FEE: 5 Things I Learned Debating the Prof Calling for Ban on Homeschooling

Kerry McDonald of the Future of Economic Education recently debated (video through link) Harvard Law School professor Elizabeth Bartholet who had called for a “presumptive ban” on homeschooling. In 5 Things I Learned Debating the Harvard Prof Who Called for a “Presumptive Ban” on Homeschooling she discusses her takeaways from the debate.

On Monday, I debated the Harvard professor who proposes a “presumptive ban” on homeschooling. Thousands of viewers tuned in to watch the live, online discussion hosted by the Cato Institute. With 1,000 submitted audience questions, the 90-minute webinar only scratched the surface of the issue about who is presumed to know what is best for children: parents or the state. Here is the replay link in case you missed it.

Last week, I outlined much of my argument against Harvard Law School professor Elizabeth Bartholet that I incorporated into our debate, but here are five takeaways from Monday’s discussion:

While this event was framed as a discussion about homeschooling, including whether and how to regulate the practice, it is clear that homeschooling is just a strawman. The real issue focuses on the role of government in people’s lives, and in particular in the lives of families and children. In her 80-page Arizona Law Review article that sparked this controversy, Professor Bartholet makes it clear that she is seeking a reinterpretation of the US Constitution, which she calls “outdated and inadequate,” to move from its existing focus on negative rights, or individuals being free from state intervention, to positive rights where the state takes a much more active role in citizens’ lives.

During Monday’s discussion, Professor Bartholet explained that “some parents can’t be trusted to not abuse and neglect their children,” and that is why “kids are going to be way better off if both parent and state are involved.” She said her argument focuses on “the state having the right to assert the rights of the child to both education and protection.” Finally, Professor Bartholet said that it’s important to “have the state have some say in protecting children and in trying to raise them so that the children have a decent chance at a future and also are likely to participate in some positive, meaningful ways in the larger society.”

It’s true that the state has a role in protecting children from harm, but does it really have a role in “trying to raise them”? And if the state does have a role in raising children to be competent adults, then the fact that two-thirds of US schoolchildren are not reading proficiently, and more than three-quarters are not proficient in civics, should cause us to be skeptical about the state’s ability to ensure competence.

I made the point on Monday that we already have an established government system to protect children from abuse and neglect. The mission of Child Protective Services (CPS) is to investigate suspected child abuse and punish perpetrators. CPS is plagued with problems and must be dramatically reformed, but the key is to improve the current government system meant to protect children rather than singling out homeschoolers for additional regulation and government oversight. This is particularly true when there is no compelling evidence that homeschooling parents are more likely to abuse their children than non-homeschooling parents, and some research to suggest that homeschooling parents are actually less likely to abuse their children.

Additionally, and perhaps most disturbingly, this argument for more state involvement in the lives of homeschoolers ignores the fact that children are routinely abused in government schools by government educators, as well as by school peers. If the government can’t even protect children enrolled in its own heavily regulated and surveilled schools, then how can it possibly argue for the right to regulate and monitor those families who opt out?

Of all the recommendations included in the Harvard professor’s proposed presumptive ban on homeschooling, the one that caused the most uproar among both homeschoolers and libertarians was the call for regular home visits of homeschooling families, with no evidence of wrongdoing.

In my remarks during Monday’s debate, I included a quote from a Hispanic homeschooling mother in Connecticut who was particularly angry and concerned about imposing home visits on homeschooling families. (According to federal data, Hispanics make up about one-quarter of the overall US homeschooling population, mirroring their representation in the general US K-12 school-age population.) She made the important point that minority families are increasingly choosing homeschooling to escape discrimination and an inadequate academic environment in local schools. She also pointed out that, tragically, it is often minorities who are most seriously impacted by these seemingly well-meaning government regulations. Writing to me about Professor Bartholet’s recommendation, she said:

“To state that they want to have surveillance into our homes by having government officials visit, and have parents show proof of their qualified experience to be a parent to their own child is yet another way for local and federal government to do what they have done to native Americans, blacks, the Japanese, Hispanics, etc in the past. Her proposal would once again interfere and hinder a certain population from progressing forward.”

