What Explains Why Homicides Are Increasing Significantly Across the Country Since Late May?

A new report released yesterday, by Richard Rosenfeld and Ernesto Lopez for the Council on Criminal Justice (CCJ), contains disturbing quantification of what has been reported anecdotally by media: Homicides have increased significantly in many cities across the country since late May.  And the pattern across other crime categories documented in the report suggests that a “Minneapolis effect”—a reduction in policing similar to the “Ferguson effect”—may well be the cause for the recent spike in homicides.

The CCJ report looks at weekly crime data from more than twenty of the nation’s largest cities, including New York, Los Angeles, Chicago, Atlanta, and Milwaukee. The report aggregates the data from these major cities and then looks for trends. With respect to homicide rates, the report concludes that:

There appears to be a rough cyclical pattern and a very slight upward trend in the homicide rate over time. The model estimated a structural break near the end of May 2020, after which the homicide rate increased by 37% through the end of June. The rise in homicide was led by three cities: Chicago, Philadelphia, and Milwaukee.

Here is the weekly homicide data depicted as a scatter plot.

The vertical red line indicates a “structural break” identified in weekly homicide rates between January 2017 and June 2020. (The structural break model assumed the break point was unknown and allowed the model to estimate the significant break in the series and adjusted for seasonal effects by comparing to crime rates during the same week in the previous year.)

The report observes the same pattern of a recent increase for aggravated assaults.  Looking at 17 large cities for which data were available, a structural break near the end of May 2020 was detected as well. Aggravated assaults rose by 35% from late May through the end of June 2020. The rise in aggravated assaults was led by Chicago, Louisville, Nashville, and Detroit.

Here is the weekly aggravated assault data depicted as a scatter plot:

Here again, the vertical red line indicates a structural break in the data set—a structural break that obviously exceeds ordinary seasonal variation.

What is noteworthy about the post-late-May spikes in homicides and aggravated assaults is that this same pattern does not appear for all other kinds of crimes. The report looked at nine other crime categories—gun assault (a subset of aggravated assault), domestic violence, robbery, burglary (and also the subsets of commercial and residential burglary), larceny, motor vehicle theft, and drug offenses. None of the other crime categories exhibited a structural break starting in late May. Burglaries, for example, abruptly increased (by 190%) at the end of May and then equally abruptly returned to normal levels in the next week. A dramatic increase in commercial burglaries in the week that coincided with the mass protests following the George Floyd killing explains this pattern.

The crime categories that came the closest to exhibiting the same pattern as homicides and aggravated assaults were gun assaults and robberies.  Gun assaults also showed a sharp and sustained increase after late May, although the pattern was not clear enough to be identified as a structural break. And robbery exhibited a structural break, but the timing was slightly earlier.  Robbery exhibited a long term downward trend, but after March 2020 the robbery rate rose by 27% through the end of June.

I have previously blogged about a recent and similar pattern in crime increases in Minneapolis. In that city, shooting crimes (including homicides) increased after the police killing of George Floyd in late May—but other crimes did not. A key part of the explanation appears to be that Minneapolis police stopped making as many street stops as they made previously. And given the unique responsiveness of gun crimes (such as homicides) to police activity, the result of the reduction in Minneapolis appears to have been a sharp increase in gun violence. At least 275 people have been the victims of gun crimes in Minneapolis during the first seven months of this year, surpassing the entire annual totals of all but two of the past ten years.

A parallel pattern of firearm crime increases occurred during the 2016 Chicago homicide spike.  A detailed paper on the Chicago spike by my University of Utah colleague Richard Fowles and me explains that in Chicago in 2016 gun-related crimes increased dramatically, but not other crimes. (See pp. 1600-01 of the study). Specifically, in Chicago in 2016 homicides increased substantially, by 58% year-over-year from 2015 to 2016.  There were also large (more than 20%) increases in robbery and aggravated assault–but not such large increases in other index crimes. Focusing specifically on gun crimes, there was a substantial increase in shootings in Chicago in 2016. Fatal shootings increased by 66% and non-fatal shootings increased by 44%.  (See Table 5).

Professor Fowles and I explained in our paper that the most likely cause of the 2016 Chicago homicide spike was a reduction in street stops (often referred to as “stop and frisks”) in Chicago. We called this effect the “ACLU effect” because an agreement between the Chicago Police Department and the ACLU in in August 2015 was implemented in December 2015, leading in 2016 to about an 80% reduction in street stops conducted by Chicago police officers.

The new CCJ report discusses what might be causing the recent spike in homicides and aggravated assaults. The report notes that while some of the violence was directly connected to protest activities, in most cases the crimes appear to have involved perpetrators other than the protesters. Most of the increase in violent crime took place away from the demonstrations and was not limited to single week (such as the week surrounding May 25, when George Floyd was killed).

The CCJ report also finds it instructive to compare the recent rise in urban violence with the increases that occurred five years ago in the wake of protests about a police killing in Ferguson, Missouri. As the report explains,

Analysts tied the heightened violence to two versions of the so-called Ferguson Effect. The first connects the violence to “de-policing,” a pullback in law enforcement. The second essentially turns this explanation on its head and connects the violence to “de-legitimizing,” positing that communities, disadvantaged communities of color in particular, drew even further away from the police due to breached trust and lost confidence. As a result of diminished police legitimacy, fewer people reported crimes to the police or cooperated in investigations, and more engaged in street justice to settle disputes. It remains unclear whether either of these theories explains the previous rise in violence, much less today’s increase.

The CCJ report is  properly cautious in concluding that we don’t know for certain whether de-policing or de-legitimizing policing was responsible for the increase in homicides and other violent crimes in 2015-16 … or which of the two is (apparently) responsible for the recent homicide increases since late May. But my prediction is that a de-policing “Minneapolis Effect” (akin to the earlier de-policing “Ferguson Effect” or the “ACLU Effect” in Chicago) will ultimately possess the most explanatory power for the recent and abrupt homicide spikes.

Here’s what the recent data appear to show: In the wake of George Floyd’s killing, police have been redeployed to respond to anti-police protests, diverting them from anti-gun patrols and other activities that deter the carrying of illegal firearms. Police have also also pulled back from some measures of pro-active policing, again as the result of the protests. The result of this reduction in law enforcement activity directed against gun violence has been, perhaps unsurprisingly, an increase in gun violence.  Chicago Police Superintendent David Brown put the point precisely for his city, explaining that “[e]very time we have to drain our resources for protests, the people on the West Side and the South Side suffer.”

