Critical Race Theory, Golf Strategy, and Enforcing Non-Compete Agreements

Sunday July 25, 2021

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Larry Bernstein:
Welcome to What Happens Next. My name is Larry Bernstein. What happens next offers listeners an in-depth analysis of the most pressing issues of the day. Our experts are given just six minutes to present, and that is followed by a question/answer period for deeper engagement. This week’s topics include critical race theory, golf strategy, and enforcing non-competition agreements.

Our first speaker today will be Robert Pondiscio, who is a senior fellow at American Enterprise Institute and author of How the Other Half Learns. He spoke to us on What Happens Next previously about the Success Academy. Today, he will speak about how critical race theory took over in U.S. schools.

Our second speaker will be Scott Fawcett, who created Decade course management system that allows golf players to optimize target selection that considers pin placement and risk of nearby hazards. He will discuss shot selection in golf.

Our third speaker is Michael Wexler, who is a personal friend of mine and is also a partner at Seyfarth with expertise in trade secrets, computer fraud, and non-competition agreements. I’ve asked Michael today to talk about the enforceability of non-competition agreements. Specifically, I want to hear about Biden’s new executive order, what do they mean and how will it impact these agreements? Second, what should public policy goals be? Should we prohibit non-competes for low wage employees? And third, today can firms and force a paid non-competition agreement for high wage employees who have had access to confidential information?


Robert Pondiscio

Topic: How Critical Race Theory Took Over in US Schools
Bio: Senior Fellow at American Enterprise Institute and author of How the Other Half Learns
Reading: How US Schools Became Obsessed with Race is here


Robert Pondiscio:
Thanks Larry. One of the most famous lines Ernest Hemingway ever wrote is in The Sun Also Rises, and a character is asked how he went bankrupt. “Two ways,” he responds, “gradually, and then suddenly.” Well the same pace can be made for how critical race theory has come to dominate the conversation about K12 education in the U.S. It may seem like it came out of nowhere, driven by the death of George Floyd and the Black Lives Matter movement, but it’s an overnight development that has been decades in the making.

If you’re an American public-school teacher age 40 or under, maybe 50 or under, you’ve probably never known a day when race wasn’t central to your profession and when efforts to close the achievement gap wasn’t a singular focus of education policy. I was in ed school 20 years ago. I had to demonstrate a “commitment to teaching for social injustice” as a graduation requirement. I was trained in culturally relevant pedagogy that’s informed by critical race theory. A major aim of the testing and accountability movement all the way back to No Child Left Behind more than 20 years ago has been aimed at closing the achievement gap.

I wrote a piece for Commentary Magazine about all this. It started with an email from John Podhoretz, the editor. He wanted an article on the California ethnic studies curriculum framework. I pushed back on that critique, because if there’s one thing I know about curriculum, it’s that it’s seldom ever taught as written. There was a RAND study a few years ago that showed that almost every teacher in America, literally 99% of elementary school teachers, 96% of secondary school teachers, draws upon “materials I developed and/or selected myself in teaching ELA, English language arts,” and a similar percentage for math.

Governors, state lawmakers, school boards have less influence over what gets in front of students on a given day than do Google, Pinterest, and the lesson sharing website Teachers Pay Teachers. Those are the three most common places where teachers go to look for lesson plans and curriculum materials. Nearly three out of four social studies teachers in a separate land report agreed with this statement, textbooks are becoming less and less important in my classroom, and that materials that teachers “found, modified, or created from scratch” make up the majority of what gets taught. Only one in four secondary school social studies teachers cited resources provided by their schools or districts as comprising the majority of what they use in class on a given day.

This suggests that while there may be good reasons to argue for or against state so-called CRT bans, they might not have the effect that you think. We actually know very little about what happens in a given classroom on any given day. So if advocates and activists think that they have accomplished anything by getting something put in or taken out of the state’s curriculum or frameworks or standards, they may very likely be mistaken.

