Category: reason

Motive for fatal Atlanta shootings unclear. There’s no indication that last night’s fatal shooting spree at several Atlanta-area massage parlors was connected to conspiracy theories about sex trafficking at Asian massage businesses. Atlanta police say they showed up at one of the businesses in response to a call about a robbery in progress.

The motive for the shooting, which left eight people dead, is still unclear, despite many in the media attributing it to anti-Asian racism.

Seven women and one man were killed in the shootings; six of them were Asian and two were white, police report. One other man was injured as well.

A suspect in police custody, 21-year-old Robert Aaron Long, is thought to be behind the shootings at the two massage parlors in northeast Atlanta (Gold Massage Spa and Aromatherapy Spa) and one (Young’s Asian Massage) about 30 miles northwest of the city.

Red Canary Song, a group devoted to Asian sex worker and migrant rights, notes that workers at Asian massage parlors and spas are frequent targets of violence from both customers and police. People speculating about possible motives for this horrific crime probably shouldn’t overlook that fact in the rush to portray the shootings as stemming from anti-Asian racism tied to COVID-19.

But as of this morning, we simply don’t know what drove the Atlanta massage parlor shooter to commit these atrocities.

The identities of the victims have also not yet been released.

FREE MINDS

Ohio city seeks six months in jail for people who pay for sex. Authorities in Columbus, Ohio, are trying to put a social justice spin on ratcheting up penalties for prostitution. City Council members say it’s concern for people selling sex that is leading them to consider a new policy—but this policy would keep penalties for selling sex intact and continue to direct police resources to targeting sex work between consenting adults, increasing penalties for people who pay for sex.

“The Council’s proposed amendment institutes a penalty of up to $1,500 and 180 days in jail for a first offense,” notes WOSU. “The second and third offenses include mandatory minimum fines of $550 and $800 respectively, as well as 10 and 15 days in jail.”

Ohio State University professor of women, gender, and sexuality studies Jennifer Suchland has been speaking out against the proposed changes. “When you add more criminalization to the sex trade, it both makes it harder to reach potential victims and worsens the conditions for those who rely on the sex trade for survival,” Suchland said in a WOSU interview.

FREE MARKETS

Some good news on the economic front. “Federal Reserve officials, who are scheduled to release their latest economic projections at 2 p.m. ET, are likely to say they expect the labor market and inflation to rebound faster than they anticipated in December,” reports the Wall Street Journal. “The central bank is broadly expected to reaffirm its commitment to ultralow interest rates and bond purchases for now.”

QUICK HITS

NEW w @jessemckinley: Cuomo aides circulated a letter trashing Lindsey Boylan within days of her tweets in December accusing him of harassment. The idea was for ex staffers, particularly women, to put their names on it. No one would. https://t.co/MGqGdlxGFf

— Maggie Haberman (@maggieNYT) March 16, 2021

• The Violence Against Women Act is up for an authorization vote. (Read more about the trouble with this Biden-driven legislation here.)

• Trying to protect internet user privacy is now being called an antitrust violation.

• Tennessee is trying (again) to limit residents’ ability to ship in wine from other states.

• Texas’ new social media bill is a mess.

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(For the full draft PDF, with footnotes, see here.)

A duty not to keep hosting material that you’ve learned is defamatory is thus a good idea, and is constitutional [for reasons given below]. It could certainly be instituted by statute.

But I think courts can also sensibly develop it under normal libel law principles; indeed, Restatement (Second) of Torts § 577 already points in this direction:

(1) Publication of defamatory matter is its communication intentionally or by a negligent act to one other than the person defamed.

(2) One who intentionally and unreasonably fails to remove defamatory matter that he knows to be exhibited on land or chattels in his possession or under his control is subject to liability for its continued publication.

Subsection (1) sets forth the general way that people can be liable for defamation: by communicating it. And that includes continuing to communicate it after one learns that the material is false.

Say a publisher prints some number of copies of a yellow pages phone book, without realizing that there is a defamatory error in one of the ads; but then the publisher keeps distributing the phone book even after it learns that the ad is defamatory. Such “continuation of distribution after the error had been brough to the attention” of defendants may well be actionable “communication … by a negligent act.” “[A]llowing additional distribution of the yellow pages directories” is a continued communication which may itself be libelous. And that logic would apply to continued distribution online as much as to continued distribution of paper copies.