The de-policing hypothesis appears to be a better fit with the data than the de-legitimizing hypothesis. If law enforcement has become generally de-legitimized, the result should be a general increase in all crime categories, including (for example) burglaries. But that is not the pattern that the data exhibit. The recent data reflect an increase in homicides and other gun-related crimes but not other crimes—a unique pattern that is more consistent with de-policing being the cause.

One way of attempting to sort through the competing hypotheses is to examine whether residents of the affected citiies are reporting fewer crimes to the police. In analyzing the 2016 Chicago homicide spike, for example, Professor Fowles and I used calls to 9-1-1 as a measure of police legitimacy, as was suggested by other researchers. We found that changes in 9-1-1 call rates could not explain the Chicago homicide spike. Examining recent 9-1-1 call patterns might be one way to investigate any explanatory power of the de-legitimizing hypothesis.

Similarly, police departments often keep data on street stops and other measures of police activity.  Changes in these activities should be assessed to see if they correspond to increases in homicides. For example, in my recent blog post, I pointed to a decrease in Minneapolis in police searches and suspicious person stops that coincided precisely with the increase in shootings that occurred there in late May. Data in other cities could be reviewed to see if they exhibit similar trends.

If the hypothesis about a Minneapolis Effect is correct, a recommended policy response would seem to be to bolster police activities targeting gun violence. Some modest good news on this front comes from Chicago. Last week, in a widely publicized move, federal law enforcement officers from the Bureau of Alcohol, Tobacco and Firearms and other federal agencies deployed to Chicago, focusing on enforcing federal firearms laws. Federal law enforcement efforts against gun crimes can take advantage of tough federal sentencing laws and avoid some of the pretrial release issues that have drawn attention in Chicago.

And perhaps even more important given its vastly larger numbers, the Chicago Police Department created a new “Community Safety Team” that deployed officers to the South and West Sides of Chicago where the spikes in violent crime are occurring. The Community Safety Team is designed to not only supplement existing law enforcement efforts, but also to engage in regular community projects. While it is too early to tell what the effects will ultimately be, the very early results are encouraging. This past weekend in Chicago, the Chicago Police Department recorded 39 shootings. That compared to 41 the previous weekend, 50 the weekend before that, and 87 during the long Fourth of July weekend.

Researchers should continue to investigate why homicides have been spiking in Chicago and other major cities across the country. If the answer is that de-policing is linked to rising gun violence (as some earlier studies would suggest), further limiting police efforts to aggressively deter gun crimes will tragically lead to more shootings and more homicides. And the victims of those crimes will likely come disproportionately from African-American communities—communities that, in some instances, may want more aggressive police efforts to combat gun crimes.

Attorney Barr touched on these de-policing issues in testimony before the House Judiciary Committee yesterday:

When a community turns on and pillories its own police, officers naturally become more risk averse and crime rates soar. Unfortunately, we are seeing that now in many of our major cities. This is a critical problem that exists apart from disagreements on other issues. … And it is not just that crime snuffs out lives. Crime snuffs out opportunity. Children cannot thrive in playgrounds and schools dominated by gangs and drug pushers. 

The crime rate patterns discussed above support the Attorney General’s position. These patterns deserve serious scrutiny as the data continue to emerge. The stakes are obviously very high in determining how the nation should respond to this recent spike in gun violence.

Note: I am a member of the CCJ, but was not involved in drafting of the report discussed in this post.

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Homicides Are Increasing Significantly Across the Country Since Late May

A new report released yesterday, by Richard Rosenfeld and Ernesto Lopez for the Council on Criminal Justice (CCJ), contains disturbing quantification of what has been reported anecdotally by media: Homicides have increased significantly in many cities across the country since late May.  And the pattern across other crime categories documented in the report suggests that a “Minneapolis effect”—a reduction in policing similar to the “Ferguson effect”—may well be the cause for the recent spike in homicides.

The CCJ report looks at weekly crime data from more than twenty of the nation’s largest cities, including New York, Los Angeles, Chicago, Atlanta, and Milwaukee. The report aggregates the data from these major cities and then looks for trends. With respect to homicide rates, the report concludes that:

There appears to be a rough cyclical pattern and a very slight upward trend in the homicide rate over time. The model estimated a structural break near the end of May 2020, after which the homicide rate increased by 37% through the end of June. The rise in homicide was led by three cities: Chicago, Philadelphia, and Milwaukee.

Here is the weekly homicide data depicted as a scatter plot.

The vertical red line indicates a “structural break” identified in weekly homicide rates between January 2017 and June 2020. (The structural break model assumed the break point was unknown and allowed the model to estimate the significant break in the series and adjusted for seasonal effects by comparing to crime rates during the same week in the previous year.)

The report observes the same pattern of a recent increase for aggravated assaults.  Looking at 17 large cities for which data were available, a structural break near the end of May 2020 was detected as well. Aggravated assaults rose by 35% from late May through the end of June 2020. The rise in aggravated assaults was led by Chicago, Louisville, Nashville, and Detroit.

Here is the weekly aggravated assault data depicted as a scatter plot:

Here again, the vertical red line indicates a structural break in the data set—a structural break that obviously exceeds ordinary seasonal variation.

What is noteworthy about the post-late-May spikes in homicides and aggravated assaults is that this same pattern does not appear for all other kinds of crimes. The report looked at nine other crime categories—gun assault (a subset of aggravated assault), domestic violence, robbery, burglary (and also the subsets of commercial and residential burglary), larceny, motor vehicle theft, and drug offenses. None of the other crime categories exhibited a structural break starting in late May. Burglaries, for example, abruptly increased (by 190%) at the end of May and then equally abruptly returned to normal levels in the next week. A dramatic increase in commercial burglaries in the week that coincided with the mass protests following the George Floyd killing explains this pattern.

The crime categories that came the closest to exhibiting the same pattern as homicides and aggravated assaults were gun assaults and robberies.  Gun assaults also showed a sharp and sustained increase after late May, although the pattern was not clear enough to be identified as a structural break. And robbery exhibited a structural break, but the timing was slightly earlier.  Robbery exhibited a long term downward trend, but after March 2020 the robbery rate rose by 27% through the end of June.

