Category: reason

Reason TV has posted a video in which I and others make the case for allowing Hong Kongers to immigrate to the United States, in the wake of a recent Chinese law that gravely threatens the relative freedom that has prevailed in Hong Kong until recently. In the video, I also argue for extending the same right to other victims of Chinese government oppression. Taking this step is both the right thing to do in itself, and also likely to provide important economic and geopolitical advantages to the US in its struggle with China. I make both points in greater detail here. The British government’s offer to create a path to citizenship for up to 3 million Hong Kongers is an important step in the right direction, but does not protect all Hong Kongers threatened with oppression, and also does little for the victims of Chinese repression on the mainland, many of whom are suffering far more serious human rights violations.

I discuss expanding protection for refugees from oppressive regimes, more generally, in Chapter 8 of my new book Free to Move: Foot Voting, Migration, and Political Freedom.

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“More than four months into fighting the coronavirus in the United States,” The New York Times says, “the shared sacrifice of millions of Americans suspending their lives—with jobs lost, businesses shuttered, daily routines upended—has not been enough to beat back a virus whose staying power around the world is only still being grasped.” Most Americans, regardless of their views about the lockdowns most states imposed in response to the epidemic, probably would concur with that conclusion. But did the lockdowns fail because they were imposed too late and lifted too soon, or did they fail because they were fundamentally misconceived? On that question there is much disagreement.

Prior to last spring, the idea that the mass quarantine of overwhelmingly healthy, noninfectious people was an appropriate response to a viral epidemic would have struck most of us as highly implausible. During the “Spanish flu” epidemic of 1918, which was far more deadly than COVID-19 has proven to be, many American cities banned large public gatherings, closed schools, and shut down businesses, such as movie theaters and pool halls, where people gathered indoors in close proximity to each other. But the restrictions of that era were not nearly as pervasive or as broad as the measures implemented in response to COVID-19, which closed all but a select few businesses and confined hundreds of millions of people to their homes except for government-approved purposes.

Those orders, which entailed enormous economic and social costs, were never sustainable over the long term. And once they were lifted, we were bound to face the challenge that confronts us now: how to deal with a virus that poses a negligible risk to most of the population but a serious risk to many people with preexisting medical conditions, a virus that people often carry without realizing it because it can be transmitted before symptoms appear, when symptoms are so mild that they cause little concern, or when symptoms never show up at all.

Lockdown advocates understood that the virus would still be with us after the sweeping restrictions on movement and economic activity were removed. But they argued that lockdowns would prevent local health systems from being overwhelmed by COVID-19 patients, which would endanger not only their lives but the lives of people with other illnesses. That was a scary prospect, although it was probably exaggerated even in places that were hit especially hard by the epidemic. New York City, for example, ended up with more ventilators and hospital capacity than it actually needed.

Even if lockdowns merely delayed COVID-19 cases rather than actually preventing them, supporters of the policy also said, the restrictions would buy time for treatments that could make the disease less deadly. If you knew that you were going to catch the virus at some point, Johns Hopkins surgeon Marty Makary asked during a recent Soho Forum debate, wouldn’t you rather get it later in the epidemic, after doctors had a chance to figure out which treatments worked best? That strikes me as a pretty good argument, although the benefit Makary imagines has to be balanced against the medical cost of restrictions that delayed potentially lifesaving diagnosis and treatment of other diseases.

Lockdown supporters also emphasized that slowing transmission of the virus would buy time to develop the testing capacity required to identify carriers, trace their contacts, and quarantine them. We missed that opportunity early in the epidemic, thanks largely to a government-engineered testing fiasco. Having learned from that mistake, it was thought, states could use the breathing space provided by lockdowns to expand their testing and tracing capabilities. But as the Times notes, even states that were relatively well-prepared on that score are doing a pretty pitiful job of testing and tracing, a mission that seems daunting given the enormous gap between total infections and confirmed cases.

All of these arguments assumed that lockdowns would have enough of an impact on virus transmission to justify the huge burdens they imposed. But it is by no means clear that they did.

Cellphone data show that Americans were already moving around less before they were legally required to do so. Nationwide, driving, walking, and use of mass transit fell precipitously in early March, before any of the lockdowns. That downward trend continued until late March, when Americans started moving around more, even as they were still subject to lockdowns. The same basic pattern was apparent even in states, such as Arkansas, Iowa, Nebraska, North Dakota, South Dakota, and Wyoming, that never issued stay-at-home orders. Foot traffic data show similar trends: a sharp decline beginning in early March, followed by an increase beginning in late March and early April.

It is possible that lockdowns accelerated the downward trends in mobility and delayed or attenuated the upward trends. But the data suggest that the trends were driven mostly by voluntary changes in behavior. It is also possible that foreclosing certain options when people ventured outside their homes reduced virus transmission even when they started doing that more. In states with broad business closure orders, many people were not going to work, and no one was allowed to go inside bars or restaurants for drinks or food. It seems reasonable to expect that such restrictions would reduce virus transmission to at least some extent.

