Compromising Public Health for a States' Rights Ideology: The Governor of Arizona Nullified a Federal Law during a Pandemic

On October 27, 2021, I rode on two mass transit buses in Phoenix, Arizona. Both drivers were knowingly and willfully violating the federal regulation (42 CFR sec.s 70-71), which requires transit operators to wear masks during the pandemic even when they are situated behind a plexiglass barrier. One of the drivers, whom I had twice before seen not wearing a mask, again had lowered the plexiglass window pane between the driver and customers paying.  The first time, I had asked her to put a mask on, given the federal regulation and her proximity to the passengers boarding. Replying as if making an announcement, she said, “If anyone feels unsafe on the bus, they can get off and wait for the next bus.” That prompted a passenger to insult me. The company subsequently backed up the driver's refusal by saying that the federal law doesn't apply to buses in Arizona. It did, so the company violated federal law with impunity.

 

I reported this incident to the regional bus authority and the city of Phoenix. Nevertheless I saw her maskless more than a week later and then during the following week. I did receive a voicemail from TransDev, a bus-operating company contracted by Metro Valley, informing me that regardless of the federal law, the company policy does not require bus drivers to wear masks. In fact, a representative from Metro Valley defiantly declared on a subsequent phone call that drivers can let maskless passengers board—again, in violation of federal law. Company policy apparently can nullify federal regulations in Arizona, a U.S. state with special needs. 

Even though the FBI told me that it looks to local law enforcement agencies to enforce federal regulations, a supervisor at one of the police sub-stations told me that his department would not enforce the regulation. “Oh, so they want to dump it on us,” he said. Astonishingly, he claimed that only law passed by his state’s legislature is “real law in Arizona.” About a week later, a police transit supervisor told me that the chief of police had told the non-supervisory patrol employees not to enforce the federal regulation, and this directive had come down from the governor.

As shocking as such corruption is, the immature, even pathological behavior of the second maskless bus driver I witnessed on the morning of October 27, 2021 told me after I had asked her to put on a mask that she didn’t care if a federal regulation requires drivers to wear masks. “I don’t care. Go ahead, call the FBI,” she said with a daring tone of presumed impunity. She also encouraged me to call the local police after I said I would contact them too. “They don’t wear masks either,” she shouted. Yes, shouted. I replied that I was ending the conversation, which she ignored until I went to the back of the bus. She then accused me of threatening her. “Get off my bus!” she exclaimed angrily even though she kept the bus in motion. She was clearly making up an excuse to get me in trouble for having asked her to comply with U.S. law. What a strange, absurd mentality, at least outside of Arizona. Not surprisingly, she had let a maskless man ride. While walking to the back door to exit the bus, the maskless old male passenger felt entitled pick up the baton from the driver and shout “I’m vaccinated; I don’t have to wear a mask” at me. I knew he was ignorant so I did not comment. Nevertheless, she kept shouting his presumed factoid to me as he got closer. After he left, the driver once again began shouting insults at me, having dismissed my statement that I was done with the conversation. She called me a dumbass and a weirdo, and told me in a dismissive and hostile tone, “Go back to your institution!” My stop was coming up, so I could not get off the bus, but I did not want to hear any more from the childish driving having a temper-tantrum. So I began repeating, “I don’t talk to local creepers.” I had said this to the maskless passenger too.  “I won’t let you ride on my bus ever again,” the driver said. It is significant that she referred to her bus, in repeating, “I won’t let you ride my bus ever again,” when in actuality the city of Phoenix owns the bus and she does not have the authority to ban anyone from ever riding “her” bus ever again. Even were the bus her own, she would still be required to follow federal law, though she clearly believed otherwise.  She even put her two hands to her ears while operating the bus like a kid would do, and angrily repeated, “I know you are, I know you are,” after I declared that I do not talk with local creepers.  It was surreal that any bus driver would behave like a four year-old. “What are you in kindergarden?” I replied. Even when I was walking out of the bus and then outside of the bus, the driver was yelling insults, so I continued repeating my line. It was incredibly pathetic that a four year-old’s mentality would stop her temper-tantrum only to pick up her phone to call her supervisor, and yet the bus company’s customer service does not allow passengers to speak with a supervisor of the drivers in real time even when a driver is not only abusing his or her authority, but is having a temper-tantrum. It is precisely because the drivers know that they can misbehave with impunity that they go on the offensive even more by claiming that a passenger is misbehaving. It is not surprising that drivers tend to presume impunity in violating a federal regulation geared to ending a pandemic. It is not surprising that several drivers in 2020 and 2021 felt entitled to ignore the local and federal laws, respectively, requiring that passengers and drivers wear masks. Some drivers actually wore their masks to cover only the chin area as if that constituted compliance. Arizona’s pre-college education ranked 49^th out of the 50 states at the time. Go figure. Presumptive arrogance combined with astounding ignorance is a toxic combination.

I submit that this last driver was so brazen at least in part because there really is no accountability in the local mass transit system, which includes Metro Valley, the regional transit authority and TransDev, a private subcontractor that operates the buses, which are owned by the city of Phoenix. Both Metro Valley and TransDev have told me that their policies allowing maskless riders and drivers invalidate the federal law. By the way, a local police patrol employee informed me (when he was off duty) that bus drivers are not federal employees to the federal law does not apply to them. “So you locals are ok with the federal money you get from the feds for your mass transit, but that doesn’t obligate you to follow their regulations,” I concluded. He gave a thumbs up. Three weeks earlier, a patrol supervisor informed me that the only “real law in Arizona is that which goes through the state legislature.” There is virtually no enforcement of masks on the light rail by security guards either. They illegally impersonate police officers by wearing silver badges, yet have admitted that Metro Valley won’t allow them to enforce the local ordinance in 2020 and the federal regulation in 2021. I think the guards are more interested in intimidating passengers to feel the pleasure of being dominant (albeit certainly not superior in any way) than in enforcing even federal law.

It is strange seeing three or four guards on one half of a car yet not one of the Allied Security employees are enforcing the federal law as it is even stated on on-board signs declaring, “Per Federal Law, Masks Are Required.” Once when I heard a train’s operator make an announcement at every stop, I pressed a red button at an intercom with the driver. The drivers want passengers to report problems, so it was ironic that a young black guard rushed to me (I had not seen him in the back) and demanded to know what I had been talking about. I asked him twice to lift his mask from his chin to cover his mouth and nose. He obviously felt entitled to break the law even though signs on the doors and windows were obvious. Without even waiting for me to answer his question, he became very hostile toward me and declared that if he ever sees me use the intercom again, he would kick me off the train. As I was leaving the train, I passed by the operator’s open window. “Of course we want you to use the intercom to report things like you did—that many passengers are ignoring my announcement!” I asked her to report the guard.