Subsection (2) also makes clear that one way of actionably communicating defamation is by knowingly retaining it on one’s property. This doesn’t hold a property owner strictly liable simply because someone posted something on the property, nor does it impose a duty to monitor property for such postings.[1] But once someone informs a property owner that there is defamatory material posted on its property, the owner must take reasonable steps to take down the material. And this applies to material on “chattels,” such as computer equipment, and not just “land.” In the words of one district court,

[E]ven assuming that the Gazette acted completely reasonably in publishing the AP article on its website, it is clear that at some point the Gazette learned of both the article’s presence on its website and the article’s inaccuracies. It is due to this that the Court cannot in good conscience find that the wire service defense [which would have immunized Gazette‘s original publication of the AP article] provides a complete defense for the Defendant. Cf., Restatement (Second) of Torts § 577(2) (stating that “one who intentionally and unreasonably fails to remove defamatory matter that he knows to be exhibited on land or chattels in his possession or under his control is subject to liability for its continued publication”).[2]

Now the classic examples of this § 577(2) liability have involved property owners liable for failing to remove third-party posts on their property—for instance, when a married woman sued a bar for not removing graffiti that suggested that she was interested in sex with strangers,[3] or when a factory failed to remove a posted leaflet that defamed an employee to his coworkers.[4] There likely wouldn’t be liability today for such third-party posts on a person’s web site, because of 47 U.S.C. § 230, which immunizes such sites from liability for third-party posts generally.

But the text of § 577(2) would also apply to liability for intentionally and unreasonably failing to remove one’s own defamatory posts (which aren’t immunized by § 230). And its logic would as well.

Say that both Earl and Donna post signs on Donna’s property accusing Paul of something. And say that Donna reasonably believe that her own accusation is true (and state law declines to impose strict liability). Donna is then not initially liable for either posting. But once Donna learns about Earl’s accusation and learns that it’s false, she can be held liable for it under § 577(2). There’s no reason why she should be less liable for her own accusation once she likewise learns that it’s false.

Why the Duty is Constitutional

A duty to stop hosting articles on one’s site once one learns that they are false and defamatory is [also] consistent with the First Amendment. “[T]he lie, knowingly and deliberately published” is constitutionally unprotect­ed.[5] It follows that falsehood knowingly and deliberately maintained in one’s online publication should be equally constitutionally unprotected.

As noted above, the duty does impose some burden on publishers, and might create something of a chilling effect. When publishers get correction demands, which claim that a statement is defamatory, they would have to investigate whether the demands are well-founded. And if there’s some uncertainty, then the publishers might be reluctant to stand by a story, even if they are still confident in the story, for fear that jurors will rule against them and conclude that they were reckless.

But, returning to the example with Ophelia and Randy, that’s precisely the situation Ophelia’s newspaper faced when Starlight got the exculpatory information to Ophelia in time, before Ophelia’s story was published. There too the newspaper might have been uncertain, and might have been chilled from running the story despite the mens rea protections that the First Amendment provides.

That was enough for Justices Black, Douglas, and Goldberg to argue in New York Times Co. v. Sullivan that libel law should be absolutely rejected, at least as to matters of public concern. Yet the majority disagreed, and concluded that the “actual malice” standard protected publishers enough, despite the residual chilling effect. Likewise, the Gertz v. Robert Welch Inc. majority concluded ten years later that the negligence standard sufficed for proven compensatory damages based on speech about private figures. If that’s true for lawsuits based on prepublication decisions to publish (as in the lawsuit against Ophelia’s newspaper), it should be equally true for lawsuits based on postpublication decisions to keep distributing a published story (as in the lawsuit against Randy’s newspaper).

A duty to stop distributing libelous material might be limited in one important way: Once a libelous statement is published, totally removing it might hide important facts about its having been published. Say, for instance, that Donna’s story accused Paul of some crime. This could well have led to controversy, with people publicly criticizing Donna and her publisher for what she wrote; if Paul then sued, there would have been stories about the lawsuit.

Totally removing Paul’s name from the original story might make it harder for future researchers to fully understand those follow-up criticisms and news accounts. In a sense, there now would be “constitutional value in [the] false statements of fact” in the original story, because their having been said is itself an important fact. (This is indeed one basis for the neutral reportage privilege, under which some states allow speakers to report on allegations, even false ones, when the allegations are an important part of public debate.)

Because of this, a publisher should be free not to remove the libelous statement but instead to correct it, by adding a prominent note—preferably at the start of the story—reflecting the newly discovered information. Indeed, standard libel principles would already allow this, since reasonable readers would then no longer interpret the story as making the original (now-corrected) accusation. But in any event it should be constitutional for the law to impose liability if no such correction is made, and the publisher leaves up the unaltered defamatory even after it learns that the story is false.