Now mind you, this is not all a nefarious plot. There’s good reasons for teachers to differentiate materials, look the readings that engage students, et cetera. But let me give you a specific example of the 1619 Project. This is kind of a good example of the sort of choose your own adventure nature of curriculum and instruction. So the 1619 Project needs no introduction. I trust everybody is familiar with it. It made any number of controversial and widely discredited claims, including that the American Revolution was fought primarily to preserve slavery.

Well, a curriculum for the 1619 Project is produced by, by the Pulitzer Center. If you look at their website, they claim that more than 5,000 schools and classrooms in all 50 states are using it. But I found exactly three districts that have formally authorized it for use, and they are Chicago, Buffalo, and Newark, New Jersey. Now to be clear, the Pulitzer Center is not lying about the other 4,997. Teachers are doing what teachers do. They’re searching, they’re sampling, they’re looking for lessons and readings on a given day to engage students. How is it framed? What are the readings that are being assigned with 1619? It’s unknown and unknowable.

So what this means is that the curriculum and lesson planning, what children read and hear on a given day falls into a gray area between the culture of education and decades of case law. Courts have affirmed for years that local school boards wield nearly complete power to set curriculum. In the eyes of the law, meanwhile, public school teachers are considered “hired speech.” In 2007, an Indiana teacher lost her job for criticizing the impending war in Iraq. A federal appeals court ruled that, and this is a quote, “The First Amendment does not entitle primary and secondary teachers when conducting the education of captive audiences to cover topics or advocate viewpoints that depart from the curriculum adopted by their school systems.”

So there’s a tremendous gray area between what the law says and the culture of education in which teachers are encouraged to ally with students, to pick curriculum, to express their own opinions, as it were. There was an event that happened last year, where a teacher in Massachusetts went on Twitter and bragged about getting homework taken out of the curriculum. There was a lot of pushback. But the simple fact of the matter is she’s a part of a movement called Disrupt Texts, which describes itself as “A crowdsourced grassroots effort by teachers for teachers to challenge the traditional canon.”

Well, teachers generally don’t have the authority to mount a crowdsourced grassroots effort to challenge or set curriculum. So on the one hand, it would be impractical for school boards to weigh in on every instructional decision. On the other hand, if there’s a controversial issue like critical race theory, it would make sense that a wise teacher would think to himself or herself, “This might require some level or approval of authorization from a school administrator or district supervisor before I launch in.”

So where does this leave us? In some, professional education emphasizing social justice imperatives, and more than two decades of public policy in the gap closing had racialized K12 education long before critical race theory became a buzz phrase in the political football. The anodyne language of anti-racism … I mean, who isn’t opposed to racism … probably lands for most teachers as just the latest effort in a decade-long effort to improve education outcomes for students of color.

There’s nothing inherently wrong with ethnic studies, with culturally relevant pedagogy, even critical race theory in public schools. No reasonable objection will be made or accepted I think to the earnest desire for black and brown students, American children, after all, to see their histories and cultures woven firmly into their education.
The problem is that, in its more radical versions, we’re now seeing schools drifting into conflict with their public purpose. But the bottom line is it’s going to be very, very hard to dislodge critical race theory by any name. It’s been gaining ground in American K12 education for a very long time. The challenge of dislodging it from schools should not be underestimated.

Questions for Pondiscio

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Scott Fawcett

Topic: Shot Selection in Golf
Bio: Created DECADE Course Management System that allows players to optimize target selection that considers pin placement and risk of nearby hazards.


Scott Fawcett:
Thank you. Well, it’s often said that golf is like a microcosm of life and since life is all about problem solving and decision-making and dealing with frustration, which all checks out to me, it sounds like about every round of golf that I’ve ever played. You can really start taking a lot of just casual life advice and then trying to switch that into golf. And what I did with Decade was essentially optimized course management by combining millions of shots in the ShotLink database from the PGA tour with shot pattern information that we now have launch monitors. And so you’ve got to think of a shot pattern on the golf course as being like a shot gun glass.