I have previously blogged about a recent and similar pattern in crime increases in Minneapolis. In that city, shooting crimes (including homicides) increased after the police killing of George Floyd in late May—but other crimes did not. A key part of the explanation appears to be that Minneapolis police stopped making as many street stops as they made previously. And given the unique responsiveness of gun crimes (such as homicides) to police activity, the result of the reduction in Minneapolis appears to have been a sharp increase in gun violence. At least 275 people have been the victims of gun crimes in Minneapolis during the first seven months of this year, surpassing the entire annual totals of all but two of the past ten years.

A parallel pattern of firearm crime increases occurred during the 2016 Chicago homicide spike.  A detailed paper on the Chicago spike by my University of Utah colleague Richard Fowles and me explains that in Chicago in 2016 gun-related crimes increased dramatically, but not other crimes. (See pp. 1600-01 of the study). Specifically, in Chicago in 2016 homicides increased substantially, by 58% year-over-year from 2015 to 2016.  There were also large (more than 20%) increases in robbery and aggravated assault–but not such large increases in other index crimes. Focusing specifically on gun crimes, there was a substantial increase in shootings in Chicago in 2016. Fatal shootings increased by 66% and non-fatal shootings increased by 44%.  (See Table 5).

Professor Fowles and I explained in our paper that the most likely cause of the 2016 Chicago homicide spike was a reduction in street stops (often referred to as “stop and frisks”) in Chicago. We called this effect the “ACLU effect” because an agreement between the Chicago Police Department and the ACLU in in August 2015 was implemented in December 2015, leading in 2016 to about an 80% reduction in street stops conducted by Chicago police officers.

The new CCJ report discusses what might be causing the recent spike in homicides and aggravated assaults. The report notes that while some of the violence was directly connected to protest activities, in most cases the crimes appear to have involved perpetrators other than the protesters. Most of the increase in violent crime took place away from the demonstrations and was not limited to single week (such as the week surrounding May 25, when George Floyd was killed).

The CCJ report also finds it instructive to compare the recent rise in urban violence with the increases that occurred five years ago in the wake of protests about a police killing in Ferguson, Missouri. As the report explains,

Analysts tied the heightened violence to two versions of the so-called Ferguson Effect. The first connects the violence to “de-policing,” a pullback in law enforcement. The second essentially turns this explanation on its head and connects the violence to “de-legitimizing,” positing that communities, disadvantaged communities of color in particular, drew even further away from the police due to breached trust and lost confidence. As a result of diminished police legitimacy, fewer people reported crimes to the police or cooperated in investigations, and more engaged in street justice to settle disputes. It remains unclear whether either of these theories explains the previous rise in violence, much less today’s increase.

The CCJ report is  properly cautious in concluding that we don’t know for certain whether de-policing or de-legitimizing policing was responsible for the increase in homicides and other violent crimes in 2015-16 … or which of the two is (apparently) responsible for the recent homicide increases since late May. But my prediction is that a de-policing “Minneapolis Effect” (akin to the earlier de-policing “Ferguson Effect” or the “ACLU Effect” in Chicago) will ultimately possess the most explanatory power for the recent and abrupt homicide spikes.

Here’s what the recent data appear to show: In the wake of George Floyd’s killing, police have been redeployed to respond to anti-police protests, diverting them from anti-gun patrols and other activities that deter the carrying of illegal firearms. Police have also also pulled back from some measures of pro-active policing, again as the result of the protests. The result of this reduction in law enforcement activity directed against gun violence has been, perhaps unsurprisingly, an increase in gun violence.  Chicago Police Superintendent David Brown put the point precisely for his city, explaining that “[e]very time we have to drain our resources for protests, the people on the West Side and the South Side suffer.”

The de-policing hypothesis appears to be a better fit with the data than the de-legitimizing hypothesis. If law enforcement has become generally de-legitimized, the result should be a general increase in all crime categories, including (for example) burglaries. But that is not the pattern that the data exhibit. The recent data reflect an increase in homicides and other gun-related crimes but not other crimes—a unique pattern that is more consistent with de-policing being the cause.

One way of attempting to sort through the competing hypotheses is to examine whether residents of the affected citiies are reporting fewer crimes to the police. In analyzing the 2016 Chicago homicide spike, for example, Professor Fowles and I used calls to 9-1-1 as a measure of police legitimacy, as was suggested by other researchers. We found that changes in 9-1-1 call rates could not explain the Chicago homicide spike. Examining recent 9-1-1 call patterns might be one way to investigate any explanatory power of the de-legitimizing hypothesis.

Similarly, police departments often keep data on street stops and other measures of police activity.  Changes in these activities should be assessed to see if they correspond to increases in homicides. For example, in my recent blog post, I pointed to a decrease in Minneapolis in police searches and suspicious person stops that coincided precisely with the increase in shootings that occurred there in late May. Data in other cities could be reviewed to see if they exhibit similar trends.

If the hypothesis about a Minneapolis Effect is correct, a recommended policy response would seem to be to bolster police activities targeting gun violence. Some modest good news on this front comes from Chicago. Last week, in a widely publicized move, federal law enforcement officers from the Bureau of Alcohol, Tobacco and Firearms and other federal agencies deployed to Chicago, focusing on enforcing federal firearms laws. Federal law enforcement efforts against gun crimes can take advantage of tough federal sentencing laws and avoid some of the pretrial release issues that have drawn attention in Chicago.

And perhaps even more important given its vastly larger numbers, the Chicago Police Department created a new “Community Safety Team” that deployed officers to the South and West Sides of Chicago where the spikes in violent crime are occurring. The Community Safety Team is designed to not only supplement existing law enforcement efforts, but also to engage in regular community projects. While it is too early to tell what the effects will ultimately be, the very early results are encouraging. This past weekend in Chicago, the Chicago Police Department recorded 39 shootings. That compared to 41 the previous weekend, 50 the weekend before that, and 87 during the long Fourth of July weekend.

Researchers should continue to investigate why homicides have been spiking in Chicago and other major cities across the country. If the answer is that de-policing is linked to rising gun violence (as some earlier studies would suggest), further limiting police efforts to aggressively deter gun crimes will tragically lead to more shootings and more homicides. And the victims of those crimes will likely come disproportionately from African-American communities—communities that, in some instances, may want more aggressive police efforts to combat gun crimes.