Anyone who cares about liberty and a restrained government should be deeply troubled by the idea of periodic home visits by government agents on law-abiding citizens.

Despite the landmark 1925 US Supreme Court decision that ruled it unconstitutional to ban private schools, there remains lingering support for limiting or abolishing private education and forcing all children to attend government schools. Homeschooling is just one form of private education.

In her law review article, Professor Bartholet recommends “private school reform,” suggesting that private schools may have similar issues to homeschooling but saying that this topic is “beyond the scope” of her article. Still, she concludes her article by stating that “to the degree public schools are seriously deficient, our society should work on improving them, rather than simply allowing some parents to escape.”

The government should work to improve its own schools, where academic deficiencies and abuse are pervasive. But it should have no role in deciding whether or not parents are allowed to escape…(continues)

FEE: Police Accountability Begins With Ending Qualified Immunity

Ben Harris at the Foundation for Economic Education writes that Police Accountability Begins With Ending Qualified Immunity

Following the death of George Floyd, peaceful—and less than peaceful—protests have broken out across the country against what is perceived as an abusive police system that often absolves officers of wrongdoing, sometimes in the most egregious cases. To address unjust policing and restore public trust will require big changes in state and federal policy, as well as in police practice.

Unfortunately, the Supreme Court has just passed on an opportunity to effect such change. Several petitions requesting the Court to re-examine a legal doctrine known as qualified immunity were recently denied, leaving little hope that the Court will take the lead on needed reform. Only Justice Clarence Thomas voiced dissent.

Qualified immunity grants police officers and other government officials immunity against civil lawsuits in the exercise of their responsibilities, subject to key limitations. Among the limitations outlined originally by Congress, a police officer loses immunity when he or she, “subjects… any citizen of the United States or other person within… to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.”

Over the years, the Court has functionally neutered Congress’s original objective of holding public officials accountable for the violation of civil rights. As the case law has developed, the police and other officials receive immunity unless the facts indicate a constitutional right has been violated and the right was “clearly established” at the time of the misconduct.

The term “clearly established” is the minnow that has swallowed the whale.

To determine whether the right was clearly established, it must either be established by statute or case law. But which case law? The Supreme Court can “clearly establish” something as a right, but it rarely does so. Appeals courts have held they can clearly establish a right, but the Supreme Court has cast this assertion into doubt. So the lower courts are left with a Catch-22. They cannot enforce a right without it being established, but the only way to establish the right is to enforce it.

This has led to some of the most egregious case law in recent history. For example, the Cato Institute cites a Ninth Circuit case that alleged the police stole $250,000 in cash from homeowners. “The three‐​judge panel held that while theft may be “morally wrong,” the officers could not be sued because the Ninth Circuit had never specifically considered the issue, and therefore the right not to have police steal your property while executing a search warrant was not “‘clearly established’ in that jurisdiction.” Additionally, the Supreme Court has aggressively policed qualified immunity, supporting officers and dismissing petitions of citizens that would establish those rights.

We do not tolerate such behavior among private citizens; even less should we tolerate it among public servants, who, if anything, should be held to higher standards, not lower. Yet, the current state of the law holds officers to standards lower than is reasonable even for basic citizenship, let alone for their profession, and to avoid facing personal liability for their actions. While doctors and other health care professionals, lawyers, and even general laborers are held to standards of reasonableness appropriate to their work environment, often a more exacting standard, law enforcement is given a bar so low that nearly all conduct clears it.

When the Court created qualified immunity, its concern was that public officials would be deterred from executing their important responsibilities if mired in lawsuits. The Court’s concern is not completely unfounded. Law enforcement is a dangerous job and imposing the cost of a potential civil suit could discourage people from becoming police. However, these concerns are mitigated when provided additional context.

First, policing is not as relatively dangerous among professions as is commonly held. Bureau of Labor Statistics data indicate that log workers, fishery workers, aircraft engineers, roofers, garbage collectors, and many others all have more dangerous jobs than the police.