In short, the arrogance, corruption, and incompetence at the state, city and mass transit levels at least in Phoenix are such that someone who is not used to such a sordid, ignorant, and hostile culture cannot but be astonished—jaws-dropped astonished. Not only does the bus company ignore reports of illegal behavior; the company claims that its policy, which contradicts federal law, is the only thing that the company acknowledges as valid. How could anyone at a company believe that a company policy nullifies a federal law? How could a police chief tell her police force not to enforce a federal law, when according to the U.S. Department of Justice, the F.B.I. routinely relies on local law enforcement to play a role in enforcing federal law. Yet in Phoenix, Arizona, a police supervisor specializing on transit refused to acknowledge that state officials ever enforce federal law. “They want their laws enforced? They will have to send feds to enforce them.”

On the Role of Business in a Societal or Global Catastrophe

While it is obvious that a business or industry can affect and be affected by its environment, such as by polluting a river and a hurricane, respectively, it is less well known that a business or an entire industry can cause or facilitate a societal or global crisis. Whereas polluting a river can be answered with government regulation, the very legitimacy (and thus ongoing operations) of a company or even an entire industry is arguably at risk in knowingly creating or significantly worsening a societal/global crisis. The latter role goes beyond the scope of government regulation and corporate social responsibility, although broadening or just enforcing anti-trust laws may be sufficient to deal with the lost legitimacy. That is to say, what I have in mind is another genre or type of problem.
For instance, Exxon funded its own scientific studies on the effects of the oil industry on the Earth’s climate as early as in the 1950s. Certainly by the 1970s, the company’s management knew that the ongoing release of CO2 into the atmosphere would cause severe climatic problems, and yet the company’s public-relations lied to the public that the company’s studies were not decisive. Given the industry’s clout/money with members of Congress and even presidents, the company could keep the government from legislating and regulating geared to an expected crisis. Exxon (and the entire industry) played a major role in causing global warming, which could result in the extinction of our species, not to mention reduce the production of food-stuffs and trigger mass-migrations and even wars such as over water-rights.
Business ethicists can be expected focus on the ethical principles violated lying and the related willingness to be a major contributor to a planetary crisis as regards habitability. In other words, what should Exxon have done? Scholars of business and societal culture focus on the incompatibility of corporate and societal cultural norms and values. Within that field of business and society, advocates of corporate social responsibility design company charitable programs oriented to specific societal problems, especially if the company had contributed to the ongoing (rather than crisis) problems. Operating a food bank for the poor is not like saving the planet, or our species. Political economists cover the legislative and regulatory capture by an industry and the resulting muted regulations. Systems theorists can explain how all of these parts work together—an entire system with a fatal flaw in its basic design and operation. The ability of business to cause or even greatly facilitate a societal or global crisis is perhaps so new in the twenty-first century that this sort of problem has not yet been studied.
In 2007-2008, mortgage producers and investment banks created sub-prime mortgages and made high-risk bonds based on the risky mortgages. Investment banks even sold insurance for holders of the bonds. The financial derivative and insurance markets became so large that when they collapsed, a financial crisis occurred. An industry had put the world’s financial system itself at risk of collapse. Financial regulation was not sufficient; a gigantic financial infusion from the Congress and the Federal Reserve was necessary. Unlike the banking crisis of 1907, more than a socially responsible J.P. Morgan would be needed. Society, through its government, had to step in both for the U.S. economy and the global economy. The crisis was that large. That the financial sector was culpable and yet could receive federal money without strings (so even bonuses could be paid!) suggests that the notion of a few large companies or an industry creating a major societal-level (e.g., the economy) crisis was new. Wall Street money as electoral campaign contributions doubtless played a role in the refusal of Congress and the U.S. president to break up the big banks, but the larger question of what to do when a business or industry creates a societal crisis rather than localized typical problems had not been considered in its own right.
To be sure, a government can enable a company to create a societal crisis. Take, for example, the public-health crisis during the coronavirus pandemic that began in 2020. In Phoenix, Arizona, the regional transit authority and the two subcontractor companies ignored local law requiring that masks be worn on the buses and light-rail. A significant proportion of bus drivers went maskless and/or allowed passengers to ride without wearing masks even when federal law required masks even of operators behind a plexiglass shield. A representative of TransDev, one of the subcontracting companies, said that the law didn’t matter because of the company’s policy, which permitted masks and presumably overrules federal regulations. A representative of Metro Valley, the regional authority, refused to enforce the federal regulation on the light rail as well as against the willful bus drivers (and passengers). A transit supervisor on the police force told me that the chief of police had told police employees not to enforce the federal regulation even though, according to the FBI, local law enforcement is regularly relied on to enforce federal law. “They are federal; we are state,” the police supervisor told me. He also told me that the governor had told the chief not to enforce the federal regulation. That federal money goes into the mass transit system in the Phoenix metropolitan area is apparently no reason to follow federal law on mass transit. One police employee told me that “bus drivers are state employees (which is false) so they are not bound by federal regulations. A second police patrol supervisor had told me that the only real law in Arizona is that which “goes through the state legislature.” All three men were not only sure that they could not be wrong, but were extremely rude and dismissive towards me. I concluded that Arizona is in need of federal oversight.
At the company level, TransDev has been knowingly misleading its bus drivers into thinking that they don’t have to wear a mask and that passengers need not either—in spite of the company’s own signs, “Per federal law, masks are required on the buses.” A representative from Metro Valley, the regional authority, told me to ignore the signs. This mentality within at least two organizations is itself a problem. In fact, with Arizona having the highest infection rate in the U.S. on at least November 3, 2021, the mentality and the resulting patchwork of masks on the local buses and light rail can be said to be a significant cause of the ongoing pandemic locally. At the very least, the positive correlation is troubling, though conveniently not to the governor, chief of police, regional transit authority, or TransDev company.  The brazenness alone is enough for informed minds to question the legitimacy of at least the local police department (which was being investigated by the FBI for having intimidated and stopped peaceful political protesters) and the TransDev company. The matter of the higher officials, including the governor, the mayor of Phoenix, and the city manager, is of course more political. I had spoken with the mayor’s office manager and had sent an email to the manager’s office (my request to speak with a managerial-level staffer resulted in a call from an intern). Besides the sheer willfulness, lack of respect for federal law, and ignorance all around, the culpability of a company (TransDev) in giving the ok for bus drivers and passengers to go maskless, and another company (Allied Security, backed up by Metro Valley) to allow security employees to go maskless and allow passengers to go maskless on the light rail when the state ranks highest in the pandemic-danger in the U.S. suggests that companies can create or severely worsen a crisis with impunity both within the companies themselves and in a corrupt and ignorant political culture. The question of legitimacy is in this case broader than just for a few companies.
Company managements are not always above lying to the public. The case of Boeing involves a management lying to its pilots, customers, and the public, resulting in preventable deaths, a significant decrease in the company’s reputational capital, and arguably even a societal-level crisis at an early stage regarding aviation. The company installed new software that could be influence by a sensor that could malfunction. Saving the company the cost of training the pilots, the company’s management did not inform those employees of the addition. The ethical dimension is pretty clear (consider Kant’s dicta about lying). What is less clear is the matter of a company being of such size in a market and the latter being so salient in society that the company can unilaterally cause a crisis at the societal level. Announcing a program in corporate social responsibility, such that helps children to keep up in school, wouldn’t suffice; the harm in a societal crisis is so much greater than are the societal problems to which CSR is geared. At the very least, the board and upper management could have been replaced by a law; the company’s response was to replace the CEO with the “Plan B” insider on the board. That is, playing a significant role in causing a societal crisis could justify the intervention of a government, rather than leaving it up to a company’s shareholders. Where the government is itself corrupt, such as in Arizona, the needed intervention can come from a federal government (e.g., U.S. and E.U.) or even other countries against both the government and the particular company involved. Corporate social responsibility and business ethics are geared to a lesser scale of harm. Causing a societal or global crisis does not reduce to unethical business and is not redressed by corporate social responsibility. Instead, society has more legitimacy to intervene and in a more drastic way, given the nature of a crisis.