Attorney Barr touched on these de-policing issues in testimony before the House Judiciary Committee yesterday:

When a community turns on and pillories its own police, officers naturally become more risk averse and crime rates soar. Unfortunately, we are seeing that now in many of our major cities. This is a critical problem that exists apart from disagreements on other issues. … And it is not just that crime snuffs out lives. Crime snuffs out opportunity. Children cannot thrive in playgrounds and schools dominated by gangs and drug pushers. 

The crime rate patterns discussed above support the Attorney General’s position. These patterns deserve serious scrutiny as the data continue to emerge. The stakes are obviously very high in determining how the nation should respond to this recent spike in gun violence.

Note: I am a member of the CCJ, but was not involved in drafting of the report discussed in this post.

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Academic Career Success and the Importance of Ideological Conformity: An Anecdote

While doing some research today, I came across a student article (known as a “note” in law review parlance) from the 2006 Yale Law Journal with a provocative title: “Grutter at Work: A Title VII Critique of Constitutional Affirmative Action.”

The title made it sound like the note would argue that Title VII of the 1964 Civil Rights Act is an independent limitation on racial preferences in the workplace, and thus Grutter’s “constitutional” rationale for the pursuit of “diversity” being lawful in the educational context, i.e., that academic freedom permits universities to take diversity into account if they think it will enhance students’ education, could not be applied in the employment context.

I was surprised that a Yale law student would publicly take a position against affirmative action, even if only via statutory interpretation, even more surprised that the Journal would publish it, and also surprised that I had not heard about any controversy surrounding its publication.

Then I glanced at the author’s name. A professor at Columbia now! Now my mind went from surprise to “virtually impossible.”

I don’t know the author personally and I’m not familiar enough with her work to know her ideology, but at that point I deduced that the title must be misleading, and the author must have been arguing in favor of affirmative action, and against importing any restrictions from the constitutional context of state university to the private employer context. I just couldn’t imagine anyone getting hired by a school like Columbia these days who wrote her student note critical of affirmative action.

I then went to the abstract, which confirmed my deduction: “Grutter’s diversity rationale is a broad endorsement of integration that hinges on the quantitative concept of critical mass, but the opinion’s narrow-tailoring discussion instead points to a model of racial difference that champions subjective decisionmaking and threatens to jettison numerical accountability. Title VII doctrine supports a reading of Grutter that privileges a view of diversity as integration and therefore cautions against the opinion’s conception of narrow tailoring. Grutter, in turn, can productively inform employment discrimination law. The opinion reaffirms principles of contested Title VII precedent and suggests how employers might use affirmative action to meaningfully integrate their workforces.”

There is something very rotten in the state of the legal academy when you can make the deduction I made, on the grounds I made it.

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Academic Career Success and the Importance of Ideological Conformity: An Anecdote

While doing some research today, I came across a student article (known as a “note” in law review parlance) from the 2006 Yale Law Journal with a provocative title: “Grutter at Work: A Title VII Critique of Constitutional Affirmative Action.”

The title made it sound like the note would argue that Title VII of the 1964 Civil Rights Act is an independent limitation on racial preferences in the workplace, and thus Grutter’s “constitutional” rationale for the pursuit of “diversity” being lawful in the educational context, i.e., that academic freedom permits universities to take diversity into account if they think it will enhance students’ education, could not be applied in the employment context.

I was surprised that a Yale law student would publicly take a position against affirmative action, even if only via statutory interpretation, even more surprised that the Journal would publish it, and also surprised that I had not heard about any controversy surrounding its publication.

Then I glanced at the author’s name. A professor at Columbia now! Now my mind went from surprise to “virtually impossible.”

I don’t know the author personally and I’m not familiar enough with her work to know her ideology, but at that point I deduced that the title must be misleading, and the author must have been arguing in favor of affirmative action, and against importing any restrictions from the constitutional context of state university to the private employer context. I just couldn’t imagine anyone getting hired by a school like Columbia these days who wrote her student note critical of affirmative action.

I then went to the abstract, which confirmed my deduction: “Grutter’s diversity rationale is a broad endorsement of integration that hinges on the quantitative concept of critical mass, but the opinion’s narrow-tailoring discussion instead points to a model of racial difference that champions subjective decisionmaking and threatens to jettison numerical accountability. Title VII doctrine supports a reading of Grutter that privileges a view of diversity as integration and therefore cautions against the opinion’s conception of narrow tailoring. Grutter, in turn, can productively inform employment discrimination law. The opinion reaffirms principles of contested Title VII precedent and suggests how employers might use affirmative action to meaningfully integrate their workforces.”

There is something very rotten in the state of the legal academy when you can make the deduction I made, on the grounds I made it.

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New in NRO: Gorsuch and Kavanaugh Declare Their Independence from Trump

National Review Online published my new essay, Gorsuch and Kavanaugh Declare Their Independence from Trump. I wrote this before Joan Biskupic’s latest leak, but it is consistent with my take.

Here is the introduction:

Neil Gorsuch and Brett Kavanaugh, perhaps more than any other Supreme Court justices in modern history, are closely connected to the president who appointed them. Gorsuch got his seat after Republicans stonewalled the nomination of Judge Merrick Garland and then Trump unexpectedly prevailed in the 2016 election. And any other president would have likely withdrawn his nominee after Christine Blasey Ford’s allegations, but Trump dug deep, and Kavanaugh managed to cross the finish line. That past cannot be erased, but a new prologue is being written. Gorsuch and Kavanaugh know full well that Trump’s tenure is limited. These Gen Xers may serve nearly half a century, long after the memory of President Donald J. Trump is relegated to the history books. And after the July 4 weekend, the two Trump appointees formally declared their independence from him.

And the conclusion:

Kavanaugh and, I suspect, Gorsuch understood this dynamic all too well. These judges were very much attuned to how they would be judged. So they split the difference. In voting for a framework that empowered future presidents to resist subpoenas, they also cast a hyper-technical vote that allowed New York’s subpoena to be enforced against the current president. To the general public, the vote was 7–2. It was not unanimous, but this lopsided split was better than 5–4. And to Kavanaugh and Gorsuch, their short writing did not disturb the long-term constitutional equilibrium.

After the case was decided, Trump reportedly saw Gorsuch and Kavanaugh’s “votes as a betrayal” and “expressed deep anger” at his nominees. I suspect that the duo could not care less about these White House fireworks. Independence has its perks. Soon enough, Trump will be gone. But Gorsuch and Kavanaugh will be with us for some time. With their narrow decision, they managed to separate themselves from this president but carefully guarded presidential authority for decades to come.

