Category: reason

[This post was co-authored by Josh Blackman and Seth Barrett Tillman.]

On Tuesday, February 9, 2021, the House Managers filed a Reply Memorandum. The Managers’ Reply Memorandum made six primary arguments concerning the First Amendment. Here, we will respond to these arguments. 

First, the Managers’ Reply Memorandum referenced a recent letter signed by 140+ academics. The Reply Memorandum asserted:

In the words of nearly 150 First Amendment lawyers and constitutional scholars, President Trump’s First Amendment defense is “legally frivolous.”

Blackman previously explained why the academics’ letter is problematic. The signatories take conflicting positions about how exactly (if at all) the First Amendment should apply to these impeachment proceedings. For example, the academics’ letter states:

“Many of us believe that the First Amendment simply does not apply here [in the impeachment context].”

Many? How many? Is many most? A majority? A plurality? A minority? The academics’ letter does not say.

Indeed, some of the signatories may in fact agree with our position about the relevance of the Brandenburg standard to the article of impeachment. What, then, was “legally frivolous”? Blackman explained:

The introductory section [of the academics’ letter] strikes a chord of unanimity. But it isn’t clear that all of the signatories agree on a single rationale of why a First Amendment defense would be “frivolous.”

It is not clear why the signatories believe a First Amendment defense is, in their view, “frivolous.” More importantly, it is not clear they all actually do believe it is “frivolous.” We expect that if there was no dissent among the signatories, the academics’ letter would have expressed that unanimity clearly. If there was dissent, then the academics’ letter should fully inform the reader as to the basis of that dissent. Instead, the Managers, and the press, only needed to quote the word “frivolous.” 

Moreover, the academics’ letter fails to address important evidence that the First Amendment applies to impeachment proceedings. We have discussed the record from President Johnson’s impeachment trial. And our writings were very much in-line with what other scholars wrote prior to the events January 6, 2021. 

Second, the Managers’ Reply Memorandum turns to the Johnson impeachment trial. The Managers wrote:

In fact, the Senate has confirmed that the First Amendment does not limit its power to convict in an impeachment proceeding. . . . No precedent supports President Trump’s contrary view. [Trump’s brief] cites the impeachment of President Johnson in 1868, contending that the Senate there established that a President cannot be convicted and disqualified based on his speech. But the Senate set no such precedent in President Johnson’s impeachment. As President Trump notes, one of the articles of impeachment [Article 10] charged President Johnson with insulting and denouncing Congress by “mak[ing] and declar[ing] … certain intemperate, inflammatory, and scandalous harangues … [which] are peculiarly indecent and unbecoming in the Chief Magistrate of the United States.” While some Senators expressed concern that President Johnson’s remarks were constitutionally protected, [FN72] others disagreed. Senator Jacob Howard, for example, stated that “[n]o question of the ‘freedom of speech’ arises here.” [FN73] (emphasis added).

FN72: 3 Trial of Andrew Johnson 206 (1868) (speech of Sen. Joseph Fowler).

FN 73: Id. at 49 (speech of Sen. Jacob Howard).

This passage is problematic. It states, without any equivocation, that there is “no precedent.” But the Managers do not explain what precisely they believe counts as a “precedent” in the impeachment context. In the judicial context, there is wide-ranging disagreement about what precisely constitutes a “precedent.” In the impeachment context, this issue is even more contested. We acknowledge that there is no single view about what counts “precedent” for the impeachment process. There are a multitude of ways to answer this question reasonably. But the House managers do not even countenance this reasonable range of views. 

We think the Managers were wrong to make such an unqualified statement: there is “no precedent.” Indeed, they cite evidence that undermines this bold assertion. For example, Footnote 72 cites a statement made by Senator Joseph Fowler who stated that President Johnson could raise the First Amendment as a defense in the impeachment process. He said, “However much I may condemn the style and tone of these speeches, I cannot see that Mr. Johnson did more than exercise that liberty of speech guaranteed to him by the Constitution and laws of the country.”

Prominent members of the Reconstruction Congress agreed with Fowler, and argued that Johnson could raise the First Amendment as a defense. Furthermore, Senator William Pitt Fessenden of Maine warned that removing the President for his speech would not only “den[y] him a right secured to every other citizen of the republic . . . but might deprive the people of the benefit of his opinion of public affairs.” The President, Fessenden contended, has the right to communicate with the People. Fessenden chaired the Joint Committee on Reconstruction, which drafted what became the Fourteenth Amendment. We would wager that Senator Fessenden’s knowledge of the impeachment process was substantial—every bit as substantial as the signatories of the academics’ letter. Senator Fessenden’s position is not “frivolous.” 

Our position has never been that Senator Fessenden stated the only position about the propriety of a First Amendment defense in the impeachment context. But his statements, and those of his colleagues, rebuts the position in the academics’ letter that the First Amendment is inapplicable in impeachment proceedings and is a “frivolous” argument. Moreover, Senator Fessenden’s view has continued into the modern era. In his classic book about presidential impeachments, Grand Inquests, Chief Justice Rehnquist observed that, during times of conflict, “[p]rovisions in the Constitution for judicial independence, or provisions guaranteeing freedom of speech to the President as well as others, suddenly appear as obstacles to the accomplishment of the greater good.” The Chief Justice was right. 