I know that we all wish that we had a sniper rifle, but it’s just not what we have, and unfortunately for us also, when you fire your shotgun on the golf course, only one pellet comes out at a time and you really have no idea which one is coming next. And so really codifying the decision making process to where young junior golfers are able to think essentially like Tiger Woods after about three or four hours of either lecture or online content watching has really revolutionized the game. And essentially, if you watch any golf right now, Bryson deChambeau, Will Zalatoris, Maverick McNealy has a chance to win today. All of these young players that are doing some pretty amazing things on the PGA tour, essentially I’ve worked with, at least 95% of them. And again, I failed as a professional golfer, largely because I was a lunatic, and so trying to look back at what I did wrong and how mental I got on the golf course is really what I try to teach my young players, how to avoid those things.

And we use math to essentially have better expectation management. So, you’re not out there thinking you need to be hitting every shot close, making every single putt. Once you actually understand how many shots it should take to hole out from any given area, it’s easy to not know, I shouldn’t say it’s easy, it’s easier to not be a lunatic. And so really then you start learning that as scores, as you improve, as your scoring average drops through the 70s, which that’s a pretty high level of player, it’s definitely, I shouldn’t even throw out a number, it’s got to be in the top 10% of players out there. Your scoring average drops largely from making fewer bogeys far more than it does by making more birdies.

And so much of that is, it’s interesting because there’s so much of loss aversion in life and psychology, and so understanding that out there on the golf course, it’s actually a good thing to be worried about loss aversion all the time and trying to, I tell my players, I don’t want you to tip toe around and just try to not make mistakes. I want you to feel like you’re playing aggressively while you’re just tiptoeing around and trying to not make mistakes. So, what we’ve done is essentially quantify how large shot patterns is and then just overlay that with, again, a little bit of basic expectation that because at their core, all decisions are made from using some form of weighted average math, whether you realize it or not, even something as silly as crossing the street. I mean, depending on how big of a hurry you’re in, you’re going to probably want to hover right around 100%.

Whether you realize it or not, that’s actually what you’re doing with essentially every decision you ever make, where you’re just weighing the potential outcomes and then how important is it for you to cross the street? How important is it for you to try to make a birdie in any given spot? And so systems, the Decade system, is essentially just a checklist that codifies what experienced people have taken decades to learn in any given genre and that’s actually the reason I can call it Decade, Will Zalatoris, after I caddied him a few years ago when he won the Texas Amateur in the US Junior, he sent me a text afterwards that just said, I’ll never know how to thank you. You’ve given me 25 years of experience in five days. And so, you know what? I try to always encourage people, whatever your genre is, is to try to look for ways to systematize the decision-making process.

Mainly because as the brain is developing, and again, this is all just stuff, this was not intentional. I did create Decade on purpose. I did not think that it would change the way the game is taught, but what I’ve really come to realize over the last few years is that the developing brain, basically, it’s not that young people under the age of 25 are idiots, they’re actually really smart, they simply don’t have all of the pieces of the prefrontal cortex specifically, to synthesize all of the information that’s coming at you in order to make a coherent decision. Which is why 18-year-olds make far better soldiers than somebody like me with gray hair and a gray beard make, because I have enough experience to say that looks like a bad idea out there and they’re still young enough, not dumb enough, but just not experienced enough to say, well, I’m going to live forever.

So these systems help people that do not have a fully developed brain yet. And then beyond that, what I really try to get players to focus on and what I really used to be a little bit timid about talking about, I think timid is actually the right word, I was trying to think of a better one. The idea of just meditation, I’m a huge Sam Harris fan, and I used to think whenever I failed as a meditator back in my 20’s, when I was trying to play professional golf, I was under the impression that you were supposed to have no thoughts. And so naturally when my brain was constantly bombarded with thoughts, I thought I suck at this and would just head out the door and go right back to my fast paced brain. What the point of meditation really is, is rather recognizing these ruminating, recurring thought patterns and loops in order to stop them before they get out of control.