I will have much more to say about the Tax Return case in my third installment about the leaks.

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New in NRO: Gorsuch and Kavanaugh Declare Their Independence from Trump

National Review Online published my new essay, Gorsuch and Kavanaugh Declare Their Independence from Trump. I wrote this before Joan Biskupic’s latest leak, but it is consistent with my take.

Here is the introduction:

Neil Gorsuch and Brett Kavanaugh, perhaps more than any other Supreme Court justices in modern history, are closely connected to the president who appointed them. Gorsuch got his seat after Republicans stonewalled the nomination of Judge Merrick Garland and then Trump unexpectedly prevailed in the 2016 election. And any other president would have likely withdrawn his nominee after Christine Blasey Ford’s allegations, but Trump dug deep, and Kavanaugh managed to cross the finish line. That past cannot be erased, but a new prologue is being written. Gorsuch and Kavanaugh know full well that Trump’s tenure is limited. These Gen Xers may serve nearly half a century, long after the memory of President Donald J. Trump is relegated to the history books. And after the July 4 weekend, the two Trump appointees formally declared their independence from him.

And the conclusion:

Kavanaugh and, I suspect, Gorsuch understood this dynamic all too well. These judges were very much attuned to how they would be judged. So they split the difference. In voting for a framework that empowered future presidents to resist subpoenas, they also cast a hyper-technical vote that allowed New York’s subpoena to be enforced against the current president. To the general public, the vote was 7–2. It was not unanimous, but this lopsided split was better than 5–4. And to Kavanaugh and Gorsuch, their short writing did not disturb the long-term constitutional equilibrium.

After the case was decided, Trump reportedly saw Gorsuch and Kavanaugh’s “votes as a betrayal” and “expressed deep anger” at his nominees. I suspect that the duo could not care less about these White House fireworks. Independence has its perks. Soon enough, Trump will be gone. But Gorsuch and Kavanaugh will be with us for some time. With their narrow decision, they managed to separate themselves from this president but carefully guarded presidential authority for decades to come.

I will have much more to say about the Tax Return case in my third installment about the leaks.

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Kamala Harris for Vice President? A Disappeared Article Fuels Speculation.

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“I’m going to have a choice the first week in August,” said Biden. Speculation about who Democratic presidential candidate Joe Biden will pick as his running mate is getting out of control as the announcement becomes more imminent. Biden said months ago that it would definitely be a woman and, while a multitude of names have been thrown around in the press as potential contenders, many are betting on California Sen. Kamala Harris—though her attempt to portray Biden as a racist on the debate stage last summer may still complicate things.

About the dust-up, Harris “laughed and said, ‘that’s politics.’ She had no remorse,” former Sen. Chris Dodd (and a member of Biden’s vice presidential search team) told Politico.

This and similar complaints have prompted accusations of sexism from some prominent progressive women. “When your pals help you pick your lady VP based on how contrite she is about having challenged you in a debate,” tweeted New York magazine writer Rebecca Traister.

But let’s not gloss over what Harris actually did to Biden. It may well be just politics, but it was certainly not Harris simply disagreeing with or challenging Biden during a debate.

Harris framed Biden’s former opposition to federal busing mandates to racially integrate schools to make him appear racist and out-of-touch—and then was ready with merchandise to sell around these digs. After a lot of media attention and donations garnered by her attack on Biden, Harris “clarified” that she also opposed a federal busing mandate. It was a backhanded and hypocritical fundraising ploy at Biden’s expense.

Still, Biden and Harris have been awfully chummy lately.

Now, a media mistake and Biden’s notes are fueling even more speculation that Harris will be the one.

First, Politico briefly published text—dated August 1—that declared Harris to be the vice presidential pick, prompting some to wonder if the publication had a scoop it had mistakenly offered up too soon. (Clicking the former page URL now will lead you to an error page.)

It’s common for news outlets to pre-write items like this around a number of possible outcomes, and that may be all that’s going on here. Politico could have similar slugs for others at the ready, too. However, it’s not common for journalists writing slug articles like this to fabricate direct quotes (usually you just use placeholder text, like “TKTKTK,” where you want a future quote to go), as the Politico text that went up yesterday does.

It states that “in his announcement, Biden called Harris ‘a worthy opponent and a worthy running mate.'”

So, what’s going on there is anyone’s guess. On Monday, Politico told readers not to “count Susan Rice out of the vice presidential contest” and ran a piece skeptical of Harris’ chances to be Biden’s running mate.

But Biden’s notes during a press conference yesterday are also fueling speculation. An image captured by the Associated Press showed Harris’ name followed by five talking points:

  • “Do not hold grudges.”
  • “Campaigned with me & Jill.”
  • “Talented.”
  • “Great help to campaign.”
  • “Great respect for her.”

But this list could easily be things that Biden would say about Harris if she’s not his pick but he still wants to convey that there’s no bad blood.

(Personally, I’m just amused—or maybe saddened—that such basic comments even needed to be written down, as if Biden couldn’t come up with positive things to say about Harris unscripted…)

“Biden ultimately did not field a question specifically about Harris,” the A.P. reports. And “Biden also sidestepped specific questions about the timing of his decision on a running mate, an approach reflected in another entry on Biden’s notepad. Under the heading ‘VP,’ Biden wrote ‘highly qualified’ and ‘diverse group,’ signifying his intention not to tease out any more details.”

Biden did, however, tell reporters that he would “have a choice the first week in August, and I promise I’ll let you know when I do.”

Aside from Harris and Rice, those reportedly in the contest include Massachusetts Sen. Elizabeth Warren and California Rep. Karen Bass.

Already, Biden’s rumored Harris selection has a lot of people—including Warren fans—angry or questioning the wisdom of his choice. Harris’ prosecutor past is a liability especially during a period of such scrutiny toward police and our criminal justice system. Selecting Harris will also remind Americans of her attacks on him, with their potential to make both Harris and Biden look bad.

Many have focused on the fact that Harris is a woman of color as a reason Biden should pick her over Warren. And there’s certainly another overlooked perk: dirt on Trump-related activities.


FREE MARKETS

Democratic Party leadership is out of touch on marijuana. “On Monday the Democratic National Committee rejected an amendment to put a plank supporting marijuana legalization into the party’s platform,” notes Reason‘s Scott Shackford. “The final vote against, 50-106, is almost a perfect inversion of the two-thirds of the public who want legalization.”