Third, the Managers do not care what Senator Jacob Howard, Senator William Pitt Fessenden, or anyone else said during Johnson’s Senate impeachment trial. The Managers’ Reply Memorandum states that because the Senate never voted on Article 10, no precedent was set.

Ultimately the Senate never voted on the article and thus made no judgment about the relevance of the First Amendment.

This argument takes a cramped view of congressional practice in the impeachment context. First, there was a good reason why the Senate did not vote on Article 10. Earlier in the proceedings, the Senate failed to produce a conviction on Articles 2, 3, and 11. These articles, which concerned President Johnson’s removal of Secretary of War Edwin Stanton, were viewed as the stronger charges. After Johnson was acquitted on those three charges, the Senate recognized that convictions on the weaker charges were unlikely. As a result, there was a general agreement to terminate proceedings. The House’s failure to secure a conviction in the Senate reduces the claim that the House’s articles of impeachment are good precedents. How “reduced” is a matter about which reasonable minds can, have, and do disagree. 

Indeed, the Managers’ cramped view of congressional practice reminds us of Justice Scalia’s long-standing criticism of legislative history. Justice Scalia argued that Congress can only act through voting on a statute. Therefore, courts should ignore legislative history because Congress does not vote on it. And Justice Scalia was loath to consider the legislative history of statutes that were never enacted. According to the Managers, unless the Senate actually votes on an article, the deliberations over that article can be discarded. Justice Scalia’s views may make some sense in the context of run-of-the-mill dispute over statutory interpretation. But we should be more solicitous of Senate presidential impeachment deliberations, which are exceptional. Indeed, Senate precedent is routinely built on practices that do not lead to a final vote. Before President Trump was inaugurated, our nation had two presidential impeachment trials in two centuries. Every aspect of those proceedings have been carefully studied and reviewed in scholarship and judicial proceedings. Everyone has always thought that it was proper to do so. House and Senate impeachment proceedings are not akin to mere committee reports prepared by unknown staffers for a bill. The House and Senate regularly reproduce impeachment debates in their documents on congressional history, practice, and impeachment. 

The speeches of prominent Republicans who voted to acquit President Johnson cannot be dismissed as non-sequiturs. These carefully-considered views are not “frivolous” or irrelevant to understanding the impeachment process. There was a time when those votes were considered “profiles in courage.” Now we are told by the Managers that those records are not relevant to understanding how impeachment works. That view is not and cannot be correct. 

Fourth, the Managers present something of an alternative argument: even if the First Amendment applies to the proceedings, then President Trump’s speech would be deemed “incitement” under the Brandenburg standard: Later in this post, we will explain why the Managers are precluded from bringing this sort of lesser-included charge. Here, we will discuss why Trump’s speech would be protected by the Brandenburg standard.

The Managers wrote:

In Brandenburg v. Ohio, the Supreme Court explained that, while the First Amendment prohibits states from punishing “mere advocacy,” it does not preclude punishment for speech that is “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” President Trump’s speech falls squarely within this exception for incitement. His statements on January 6, particularly in the context of his prior remarks, were “directed to” and “likely to incite or produce” imminent unlawful action. President Trump incited a crowd to go to the Capitol and fight, immediately before they stormed the Capitol. (emphasis added).

We emphasized the phrase, “particularly in the context of his prior remarks.” We suggest the Managers recognize that Trump’s January 6, 2021 speech, by itself, cannot meet the Brandenburg standard. Rather, they need to bring in “prior remarks.” Which remarks, the Managers do not say. How old can those remarks be? Would the Managers consider everything Trump has ever said? Or do they mean to consider only the things Trump has said since the election? Or just statements he made since the election concerning the election? Alas, Brandenburg does not permit any of these expansive approaches. The focus on “imminence” counsels against such a sweeping probe of any past statements that could shed light on the purported “context” of the January 6.

On February 10, 2021, Adam Liptak wrote a commentary in the New York Times breaking down another Trump case concerning incitement.

. . . . Judge David J. Hale of the Federal District Court in Louisville, Ky., allowed a[n incitement] lawsuit against [Trump] to proceed, writing that incitement is a capacious term. Quoting Black’s Law Dictionary, he wrote that it was defined as “‘the act or an instance of provoking, urging on or stirring up,’ or, in criminal law, ‘the act of persuading another person to commit a crime.'”

Judge Hale also wrote that the protesters could satisfy the demanding First Amendment limits the Supreme Court had placed on incitement suits. . . . .

Judge Hale said the account of the rally presented in the protesters’ lawsuit could clear the high [Brandenburg] bar. “It is plausible that Trump’s direction to ‘get ’em out of here’ advocated the use of force,” the judge wrote. “It was an order, an instruction, a command.”

He added that the protesters had, at least at an early stage of the litigation, plausibly maintained that Mr. Trump had “intended for his statement to result in violence” and “was likely to result in violence.”