On the Weakening of the Rule of Law in the United States

When law enforcement (i.e., police) conveniently exclude themselves from obeying law, the contradiction should, I submit, be sufficient for the perpetrators to be fired. It is not enough for their boss to chastise or even suspend the hypocrites, for they are inherently unfit for law enforcement, and should instead be treated as actual or potential criminals. What about when such a sordid mentality comes to proliferate through a police department, especially if it lies beyond the competence of a city government to hold even such a department accountable? What if a local political “law and order” culture tacitly exempts police and goes on to look the other way as the latter render the locality into a police state? I contend that the Phoenix metropolitan area, including the suburbs surrounding Phoenix itself, furnishes us with a case in point.

In a subway station in New York City in October, 2021, two cops shoved a passenger out of the station because he had asked them why they were not wearing masks, which federal law at the time required be worn on subways, light rail, street cars, buses, and indoor subway stations. The alpha male policeman lied in declaring to the passenger that he was “a disturbance,” and subsequently shouted. Sounds like a bully to me. Not exactly a fitting persona for people who can legally kill others, yet how many police departments willow out such misfits?

Whereas the bully component can be dramatic enough to grab headlines in the news, the presumptuous decision made by police employees—and this is what “officers” really are—that the law does not apply to them is noxious in its arrogance. As NYC mayor de Blasio said after viewing the video of the subway incident, “if you’re going to be in law enforcement, you actually have to participate in following the law.”[1] The mayor noted that the police had been given the mask-requirement instructions “a thousand times.” It was not as if the two police employees did not know that they were breaking the rule—and violating a federal regulation!—when they aggressively turned on the passenger who was motivated to see that the law was enforced. Janno Lieber, CEO of the MTA (the metro transit authority) put it well in saying, “I don’t want to see [passengers] being pushed out of the system by people who are not complying with the rules that the federal government sets. Come on, enough.”[2] 

Unfortunately, “Come on, enough” could be said of the Phoenix (Arizona) police department, which the U.S. Justice Department had found guilty of lying to the department about having denied police-accountability protesters their constitutional right of political protest. To knowingly intimidate protesters with excessive shows of guns, police employees and vehicles, and low-flying helicopters reveals an immaturity and lack of judgment on proportionality that de facto de-legitimate a police department even if such qualities are salient in the local culture.

In Phoenix, self-exemption from having to obey federal law had become overwhelmingly salient in the local culture, given the proportion of light-rail and bus passengers who did not wear masks—or wore them only covering their respective chins! Even a significant number of bus drivers had self-exempted themselves from the signs on the buses: “As Per Federal Law, Masks Must be Worn on the Bus.” Calling the mass transit authority (Metro Valley) to report some of the drivers who were disobeying company policy and violating federal law, I was stunned to hear, “Our drivers don’t have to wear masks. Don’t pay attention to the signs on the buses.” A manager of TransDev, one of the bus-operations sub-contractor, left a voicemail informing me that even though masks were required by federal law, the company had no such policy.” Interesting. Company policy trumps federal law. Welcome to Arizona.

In October, 2021, with passengers passing by to pay, this bus driver was violating federal law by refusing to wear a mask. I reminded her that masks are required on city buses. After I took my seat, she made a general announcement that if any (paying) customer on the bus feels unsafe, he can get off and catch the next bus. Notice that the driver had lowered the plexiglass "window" pane and thus was being unsafe (and thus inconsiderate). Her passive aggression in her hostile announcement added insult to injury even though she felt convinced that she was entitled to break federal law. This sense of entitlement backed up by passive (and active) aggression is salient in the local culture. I called in a complaint to the regional transit authority (Metro Valley) against that driver. 

A few weeks later, I witnessed the same driver again not wearing a mask. At least she had the plexiglass window pane up, though the federal regulation requires masks be worn by operators even behind plexiglass. I had heard back from TransDev, a subcontractor bus-operating company, telling me on my voicemail that the company policy allows drivers to go maskless, even in spite of the federal regulation. Metro Valley customer service had a week earlier informed me similarly that passengers can board the buses even though the company's signs on the buses forbit it as "per federal law." Such entitlement! Such willfulness! Such passive aggression! Such ignorance! A company policy does not outweigh a federal law or regulation. 

Seeing a managerial-level Phoenix policeman walking from his "Supervisor" car to the police substation on Central Ave near Arizona State University’s downtown Phoenix campus, I told him that I had encountered: bus drivers (and light rail security guards) refusing to wear masks and even allowing passengers to ride without wearing masks. I added that the regional transit authority and one of its sub-contractors arrogantly and ignorantly declaring that such passengers can ride and bus drivers need not wear masks.

To my profound, jaw-dropping astonishment, the police patrol manager informed me that “the only real law is Arizona law,” and my governor told us that we don’t have to follow that federal mandate.” Every law and regulation mandates, I said to correct for the man’s ignorant belief that a mandate is optional and does not have the force of law. I pointed out that state governments cannot constitutionally nullify federal law; South Carolina had learned this lesson in 1832. I also cited the Supremacy Clause of the U.S. Constitution. “Where did you learn that?” the policeman asked, “At Yale?” I had told him that I had studied political theory (as well as theology) at Yale. The man’s disdain for higher education was just as salient as was his sordid ignorance, and of course he presumed that he could not be wrong. Unfortunately, the local workforce in general was saturated by unbelievable ignorance that would presume itself to be infallible and lash out as if in getting even.

I reported my conversation as well as the messages from the regional transit authority and its TransDev subcontractor to the office manager of the Phoenix mayor’s office. I even called the city manager’s office and asked for a managerial level employee to return my call. Instead, a misleading intern called me. Meanwhile, nothing changed in the mass transit system. Given the decadence in the local culture, I would have been surprised had anything changed. I was most concerned that the city government would not pounce on such outrageous statements by a police manager concerning federal law. Such utter corruption and an inert local government could produce a toxic, perfect storm beyond the reach of the U.S. Justice Department to counter, for the local police department and regional transit authority (and its two operations sub-contractors) had become infused with the local culture. 

