - best case scenario: by the fall of '08, the Ohio GA (2007-2008 session) passes all the laws necessary, the Board of Regents knows who are the residents in the class of '09 whom they must tell (in fall '08) of their eligibility for the OLE money -
AND - this is the best part, the 30% of gross slot machine revenue, required by the amendment to be "paid to the state...solely for the scholarships and grants" has in fact been paid to the state, for those s-ships and grants.
Hmm - how does the state get the money to the Regents? Or do the Regents just send letters to kids and tell the kids to get the money from the state? Who exactly within the state? Which department in the state has those revenues? Are the revenues going to earn money for the kids who put off college?
Details, details, details.
Maybe the biggest detail of all:
How in hell are enough gross slot machine revenues going to be raised - between the lapse of six months or whenever the General Assembly gets the laws passed to implement the amendment, and fall 2008, when the Ohio families and students whom this amendment is supposed to help need, NEED and deserve to know whether or not they can - you know, AFFORD college - that will cover all the eligible kids?
Will anyone even know what the "average undergraduate tuition charged by Ohio public universities" is before fall '08, when those families need to know what OLE would contribute, so that the amount of gross revenue that will be used by that '09 graduating class can be calculated?
I rarely use this phrase, but, you know - I'm not even past the first damn sentence of this thing. And already, it's a cluster you know what.
Anyone from OLE - feel free to fill in the Niagara Falls-sized holes.
Previous reasons to vote no on Issue 3:
Reason 17
Reason 18
Reason 19
Reason 20
Reason 21
Reason 22
Reason 23
Reason 24
Reason 25
Reason 26
Reason 27
Reason 28
Reason 29
Reason 30
Reason 31
Reason 32
Reason 33
Reason 34
Reason 35
Reason 36
Reason 37
Reason 38
Reason 39
Reason 40
Reason 41
Reason 42
Reason 43
Reason 44
Reason 45
Reason 46
Reason 47
Reason 48
Reason 49
Reason 50
Reason 51
Reason 52
Reason 53
Reason 54
Reason 55
Reason 56
Reason 57
Read Part I (Reason 18) here.
In Part I, we only got through the very first phrase of the proposed text for the Learn and Earn Amendment (as the text titles it). This reason analyzes and demonstrates how the first sentence of the text, which includes the mandatory instruction to the Board of Regents to award scholarships and tuition grants, fails to accomplish the very purpose that the same sentence indicates to be the raison d'etre of the amendment.
The first full sentence of the text reads as follows:
For the purpose of inspiring students to aspire to college at an early age, to improve students’ academic preparation, and to make college affordable for students and their families, the Ohio Board of Regents shall award undergraduate higher education scholarships and tuition grants for United States citizens who are residents of this state commencing with the first high school class graduating two years following the approval of this amendment.
Wow. Who could argue with this, right? It sounds lofty, but it also sounds like something against which no one could argue. Who doesn't want to inspire students to aspire to college at an early age (though I think that means not that the amendment wants to inspire students to aspire to college AND inspire them to aspire to ATTEND college AT an early age, but rather that they want to inspire students to aspire, FROM an early age, to attend college; now, if you had a writer, or even a good lawyer writing this thing, that intent would be much more clear).
And who doesn't want to make college affordable for students and their families? Although again, the better way to have worded this would have been to put the emphasis on making OHIO public institutions of higher education more affordable for OHIO students and families (but I'm quibbling since "residents of this state" is in the next phrase).
That next phrase would be this one:
...the Ohio Board of Regents shall award undergraduate higher education scholarships and tuition grants for United States citizens who are residents of this state commencing with the first high school class graduating two years following the approval of this amendment.
You probably don't need to be a lawyer to figure this out, but the use of "shall" in legal documents is intended to make an action mandatory, as opposed to the use of "may" which makes an action discretionary.
So, the first part of this phrase introduces an action that the Ohio Board of Regents will be required to perform.
That action is to:
award undergraduate higher education scholarships and tuition grants for United States citizens who are residents of this state commencing with the first high school class graduating two years following the approval of this amendment.
In addition to what I pointed out yesterday as being, just in my opinion of course for whatever that's worth, lousy legal writing, especially for a state constitutional amendment, this phrase is not only more lousy (did you know that you are never supposed to use "lousy" or "swell"?), but it is legally problematic.
Here's why:
This part is okay, even though obviously it singles out the obligation as being limited to tuition (as opposed to all the other thousands of dollars of costs associated with college, such as housing, books, transportation, lab fees, materials, etc.): "award undergraduate higher education scholarships and tuition grants."
But it's this part that's truly legally weak:
"for United States citizens who are residents of this state commencing with the first high school class graduating two years following the approval of this amendment."
What's weak about it?
It fails to adequately designate the class of residents to whom the Ohio Board of Regents would have to, by law, award undergraduate higher education
Typically, certain words in this sentence (specifically, those words that we must understand unequivocally in order to identify, without legal challenge, which residents of this state shall- their words not mine - benefit directly and will or can be considered to receive the moneys) would be defined in a definitions section. For example, we would look up “resident” and “US citizen.”