But the United States Court of Appeals for the Sixth Circuit, in Cincinnati, reversed Judge Hale’s decision, ruling that the Brandenburg decision protected Mr. Trump. “In the ears of some supporters, Trump’s words may have had a tendency to elicit a physical response, in the event a disruptive protester refused to leave,” Judge David W. McKeague wrote for the majority, “but they did not specifically advocate such a response.” It was significant, too, Judge McKeague wrote, that Mr. Trump had added a caveat to his exhortation, according to the lawsuit. “Don’t hurt ’em,” Mr. Trump said. “If I say ‘go get ’em,’ I get in trouble with the press.”

Mr. Trump offered a similarly mixed message on Jan. 6. Even as he urged his supporters to “go to the Capitol” and “fight like hell,” he also made at least one milder comment. “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard,” he said.

Ordinary courts might consider the speech in isolation and credit the occasional calmer passage.

The Managers do not cite any incitement case that permits consideration of the “context of his prior remarks” in such an expansive fashion. If the Managers have such a case, they should bring it forward.

In our fourth point, we explained that the Manager’s alternative argument is not supported by precedent. Brandenburg would not support a criminal conviction for incitement of violence. Our fifth point is more foundational. The House’s article of impeachment does not mention or use the Brandenburg standard to charge the President. A draft version of the article relied on something akin to Brandenburg, but the adopted article removed that standard. Instead, the House made up a standard out of whole cloth: that Trump “willfully made statements that, in context, encouraged—and foreseeably resulted in—lawless action at the Capitol.” 

The House chose that standard—they have nailed their colors to the mast. And that decision now binds the House, the Managers, and the Senate. Given the sole article of impeachment, the Managers are precluded from raising an alternate argument based on Brandenburg. In other words, the Managers cannot seek to convict Trump based on some other charge or theory of liability, even one akin to a lesser-included offense. 

If the House cannot secure a conviction based on the legal theory it has put forward, then the Managers cannot argue that Trump could still be convicted under other legal theories not alleged in the Article of Impeachment. Here, Trump’s attorneys raised Brandenburg as a defense. The Managers could argue that Brandenburg has no place in the impeachment process. But the Managers are precluded from arguing that the Senators can also convict Trump under Brandenburg, a standard the House chose not to impeach on. In short, it is legally irrelevant whether Trump could be convicted under the Brandenburg standard.

Moreover, the House Managers and the Senate would violate the most basic sense of fair play if they tried and convicted Trump under a theory of liability which does not appear in the article of impeachment It violates conceptions of fair play to try and convict a defendant under a standard that was not charged. Likewise, Trump cannot be asked to put on a defense based on the Brandenburg standard, which the House intentionally dropped from its article of impeachment during the drafting process. 

Of course, the House could have decided to impeach Trump based on alternate theories of liability. For example, Article I could have relied on the novel theory the House created. And Article II could have relied on the Brandenburg standard.

Alternatively, the House could have adopted an article of impeachment that expressly reserved the right to draft and exhibit new or revised articles of impeachment. There is a long-standing tradition of such open-ended articles of impeachment that expressly reserve the right to exhibit new articles of impeachment. Indeed, the English Parliament was already using this practice more than three centuries ago. For example, the House of Commons’ articles of impeachment against Lord Somers (circa) 1701 reserved the right of “exhibiting, at any time hereafter, any further articles” in the trial proceedings before the House of Lords. This phrase allowed the House of Commons to introduce new articles of impeachment. 

This exact language, or something very close to it, was also used in each of the antebellum American impeachment trials: i.e., the Senate impeachment trials of Senator Blount, Judge Pickering, Justice Chase, and Judge Peck. 

Article 9 in the Johnson Impeachment Trial used very similar language:

and the House of Representatives, by protestation, saving to themselves the liberty of exhibition, at any time hereafter, any further articles of their accusation or impeachment against the said Andrew Johnson, President of the United States

Even managers of state impeachments on the American frontier knew enough to make such a reservation. The Impeachment of Nebraska Governor Butler in 1871 used this language. However, the rushed article of impeachment adopted in January 2021 did not use this language. At this point, we have doubts that the House could introduce new articles of impeachment based on this same course of conduct. Moreover, adding new articles in the future would trigger a new unresolved late-impeachment question: can a former officeholder be impeached under revised articles of impeachment when he is already out of office, after having been impeached once while still in office, absent any reservation by the House to “replead.” 

At this juncture, the Managers are stuck with the single article adopted by the House. If the House chooses an improper, legally defective standard, then no legally sufficient wrong has been alleged. In other words, there is no case to answer. We think these circumstances would resemble a prosecutor’s indictment based on a violation of a non-existent crime. Given the House’s defective “indictment,” Senators could vote to acquit on these grounds. 

Sixth, the Managers respond to an argument that we have advanced, and which Trump’s attorneys have adopted: different types of officeholders have different degrees of free speech rights. The Managers write:

These statements [by Trump] would not be protected whether they were made by an elected official, a civil servant, or a private citizen—contrary to President Trump’s lengthy argument that those distinctions should matter. 