Specifically, I am referring here to the sense of entitlement that laws can be ignored or simply dismissed if they are inconvenient, and the defense mechanism of hostility in the face of having the bloated, self-serving sense of entitlement questioned or contradicted outright. For instance, I called the police non-emergency number in 2021 to report loud bass from cars at a self-serve carwash near where I was living at the time. The offender was still present when the police arrived. To my utter shock, one of the two patrol police employees claimed that no law prohibits loud noise in a residential neighborhood. "The business owner has posted signs--right over there--citing the Arizona statues and the local ordinance number (2-22). Would you take a look?," I countered in a calm voice that belied my real objection to his ignorance. "No, I won't," he objected like a child. So the man-child would not even go to the offending pick-up truck to speak with the young men. While I was waiting for the business owner to call me back, the man-child slowly followed me as if I were a suspect rather than witness reporting an ongoing, almost daily crime that the local police had failed utterly to stamp out. The man-child's sense of entitlement was evident not only in his lying about the law, but also his abject refusal to drive or walk over to one of the signs. He assumed himself infallibly to be on solid ground, from which he then tried to intimidate me (hostility). Getting back at me for what? What sort of sordid mentality invents retribution out of thin air? A week after I had reported the man-child's behavior to his department, I received a call from a patrol supervisor, who was intent on arguing with me by insisting that the sign read "No Trespassing." "I don't doubt that such a sign exists there, but that's not the signs that I was referring to when I said that the signs read 'No loud noise, no revving engines, ...' and at the laws are cited at the bottoms of the signs--one posted at each post." The woman hung up on me. There would be no accountability within that woefully stubborn and corrupt police department, which had lied to the FBI concerning another matter: intimidating protestors who were protesting against police brutality in 2020.  A dysfunctional culture, whether of a locality or an organization, is extremely difficult to cure. 

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[1] Liam Reilly, “NYC Mayor ‘Troubled’ by Video Showing Unmasked Officers Forcibly Removing Masked Subway Commuter,” CNN.com (October 21, 2021).
[2] Ibid.

Arizona’s Dysfunctional Business and Governmental Culture Creates a Crisis in the Coronavirus Pandemic

On January 15, 2021, the New York Times reported that Arizona had the highest 7-day daily average per capita of deaths and new cases of the new coronavirus, covid-19.[1] On one day, Arizona had 11,324 new cases.[2] “We’re the hottest spot in the U.S. and among the hottest spots in the entire world,” said Keith Frey, the chief medical officer for Dignity Health’s Arizona division.[3] “If we don’t slow this down over the course of the next days and weeks, then we will be fully into that crisis zone,” he added.[4] It would be a crisis of the state’s own making, and thus preventable but for the local culture at least in the Phoenix metro area. In other words, the crisis did not happen to Arizona; rather, the crisis was in large part homemade, and can thus be used as a window into a dysfunctional culture in the United States.

In spite of county and municipal laws and company policies on wearing masks in stores and on public transportation (buses and the light rail), many stores and the mass-transit company forbid employees from even asking incoming customers to wear a mask (or wear one correctly over the nose and mouth). Grocery stores were particularly problematic, with even their own employees walking around with impunity without masks on (properly). “We don’t enforce that requirement,” a grocery-store director told me. How, then, can the policy be considered to be a requirement? “It just is,” a store manager told me. That wearing masks was not only a company requirement, but also a city and county law was of no interest to the manager. “We don’t enforce the law,” he quipped. “But you are violating it by letting people in who are not wearing masks,” I retorted. This was not his concern.

The Phoenix metropolitan mass-transit company, and thus its two subcontracted bus-operating companies, also had a policy forbidding employees from enforcing the company’s own requirement and the local law. Some bus drivers would even not wear a mask or wear one without covering their noses and mouths! Some light-rail security employees subcontracted by the mass-transit company wore their masks over their chins too, as did a significant proportion of the rail passengers. Some security employees asked passengers to wear their masks correctly, while most of those employees did not. The notion that masks were required on the trains was a farce, and yet notwithstanding this, the company’s representatives had no problem defying logic itself by insisting that masks were required.  It was as if the company policy and the county law mandating masks on public transportation simply did not exist, and yet they did. “It’s not really a law,” a customer-service employee told me. Why? Because the county doesn’t have a legislature and only one of them can pass laws. The county board was apparently extra-governmental in nature.

Both retail and the mass transit were exploiting an exception, that of medical exceptions, to invalidate the rule. Incredibly, the stores and mass-transit company used this exception to justify refusing even to ask customers and passengers, respectively, to cover the nose and mouth area with an existing mask. People with medical conditions exempting them from wearing masks would not have masks on. The absurdity of allowing an exception (e.g., a medical condition) to condemn a requirement was permitted in the dysfunctional culture and amid a lack of accountability by regulators.

The problem was exacerbated by the political extremism that was salient in the state. A steadfast refusal to obey the law on wearing masks had a significant role in the number of people not wearing masks in stores and on public transportation. Such people could easily exploit the managerial incompetence both in retail and mass transit. It does not take long to realize that an intentionally-unenforced requirement is not a requirement, even if this point is not grasped by company managers. Yet the managerial dysfunction enabled this condition to go on for almost a year as of January, 2021. In such a political culture wherein a significant proportion of residents believe they are justified in breaking the law and ignoring company policies, it can be reckoned as inexcusable for companies to follow the invalid logic that the existence of an exception invalidates a rule (or requirement). In other words, it is negligence pure and simple. The lack of accountability, which was well-ensconced in the culture within companies as well as between businesses and local and state government, enabled the corruption that gave the virus the upper hand. It was as if the locals could not help themselves.

Moreover, the local culture wherein political extremism was salient allowed for the erroneous belief that the public good is simply the aggregate of individual wills. Where enough wills decide not to wear masks indoors in public and on public transit, the aggregate public good falls short of being above the ability of the virus to spread. The public good as merely the aggregate of individual wills thus is not good enough; it falls short of what the public good actually is (e.g., being greater than the ability of the virus to spread). The understatement of the public good can be understood too as the belief that the general will (e.g., Rousseau) is reducible to the aggregation of private wills.

The good of the whole, I submit, is more than the sum of the individual parts because some parts may even detract from the public good and thus understate it if it is taken to be merely the aggregation of individual wills. That the market value of a product is determined by the aggregate supply and demand does not mean that the public good is likewise determined. For one thing, the market value of a product is in a closed system (the aggregate supply and demand) whereas the public good is open-ended. In other words, the public good can be higher than the aggregate of the individual wills would have it because enough private-benefit-only wills can detract appreciably from what is the good of the whole. If enough people refuse to wear masks indoors in public places, and stores and even governments look the other way, the result is significantly below the good of the whole, which in this case is stopping the coronavirus. By its self-inflicted crisis, Arizona was functioning well below its own good, and a highly dysfunctional local mentality is to blame.