FREE MINDS

The Trump administration is taking “steps to wind down legal protections for hundreds of thousands of immigrants brought into the country as children, often called ‘Dreamers,'” NBC News reports. The White House said yesterday it will “reject initial requests and application fees for new filings, consider all applications for renewal on a case-by-case basis but limit renewals to one year rather than two, and reject all applications for advance parole unless there are ‘extraordinary circumstances'” as it undertakes a legal review of its plans to end the Deferred Action for Childhood Arrivals (DACA) program.

The Supreme Court ruled against Trump’s attempted DACA elimination in June.

The “ruling is a victory for DACA recipients, but a very limited one,” wrote Eugene Volokh at the time. His take:

The Supreme Court correctly concluded that the Trump administration’s shoddy rationale for rescinding DACA violated the Administrative Procedure Act because it failed to offer any justification for repealing the central element of the DACA program: forbearance on deportation of undocumented immigrants who were brought to the United States as children. But Trump or a future president could still rescind DACA if they are willing to offer such a justification in the future and pay the political price of doing so. For that reason, I strongly agree with co-blogger Jonathan Adler’s view that this is a very narrow decision.

Today’s ruling does not definitively end either the legal or the political battle over DACA. Ultimately, only Congress can do that, by finally passing a law definitively protecting “Dreamers” from deportation and giving them permanent resident status in the United States. Until then, they will not be fully safe.


QUICK HITS

• The feds are conditioning protesters’ release from jail on them not attending any more protests.

• “A National Guard officer will testify Tuesday at a congressional hearing that the June 1 clearing of protesters outside the White House was ‘an unnecessary escalation of the use of force,'” writes Reason‘s C.J. Ciaramella.

• More on Republicans’ proposed stimulus bill.

• “Universal Pictures and AMC Entertainment, the No. 1 movie chain in the world, have reached a deal to allow movies to move to homes after a mere three weeks in theaters in the United States, almost certainly changing the way that Hollywood does business,” reports The New York Times.

• Attorney General William Barr talks Operation Legend:

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Why Pandemic Pods are ‘the Ultimate In Parent-Driven Education Innovation’

dpaphotosfour570813

“It’s a big mess,” says Hollie Gesaman, a mother of two young children in Streetsboro, Ohio. She was talking about the upcoming school year, and what parents would do with their kids. “A lot of people are on the fence about a lot of different things. Our school hasn’t given us any idea of what they’re going for. They have ‘potential’ plans, but the bottom line is that there’s really not a 100% good choice.” Send the kids to school? There’s a health risk. Keep them home, and what about socialization? Homeschool? Unschool? Let them watch cartoons and learn the entire ACME product line? “There’s a negative consequence for each possibility,” Gesaman sighs. “Just pick a punch in the face.”

The punch suddenly getting the most play is the “pandemic pod.” “Pods went from, ‘Oh, isn’t that interesting?’ to ubiquitous in about 72 hours,” says Robert Pondiscio, a former Bronx public school teacher who now works at the Thomas B. Fordham Institute.

A pod is a small group of families who approve of each other’s quarantining habits and whose kids will spend the next few weeks, months, or God-knows-how-long learning together away from the school house. These may be kids who were going to the same school already, or they may be neighbors, cousins, or play-group buddies. They may be the same age, or not. They may hire a tutor, a babysitter, or a bona fide teacher. They may tune in together to the school district’s online lessons, or they may choose a totally different homeschooling curriculum. Their parents may or may not pitch in with the teaching. And they may or may not strive to include a kid or kids from a different income level, race, or neighborhood, to create more equity. (That last one is a big issue in the Facebook chats.)

In other words: Everything is up for re-imagining. “These pandemic pods are the ultimate in parent-driven education innovation,” says Kerry McDonald, author of Unschooled. “Parents were forced into COVID homeschooling last spring. But now they are willingly taking the reins of their children’s education.”

Amy Evans, a writer with two kids in Montclair, New Jersey, is one of them. She thinks she will probably have her daughter attend whatever online/offline hybrid the local high school puts together, because it has (or had?) a lot of specialized classes her daughter wants to take. But for her son, an 8th grader, she’s less sure. Is the risk and weirdness of a socially distanced classroom worth it, especially if there’s no gym class? And what if a lot of time is spent repeating the online lessons not every kid paid peak attention to last spring?  Evans says she may not send him back “if it’s a whole lot of reviewing and handwashing and still potentially unsafe.”

Instead, she might formalize an ad hoc group her son and a couple of his friends threw together in March, when students were first sent home. They did their homework together, remotely. In a way, says Evans, “Our kids beat us to it.”

Gesaman, the Ohio mom, also organized an informal gathering at her home in the spring. She had four first graders do math and art projects together in, essentially, a pod. “Some might say I invented the whole concept,” she says. “Just kidding—absolutely no one is saying that.” Furloughed from her job the same moment schools closed, she read up on the first grade curriculum and taught the class herself. She found the kids grasped the concepts, and now she is ready to do it again.

Does having a parent who can teach, or having a home with enough space for a class, or even confining a pod to people who can quarantine—thereby excluding the children of essential workers—create inequity? That’s the question plaguing a lot of parents. Understandably so, says Pondiscio, “Because everything in education causes inequity. It’s like the old Joe Jackson song: Everything gives you cancer.”

He’s not being flip. As the author of How the Other Half Learns, and he wants more equity between the halves, too. One idea that he, McDonald, and Corey DeAngelis, Reason’s own director of school choice, have been thinking about is giving education dollars directly to families. Could this cataclysmic time of school closures and remote learning be the time to experiment with redirecting school money to the parents? They could use it to hire a personal part-time tutor, or create a local pod where everyone is pooling their stipends.

“I call it ‘Universal Basic Education Income,'” says DeAngelis. Like food stamps that can be used at any grocery, or Pell Grants that can be spent on the student’s college of choice, these education dollars could be spent wherever the family thought best, including at the local public school. When life returns to normal, the experiment could be studied, including any unintended consequences and whether it helped create more equity.

To Beth Isaacs, a music teacher in the Lexington, Kentucky, public schools, that sounds like a recipe ripe for the very worst inequity. The public school system takes students across the economic, educational and ethnic spectrum and gets them all interacting and learning together. “In my school, we are 100 percent free and reduced lunch, and 15 percent refugee,” she says. 