All three branches of government have long recognized the distinctions between civil servants, senior appointed officers, and elected officials. We didn’t make these distinctions up. Look no further than the Hatch Act. The statute applies to civil servants and to appointed officers. But the President is exempt from this ban on politicking. Why? Why are elected members of Congress also exempt from this ban? This distinction is well-understood and deeply rooted in American law. If the Managers have any authority to the contrary, they should cite it.

Next, the Managers turn to a U.S. Supreme Court case: Wood v. Georgia (1981) (Warren, C.J.). The Managers’ Reply brief states:

President Trump is not helped by his reliance on a case concerning punishment for statements made by an elected official “as a private citizen” that “did not present a danger to the administration of justice.”FN78

FN78: See Wood, 370 U.S. at 382, 393, 395.

 A pro tip for law students: when a citation includes quotes strung out across non-consecutive pages, check if the quotations are taken out of context. The House managers made this precise error. 

The Managers’ Reply Memorandum citation to Wood v. Georgia refers to 3 pages: 382, 393, and 395. 

First, page 382 includes this passage:

. . . the statements were made by petitioner in his capacity as a private citizen and not as sheriff of the county; that petitioner was directly and personally interested in the outcome of the current primary election not only as a private citizen but also as an announced candidate for public office in the general election to be held the following November, and in which election the petitioner would be running against the contestant who prevailed in the democratic primary. . . . (emphasis added)

Second, the Managers’ Reply Memorandum cites page 393. But it does not quote anything on that page. And it is not at all clear what, if anything, the House Managers believe is relevant from that page.

Third, page 395 includes this passage:

Our examination of the content of petitioner’s statements and the circumstances under which they were published leads us to conclude that they did not present a danger to the administration of justice that should vitiate his freedom to express his opinions in the manner chosen. (emphasis added) 

The passage on 382 about a “private citizen” did not affect the Court’s analysis, thirteen pages later, about a “danger to the administration of justice.” It isn’t clear why the Managers strung together these two points. 

Moreover, the Petitioner in Wood v. Georgia was also a “candidate for public office” who gave the speech “as a private citizen.” We have argued that Trump’s speech at the Ellipse was not made in his capacity as a public official, but was, essentially, a private act. In giving that speech, Trump did not make use of government information, property, personnel, or powers that were entrusted to him by virtue of his former public position. Wood v. Georgia, as applied to the facts of January 6, 2021, provides even more support for our position: Trump’s First Amendment free speech rights are relevant to the impeachment inquiry. 

The Managers also consider another Supreme Court decision: Bond v. Floyd (1966) (Warren, C.J.). The Managers’ Reply Memorandum states: 

Nor does the Supreme Court’s recognition that an elected legislator could not be excluded from state office for “criticizing public policy” advance President Trump’s claim, where the Court distinguished that situation from one in which “a legislator swears to an oath pro forma while … manifesting his … indifference to the oath.”FN79 President Trump’s speech was not a criticism of public policy—rather, it was a repudiation of his oath of office as he incited a violent insurrection and then manifested callous indifference to its deadly consequences.

FN79: Bond, 385 U.S. at 132, 136.

Here too, the Managers strung out quotes that span several pages. Likewise, the Managers’ use of ellipses alters the meaning of a passage from Chief Justice Warren’s opinion. 

First, the Bond passage on page 132 states:

The State argues that the exclusion does not violate the First Amendment because the State has a right, under Article VI of the United States Constitution, to insist on loyalty to the Constitution as a condition of office. A legislator of course can be required to swear to support the Constitution of the United States as a condition of holding office, but that is not the issue in this case, as the record is uncontradicted that Bond has repeatedly expressed his willingness to swear to an oath provided for in the State and Federal Constitutions. Nor is this a case where a legislator swears to an oath pro forma while declaring or manifesting his disagreement with or indifference to the oath. Thus, we do not quarrel with the State’s contention that the oath provisions of the United States and Georgia Constitutions do not violate the First Amendment. (emphasis added).

Second, the brief cites to page 136 of Bond. Here is the passage, which begins on page 135:

But this difference in treatment does not support the exclusion of Bond, for while the State has an interest in requiring its legislators to swear to a belief in constitutional processes of government, surely the oath gives it no interest in limiting its legislators’ capacity to discuss their views of local or national policy. The manifest function of the First Amendment in a representative government requires that legislators be given the widest latitude to express their views on issues of policy. The central commitment of the First Amendment, as summarized in the opinion of the Court in New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964), is that “debate on public issues should be uninhibited, robust, and wide-open.” We think the rationale of the New York Times case disposes of the claim that Bond’s statements fell outside the range of constitutional protection. Just as erroneous statements must be protected to give freedom of expression the breathing space it needs to survive, so statements criticizing public policy and the implementation of it must be similarly protected. (emphasis added).