And in golf, so often people think, God, if I can go back 30 minutes, I would do this different or do that different and that’s obviously not the way any sports work and golf is no different than that. And Tiger Woods just recently, he was on a Golf Digest event where he was teaching Jada Pinkett Smith, was the day before his car wreck, he was teaching her how to play golf and how to think her way around a golf course. And they started talking about meditation, which honestly, I’ve known for a long time, I’m the exact same age as Tiger. I’ve known for a long time that he has played in a meditative state. Honestly, back in the late 90s, early 2000s, we thought he was playing golf hypnotized. And it’s really, this interview with Jada, she asked him, so when did you start meditating and Tigers to answer, he kind of laughed, and he said, when I was born.

And getting people to start seeing that we can talk about meditation. I’m going ahead just by answering my, what has me optimistic question right now? Dang it. But essentially just the fact that I used to feel like I was selling avocado and sprout sandwiches out in California anytime I would talk about meditation and now I feel really comfortable with all that and you’re starting to see it a lot more in the mainstream. So with golf, it really is about understanding that you don’t know what shot is coming next. The fact that we can make a math based decision in order to, again, codify the decision making process, and then for a lunatic like myself, hey dude, you actually can stop being a lunatic, you just have to have something like Sam Harris’s Waking Up and then an actual meditation practice where when you find yourself under the gun, you can finally take a deep breath, recognize that ruminating thought pattern, make a coherent math based decision and stop fritting away so many shots, which again is what most of us do in our lives on a daily basis.

Questions for Fawcett

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Michael Wexler

Topic: Are Non-Competition Agreements Enforceable?
1, Biden’s executive orders – what do they do and will they have an impact?
2. Should public policy goals disallow non-competes for low wage employees?
3. Can firms enforce a paid non-compete agreement for high wage employees who had access to confidential information?
Bio: Partner at Seyfarth with expertise in Trade Secrets, Computer Fraud and Non-Competes.


Michael Wexler:
Great. Thanks Larry. To answer the question specifically, are non-competition agreements enforceable, the general answer is yes, but that breaks down into two categories that you must consider when you take that answer. Number one, each of the 50 states in the United States differs with regard to how they treat non-compete agreements. And so there is an entire body of law in every single state where agreements are enforceable and enforceable in different ways? So that’s always a factor you have to consider. The second factor that needs to be considered. When we answer that question today is that over the past couple of years, non-compete law has been evolving and it’s been evolving because of different administrations in the White House, it’s been evolving because of different technology, it’s been evolving because of the movement with regard to low wage workers. And so now there are numerous factors that you have to consider when you answer that question yes.

Joe Biden signed an executive order July 9th. And in that executive order he said that he’s instructing the FTC to take steps to curtail non-competition agreements or to curtail things that prevent fair competition. Beyond that, President Biden did not put into place any criteria for the FTC to follow. So it is likely that the FTC will have to engage in an investigation, will have to come up with criteria with regard to how they might in some way curtail non-competition agreements.

But when you look at that in that context, you say, “Well, oh my gosh, isn’t the FTC going to do away with non-competition agreements because the president said in his executive order, we need to curtail those things?” But the reality is that when you then look at this in context, then in 2016, for example, President Obama at the time had a white paper that came out from the White House, and that white paper went into and talk a lot about non-competition agreements and various views and opinions as to whether they stifle competition in particular ways. So, then we take that 2016 demarcation point, and you look forward, and you say, “Well, what’s been going on over the past couple of years? And why does that matter?”

Over the past couple of years, approximately 20 or so states have put into place certain restrictions on who can sign non-compete agreements. And the general lay of the land with that is that in a number of those states, low-wage workers, and that is defined, depending on the state, in different ways. It could literally be looking at an average medium income. It could be looking at a set number and saying someone who makes under $30,000 or $40,000 can’t sign a non-compete agreement, but that differs by state. And that was basically meant to protect lower wage workers, so that they could work in one place and go to another place and not have an agreement hanging over them that prevents them from getting opportunities to make more money, to better their lives, to better their family’s lives.