Each teacher crafts the students into an assortment of, well, pods: Four kids at a table, learning together. The pods are shuffled all year long, so all the kids develop relationships and learn from each other. She worries that giving the education budget directly to parents means that some would choose to avoid any kind of mixing. She also stresses the possibility that a tutor would not be well-trained, and she argues that draining the ed budget would starve what Isaacs calls an already stretched-thin, “duct tape-and-Velcro” system.

“You’re not draining the system,” counters McDonald. “You’re redistributing it to students and allowing for the freedom of choice we have in all other areas of our lives.” As for hiring sub-par instructors, “Parents have the utmost interest in insuring that their children are highly educated,” McDonald says, and will choose wisely.

Clearly this is a fraught moment. Parents are reeling, students are waiting, and school districts are punting. Everything is up for grabs, including whether there’s about to be a giant teachers strike. But no matter what happens, this is going to be a year of educational changes, pods, no pods, or, given how things have been going, maybe even Tide Pods.

 

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Kamala Harris for Vice President? A Disappeared Article Fuels Speculation.

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“I’m going to have a choice the first week in August,” said Biden. Speculation about who Democratic presidential candidate Joe Biden will pick as his running mate is getting out of control as the announcement becomes more imminent. Biden said months ago that it would definitely be a woman and, while a multitude of names have been thrown around in the press as potential contenders, many are betting on California Sen. Kamala Harris—though her attempt to portray Biden as a racist on the debate stage last summer may still complicate things.

About the dust-up, Harris “laughed and said, ‘that’s politics.’ She had no remorse,” former Sen. Chris Dodd (and a member of Biden’s vice presidential search team) told Politico.

This and similar complaints have prompted accusations of sexism from some prominent progressive women. “When your pals help you pick your lady VP based on how contrite she is about having challenged you in a debate,” tweeted New York magazine writer Rebecca Traister.

But let’s not gloss over what Harris actually did to Biden. It may well be just politics, but it was certainly not Harris simply disagreeing with or challenging Biden during a debate.

Harris framed Biden’s former opposition to federal busing mandates to racially integrate schools to make him appear racist and out-of-touch—and then was ready with merchandise to sell around these digs. After a lot of media attention and donations garnered by her attack on Biden, Harris “clarified” that she also opposed a federal busing mandate. It was a backhanded and hypocritical fundraising ploy at Biden’s expense.

Still, Biden and Harris have been awfully chummy lately.

Now, a media mistake and Biden’s notes are fueling even more speculation that Harris will be the one.

First, Politico briefly published text—dated August 1—that declared Harris to be the vice presidential pick, prompting some to wonder if the publication had a scoop it had mistakenly offered up too soon. (Clicking the former page URL now will lead you to an error page.)

It’s common for news outlets to pre-write items like this around a number of possible outcomes, and that may be all that’s going on here. Politico could have similar slugs for others at the ready, too. However, it’s not common for journalists writing slug articles like this to fabricate direct quotes (usually you just use placeholder text, like “TKTKTK,” where you want a future quote to go), as the Politico text that went up yesterday does.

It states that “in his announcement, Biden called Harris ‘a worthy opponent and a worthy running mate.'”

So, what’s going on there is anyone’s guess. On Monday, Politico told readers not to “count Susan Rice out of the vice presidential contest” and ran a piece skeptical of Harris’ chances to be Biden’s running mate.

But Biden’s notes during a press conference yesterday are also fueling speculation. An image captured by the Associated Press showed Harris’ name followed by five talking points:

  • “Do not hold grudges.”
  • “Campaigned with me & Jill.”
  • “Talented.”
  • “Great help to campaign.”
  • “Great respect for her.”

But this list could easily be things that Biden would say about Harris if she’s not his pick but he still wants to convey that there’s no bad blood.

(Personally, I’m just amused—or maybe saddened—that such basic comments even needed to be written down, as if Biden couldn’t come up with positive things to say about Harris unscripted…)

“Biden ultimately did not field a question specifically about Harris,” the A.P. reports. And “Biden also sidestepped specific questions about the timing of his decision on a running mate, an approach reflected in another entry on Biden’s notepad. Under the heading ‘VP,’ Biden wrote ‘highly qualified’ and ‘diverse group,’ signifying his intention not to tease out any more details.”

Biden did, however, tell reporters that he would “have a choice the first week in August, and I promise I’ll let you know when I do.”

Aside from Harris and Rice, those reportedly in the contest include Massachusetts Sen. Elizabeth Warren and California Rep. Karen Bass.

Already, Biden’s rumored Harris selection has a lot of people—including Warren fans—angry or questioning the wisdom of his choice. Harris’ prosecutor past is a liability especially during a period of such scrutiny toward police and our criminal justice system. Selecting Harris will also remind Americans of her attacks on him, with their potential to make both Harris and Biden look bad.

Many have focused on the fact that Harris is a woman of color as a reason Biden should pick her over Warren. And there’s certainly another overlooked perk: dirt on Trump-related activities.


FREE MARKETS

Democratic Party leadership is out of touch on marijuana. “On Monday the Democratic National Committee rejected an amendment to put a plank supporting marijuana legalization into the party’s platform,” notes Reason‘s Scott Shackford. “The final vote against, 50-106, is almost a perfect inversion of the two-thirds of the public who want legalization.”


FREE MINDS

The Trump administration is taking “steps to wind down legal protections for hundreds of thousands of immigrants brought into the country as children, often called ‘Dreamers,'” NBC News reports. The White House said yesterday it will “reject initial requests and application fees for new filings, consider all applications for renewal on a case-by-case basis but limit renewals to one year rather than two, and reject all applications for advance parole unless there are ‘extraordinary circumstances'” as it undertakes a legal review of its plans to end the Deferred Action for Childhood Arrivals (DACA) program.

The Supreme Court ruled against Trump’s attempted DACA elimination in June.

The “ruling is a victory for DACA recipients, but a very limited one,” wrote Eugene Volokh at the time. His take:

The Supreme Court correctly concluded that the Trump administration’s shoddy rationale for rescinding DACA violated the Administrative Procedure Act because it failed to offer any justification for repealing the central element of the DACA program: forbearance on deportation of undocumented immigrants who were brought to the United States as children. But Trump or a future president could still rescind DACA if they are willing to offer such a justification in the future and pay the political price of doing so. For that reason, I strongly agree with co-blogger Jonathan Adler’s view that this is a very narrow decision.