Second, the risks and costs of civil lawsuits can be managed through insurance markets, just as it is for other professions. Such insurance markets could also be a further check on police abuse. As Clark Neily of the Cato Institute has written:

Like police, doctors have a difficult and stressful job that sometimes involves making life‐​or‐​death decisions under conditions of uncertainty. But unlike police, doctors don’t expect the rest of us to pay for their mistakes. Instead, doctors carry professional liability insurance, which pays to defend them against malpractice claims and protects them from financial ruin by paying out damage awards to successful plaintiffs.

Insurance companies are exceptionally good at identifying risk. Think about car insurance. The more accidents or speeding tickets a driver has had, the higher their premiums will be. The same is true for teenagers, who tend to get in more wrecks than adults and therefore represent a greater risk to the insurance company.

Instead of spreading those risks among all of their policyholders, insurance companies charge risky drivers more while giving a break to their safest drivers, who pay less.

…insurance companies have powerful incentives to identify the greatest risks — whether drivers, doctors or cops — and charge them accordingly. If cops had to carry insurance, the worst offenders would quickly be identified and charged higher rates. If they failed to clean up their act, they would eventually become uninsurable and thus unemployable.

Currently, qualified immunity pushes the cost of police misbehavior onto victims and the public, but because those costs are diffused among many and the benefits concentrated among a few, it is difficult to muster the political momentum necessary to turn it around. Politics remains a barrier to reform.

Additionally, reducing police accountability in the short term is not only unjust, it also undermines the objectives of those who tolerate high leeway for the police. When members of society do not trust that law enforcement will be held accountable for its failings, mostly at the expense of a few, then it impacts the ability of law enforcement to protect people. When law enforcement is truly needed, such as to control rioting and violence, trust that any aggressive interventions are fair and reasonable will have already been compromised, which in turn leads to less trust and more potential rioting, which leads to more heavy-handed police interventions and so forth.

Abolishing qualified immunity raises the costs of misbehavior. And as the cost of abuse increases so will the reputation of law enforcement as an institution that serves all, as bad actors are priced out of the occupation.

But now the cycle is spinning in the opposite direction, largely due to qualified immunity. And it will continue to spin out of control until steps are taken to restore accountability for, and thus trust in, law enforcement.

Access to justice is a sign of an inclusive civilized society, and righting harms through civil law plays an important part in curbing injustice and providing redress to the injured. The Supreme Court has created a system that undermines Congress’s original intent to hold law enforcement accountable and denies civil law remedies to those who have been wronged.

Fortunately, Rep. Justin Amash has introduced a bill to end qualified immunity. Since the Court has proven derelict in its responsibility to defend the constitutional rights of Americans, it is now up to Congress to decide whether they will fulfill that duty.

FEE: The Ring-around-the-Rosies Phenomenon – Why Playful Responses to Plagues and Pandemics Are Healthy

From the Foundation for Economic Education, The Ring-around-the-Rosies Phenomenon: Why Playful Responses to Plagues and Pandemics Are Healthy

y older sister took great pleasure in telling a younger-me the dark history behind the nursery rhyme, “Ring-around-the-Rosies.” She told me that the cheerful tune was written about the Black Death: the “pocket full of posies,” refers to small bouquets of sweet-smelling herbs the healthy would carry close to their noses in order to protect themselves from foul-smelling and “contaminated” air; the “falling down” represents death, as is parodied by the accompanying action; and the “ashes” sung about are ashes of that sort.

Needless to say, this isn’t a pleasant backstory (nor an accurate one). In high school, however, I witnessed something which made it incredibly believable. During a school camping trip, at the height of the Ebola crisis, I watched a group of grade-schoolers play a game of their own development: Ebola-tag. Much like a version of tag (given many different names, though I called it ‘blob-tag’), any tagged child would “catch Ebola” and also be “it,” linking arms with their infector.