Yet in Texas, where a statewide lockdown was imposed on April 1, that order had no obvious impact on the number of new COVID-19 cases reported each day, which continued to trend upward through April. And after the stay-at-home order expired on April 30 and businesses began to reopen, more than a month went by before there was an explosion in cases, even though the median incubation period for COVID-19 is four or five days.

Houston writer Mimi Swartz, in a New York Times op-ed piece published yesterday, blames Phase 3 of Gov. Greg Abbott’s reopening plan, which “allowed many businesses to reopen at 75 percent capacity on June 12.” The timing seems right, since daily new cases began to rise precipitously four or five days later. The number jumped more than threefold between June 16 and June 25, from 2,622 to nearly 6,000, before falling slightly to 5,357 yesterday.

A longer view shows that newly identified cases had already risen dramatically since late May, from 589 on May 26 to more than 2,500 on June 10—a fourfold increase. That increase may have had something to do with gatherings on Memorial Day weekend and the mass protests against police brutality that followed soon after.

But let’s say Swartz is right that increasing the number of people businesses are allowed to serve—a decision that Abbott reversed for restaurants on Friday, when he also ordered bars closed—transformed what might have been a one-time jump into a persistent upward trend. Doesn’t that imply that letting restaurants operate at 50 percent of capacity (the limit to which Abbott reverted) rather than 75 percent is consistent with keeping the epidemic under control? And doesn’t that imply that the original order, which prohibited all restaurant dining, went farther than necessary?

I honestly don’t know the answer. But this is the sort of question that politicians conspicuously failed to ask when they shut down the economy in the name of flattening the curve.

Texas, according to lockdown supporters, did pretty much everything wrong: It closed businesses too late, allowed them to reopen too soon, and failed to develop testing and tracing capacity enough to make a real difference. But what about California, which led the nation in ordering businesses to close and telling people to stay home and has been only gradually lifting those restrictions? Newly confirmed cases are also rising dramatically there, from 2,108 on June 15 to 7,149 on June 23—a more-than-threefold increase similar to what Texas saw during the same period, although that number had dropped to 4,810 as of June 27.

California began allowing dine-in restaurants to reopen on May 8. The state has not imposed a hard cap on occupancy, focusing instead on physical distancing requirements. Some local governments are being more cautious. In San Francisco, for example, restaurants were allowed to reopen on June 15, but only for outdoor dining. The state allowed bars, wineries, breweries, hotels, bowling alleys, and miniature golf courses to start reopening on June 12 in counties that met specified epidemiological targets.

Can that last decision be blamed for the recent surge in cases? It seems unlikely, given how gradually these businesses are actually reopening. In any case, it is hard to put much stock in the argument that Texas has been exceptionally reckless when even a super-cautious state like California is seeing similar increases in newly identified infections.

As in Texas, the number of new daily cases in California rose steadily during the lockdown, although supporters of that policy presumably would argue that the number would have risen more otherwise. According to Youyang Gu’s estimates, California’s reproduction number—the number of people infected by the average carrier—was 1.71 in early February. It began falling significantly before the statewide lockdown was imposed on March 18 and continued falling until mid-April, when it settled around one—the threshold for a growing epidemic. The number started rising in mid-May, about a week after California began to reopen, and now stands at 1.09. Those estimates are consistent with the idea that the lockdown helped reduce virus transmission, if only by reinforcing a preexisting trend.

In Texas, by contrast, the decline in the reproduction number happened almost entirely before the statewide lockdown, and the number began rising before the lockdown was lifted. Gu’s estimate puts it at 1.08 today, slightly lower than California’s number. If California was more successful at reducing virus transmission because it imposed a lockdown earlier and began to lift it later and more carefully, that success is not reflected in these estimates.

It is certainly plausible that lockdowns helped slow the spread of COVID-19 by limiting the choices of people who were not inclined to follow social distancing guidelines. But the size of the policy’s marginal contribution is uncertain, and it is clear that government action is only part of this story, which is largely about how people voluntarily responded to the threat posed by the epidemic.

The evidence suggests that Americans initially changed their behavior in striking ways, then recalibrated their reaction as it became clear that we would be living with this virus for a long time. Many people—especially those whose own risk of dying from COVID-19 is very low—probably would have become increasingly impatient with pandemic-inspired limits on their lives even if politicians had never deprived them of their livelihoods and ordered them to stay home. But the bitter experience with sweeping and frequently arbitrary government-imposed restrictions seems to have left many Americans less willing to take even relatively modest precautions.