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1. Jordan Allen et al, “Coronavirus in the U.S.: Latest Map and Case Count,” The New York Times, January 15, 2021.

2. Alicia Caldwell and Ian Lovett, “Arizona Is America’s Covid-19 Hot Spot and on the Brink of Crisis,” The Wall Street Journal, January 15, 2021.

3. Ibid.

4. Ibid.

Ethical Human Resources Management

Ethics applied to human resource management is typically thought to boil down to treating subordinates well. Kant’s categorical imperative, treat other rational beings not just as means, but also as ends in themselves, applies to this sense of ethical HR management. Specifically, human beings are not only cogs in a machine; they have lives outside of work that should not be expected to reduce to serving the interests of the employer. Another side of HR management also exists, however, that concerns the handling of unethical employees. Such handling can be ethical or unethical.

Front-line employees who deal with customers whether in person or at a call center are especially subject to customer complaints. The choices that such employees make on how to deal with customer complaints regarding themselves can be ethical or unethical. For instance, an employee who resists a customer’s request to speak to the employee’s supervisor acts unethically by exploiting the conflict of interest. The conflict lies in the employee putting his or her own vocational interest above the interests of the customer and even the company. Gate-keeping refers to an employee’s efforts in getting the customer to say why he or she wants to speak with a manager so if the reason reflects badly on the employee, he or she can lie about a supervisor being available or insist that the customer speak only to the employee about the issue. Such an employee is operating at a primitive level—that of self-preservation—rather than as a duty-bound agent of a principal (e.g., a company).

I contend that a company’s management that does not have adequate safeguards against such an exploitation of a conflict of interest operates unethically with respect to its human resources. Should a customer inform a supervisor of a specific employee who is exploiting the conflict of interest and yet the supervisor does not set negative consequences for the employee and notify middle-management that the company’s safeguards against such exploitation are not sufficient acts unethically too. Safeguards are possible beyond relying on individual customer complaints. The latter strategy is flawed because the complaints that actually reach a supervisor are reduced in conditions in which employees can get away with exploiting the conflict of interest. Put another way, a company is unethical in relying on individual complaints to willow out problematic employees as a safeguard because it is hampered by the exploitation itself. Interestingly, whereas exploitation of employees is a common refrain, an employee’s exploitation of customers is less commonly known.

Stronger safeguards are ethical where their efficacy cannot be compromised by an employee’s exploitation of customers. Concerning phone calls, for example, the greeting could include the following: “At any time while speaking with a representative of the company, you can press 5 should you like to report a problem you are having with the representative.” The call could go to a designated manager who acts as a safeguard. In a store, a designated desk could be identified as the place where customers can go if they have had a problem with an employee. Unlike a typically customer-service desk, the person taking the complaints should hold a rank higher than that of the entry-level employees. Unfortunately, entry-level employees may tend to cover for each other, and thus extend the conflict of interest rather than curtail it.

Internal audit departments could definitely add assessing weak as well as presumably strong safeguards. Calls to respective customer-service departments could be made, and verification could be applied not only to those calls, but also on real complaints. Problems may be difficult to detect. As a case in point, the customer service process used by the regional transit authority in Phoenix, Arizona begins with an employee in Metro Valley’s customer-service department. Complaints on bus drivers are sent to their respective supervisors, yet they are known to cover for their respective drivers rather than provide accountability. Also, drivers circumventing company policies, including those regarding the coronavirus pandemic, has also been a major problem. Bad driving, such as braking too hard, and, relatedly, driving fast to accrue enough time to take smoking breaks, have also been endemic and beyond the reach the process of accountability. Aggravating the matter of accountability, the driver-supervisors work for the sub-contracted bus-operating companies; at least one of which dismissed videos of bad braking in 2018. In short, the customer-service department’s process of handling complaints and feedback is grossly inadequate, given the behavior of enough drivers and their supervisors. An audit would ideally uncover the corruption and come up with a process that takes the problematic drivers and supervisors (i.e., the dysfunctional culture) into account. Accountability is indeed difficult in such organizations in which employees regularly flaunt company policies and the immediate supervisors enable such behavior by refusing to enforce the policies even where unsafe driving and passenger health are concerned.

Corporate Federalism: Did AOL Miss an Opportunity?

Citing twelve past and present AOL employees, The Wall Street Journal characterized AOL in 2011 as a “culture of clashing fiefs and personalities created by a rapid series of acquisitions that haven’t jelled.”[1] Just in managing the likes of Michael Arrington and Arianna Huffington, Tim Armstrong had his hands full as CEO. Both Arrington and Huffington were strong defenders of editorial independence in their respective units. Arrington started a venture capital firm partly financed by AOL to invest in tech firms even as Arrington’s division at AOL, TechCrunch, wrote on technology firms. The problems for AOL went well beyond acquiescing in a structural conflict of interest of TechCrunch writing on particular tech companies while investing in some of them but not others. A person familiar with AOL said that Armstrong “had a macro vision that was right but didn’t have the right plan to implement it.”[2] That is to say, his visionary leadership was good but his strategic management was bad. Strategic leadership demands better. AOL may have been a good candidate for a federal system of governance because the publishing units needed some autonomy even at the cost of foregone corporate cooperation. 

In a federal system adapted to a corporation, each division or acquisition is like a semi-sovereign state with some autonomy from the general government, which includes the board of directors and the CEO. Were the board by analogy the constitutional court rather than part of the federal government, then it would be too easy for conflicts of interest to be exploited at the expense of division autonomy. This arrangement does not compromise the control that comes with property rights, for the shareholders would still be able to vote on major conflicts wherein a division claims that its autonomy is being compromised by a CEO or board.

The federation form—similar to the Japanese conglomerate “family” of businesses centered around a banking division though with each division having some autonomy from headquarter—is perhaps ideally suited to a publishing company in which pressure exists to tailor articles to particular companies favored financially by a division or the publishing company as a whole. In other words, reconciling editorial freedom (and credibility) with the synergy possible from corporate coordination (otherwise why make the acquisitions in the first place?) may be well-suited to the federal form wherein the parts and whole each of some areas of autonomy from the other. The limited autonomy itself must be in the stockholders’ long-term financial interest; this is not difficult, as sacrificing editorial freedom for immediate financial gain is typically detrimental in the long run. 

1. Jessica E. Vascellaro and Emily Steel, “Culture Clashes Tear at AOL,” Wall Street Journal, September 10-11, 2011. 

2. Ibid.

Taxation and Economic Inequality

The top 1% of U.S. taxpayers had 19.4% of the total income in 2007 and paid 28.1% of all federal taxes. In 1987, the top 1% had had 11.2% of the total income and paid 16.2% of all federal taxes. The share of total income going to the wealthy (income over $353,000 in 1987) and the share of federal income taxes they paid increased. That the poverty rate hit 15% in 2011 while the real wages of the middle and lower classes were back to mid-1990s levels suggests that the rich were getting richer as the poor were getting poorer; income and wealth inequalities were increasing. Differential impacts of a taxation regime can have an impact on a growing inequality, and thus on whether a society should adjust its tax structure. 