Today’s ruling does not definitively end either the legal or the political battle over DACA. Ultimately, only Congress can do that, by finally passing a law definitively protecting “Dreamers” from deportation and giving them permanent resident status in the United States. Until then, they will not be fully safe.


QUICK HITS

• The feds are conditioning protesters’ release from jail on them not attending any more protests.

• “A National Guard officer will testify Tuesday at a congressional hearing that the June 1 clearing of protesters outside the White House was ‘an unnecessary escalation of the use of force,'” writes Reason‘s C.J. Ciaramella.

• More on Republicans’ proposed stimulus bill.

• “Universal Pictures and AMC Entertainment, the No. 1 movie chain in the world, have reached a deal to allow movies to move to homes after a mere three weeks in theaters in the United States, almost certainly changing the way that Hollywood does business,” reports The New York Times.

• Attorney General William Barr talks Operation Legend:

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via IFTTT

Why Pandemic Pods are ‘the Ultimate In Parent-Driven Education Innovation’

dpaphotosfour570813

“It’s a big mess,” says Hollie Gesaman, a mother of two young children in Streetsboro, Ohio. She was talking about the upcoming school year, and what parents would do with their kids. “A lot of people are on the fence about a lot of different things. Our school hasn’t given us any idea of what they’re going for. They have ‘potential’ plans, but the bottom line is that there’s really not a 100% good choice.” Send the kids to school? There’s a health risk. Keep them home, and what about socialization? Homeschool? Unschool? Let them watch cartoons and learn the entire ACME product line? “There’s a negative consequence for each possibility,” Gesaman sighs. “Just pick a punch in the face.”

The punch suddenly getting the most play is the “pandemic pod.” “Pods went from, ‘Oh, isn’t that interesting?’ to ubiquitous in about 72 hours,” says Robert Pondiscio, a former Bronx public school teacher who now works at the Thomas B. Fordham Institute.

A pod is a small group of families who approve of each other’s quarantining habits and whose kids will spend the next few weeks, months, or God-knows-how-long learning together away from the school house. These may be kids who were going to the same school already, or they may be neighbors, cousins, or play-group buddies. They may be the same age, or not. They may hire a tutor, a babysitter, or a bona fide teacher. They may tune in together to the school district’s online lessons, or they may choose a totally different homeschooling curriculum. Their parents may or may not pitch in with the teaching. And they may or may not strive to include a kid or kids from a different income level, race, or neighborhood, to create more equity. (That last one is a big issue in the Facebook chats.)

In other words: Everything is up for re-imagining. “These pandemic pods are the ultimate in parent-driven education innovation,” says Kerry McDonald, author of Unschooled. “Parents were forced into COVID homeschooling last spring. But now they are willingly taking the reins of their children’s education.”

Amy Evans, a writer with two kids in Montclair, New Jersey, is one of them. She thinks she will probably have her daughter attend whatever online/offline hybrid the local high school puts together, because it has (or had?) a lot of specialized classes her daughter wants to take. But for her son, an 8th grader, she’s less sure. Is the risk and weirdness of a socially distanced classroom worth it, especially if there’s no gym class? And what if a lot of time is spent repeating the online lessons not every kid paid peak attention to last spring?  Evans says she may not send him back “if it’s a whole lot of reviewing and handwashing and still potentially unsafe.”

Instead, she might formalize an ad hoc group her son and a couple of his friends threw together in March, when students were first sent home. They did their homework together, remotely. In a way, says Evans, “Our kids beat us to it.”

Gesaman, the Ohio mom, also organized an informal gathering at her home in the spring. She had four first graders do math and art projects together in, essentially, a pod. “Some might say I invented the whole concept,” she says. “Just kidding—absolutely no one is saying that.” Furloughed from her job the same moment schools closed, she read up on the first grade curriculum and taught the class herself. She found the kids grasped the concepts, and now she is ready to do it again.

Does having a parent who can teach, or having a home with enough space for a class, or even confining a pod to people who can quarantine—thereby excluding the children of essential workers—create inequity? That’s the question plaguing a lot of parents. Understandably so, says Pondiscio, “Because everything in education causes inequity. It’s like the old Joe Jackson song: Everything gives you cancer.”

He’s not being flip. As the author of How the Other Half Learns, and he wants more equity between the halves, too. One idea that he, McDonald, and Corey DeAngelis, Reason’s own director of school choice, have been thinking about is giving education dollars directly to families. Could this cataclysmic time of school closures and remote learning be the time to experiment with redirecting school money to the parents? They could use it to hire a personal part-time tutor, or create a local pod where everyone is pooling their stipends.

“I call it ‘Universal Basic Education Income,'” says DeAngelis. Like food stamps that can be used at any grocery, or Pell Grants that can be spent on the student’s college of choice, these education dollars could be spent wherever the family thought best, including at the local public school. When life returns to normal, the experiment could be studied, including any unintended consequences and whether it helped create more equity.

To Beth Isaacs, a music teacher in the Lexington, Kentucky, public schools, that sounds like a recipe ripe for the very worst inequity. The public school system takes students across the economic, educational and ethnic spectrum and gets them all interacting and learning together. “In my school, we are 100 percent free and reduced lunch, and 15 percent refugee,” she says. 

Each teacher crafts the students into an assortment of, well, pods: Four kids at a table, learning together. The pods are shuffled all year long, so all the kids develop relationships and learn from each other. She worries that giving the education budget directly to parents means that some would choose to avoid any kind of mixing. She also stresses the possibility that a tutor would not be well-trained, and she argues that draining the ed budget would starve what Isaacs calls an already stretched-thin, “duct tape-and-Velcro” system.

“You’re not draining the system,” counters McDonald. “You’re redistributing it to students and allowing for the freedom of choice we have in all other areas of our lives.” As for hiring sub-par instructors, “Parents have the utmost interest in insuring that their children are highly educated,” McDonald says, and will choose wisely.

Clearly this is a fraught moment. Parents are reeling, students are waiting, and school districts are punting. Everything is up for grabs, including whether there’s about to be a giant teachers strike. But no matter what happens, this is going to be a year of educational changes, pods, no pods, or, given how things have been going, maybe even Tide Pods.

 

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via IFTTT