Why? Because we need to know:
-how long do you have to have lived in Ohio to be considered a resident for the purposes of this amendment? Do you have to have been born here? And whose residency determines your residency (what if your parents are divorced and your residential parent isn't in Ohio - what proof will be required? what process will need to be followed?)
-with all the hubbub over illegal immigration and the statistically significant numbers of migrant workers in Ohio, who among those groups are included – do we want that – are those numbers figured in?
-are they in fact people we need to help, or do we feel that other residents deserve it more? (just asking, Not saying)
Even without a definitions section, at a minimum, the amendment would refer you back to wherever resident is in fact defined in the constitution. Just. So. We. Know. Who we’re talking about as having even the minimum requirements to think that they could benefit and to whom the Regents are obligated to give awards.
We’d also probably find some age requirements too – I think that would be appropriate, but obviously no one is worried about how long it takes a person to get through high school – so long as they do – or something.
Now, what makes this absence of definitions so glaring, especially around a concept as basic but litigious as residency, is that the last three paragraphs of the proposed amendment are, guess what?
Definitions.
For “slot machines.” For “permitted commercial horse racing track.” For “gross slot machine revenue.”
Wow. Somehow, those words – that have nothing to do with education, which, remember, is what Issue 3 proponents want Ohioans to believe the amendment is all about – got defined. Heh. And this amendment well, it’s not even supposed to really be ABOUT gambling – that’s just a … hmm – well…lie, really.
But I digress.
So whomever drafted and then okayed this proposed language saw fit to define "slot machines," "permitted commercial horse racing tract" and "gross slot machine revenue," but not resident or citizen.
Things that make you go, Hmmm.
Now, again, back to the phrase:
For United States citizens who are residents of this state commencing with the first high school class graduating two years following the approval of this amendment.
Let's look at this part – “commencing with the first high school class graduating two years following the approval of this amendment.”
That’s interesting – "approval" – what’s approval mean. That will be determined to be which day, exactly? The 2000 presidential election took almost a month to decide. When will the approval date be – given the election issues we know we’re going to have here?
According to today's Plain Dealer, "Learn and Earn...insists that the high school graduating class of 2009 would be the first eligible to collect the scholarships."
But the amendment requires the Ohio state legislature to pass laws within six months of the effective date of this amendment to facilitate the operation of this amendment. If that doesn't happen, the Lottery Commission takes over. And there's the matter of the Gaming Integrity Commission - but if it doesn't come into being, the Lottery Commission will CY its A too.
So - best case scenario: by the fall of '08, the Ohio GA (2007-2008 session) passes all the laws necessary, the Board of Regents knows who are the residents in the class of '09 whom they must tell (in fall '08) of their eligibility for the OLE money -
AND - this is the best part, the 30% of gross slot machine revenue, required by the amendment to be "paid to the state...solely for the scholarships and grants" has in fact been paid to the state, for those s-ships and grants.
Hmm - how does the state get the money to the Regents? Or do the Regents just send letters to kids and tell the kids to get the money from the state? Who exactly within the state? Which department in the state has those revenues? Are the revenues going to earn money for the kids who put off college?
Details, details, details.
Maybe the biggest detail of all:
How in hell are enough gross slot machine revenues going to be raised - between the lapse of six months or whenever the General Assembly gets the laws passed to implement the amendment, and fall 2008, when the Ohio families and students whom this amendment is supposed to help need, NEED and deserve to know whether or not they can - you know, AFFORD college - that will cover all the eligible kids?
Will anyone even know what the "average undergraduate tuition charged by Ohio public universities" is before fall '08, when those families need to know what OLE would contribute, so that the amount of gross revenue that will be used by that '09 graduating class can be calculated?
I rarely use this phrase, but, you know - I'm not even past the first damn sentence of this thing. And already, it's a cluster you know what.
Anyone from OLE - feel free to fill in the Niagara Falls-sized holes.
Previous reasons to vote no on Issue 3:
Reason 17
Reason 18
Reason 19
Reason 20
Reason 21
Reason 22
Reason 23
Reason 24
Reason 25
Reason 26
Reason 27
Reason 28
Reason 29
Reason 30
Reason 31
Reason 32
Reason 33
Reason 34
Reason 35
Reason 36
Reason 37
Reason 38
Reason 39
Reason 40
Reason 41
Reason 42
Reason 43
Reason 44
Reason 45
Reason 46
Reason 47
Reason 48
Reason 49
Reason 50
Reason 51
Reason 52
Reason 53
Reason 54
Reason 55
Reason 56
Reason 57
JBlog Me
2 Comments:
jeez, and you wonder why people hate lawyers. It's gotten to the point that a guy can't even assemble a constitutional ammendment from pieces of old 'Law & Order' scripts for the benefit of his rooty-tooty friends without somebody throwing a hissy fit.
Let say, for arguments sake, that Issue 3 doesn't pass. Now I have to go up to Canada to blow my kids college fund on the slots. How is she going to get an education? Without a college education, she'll never be able to leave home, and I won't be able to rent out her room for more slot money.
Did you ever think about that?
{/sarcasm}
I hear ya, TW. Makes you wish universities would just cease to exist to begin with so we could forget about such complicated mechanisms to pay for them and just be allowed to gamble - with no strings.
(also sarcasm)
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