The Managers contend that Trump’s speech at the Ellipse was “manifesting his . . . indifference to the oath.” That is, Trump was violating his oath of office. Therefore, the argument goes, Trump does not receive the First Amendment rights associated with “criticizing public policy.” In other words, the Managers argue that when the President violates his oath of office, he has reduced Free Speech rights. Chief Justice Warren’s discussion in Bond was not referring to an officeholder whose actions conflict with his oath. Rather, the passage concerns whether the imposition of the oath itself violates the First Amendment:

Nor is this a case where a legislator swears to an oath pro forma while declaring or manifesting his disagreement with or indifference to the oath. 

On page 132, Chief Justice Warren speculated about an alternative case where the officeholder spoke about his “disagreement” with his oath. Imagine that an officeholder takes the oath with his fingers crossed to express a “disagreement” with the oath. Or the officeholder swears the oath, and immediately repudiates, and disagrees with that oath. Or the officeholder swears an oath with his hand placed on a copy of the now-defunct Mad Magazine. We think Chief Justice Warren’s counterfactual was fairly straightforward.

However, the Managers use ellipses to omit a critical word from Bond: “disagreement.” The Managers were trying to convey a different point: that Bond was about conduct that amounted to “indifference” to the oath. That is, conduct that violated the oath itself. The quoted passages from Bond did not articulate the Managers’ point. Instead, those passages from Bond concerned a public official’s expression of “disagreement with or indifference to” the content of the oath itself. There is a world of difference between these two positions: violating an oath, and disagreeing with the contents of an oath. The latter position cannot be converted to the former position through the use of ellipses.

[Seth Barrett Tillman is a Lecturer at Maynooth University Department of Law, Ireland (Roinn Dlí Ollscoil Mhá Nuad).]

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In the heated debate over reopening K-12 public schools—and the $200 billion in federal funding being proposed to pry open schoolhouse doors—there is frequently conveyed a misleading impression about parental reluctance to send their kids to school full-time. Here’s an example, care of a recent New York Times valentine to American Federation of Teachers President Randi Weingarten:

And like teachers, many parents do not feel ready to return students to classrooms. In big cities with partially open schools, like New York and Washington, D.C., the majority of families offered in-person seats have declined them.

Every assertion in those two sentences is true. And yet it is still misleading. Why?

Because the casual reader would naturally infer that the “majority of families” who have declined in-person seats did so because the parents “do not feel ready to return students to classrooms.” This is emphatically not the case.

A majority of public K-12 schools, particularly in large cities, have not included full-time in-person learning as an option. What parents are rejecting is the “hybrid” model—some days in, some days remote, classes or schools always subject to re-close if X number of students or staffers test positive for COVID.

Reason has many such parents. For example, here’s Editor in Chief Katherine Mangu-Ward, mother of two children in the Washington, D.C., public schools system, explaining her choices in an editorial Slack thread on the topic: “I opted into hybrid for one kid and out for another because of the specifics of what was being offered. And those specifics were dictated exclusively by the teachers unions AND MAKE NO…SENSE for anyone except the teachers union leadership.”

(Forgive Mangu-Ward for being shouty; parents are under a bit of stress these days. Also, check out her great video about exercising her own school choice at the bottom of this post.)

In the same Slack channel came this testimony, from Reason Foundation Development Director Jackie Pyke, mother of two in the Alexandria City Public Schools: “I opted out of hybrid because it sounds horrible (5 kids per class, masks, plexiglass, monitor instead of teacher, remote learning anyway). And they haven’t even started hybrid yet.”

It’s not just that most families are not being offered the choice of five-day instruction, it’s that they’re not even being offered the ability to express that preference when school districts make a show of soliciting parental opinion in advance of formulating attendance options. Here’s what that means in practice:

In July 2020, as the science and worldwide experience was showing overwhelmingly that young kids who attend school or daycare comparatively do not catch, suffer from, or transmit COVID-19, and as the community positivity rate in New York City rested near 1 percent, my daughter’s public middle school sent parents a survey offering four choices:

1) Attend school once every three days, with the rest being remote.

2) Attend once every four days.

3) Once a week, or

4) Fully remote.

See what’s missing there?

“Fully remote” does indeed capture the preferences of some parents who are scared to send their kids back to school (on which more below). But it also describes the option selected by several people I know who decided to either move out of the city or wrestle with a predictable if difficult home-learning schedule rather than subject their calendars to the temporal whims of feckless, unpredictable politicians.

The education establishment, and the teachers unions that heavily influence it in big Democratic cities, is keenly aware of the role that choice architecture can play in steering parents towards decisions that bureaucrats favor. There’s a reason why the most faddish method these days for attempting to achieve racial and socioeconomic numerical balance in public schools is called “controlled choice“—parents may get to express their priorities, but districts have the final word.

A critical if underexamined negative side-effect of controlled choice is that, in the words of George Mason University education professor emeritus David J. Armor, it tends to “generate controversy and middle-class flight among parents” while failing to produce the intended “significant closing of achievement gaps between higher- and lower-income students.”