[1] “[T]he duty arises only when the defendant knows that the defamatory matter is being exhibited on his land or chattels, and he is under no duty to police them or to make inquiry as to whether such a use is being made.” Restatement (Second) of Torts § 577 cmt. p.

[2] Taub v. McClatchy Newspapers, Inc., 504 F. Supp. 2d 74, 80 (D.S.C. 2007); see also Cornelius v. Deluca, No. 1:10-CV-027-BLW, 2010 WL 4923030, *3–*4 (D. Idaho Nov. 29, 2010) (suggesting that defendant could be held liable for keeping up a post once it learns that its agent had posted a defamatory item and “unreasonably failed to take steps to remove it”), modified on reconsideration as to other matters, 2011 WL 977054 (D. Idaho Mar. 15, 2011); Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009) (suggesting that a web site operator could be liable for failing to remove libelous material, though concluding that in that case the defendant was immune under 47 U.S.C. § 230, given that the material was posted by a third party).

[3] Hellar v. Bianco, 244 P.2d 757 (Cal. Ct. App. 1952); see also Tidmore v. Mills, 32 So. 2d 769, 777–78 (Ala. Ct. App. 1947); Woodling v. Knickerbocker, 17 N.W. 387, 388 (Minn. 1883). But see Scott v. Hull, 259 N.E.2d 160 (Ohio Ct. App. 1970) (rejecting liability in a similar situation).

[4] See, e.g., Tacket v. General Motors Corp., 836 F.2d 1042, 1045 (7th Cir. 1987); see also Dillon v. Waller, No. 95APE05-622, 1995 WL 765224 (Ohio Ct. App. Dec. 26, 1995); Kenney v. Wal-Mart Stores, Inc., No. WD 59936, 2002 WL 1991158, *12 (Mo. Ct. App. Aug. 30, 2002), rev’d on other grounds, 100 S.W.3d 809 (Mo. 2003).

[5] Garrison v. Louisiana, 379 U.S. 64, 75 (1964).

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From Moran v. Stonehill, decided Feb. 16 by Justice Janice W. Howe (Mass. Super. Ct.), but just posted on Westlaw:

Stonehill is a private college principally located in Easton, Massachusetts. Moran’s son is a full-time Stonehill student who resided on campus at the start of the 2019/2020 academic year. Moran made payments to Stonehill on behalf of his son for fees, room and board, and tuition for the 2019/2020 academic year.

The First Amended Complaint alleges that, to entice students to attend, Stonehill touts its in-person, hands-on curriculum. Stonehill’s website markets to prospective students the benefits it provides with its “beautiful 384-acre” on-campus experience. Its educational marketing materials also emphasize the benefits of living on campus, saying: “Your residence life experience will give you the opportunity to learn more about yourself as you come to know people from different backgrounds and cultural experiences—all of which will help you learn and grow and prepare you for life after college.” Stonehill also promotes its small class size and 12:1 student/faculty ratio as another reason to attend the college. According to the First Amended Complaint, the success of Stonehill’s marketing campaign is demonstrated by the fact that eighty-nine percent of its students choose to live on and learn at Stonehill’s campus.

Stonehill charged the following amounts for Moran’s son for the 2019-2020 academic year: $46,642 as tuition; $16,520 for room and board; a $100 room guarantee fee; $2,702 for student health insurance; a $30 registration fee; a $30 recreational center fee; a $50 technology fee; a $150 resident parking fee; and $150 for his meal plan. Stonehill charged members of the proposed class the same types of fees.

On March 16, 2020, Stonehill ordered all students to leave campus for the remainder of the Spring 2020 semester due to the COVID-19 pandemic. That same day, Stonehill closed the school’s facilities and canceled all in-person classes, events, and services. Stonehill informed its students that all classes would resume online.

Following the closure, Stonehill offered only the following partial refunds to Moran and members of the proposed class: a credit of forty-two percent of the semester’s room and board charge (totaling $2,160) {[apparently] based on the amount of the Spring 2020 semester that was remaining at the time of the closure of Stonehill’s campus on March 16, 2020}; and a refund of all unused dollars on the semester’s meal plans. The First Amended Complaint alleges Stonehill’s offer to provide a $2,160 “credit” for the Spring 2020 semester room charge is unfair, that Stonehill was not authorized to retain that amount for use for future semesters, and that Stonehill’s retention of the credit has caused harm to Moran and members of the proposed class.