The children playing didn’t see anything wrong with their game. The parents watching didn’t stop them. At a time when every news agency was sharing the most recent and concerning statistic, it was a small relief to see Ebola momentarily sanitized by children’s laughter.

As the current Covid-19 pandemic became such, I wondered if my youngest brother would be playing similar games, even as I prepared to return from college. He’s empathetic and sweet—but also 10. When I got back, he wasn’t conforming to the pattern; and so, I forgot my curiosity.

That curiosity was soon unexpectedly satisfied, however: I learned that a friend’s siblings had begun playing their own coronavirus tag! The game revolved around the etymology of the virus, which was named for its spiky, crown-like protein protuberances, and their version of tag was one in which the person who was “it” wore a crown, which they would pass off to those they tagged.

Nor is this phenomenon, which I will simply term the “Ring-around-the-Rosies Phenomenon,” unique to children. Adults are engaging in it too, albeit not necessarily in games or play-acting. Perhaps you’ve heard the viral remix of Cardi B’s coronavirus rant. Or heard one of the specially compiled quarantine playlists. And it would take a Herculean effort to avoid the countless pandemic memes and jokes adults and young adults are making en masse.

Playful responses to this sort of tragedy, aren’t new—there were jokes even in 1918 about the Spanish Flu. This sort of black humor isn’t unhealthy. Many Americans are panicking about the pandemic (as evidenced by empty toilet paper shelves across the nation) and many, also, are ignoring it. The cultural saturation furthered by playful coronavirus references threatens the security of deniers, but may also comfort panickers…

Click here to continue reading at FEE.org

FEE: Coronavirus May Lead to “Mass Homeschooling”

From the Foundation for Economic Education comes this article on how the coronavirus pandemic could lead to more homeschooling because of school closures.

s fears of coronavirus mount around the globe, cities and countries are taking action to prevent the new respiratory virus strain from spreading. While the virus has not yet hit hard in the United States, government officials and health agencies have enacted response plans, corporations are halting travel abroad, and education leaders are grappling with what a widespread domestic outbreak of the virus could mean for schoolchildren.

In countries where the virus is active, schools have been shut down and children are at home, learning alongside their parents or through online education portals. The New York Times reports that US schools have been prompted this week by the Centers for Disease Control and Prevention to prepare for a coronavirus epidemic that could shutter schools and require alternate forms of teaching and learning outside the conventional classroom. According to Kevin Carey of the New America think tank, who spoke to the Times, coronavirus in the US could lead to “a vast unplanned experiment in mass home-schooling.”

It’s unfortunate that it takes a viral epidemic to spotlight the many alternatives to conventional K-12 schooling.

Indeed, in Hong Kong this is already occurring. The coronavirus outbreak led to orders for schools to be shut down in the city for two months, affecting 800,000 students. An article this week in The Wall Street Journal declares that “coronavirus prompts a whole city to try home schooling,” noting that in Hong Kong many children are completing lessons virtually through online learning platforms or receiving live instruction from teachers through Google Hangouts or similar digital tools.

It’s unfortunate that it takes a viral epidemic to spotlight the many alternatives to conventional K-12 schooling. Not only is homeschooling widely popular in the US, educating approximately two million children nationwide, but other schooling alternatives, such as virtual learning, microschooling, and hybrid homeschooling continue to sprout.

Interest in online learning options is sure to increase as the coronavirus spreads, but other in-person schooling alternatives are also likely to gain notoriety.

Virtual learning programs such as the Florida Virtual School, founded in 1997 as the nation’s first fully online public high school, and K12, Inc., one of the largest providers of virtual schooling, enable young people to take a complete course load and earn a high school diploma without sitting in a traditional classroom environment. Supplementary online programs, such as Khan Academy and Outschool, expand learning options and allow young people to dig deeper into topics that interest them or those in which they may need some additional help.

Interest in online learning options is sure to increase as the coronavirus spreads, but other in-person schooling alternatives are also likely to gain notoriety. Microschools, for example, are small, home-based, multi-age learning environments that act like a one-room schoolhouse, typically with no more than 8 to 12 students at a time. Prenda is a fast-growing network of these branded, in-home microschools, with more than 80 schools in Arizona alone serving some 550 students, and plans to expand out-of-state.