Controlled choice already helped drive down enrollment in my oldest daughter’s middle school district by 7 percent in its first year (the first such decline in nearly a decade), and that was before the pandemic. Now that school systems are consciously limiting choice by taking full-time instruction off the table—in many cities, taking even hybrid instruction off the table for more than 330 consecutive days now—the flight from schools has become a nationwide phenomenon, hitting an estimated 6 percent in just one year.

So what do parents really want? Education Next, a publication by Harvard’s Program on Education Policy and Governance, surveyed 2,155 parents of 3,762 students in K-12 (both public and private) in November and December, and found that only 41 percent had been offered the possibility of full-time instruction. “More than two-thirds of students who were presented that option took it,” the authors noted.

So no, the majority of families are not afraid to go back to school.

The private/public splits in Education Next‘s data are striking: 60 percent of private school students attend full-time (out of the 67 percent who say they were given that option), compared to 24 percent attending government-run public school full-time (out 37 percent being offered), and 18 percent of charter schools (out of 35 percent). Such a disproportionate tilt toward closure in the public system has led directly to defections.

“The share of all students reported by parents to be attending schools in [the government-operated K-12 system] has declined by 9 percentage points (from 81% to 72%) between the spring and fall of 2020,” the survey finds. “While [those] enrollments have fallen, enrollments in other sectors appear to have increased.”

Multidisciplinary survey data since last summer has pointed to another headline-generating split: Richer and whiter families are more likely to be offered—and are more likely to accept—full-time or hybrid instruction, while poorer and blacker families are far less likely to have either the option or the predilection.

A Centers for Disease Control and Prevention study from last July showed a 14-point gap between non-Hispanic white parents and non-Hispanic black parents (57 percent and 43 percent, respectively) about whether they’d be “comfortable” with their kids’ school opening at full capacity in the fall, and a 16-point gap (62 percent to 46 percent) on whether schools should reopen for all students. What gives?

Reopening advocate Erika Sanzi of Project Forever Free recently wrote a sensitive essay on the subject, which began like this:

It is becoming increasingly clear that pundits and well-meaning education advocates fail to fully grasp the deep distrust that some parents have long had for their children’s schools. A steady stream of articles, op-eds and twitter threads tell us that closed schools are doing the most damage to children of color, children from low income families, and children with special needs. Yet many parents of the children who fall into one or more of those categories do not want their schools to reopen and say that if they do reopen, they will not send them. This is a major head scratcher for people who have never been zoned to an unsafe or chronically underperforming school.

There is a profound lack of understanding between parents who have only known chronically underperforming schools and parent advocates who have never had that experience but are very familiar with academic data and how it breaks down by race and income….There is a blind spot in this question that comes from lack of personal experience with really bad schools.

Teachers unions and their supporters have been promiscuous in portraying the reopening push as an attempt by white power structures to bulldoze the concerns of minorities. In an incendiary New Yorker piece this week, Princeton Assistant Professor of African American Studies Keeanga-Yamahtta Taylor attributed the very assertion that poorer minority kids are suffering the most from remote learning to a factually unhinged racism:

Supporters of immediate school reopenings, in Chicago and beyond, point to falling grades, test scores, and other assessments as evidence that the future of poor and working-class Black children is in danger. The dystopian imagery of a “lost generation” of Black youth is redolent of earlier moral panics: the discoveries of “crack babies” in the nineteen-eighties and “super predators” in the nineties were also rooted in anecdote-driven, pseudo-scientific evidence….Both panics were contingent on demonizing Black parents: single mothers who were negligent and fathers who, inevitably, were absent. A similar pattern has developed today, with teachers and teachers’ unions serving as proxies to question the intelligence and competence of Black families choosing to keep their kids at home.

Posed in that manner, even without the tendentious interpretation of reopeners’ racially based motives (or as Taylor puts it, “This longing for stability on terms that preserve the underlying racism and inequity of the status quo”), the conflict between mayors who want to open schools and unions that do not can be misunderstood as an attempt to remove the choices of remote learners and teachers. But that is the opposite of the truth.

The families that truly have no choice are the ones whose kids have not had the option of setting foot in school for the past 11 months. “More than 75 [percent] of all students in Maryland, Oregon, New Mexico, California, Washington and Virginia have only had access to remote learning for the last 10 months, the Burbio data indicates,” CBS reported this week.

The reopeners I am familiar with, having followed this issue closely, want those who don’t feel safe to maintain the option of teaching and learning remotely. They just want other options, too—preferably including a predictable, full-time schedule. Those fighting to keep the all-remote status quo, meanwhile, eventually let slip that their one size has to fit all the rest of us.

“Pushing for schools to reopen even as the overwhelming majority of Black and Latinx parents opt for remote learning will only undermine remote instruction, all while catering to the disproportionate number of white students who show up in person,” Taylor warned.

In fact, 56 percent of black students tracked in the Education Next survey and 67 percent of Hispanics chose in-person instruction once given the option. If school districts and politicians these past seven months had bent their will toward pursuing the goal of full-time schooling, rather than the hybrid-at-best system tens of millions are suffering from today, maybe Democrats wouldn’t be experiencing so much internal tumult—and maybe we wouldn’t have inflicted so much damage on families for so little return on the investment.