Moran also alleges that Stonehill is unfairly profiting from the closure necessitated by the pandemic because it has refused to return funds for services it cannot provide. Besides room and board charges, the closure of on-campus classes and activities prevented Stonehill’s students from receiving the benefit of forty-two percent of the fees paid for the Spring 2020 semester. Stonehill’s refund plan does not include a pro rata reimbursement for any of the fees paid for services not provided due to the campus closure (e.g., the recreational center, technology, and parking fees).

The First Amended Complaint also seeks compensation for the difference in value between in-person education and online instruction. Moran alleges that Stonehill itself acknowledges the superiority of in-person versus online instruction, as Stonehill’s tuition and fees for in-person instruction are higher than its tuition and fees for online instruction. According to the First Amended Complaint, Moran’s son and members of the proposed class chose to attend Stonehill for the on-campus experience and in-person instruction.

As a result of the closure, Moran’s son has not received the services and access Moran paid for the Spring 2020 semester. Moran’s son and members of the proposed class were deprived of the following during the Spring 2020 semester: in-person interaction with professors, mentors, and peers; access to facilities such as computer labs, study rooms, and the library; the opportunity to participate in student governance and extra-curricular activities and groups; and other services and amenities for which they had paid. The First Amended Complaint alleges that the value of online instruction is less than that of in-class instruction, as reflected by the fact that Stonehill charges less for the former. Despite this, Stonehill has failed to refund any portion of Moran’s son’s and the proposed class members’ Spring 2020 semester tuition and fee payments….

The court allowed plaintiff’s breach of contact claim to go forward:

Of note are two cases currently pending in the United States District Court for the District of Massachusetts, both of which were recently before the same judge (Stearns, J.) on motions to dismiss similar to the one presently before this court.

In Chong v. Northeastern University, C.A. No. 1:20-10844-RGS (D.Mass. Oct. 1, 2020), the court dismissed, without prejudice, the plaintiff students’ breach of contract claim seeking partial reimbursement of tuition to compensate for the inferiority of online instruction, holding that the “plaintiffs fail to state a claim because they have not plausibly established that the parties’ agreement included a right to in-person instruction.” The court also allowed the motion to dismiss with respect to the plaintiffs’ breach of contract claim related to a student activity fee, student center fee, and undergraduate student fee because those fees were imposed to “support” (rather than to gain access to) certain facilities during terms for which students are enrolled in classes, but denied the breach of contract claim related to a campus recreation fee because payment of that fee gave students the option to gain admission to home athletic events and use fitness facilities.

The court reached a different result in In re Boston University COVID-19 Refund Litigation, C.A. No. 1:20-10827-RGS (D.Mass. Jan. 7, 2020), denying Boston University’s motion to dismiss the plaintiff students’ breach of contract claims premised on the failure to provide in-person instruction and the closure of on-campus facilities and resources. The court rejected the argument that the plaintiffs failed to articulate any legal basis for a contractual right to in-person instruction, pointing to the plaintiffs’ allegation that representations in the defendant’s course registration materials implied that they would receive traditional, in-person instruction at physical locations on campus.

The court concluded that it could not say, as a matter of law, “that no student could have reasonably expected that paying the tuition charged for the Spring semester of 2020 and registering for on-campus courses would entitle them to in-person instruction,” and noted that it “need[ed] the benefit of further factual development of the contractual claims to resolve the issue on the merits.” The court reached the same result with respect to the plaintiffs’ claims for reimbursement of fees, explaining, “the court cannot say, as a matter of law, that plaintiffs could not have reasonably expected that their payment of mandatory fees would grant them access to at least some of the on-campus facilities and resources shut down by BU on March 22, 2020.”

What this court takes from the divergent outcomes in these two cases is the importance of the particular allegations raised by the plaintiffs and the nature of the record before the court.

Here, Moran bases the breach of contract claim as it relates to tuition on Stonehill’s website and marketing materials touting its on-campus experience as a central part of what Stonehill has to offer its students, as well as the fact that Stonehill specifically offers the option of in-person, on-campus instruction for one price, and a separate, less expensive online instruction option. The court concludes that these allegations plausibly establish that the parties’ agreement included a right to in-person instruction. As in In re Boston University COVID-19 Refund Litigation, this court cannot say, as a matter of law, that Moran could not have reasonably expected that paying the in-person tuition rate charged for the 2020 Spring semester and registering for on-campus courses would entitle his son to in-person instruction.