Like microschools, hybrid homeschooling programs and small, community-based classes for homeschoolers are also gaining popularity and may be swept into the limelight if conventional schools are forced to temporarily close. Operating with small, age-mixed groups of children, these hybrid models and classes offer an alternative to institutional schooling, avoiding large classrooms and crowded buildings. I have recently launched a marketplace platform, Unschool.school, that connects educators, parents, and learners to these homeschooling models and out-of-school learning experiences, fostering small group, in-person interactions in local community spaces, such as art studios, makerspaces, and spare dining rooms.

These emerging learning options outside of traditional schooling show not only that “mass homeschooling” is possible but also that it may be highly desirable. Personalized learning, small group interactions that build community and connection, and education without the coercion inherent in standard schooling are beneficial whether or not a pending epidemic is what exposes families to these education possibilities. Mass homeschooling may be just the cure we need.

WA Policy Center: King County Judge Upholds Most of I-976

From Washington Policy Center on the present fate of I-976 which passed in voting, but which state administration officials are fighting tooth and nail. I-976 put limits on motor vehicle taxes and fees and was supposed to take effect on Dec. 5, 2019, but has been on hold pending legal challenges.

King County Judge Marshall Ferguson dismissed all but two constitutional challenges to Initiative 976 today.

Notably, he declared that the plaintiffs did not satisfy the burden of providing beyond a reasonable doubt that I-976 violates single-subject rule or subject-in-title rule, both in Article II Section 19 of the Washington Constitution.

The court noted the ballot title is “general, not restrictive.” The initiative broadly addresses motor vehicle taxes and fees in the title, and the court agrees that Sections 2-11 and 13 of the initiative directly address motor vehicle excise taxes.

The arguments given by plaintiffs that the initiative violates the subject-in-title rule also failed to establish a violation. The court asserted that per previous case law, an initiative ballot title “need not be an index to the contents, nor must it provide details of the measure.” The initiative’s ballot title provided “sufficient notice that the initiative repealed vehicle-related taxes and fees.”

Other constitutional violation claims that were thrown out include:

The two that remain, and are why the initiative remains on hold, are claims under Article I Section 12 and Article I section 23 of the state Constitution, “regarding [Kelley Blue Book] and Burien bonds.”

The first claim has to do with government using the private company Kelley Blue Book valuations, which are a proprietary product, to determine vehicle-related taxes. Plaintiffs argued that calculating car tabs based on Kelley Blue Book values would require the state to contract with the company and would “grant…special contractual privilege to a corporation,” which would violate Article I Section 12. Whether that is true requires additional discovery.

Interestingly, the state already uses Price Digests, as well as Kelley Blue Book and National Auto Dealers Association values for vehicles and boats to establish if they are worth less than the average fair market value. Surely this doesn’t require a contract between DOL and these various companies?

The second claim regarding the City of Burien pertains to whether I-976 could impair their municipal bond contracts, which may or may not depend on revenue from the city’s Transportation Benefit District vehicle fees. Additional discovery has to be conducted to determine if bond contracts would, in fact, be impaired.

While these two issues remain outstanding, the initiative remains on hold and people will continue to be charged high car tab taxes and fees. We anticipate there will be appeals and will continue to track this issue and its impact on the state transportation budget now being developed at the legislature.

Tenth Amendment Center: The Presidency is Too Powerful

The following article was written by Trace Mitchell at the Foundation for Economic Education, but republished at the Tenth Amendment Center. In The Presidency is Too Powerful Mitchell lays out an explanation for how President after President has drawn more power to the office. And his analysis there is correct – Presidents have sought to increase the power of the office. However, after giving an example of President Trump’s rhetoric over China Mitchell says “That is how we got to where we are today.” This, unfortunately, ignores the fact that Congress on its own initiative has shifted more power to the executive over time through their desire to escape responsibility. Mitchell touches on it when he talks about Congress delegating their power, but he only puts it in terms of a response to Presidential rhetoric. Congress has accomplished this escape from culpability by unconstitutionally transferring their power and duty to pass all laws to various administrative agencies in the executive. The executive branch now writes administrative law which is enforced by executive agents and judged in executive administrative courts.