Bonus video: Want to respect the education preferences of families, particularly those less well-off? Give them more choice, says Katherine Mangu-Ward:

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Back in the summer, some tentative research suggested that prior infections with the four coronaviruses associated with the common cold might confer some protection against the COVID-19 virus. Based on these findings, some scientists speculated that the threshold for COVID-19 herd immunity was low and could be soon reached. In other words, they thought the pandemic could be over sooner and ultimately be less lethal than many feared.

Unfortunately, a new study in the journal Cell suggests that hope was unfounded.

Herd immunity is the resistance to the spread of a contagious disease that results if a sufficiently high proportion of a population is immune to the illness. Some people are still susceptible, but they are surrounded by immune individuals who serve as a barrier, preventing the microbes from reaching them. Epidemiologists generally estimate that the COVID-19 threshold for herd immunity is around 70 to 90 percent.

It’s now pretty clear that the herd immunity threshold could not be as low as some of those researchers hoped. Otherwise, the northern hemisphere would not have seen a winter surge in COVID-19 diagnoses, hospitalizations, and deaths:

Now the Cell study undermines the hypothesis that prior infection with common cold coronaviruses provides a substantial protection against COVID-19 infection. University of Pennsylvania researcher Scott Hensley and his colleagues tested blood samples taken from people prior to the onset of the pandemic for antibodies to the common cold coronaviruses. These were then compared to two sets of post-pandemic samples: a control group, and a group whose samples were banked before the pandemic and who later went on to test positive for COVID-19.

The researchers found antibodies to the common cold coronaviruses in the more than 400 samples taken in 2017. The samples came from both adults and children, but the scientists focused on the children, because other researchers had suggested that children could be especially protected from COVID-19 infections because they catch colds more frequently. Another hypothesis was that the antibodies generated by prior common cold infections might protect people later infected with COVID-19 from severe illness.

In around 20 percent of both the pre-pandemic and post-pandemic samples, some common cold antibodies reacted to the COVID-19 virus. As a press release detailing the results points out, the similar proportions in the two groups imply “that they provided no protection against [COVID-19 virus] infection.” Furthermore, the presence of pre-pandemic common cold antibodies that reacted with the COVID-19 virus did not correlate with less hospitalization, less ICU care, or other signs that the disease was less severe.

As the researchers note, it is still possible that other, longer-lasting forms of immunity, such as that conferred by the T-cells generated by common cold infections, might provide some measure of protection against subsequent COVID-19 infections.

So when might the U.S. reach herd immunity against COVID-19?

Data scientist Youyang Gu has laid out a path toward herd immunity calculating the combined effects of immunity acquired from infection and vaccinations. If there is no especially speedy ramp-up in vaccinations, and assuming a low threshold of 60 percent, he thinks herd immunity could be achieved by the middle of May.

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After last month’s assault on the U.S. Capitol began, CNN’s Kaitlan Collins reported, “White House officials were shaken by Trump’s reaction.” She said they described him as “borderline enthusiastic because it meant the certification [of Joe Biden’s election] was being derailed.” Sen. Ben Sasse (R–Neb.), in an interview two days after the riot with conservative radio host Hugh Hewitt, likewise said “senior White House officials” had told him Trump was “walking around the White House confused about why other people on his team weren’t as excited as he was as you had rioters pushing against Capitol Police trying to get into the building.” Sasse described Trump as “delighted” by the violence.

You may not credit these second- and third-hand accounts of Trump’s mood as his followers, outraged by his fantasy of a stolen election, stormed the Capitol to stop Congress from certifying Biden’s victory. CNN is not exactly friendly toward Trump, and Sasse is a longtime critic. Their reports were based on information from unnamed officials who cannot be asked to confirm or deny making the comments attributed to them. Yet as the House members who are prosecuting Trump for inciting the Capitol riot emphasize, these accounts are consistent with Trump’s public behavior after the protest he convened to “stop the steal” turned violent.

The question of whether Trump intended to provoke a riot would be crucial if he were criminally prosecuted for his conduct on January 6. It matters less in an impeachment for “high crimes or misdemeanors,” which are not limited to statutory violations. But regardless of his intent before the riot started, Trump was strikingly reluctant to intervene after it began, and his irresponsibility at that point is independent grounds for impeachment. His reaction betrayed his duty to “take care that the laws be faithfully executed” as well as his oath to “preserve, protect and defend the Constitution.”

The rioters started fighting with police and breaching the security barriers around the Capitol at 12:53 p.m., nearly an hour into Trump’s inflammatory speech at Ellipse Park, where he urged his supporters at the “Save America” rally to “show strength” against an “egregious assault on our democracy” by marching to the building where Congress was about to anoint “an illegitimate president,” warning that “our country will be destroyed” should Biden be allowed to take office. About an hour after Trump supporters acting on his imaginary grievance began their attack, he tweeted a video of his speech. Why not? After all, as he later told reporters, his remarks were “totally appropriate” and had nothing to do with the riot.