{The court is not persuaded by Stonehill’s argument that Moran “does not dispute that [his son] received full credit for his Spring 2020 courses, which is all that Stonehill agreed to provide in exchange for the tuition and fees that were paid.” This appears to be an obvious oversimplification of any agreement between a student and an institute of higher learning. As another court explained in response to a defendant university’s similar argument that any breach resulting from the transition to online teaching was de minimis because the student still earned credits toward a diploma: “This is kind of like purchasing a Cadillac at full price and receiving an Oldsmobile. Although both are fine vehicles, surely it is no consolation to the Cadillac buyer that the ‘Olds’ can also go from Point A to Point B.” Rosado v. Barry Univ. C.A. No. 1:20 CV-21813-JEM, 2020 WL 6438684 (S.D.Fla. Oct. 30, 2020).}

Several cases brought by students against colleges and universities seeking reimbursement of tuition and fees after campuses were shuttered and classes moved online due to the pandemic have reached the same result. See Rosado, C.A. No. 1:20 CV-21813-JEM, 2020 WL 6438684, at (S.D.Fla. Oct. 30, 2020) (denying motion to dismiss breach of contract claim based on defendant’s closure of campus and transition to online classes due to pandemic where defendant charged more for on-campus instruction than online instruction, and defendant’s publications clearly implied in-person instruction and touted its many on-campus resources and facilities); Salerno v. Florida S. College, C.A. No. 8:20-cv-1494-30SPF, 2020 WL 5583522 at (M.D.Fla. Sept. 16, 2020) (denying motion to dismiss breach of contract claim based on defendant’s closure of campus and transition to online classes due to pandemic where defendant’s publications clearly implied in-person instruction and touted its many on-campus resources and facilities); Milanov v. University of Michigan, C.A. No. 20-000056-MK, 2020 Mich.Ct.Cl. LEXIS 1 (Mich.Ct.Cl. July 27, 2020) (denying motion for summary disposition on plaintiffs’ breach of contract claims seeking reimbursement of pro rata portion of amounts paid for in-person instruction, housing, meals, and student activities following closure of campus and transition to allegedly inferior online instruction due to pandemic); Ford, C.A. No. 1:20-CV-470, 2020 WL 7389155, at *7 (denying motion to dismiss breach of contract claim); Zahn, C.A. No. 2020-371JD, 2020 Ohio Misc. LEXIS 230, at *3, 6-7 (ruling that plaintiff stated claim for breach of contract where complaint specifically alleged that tuition and fees for defendant’s online classes are significantly less expensive than those for on-campus classes); Smith, No. 2020-321JD, 2020 WL 5694224, at *2 (ruling that plaintiff’s allegation that she contracted for in-person classes and received online classes instead stated claim for breach of contract)….

Stonehill also contends that dismissal of the unjust enrichment claim is required because Moran does not adequately allege the essential elements of unjust enrichment. The court disagrees. “Unjustness is ‘a quality that turns on the reasonable expectations of the parties.'”Here, Moran alleges that he reasonably expected that his son would receive in-person instruction and access to on-campus facilities and resources in return for payment of tuition and fees and that Stonehill failed to provide these services and access. The court cannot say, as a matter of law, that no reasonable juror taking these allegations as true could find that Stonehill’s failure to refund at least a portion of the tuition and fees paid by the plaintiff was unjust under the circumstances. As a result, dismissal of the unjust enrichment claim at this juncture is not warranted….

Stonehill also briefly argues that Moran’s claims are barred by a force majeure clause in The Hill Book. A section of The Hill Book entitled “Delivery of Services” includes the following language: “Stonehill College assumes no liability for the delay or failure in providing educational or other services or facilities due to causes beyond its reasonable control.” However, the record before the court does not establish as a matter of law the necessary elements for invoking such a clause. Moreover, a force majeure clause (if properly invoked) simply excuses performance; it does not allow a nonperforming party to retain funds for services for which it was paid but did not provide.

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With families opting out of the faltering public schools in ever-growing numbers, the establishment’s attacks on competing education offerings continues apace. Now, a retired teacher insists that private schools may become terrorist training camps. The over-the-top argument is the latest attempt to reinterpret the refreshing viewpoint diversity offered by chosen educational offerings as a danger to the American way of life.