Although the share of taxes increased between 1987 and 2007, the 15% rate on dividends and capital gains put in place during the second George W. Bush administration meant that at the time, “many wealthy Americans [paid] considerably less because their earnings [were] derived from dividends or capital gains.”[1] 

Also, advantageous itemized deductions are more likely to be useful to a wealthy taxpayer, enabling a lower effective rate lower than that of a middle-class taxpayer. Few if any low-income taxpayers benefit from itemizing deductions. It could be that the standard deduction (and exemptions) are not sufficient to reflect the actual and necessary expenses—especially relative to income. So to claim that the bottom 1% should pay the same share of taxes as the top 1% ignores the fundamental difference between surplus and necessity. The symmetry of a bell-shaped curve does not apply because the incomes at the respective tails are qualitatively (i.e., not just quantitatively) different (e.g., relative to survival).

As for the effective rates, the unjust inversion with the middle class is not universally the case. For example, the top 400 taxpayers saw their effective federal income tax rate drop from 29% in 1993 to 18% in 2008. By comparison, households with income between $50,000 and $75,000 had an effective rate of 15% in 2008. These are averages, so there were doubtless cases of inversion where middle class taxpayers had a higher effective rate than wealthy tax payers. Depending on restoring justice to such cases does not go far enough in deficit reduction. That is to say, as just as it is, making sure millionaires are at least at the effective rate of the middle class may not go far enough, considering the seriousness and magnitudes of the U.S. deficit and accumulated debt. Given the sheer magnitudes, those who can afford to contribute more should be required to do so. It is doubtful that merely correcting for the effective rate injustice on a case by case basis would go far enough.

In 2009, for instance, 238,000 households filed returns with adjusted gross incomes of at least $1 million. Twenty-five percent of them paid an effective federal income tax rate of less than 15 percent, and 1,470 paid no federal income tax at all. Although the money involved dwarfs the number of taxpayers concerned, focusing on this “effective rate” injustice need not blind us to the fact that the increase to the treasury would fall well short of what is necessary to eliminate a deficit of over $1 trillion (not to mention paying down a debt roughly equal to the annual GNP of the U.S.). A macro justice matter concerns the role of the wealthy in reducing the deficits and debt—beyond the question of effective rates to address the inconvenience to the wealthy versus the pain from cuts to the poor.

To claim that the effective tax rate on the top 1% or even 5% of all taxpayers should be higher than the rates on lower incomes is not “class warfare.” Neither is the claim that those who can afford to contribute more money to reduce the deficit (and debt). The notion that those who can afford to contribute more follows from the principle that those who have means, rather than those who do not, should be relied on disproportionately, given the qualitative difference between surplus and sustenance. To suggest that everyone except those who are able should sacrifice to reduce a deficit is antipodal to the ethical principle of fairness. In other words, it is unfair to try to squeeze blood from a turnip while leaving the watermelons alone.

As easy as it may be to get bogged down on the percentages and dollar amounts, charts and graphs, pros and cons, the debate about taxation, spending cuts, and deficit reduction comes down to values. This is why the debate can get so heated, only we don’t take the cue and cut to the chase. We are perhaps too instrumental and utility-oriented; we miss the broader question of what we as a society value—who we are—things that are even if we don’t make it explicit. I submit, therefore, that the final paragraph below is much more significant than any of the figures and analysis above. Statistics can be manipulated to support virtually any point, whereas values go to the core in defining a society and its members.

A society that cuts its way to eliminating a deficit is saying something quite different regarding itself than a society that includes a solidarity tax on the wealthy. Solidarity itself can mean different things to different people, particularly when self-interest is consulted. How do we weigh society as dog-eat-dog relative to society as solidarity? In other words, is solidarity something more than society as an aggregation? Is it ethical to exempt the rich from paying more while making cuts to the sustenance of the poor? 

1.  David Kocieniewski, “A Tax Others Embrace, U.S. Opposes,” The New York Times, September 21, 2011. 

Bank One: Adding to Systemic Risk after the Financial Crisis of 2008

The financial crisis in September 2008 was indeed a crisis, and yet it is stunning how soon the American financial sector sought to undermine governmental efforts to guard against another such crisis. Exactly three years after the crisis, Republicans in Congress  repeatedly invoked the Dodd-Frank Act’s 848-page length and rules on trading derivatives and swaps as examples of government overreach at the expense of much-needed jobs. “Dodd-Frank is adding safety margins to the banking system,” according to Douglas Elliott at the Brookings Institution. “That may mean somewhat fewer jobs in normal years, in exchange for the benefit of avoiding something like what we just went through in the financial crisis, which was an immense job killer.”[1] To scrap the new law in order to save few jobs would thus be short-sighted even with regard to jobs. Wall Street's concern, however, was not jobs, but, rather, the loss of profit off high-risk trading. 

The banks had grown used to the higher risk and were not about to do without it in spite of its risk to the economy. The Dodd-Frank law “aims to rein in abusive lending practices and high-risk bets on complex derivative securities that nearly drove the banking system off a cliff.”[2] The banks themselves could not be relied on to forestall such “cliff-diving” because it could be so profitable. Nor could the banks be expected to look out for the financial system as a whole in the face of such profitability as the financial derivative instruments were making.

For example, at the Federal Reserve hearing on September 20, 2011 on Capital One’s proposed takeover of ING, John Finneran, Capital One’s general counsel, said the “acquisition of ING Direct will further reduce, rather than increase, any risk to the financial system.”[3] The combination would have around $200 billion in deposits (moving the bank from No. 8 to No. 5 in the U.S.),  however, which raised “questions about the deal’s impact on customers and the broader economy.”[4] John Finneran’s claim of lower risk thus required further support. To be sure, he did argue that the deal would “not lessen competition or result in any undue concentration of resources.”[5] He was thinking in terms of restraint of trade more so than systemic risk. Regarding the latter, John Taylor of the National Community Reinvestment Coalition, pointed to the risky subprime loans in the bank’s credit card portfolio. Before the hearing, he had asked, “We already have four too-big-to-fail banks. Why make a fifth?”[6]

That the proposal to carve up the four $1 trillion plus banks was summarily dismissed as Dodd-Frank was being written (with the help of the banking lobby, which Sen. Durbin said still owned Congress) was apparently not enough; preventing an increase in the number of mega-banks too big to fail would still go too far, at least from the vantage point of the banks and, presumably, the Republican party as well. This view was expressed by Dan Tarullo, a Federal Reserve governor. “While Congress instructed us to consider the extent to which a proposed acquisition would pose a greater risk to financial stability, it clearly did not instruct us to reject an acquisition simply because there would be any increase in such risks.”[7] I contend that Tartullo’s stance is wrongheaded and even dangerous.