Half an hour later, after Vice President Mike Pence had been rushed from the Senate floor to save him from rioters who wanted to “hang” him because he had refused to reject electoral votes for Biden, Trump took the time to tweet this: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution.” He was referring to the erroneous belief that Pence had the unilateral authority to overturn the election results, a claim Trump had repeatedly made in his speech at the rally.

“Once we found out Pence turned on us and that they had stolen the election, like, officially, the crowd went crazy,” a man charged in connection with the riot said in a YouTube video. “I mean, it became a mob.” Far from urging calm, Trump chose this moment to egg on the mob by reinforcing the rioters’ ire at the man they were threatening to kill. And he did that after he was informed that Pence had been forced to flee.

Even after members of Congress had been ushered out to protect them from Trump’s enraged supporters, he was still focused on challenging Biden’s electoral votes. Around 2 p.m., he mistakenly called Sen. Mike Lee (R–Utah) while trying to reach Sen. Tommy Tuberville (R–Ala.), one of the senators who had backed objections to electoral votes from battleground states. Lee handed his cellphone to Tuberville, who spoke to the president for about 10 minutes. Trump was “trying to convince him to make additional objections to the Electoral College vote,” CNN reported, but “the call was cut off because senators were asked to move to a secure location.”

As that incident suggests, Trump was remarkably blasé about his supporters’ violent invasion of the Capitol. “There is no evidence that President Trump called Vice President Pence, Speaker Pelosi or Senator Chuck Grassley—the first three in the line of succession—or anyone else in the Capitol to check on their safety during the attack,” the House impeachment managers note. Although “members of the House and Senate from both parties,” including House Minority Leader Kevin McCarthy (R–Calif.), “urged the President to intervene,” Trump did nothing until 2:38 p.m., an hour and 45 minutes after the riot started.

“Please support our Capitol Police and Law Enforcement,” he tweeted. “They are truly on the side of our Country. Stay peaceful!” He reiterated that message 35 minutes later: “I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law & Order—respect the Law and our great men and women in Blue. Thank you!”

As the House managers note, “these tweets were, obviously, totally ineffectual at stopping the violence.” They argue that Trump’s belated calls for peace “did not reflect any substantial effort on the part of the President of the United States to protect the Congress.”

Finally, more than three hours after the riot had started, Trump posted a short video in which he said this:

I know your pain. I know your hurt. We had an election that was stolen from us. But you have to go home now. We have to have peace. We have to have law and order. We have to respect our great people in law and order. This was a fraudulent election, but we can’t play into the hands of these people. We have to have peace. We love you. You’re very special. You see the way others are treated that are so bad and so evil, but go home and go home in peace.

Trump thus reinforced the delusion that motivated the riot even as he called for peace, which he did not because violence was morally wrong but because it was a tactical mistake that “play[ed] into the hands of these people.” The Capitol was declared secure about 15 minutes after that video went up, nearly four hours after the riot started. The joint session of Congress resumed around 8 p.m., completing its ratification of Biden’s election early the next morning.

Trump summed up his feelings about the riot in a tweet he posted at 6:01 p.m. on January 6: “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!”

Trump’s considered view, in other words, was that his supporters’ deadly violence, while perhaps regrettable, was an understandable response to a terrible injustice that he invented. To Trump, the ardor his supporters had demonstrated was something to be remembered with pride. Instead of unambiguously condemning the riot, as he finally did a week later in a written speech he recorded after he was impeached, Trump expressed his love and appreciation for the criminals who had invaded and vandalized the Capitol, assaulted the officers defending it, killing one of them and injuring many others; threatened to murder his own vice president; forced members of Congress to run for their lives; and caused an unprecedented interruption of the Electoral College vote tally, committing an “egregious assault on our democracy” in the name of stopping one.

Given his attitude, it is not surprising that Trump hesitated for so long and ultimately did nothing meaningful to stop the violence or protect the Capitol. These were his people. While they may have gotten carried away, they were motivated by their dedication to him, which is the noblest cause Trump can imagine.

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On Monday, the Committee for Justice sponsored a virtual panel on the timely topic of court-packing and other proposals for judicial reform. The panelists included Prof. Joshua Braver (University of Wisconsin), Tom Jipping (Heritage Foundation), and myself. I should note that Josh Braver is the author of an excellent recent article on the history of court-packing.

The video is embedded below.

We discussed both court-packing and a number of other proposals for judicial reform, particularly term limits for Supreme Court justices (an idea that enjoys broad support among legal scholars across the political spectrum, including myself). The panel also touched on President Biden’s planned judicial reform commission (which I recently wrote about here). I have previously written about the dangers of court-packing in a variety of posts, such as here and here.

The New York Times once described me as a centrist (probably incorrectly!). But, on this panel I suppose I lived up to their characterization, to some degree, because I was often in the middle between Josh Braver (on the left) and Tom Jipping (on the right).

I will also take this opportunity to remind people that my very first piece about court-packing was written in response to a Republican proposal to pack the lower courts, back in 2017. If am wrong about court-packing, it isn’t because I only oppose it when it might (at least in the short turn) benefit Democrats.

 

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