“[T]he American public school is where we learn to be Americans,” argues one-time journalism teacher Susan Johnson in a Charleston Gazette-Mail column. “In public schools, the public decides the curriculum. The public votes to elect school boards who decide the facts our children will be taught. We leave high school and enter college or the workforce with a common set of civic norms and agreed-upon facts that are derived from reason, critical thinking and the scientific method.”

Johnson contrasts values taught in government institutions with what she sees as nefarious alternatives.

“In charter schools, a private board decides the curriculum. Same for private schools. One board might teach that the earth is flat. Another might teach that the pope is infallible; another might teach he is the anti-Christ,” Johnson writes. “Many children are homeschooled using private instructional programs — some that are online — that are marketed for particular religious and political persuasions.”

Oh, no! To what dire fate could all of these independently selected curricula lead? 

Invoking fearful visions of fundamentalist Islamic schools training terrorists, she asks, “are we very far away from schools like that in America? Proud Boy Academy? Boogaloo Boot Camp?”

This is bang-your-head-on-the-desk silliness, rooted in a fundamental misrepresentation of what public schools are all about. Just last year, The New York Times’ Dana Goldstein marveled at the contrasting ideological spin in textbooks crafted for public schools in California and Texas: “The books have the same publisher. They credit the same authors. But they are customized for students in different states, and their contents sometimes diverge in ways that reflect the nation’s deepest partisan divides… [C]lassroom materials are not only shaded by politics, but are also helping to shape a generation of future voters.”

If this conflict of interpretations is what Johnson means by “a common set of civic norms and agreed-upon facts” the schools in which she taught must use words in extremely unusual ways. Or maybe she’s shading the fact that public school curricula are constant sources of struggle over emphasis and ideological content among people with “particular religious and political persuasions.”

In truth, disagreements over what kids are taught in public schools are so common that the Cato Institute maintains an online map in an effort to track the various battles. The introduction notes: “Americans are diverse – ethnically, religiously, ideologically – but all must pay for public schools. The intention is good: to bring people together and foster social harmony. But rather than build bridges, public schooling often forces people into wrenching conflict.”

Johnson probably knows this — she taught in those schools. Her silly warning that private schools might divert kids into the boogaloo movement is the latest expression of establishment fears that the state is losing its grip on young minds.

“A very large proportion of homeschooling parents are ideologically committed to isolating their children from the majority culture and indoctrinating them in views and values that are in serious conflict with that culture,” Harvard Law School’s Elizabeth Bartholet huffed last year in a high-profile Arizona Law Review article. Bartholet, who favors a “presumptive ban” on homeschooling, went on to argue that “[p]olicymakers should impose greater restrictions on private schools for many of the same reasons that they should restrict homeschooling.”

Once again, it’s fair to ask which “majority culture” Bartholet favors: that in California textbooks, or in those of Texas? But that would be missing the point. In less florid language, the Harvard professor preceded the retired teacher in advocating a state monopoly over what children are taught.

“The idea that only government schools can (or should) make people ‘American’ is a dangerously statist notion that should be rejected,” the Home School Legal Defense Association’s Michael Donnelly told me via email. “Freedom of education is at the heart of our founding principles of self-governance and liberty. In a free society education should not be one place and one system that seeks to create servile citizens. Rather, education is about helping all learners to achieve their fullest individual potential.”

Despite the objections of Johnson, Bartholet, and company, freedom of education is enjoying a boom. In fact, while interest in education choice has been growing for years, (fueling experiments in charter schools, vouchers, tax credits, and homeschooling) it has really taken off in the past 12 months because of the abject failures of the public schooling establishment to effectively teach children during the pandemic.

“COVID-19 has created a strange natural experiment in American education: Families who would have never otherwise considered taking their kids out of school feel desperate enough to try it,” Emma Green wrote in The Atlantic last September. 

“Comprehensive national data aren’t available yet, but reporting by NPR and our member stations, along with media reports from around the country, shows enrollment declines in dozens of school districts across 20 states,” NPR reported in October.

And families, by and large, like their new options.

“Private school and traditional homeschool parents remain more positive about their children’s progress compared to district school parents,” according to February polling by EdChoice. The numbers remain stronger for homeschoolers and private schoolers than for district school families across academic learning, educational development, and social development.

Undoubtedly, many of the families choosing new educational options are teaching their kids ideas of which Johnson and company disapprove. But as children learn perhaps conflicting ways “to be Americans” that they can hash out in healthy discussion and debate, they’re wonderfully free of force-fed lessons crafted by smug defenders of establishment-approved versions of the truth.

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3/17/1777: Chief Justice Roger Brooke Taney’s birthday.

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