The continued existence of banks with assets of over $1 trillion allows for enough systemic risk to tank the system. Increasing such risk by permitting Bank One to continue “amassing a big national banking franchise” ignored the risk of there being too much systemic risk in the system already. It is highly unlikely that merely increasing capital requirements for the biggest banks and providing for their possible liquidations reduced the systemic risk in the system to a tolerable level. Therefore, adding more systemic risk to the system should have been forbidden.  

1. Edward Wyatt, “Dodd-Frank Act a Favorite Target for Republicans Laying Blame,” New York Times, September 21, 2011. 
2. Ibid.
3. Ben Protess, “Capital One Denies ING Takeover Would Make It ‘Too Big to Fail’,” New York Times, September 21, 2011. 
4. Ibid.
5. Ibid.
6. Ibid.
7. Wyatt, "Dodd Frank."

American Federalism Eclipsed by an Ideal of Democracy: Education Over Immigration as a Constitutional Problem

The U.S. Constitution includes immigration as one of the listed (i.e., enumerated) powers of the federal government. Education is not such a power; hence it resides with the States. Historically, the accumulation of power by the federal government has involved taking areas from the States even though those areas are not listed as federal powers. As a result, American federalism has shifted increasingly toward a consolidation of power at the federal level. Among other means, Congresses and U.S. presidents have used the power of the purse to gain control from the States. Education is a case in point, whether elementary, secondary, or higher education. That the U.S. Government has had trouble controlling the country's southern border with Mexico suggests that maybe adding education has come at the expense of the added attention and effort that could have been put on immigration. In business terms, an opportunity cost (i.e., the cost of foregone benefits) comes with each additional federalized area. U.S. President Obama on education presents us with a case in point. 

“Our country used to have the world’s largest proportion of young people with a college degree,” the president said in 2011. “We now rank 16th. I don’t like being 16th; I like being No. 1.”[1]  Liking being at the highest rank is only natural. Wanting a more educated people is laudable, especially because an more educated citizenry is more likely to be able to maintain a republic instead of falling prey to "fake news" and a deceitful demagogue. 

By 2020, the influx of educated suburbanites from other States was changing Arizona politics, for example. A candidate for sheriff of Phoenix's county who had campaigned on standing up "to the mobs," with peaceful protests being included as if they were inherently dangerous rather than a constitutional right worthy of protection, lost. In truth, the mobs consisted of all of the uneducated residents--a large group, and thus with the numbers to vote in office-holders, given Arizona's rank of 49th out of the 50 States on elementary and secondary education in 2019. By 2020, the influx of new, more educated blood in Phoenix and some of its suburbs (not Glendale or Mesa) was beginning to compensate for the power of the uneducated in the State.

As laudable as more education is especially in the backward States, the ability of the U.S. Government to intervene comes with a cost in terms of federalism sliding into consolidated governance of a empire-scale country, which is inherently heterogenous (i.e., has differences within). One size does not always fit all in cases such as the U.S. and E.U. because the states are different culturally. My point is that to forestall consolidation in order to protect the checks and balances made possible only in a federal system. 

Education is problematic precisely because allowing the federal government in to shore up States such as Arizona puts one more nail in the coffin of American federalism, yet such States would otherwise continue to suffer from the uneducated being able to determine who holds public office. It is a paradox actually, in that the poorer, uneducated citizens are less able or inclined to hold their elected officials accountable between elections. In Arizona, for instance, people complain about "the police state" of nightly surveillance by police helicopters especially in the middle- and lower-class areas of the Phoenix metropolitan area, yet without defending their right to peaceable enjoyment. Yet those same voters vote into office the "law and order" authoritarian type of person who is inclined to take liberties with innocent people, being ignorant of the fact that even innocent people do not like being intimidated as if that were are necessary deterrent. 

In 2011, President Obama's visit to a city's school sent a good message wherein education should be valued, but it is also significant that the president overlooked the fact that education is not among the areas granted to the U.S. Government by the U.S. Constitution. He could have resolved this tension by urging that Americans urge their respective state officials to improve their education systems. Yet there would still be States like Arizona in which too many people believe that taxing constitutes stealing.

It is not as though the president of the United States had a lack of things needing his attention within the enumerated powers of the U.S. Government. In fact, state officials of some border States were stepping in to adequately enforce immigration law because federal officials were too ineffectual. That the federal government fought such assistance while continuing to encroach on State domains such as education evinces a desire to have it all; that is, a desire at the federal level to consolidate power rather than respect federal constitutional boundaries (as well as international boundaries such as borders). It was as if the person in charge of an association’s club house were resisting cleaning help by some of the members while going into their houses to try to clean them. Somehow the common sense advice to get one's own house in order before trying to order other houses, which is so needed to restore American federalism, has been missed at the federal level. 

To be sure, it is not as though the Obama administration was so consumed with visiting local schools that it would not have time or resources with which to better enforce immigration law. It is rather the accumulation of areas that are not included in the enumerated federal powers that has left the U.S. Government vulnerable to not doing enough in its own areas. 

Interestingly, while the president was acting as parent-in-chief at a local (rather than federal) school, his administration lost a case in federal court against Alabama’s immigration law enforcing the federal law. Among other things, the Alabama law “nullifies any contracts entered into by an illegal immigrant.”[2] Another section “forbids any transaction between an illegal immigrant and any division of the state,” and still another section “requires elementary and secondary schools to determine the immigration status of incoming students.”[3] Nothing here violates or nullifies federal law; in fact, Alabama was helping the U.S. Government with its task. In the E.U., where most power still resides at the State level, it is common for the state governments to be required to implement E.U. directives. In the U.S., where the federal level has accumulated so much to do, it makes even more sense that state governments would be required to do more of the legislating. "Congress is behaving like a state legislature," Justice Sandra O'Conner once told me when I asked her about the role of the federal government in eclipsing federalism by instituting a system of consolidated power.[4]

1.  Mark Landler, “Obama Urges Students to Set Their Sights on College,” New York Times, September 29, 2011. 

2. Campbell Robertson, “Alabama Wins in Ruling On Its Immigration Law,” New York Times, September 29, 2011. 

3. Ibid. 

4. Sandra J. O'Connor, Personal Conversation, Yale University. 

The Right of Political Protest in the U.S.: Nullified in the Outback by Intimidation

The First Amendment of the U.S. Constitution states in part, “Congress shall make no law respecting . . . the right of the people peaceably to assemble, and to petition the Government for a redress of Grievances.” Peaceable protest, even to protest a government or an official thereof, has come to be regarded as a staple of American democracy. In practice, however, the right can be eviscerated such that peaceful protesting is simply not worth the trouble. Such trouble can be orchestrated by a police force or even a government within the United States.
Implicit in the right to protest is the value put on tolerating the expression of contrary opinions. Conservative and progressive views, even those of racists and anarchists, respectively, are generally accorded the right to peaceably protest in a public way. If a State is sufficiently one-sided, however, public officials, including governors, majors, and police chiefs, can reflect the dominant attitude of residents that protests on behalf certain political, economic, or social ideologies should not be allowed. If they must be allowed, then massive shows of police force can—it is assumed--legitimately be used to intimidate the protesters.