So, when you take all of this in context, and you say, “Well, is a non-compete enforceable?” Well, yes it is. And when we talk about non-competes, in almost every state, you have a couple of criteria that put this into the context as to why you have to have non-competition agreements to protect certain things. And most states will say that non-competition agreements are meant to protect trade secrets. So, a secret formula, the secret sauce. Could be pricing, could be margins, could be a secret process, a manufacturing process. It could be a lot of things that a business uses in order to manufacture, to make a product, to sell a product, to provide a service.

And when you do those things, obviously, a business invests in the resources. They invest the time in order to come up with these things that they want to protect, because that’s what they sell. That’s what they sell, either a product or a service to the general public. And that’s how they make money.

Also, you can use a non-competition agreement generally to protect customer relationships. A business will invest over many years in relationships, and the investment that they make to develop a relationship, to get a customer, to have that customer to continue to buy products or services from them, that investment is worthy of protection, generally, in most states.

And then, I suppose as a third thing, that some will say that non-competition agreements are meant to protect. And that’s workforce, that a business will train people. They will compile. They will employ people, and through training and through time, they have a stable workforce. They have a workforce that is educated in their particular product or services. And then, non-competition agreements meant to also protect that.

So, when you put all of this in context, the reality is, is that a business then has to look at what are they protecting? Well, we’re protecting customer relationships. We’re protecting our workforce. We’re protecting the product, the service that we sell. And if you look at that, and you say, “Well, are agreements enforceable?” Well, sure. They’re enforceable, because at the end of the businesses won’t invest money in order to come up with services and products if they can’t protect it.

So, when we talk about should there be a public policy that disallows non-competes for low-wage employees, it’s probably a good thing in certain circumstances, when you look at the type of employee that we’re talking about. How much money do they make? What role do they fill? Is it someone who literally turns a knob on a machine in a manufacturing line, or is it someone who is actually creating the formula for the particular product that someone’s selling?

So, when we put that in context, it makes sense that there may be public policy to limit who we apply non-competes to. And then, we talk about, when we then say, “Well, who has this information? Who has the information that we need to protect?” And so, when you look at high-wage employees, let’s take a CEO. Let’s take a CFO. Let’s take vice presidents, executive vice presidents, regional managers, those types of employees. They have a lot of information about a business, and that’s the information that needs protection. They have a lot of access to customers and a lot of information about customers.

And so, in those contexts, states, of course, will want to protect those things and protect businesses, because those people who have, we like to say, “More keys to the kingdom,” if they have more keys to the kingdom, they make higher wages. Then, those are folks that we want to have non-competes, because they’re the individuals who could most likely hurt a business if they go to a competitor and they share information, if they go to a competitor and they start going to the same customers that they worked at with their prior employer.

And so, the concept that you pay someone for a non-compete or higher-wage employees, that’s a concept that’s rooted in old England from many moons ago. And folks in the financial services industry in particular, they were placing evergreen provisions, provisions where someone would leave a business. They would be paid by that business to not compete for a period of time. Today, depending on the state, some states may require an evergreen type provision. Other states simply require that you give consideration when someone signs an agreement.

So, at the end of the day, even in states where people think non-compete agreements aren’t enforceable, and we’ll use California for a quick moment, because that always comes up. California, you can’t force non-compete. Well, you can, under certain circumstances. It’s not a complete ban. There are circumstances where you could enforce there. There’s circumstances where you can enforce in other states, where folks typically hear, “Oh, you can’t enforce there.”

Well, in most states, almost all states, frankly, you can enforce a form of non-compete agreement under certain circumstances, including sale of a business, including a situation where you provide payments to someone not to compete and other criteria. So, the short answer to the question that we started with is, are non-competition agreements enforceable? And as a general matter, they are. And when you put it in context, then you can understand that.

And so, this is what the FTC will be looking at over, I suspect, the next several months, couple of years. And my prediction is, is that there will not be federal legislation to address non-competition agreements. There might be some FTC rules, but at the end of the day, states will likely still continue to have laws and have legislation and have case law from judges that will tell us are agreements enforceable and how and when are they enforceable.

Questions for Wexler

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