This problem was being noted as early as 1944 in a Virginia Law Review article titled “Administrative Law: A Threat to Constitutional Government?” There are times when Congress finds itself at an impasse over certain issues. They know that an action must be taken, but it get done in Congress because of political interests. Sometimes they are able to pass this off to independent committees which decide the outcome and Congress decides that they will vote yea or nay on the committee’s decision without subjecting it to further debate. Other times, though, Congress will simply pass a law that authorizes an executive agency to create the laws covering an area. Congress wins because they can tell their constituents that they acted to resolve an issue, but any negative outcomes can be blamed on the executive agency. Representatives are happy because they can’t be held accountable. Presidents are happy because the executive branch has more power. Citizens lose doubly.

An excerpt from The Presidency is Too Powerful:

Even if Trump does not have the power to directly order all U.S. firms to cease trade with Chinese corporations, the discretionary power held by the executive branch is strong—so strong that he may be able to achieve a similar outcome through other means. He could impose massive tariffs so large they essentially act as de facto prohibitions. He could threaten noncompliant firms with harsher regulations or enforcement that is more aggressive. He may be able to achieve his goals indirectly even if he cannot achieve them directly.

Either way, rhetoric like this shifts the Overton window further and further. We begin to accept things that seemed entirely unacceptable not long ago. We become desensitized. The dividing lines between the different branches of government become increasingly blurred. That is how we got where we are today.

Executive overreach is not a new phenomenon, but it does have an accumulative effect. Each president is able to get away with a little bit more, typically under the guise of an “emergency.” Slowly they amass greater and greater power. Slowly the concept of strictly limited, enumerated powers deteriorates. While each president since the founding has attempted to increase the scope of their power, this behavior took a new form after Woodrow Wilson.

Wilson was able to take advantage of an overly ambitious president’s best friend: war. As FDR’s Attorney General Francis Biddle said, “The constitution has not greatly bothered any wartime president.” Wilson began by going after one of the most fundamental constitutional guarantees: freedom of expression.

After being inaugurated into his second term, Wilson asked Congress to give him the authority to censor the press during times of war, to criminalize the promotion of America’s enemies, and to combat literature that was “of a treasonable or anarchistic nature.” Congress listened and passed the Espionage Act of 1917, which gave Wilson almost everything he asked for except the ability to censor the press. However, just a year later the Espionage Act was amended with the Sedition Act of 1918, which provided for more government surveillance of its citizens and further limited speech that was viewed as detrimental to the government. Wilson finally amassed most of the power he wanted.

Franklin D. Roosevelt continued this legacy of expanding executive power during times of distress. In fact, during his first week in office, FDR used the Trading with the Enemy Act of 1917—a law granting the president vast economic powers during times of war or national emergency—to order a “bank holiday” in order to prevent bank runs. This was particularly aggressive because the act did not give him the power to regulate the domestic economy. Since FDR, executive power has continued to expand and grow, increasing more and more under each successive president. Truman, Eisenhower, Kennedy, Johnson, Nixon, Ford, Carter, Reagan, Bush Sr., Clinton, Bush Jr., Obama, and Trump have each used and built upon the powers seized by their predecessors.

The Founders were afraid of this exact scenario. James Madison, often referred to as the “Father of the Constitution,” wrote that power “is of an encroaching nature” and thought “it ought to be effectually restrained from passive the limits assigned to it.” To combat this tendency, he created a system of checks and balances where each branch has significant authority over their domain and can limit the power of the other branches. Or, in the words of the great modern philosopher Kanye West, “No one man should have all that power.” However, Madison did not predict that branches would delegate their power to the extent they have with legislation like the Espionage Act or the International Emergency Economic Powers Act.

Click here to read the entire story at the Tenth Amendment Center.