The placement of the three posters illustrates pictorially that business and authoritarian political interests can co-exist comfortably in a broader political coalition. In Nazi Germany, for instance, the industrialists were part of Hitler's authoritarian political coalition. Besides receiving purchase orders from a state that is able to resist popular calls for government spending, business likes the political stability that a "law and order" police-state can provide. 

In Arizona, for example, prior to the 2020 election, a conservative candidate for sheriff of Maricopa County, which includes the Phoenix metropolitan area, displayed signs containing the imperative, “Stand Up to the Mobs!” Just above that line was another imperative—that the laws be enforced. Presumably the unenforced laws on car-emission limits and mask requirements on public transportation were not on the candidate’s mind. Presumably he was not planning on holding the transit authority accountable for allowing passengers without masks to ride the buses and light rail. A supervisor at Metro Valley told me by phone at the time that the county law (and ordinances of the cities) that face masks must be worn on public transportation does not have “legal force” because it is just a requirement. Stunned, I did not point out that her company was in violation of the requirement because even bus drivers did not have to wear masks; I had already investigated the strange messages coming out of that company, such as, “Masks are required and we will allow passengers to board without wearing them.”
The candidate for sheriff was likely referring back to the protests against police brutality (otherwise known as abuses of power). That he did not use the word, “Rioters,” instead of “Mobs” implies that he was including peaceable protests too. Given the bad connotation of the word, “Mobs,” as “a large and disorderly crowd of people” according to the Merriam-Webster dictionary, a negative attitude toward at least certain peaceful protests can be inferred. I had heard enough Arizona residents conflate “liberal” peaceful protests with riots to know what the candidate meant by mobs. “They are all violent,” one conservative resident insisted to me as I thought of the state’s pre-college education rating of 49^th out of the 50 States.
A few years after the 2016 presidential election, some students of Arizona State University told me that protests against Donald Trump had not really been allowed on campus. One student even observed that Arizona does not tolerate “liberal” protests. Besides the errant assumption that any mob of people is bound to become violent (which in turn rests on an extremely negative view of human nature rivaling that of John Calvin), anger against “liberals,” which was clearly evident locally, was likely behind the excessive police force designed to intimidate even peaceful protests.
With ASU police regularly staked out in jeeps parked on sidewalks and even academic courtyards, an excessive show of force has been the authoritarians’ tactic of choice to intimidate protesters even if they happened to be 20 students in the Global Politics of Human Rights class whose final project was a class protest on campus on April 13, 2017. The students protested against Trump’s policies on immigration, LGBT rights, women’s rights, Black Lives Matter, and even the prison system. 

The class was fluid in its movements, rather than being intent on blocking a sidewalk. (Source: Connor Bolget of The Republic)

As vaguely reported by a local newspaper, “At one point, Arizona State University personnel asked the group to relocate in order to stop blocking the sidewalk. Protesters then stood in a staggered line, with about a foot between each person, instead of standing shoulder to shoulder. Campus police then were called to the scene, as the protesters changed from holding signs to linking arms, walking back and fourth [sic] in front of the grassy area of Hayden Lawn.”[1] The word lawn is important, as the area is a large square of grass with sidewalks on the periphery.
Who were the opaquely labeled university personnel? In addition to the routine police presence on the campus, students working essentially as police aides typically have the campus covered (even sidewalk intersection to intersection). I have seen those security students keeping a particular eye on outdoor “political” tables near the student union building. It is possible that those student-security personnel notified the campus police of the class’s final project as a protest, which the police would have understood as such rather than as an academic project.

The walkie-talkie-clad "eyes and ears" for the campus police are ubiquitous on the main ASU campus--sometimes at every sidewalk-intersection even as observant police jeeps are stationed during the day on sidewalks and even academic courtyards. 

Did the university personnel and police over-react? The local newspaper reported, “Passers-by had some difficulties finding their way around the linked demonstrators, so ASU’s campus police stepped in to give a second warning, this time directly” to the professor.”[2]  That the protesters were few (20 with some add-ons) and were generally fluid (i.e., mobile) suggests that both the university personnel and the caller over-reacted. It would not be a crisis for by-passers (especially students) to walk on the grass, especially at that square. The police stepped in to give a second warning, so who gave the first? The student security workers? Given that students ordinarily walked on the grass and the small group was mobile, were two warnings really necessary? Should a university police force be able to interfere with a class project without permission from an upper-level academic administer? I suspect that the police took it upon themselves to threaten the professor as if she deserved to be arrested because students had to make a slight detour on grassy square. I also suspect that the police viewed the event as a political protest rather than as an academic project. That it was the latter means that the police should not have intervened without the permission of an academic administrator. Instead, the incident reflected the local culture wherein mobs protest and protests can be expected to turn violent. With such a negative view of protests even as a class project, it is easy to understand why threats and intimidation would be used with impunity.
Hence even the people in the peaceful protests against abuse-of-power by the police in Phoenix during the summer of 2020 (as distinct from the riots, which rightly have no constitutional protections) had to contend with massive police shows of force. Even a small protest on behalf of Ryan Whitaker had to put up with a police helicopter circling overhead as if twenty people might suddenly lose control of themselves and go on a rampage. A resident who lived near a park where protests against police violence took place told me that even peaceful protests walking to the park had to contend with an overwhelming police presence. I was talking to the other Midwesterner after a police car hit a parking lot curb as the police employee quickly swerved closely by me as I was walking from the main library, which was closed. No one was in the nearby park or even in the library’s parking lot that early afternoon during a weekday. Even though protests were taking place nightly, I contend that the police were over-reacting to one person walking through the parking lot. The aggressive driving was totally uncalled for, and yet the police employee likely, given the culture there, regarded it as measured rather than hyperactive. The underlying assumption, which I had heard from both local police and residents, is that any grouping of citizens in public is likely to turn violent without intimidation from an exaggerated show of force. That very assumption is what puts Arizona at odds with the First Amendment of the U.S. Constitution.
During that summer, the city’s mayor was bragging about how minimal the protests were there compared with those in other big cities in other States. If that differential was the result of intimidating peaceful protesters under the subterfuge that they would inevitably become violent because mobs are unruly, then the “success” came by trampling on the right of the people to assemble peaceably, which means without feeling intimidated. I would not call that success.

---

1. Conner Borgelt, “ASU Class Holds Protest as Part of Its Final Assignment,” The Republic (azcentral.com), April 14, 2017.
2. Ibid.