“There was ‘real hubris’ on the part of public health officials at the very start,” the Times says, quoting Vanderbilt University infectious disease specialist William Schaffner. Those officials, according to the Times, believed “the United States could lock down and contain the virus as China had,” and “that futile hope helped create an unrealistic expectation that the shutdown, while intense, would not be for long, and that when it was lifted life would return to normal.”

Now that we have emerged from lockdowns with no real confidence that they actually reduced the ultimate death toll, many people are understandably asking what the point was. “Many Americans started in the pandemic with a strong feeling of solidarity, not unlike the days after Sept. 11, 2001,” the Times observes. “They closed their businesses, stayed inside, made masks and wiped down their groceries. In a country often riven by politics, polls showed broad agreement that shutting down was the right thing to do. But months of mixed messages have left many exhausted and wondering how much of what they did was worth it.”

They are right to wonder.

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Five years ago, police officers in Greenwood Village, Colorado, destroyed a private residence while pursuing a suspected shoplifter who had broken in and barricaded himself inside. Last year a federal court denied the homeowners any compensation for those damages, even though they had no connection to the theft and did not willingly allow the fugitive into their house. This morning the Supreme Court announced that it will not hear the case.

Over the course of June 3 and 4, 2015, a SWAT team deployed a series of flash bang grenades, tear gas, 40 mm rounds, two Bearcat armored vehicles, and breaching rams against the home of Leo, Alfonsina, and John Lech. The Lechs had to demolish the house, which was worth $580,000. The city gave them $5,000.

This despite the fact that the Takings Clause of the 5th Amendment is supposed to protect citizens from having their property taken or destroyed by the government without being justly compensated for that loss.

“The simple rule of the Constitution is that the government cannot arbitrarily single out private citizens to bear the costs of something that should rightly be the burden of society as a whole,” said attorney Jeffrey Redfern of the Institute for Justice, the public interest law firm that represented the Lechs, in a statement. “If the government requires a piece of property to be destroyed, then the government should pay for it—and that’s just as true regardless of whether the people doing the destroying are the local school board or the local police.”

The U.S. Court of Appeals for the 10th Circuit disagreed, ruling in October that the cops acted within their “police power” when they ravaged the home in an attempt to coax the suspect, who was armed with a handgun, to surrender.

As Jay Stooksbury wrote in the December 2017 issue of Reason, the ordeal financially upended the Lech family’s life. Leo Lech had to take out a $390,000 loan after having to tear down what remained of the home. As of October of last year, he had incurred an additional $28,000 in attorney’s fees.

The death of George Floyd, an unarmed man killed by a Minneapolis cop, has driven new life into the conversation around police reform—not just as it relates to excessive force, but as it pertains to ensuring the public has recourse against officers who infringe on their rights. The Supreme Court recently refused to hear several cases on qualified immunity, the legal doctrine that allows public officials to violate your rights without fear of federal civil rights lawsuits, so long as the way those rights were trampled has not been outlined almost identically in a previous court precedent.

The Lech case is a microcosm for several discussions around what needs to change. There was the intensely-militarized presence: Why does apprehending a petty thief necessitate grenades and armored vehicles? There was a rather plain violation of the homeowners’ constitutional rights. And there was—and is—the lack of accountability, which Lech no longer has hope of seeing rectified.

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America’s capacity to test for COVID-19 infections has greatly improved, rising from less than 1,000 per day at the beginning of March to around 600,000 per day now, according to the COVID Tracking Project. But the current level of testing is far from enough. Different researchers estimate that we need anywhere from 2 million to 30 million tests a day to fully reopen the economy safely. The idea is that frequent, widespread testing would stop the spread of the disease by quickly identifying infected people, who would then voluntarily self-isolate; physicians and public health authorities could then monitor and test people who had come in contact with them.

The Washington Post reported in May that few laboratories were testing at their full expanded technical capacities. This was probably because many Americans had become somewhat complacent about the pandemic, as the early exponential rate of growth in both cases and deaths was flattened through the broad adoption of social distancing.

What a difference a month makes. Laboratories are now warning that the escalating number of diagnosed COVID-19 cases in such places as Texas, Arizona, and Florida will soon strain even their now-expanded testing capacities. To address this looming shortfall, Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, told The Washington Post last week that Trump administration officials are looking into the possibility of pool testing.

Under this approach, samples from 10 to 20 people are combined and the pool is tested using just one coronavirus assay. Only if the test comes back positive is each individual in the pool tested for the infection.

“If you look around the globe, the way people are doing a million tests or 10 million tests is they’re doing pooling,” Deborah Birx, the coordinator of the Trump administration’s coronavirus response team, told an online conference of the American Society for Microbiology last week. “Pooling would give us the capacity to go from a half a million tests a day to potentially 5 million individuals tested per day.”

An even better bet would be to let cheap at-home diagnostic tests be made widely available. But in the meantime, pooling is a reasonable stopgap measure.

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Student John Doe had been expelled by Oberlin College for sexual misconduct; he sued Oberlin for Title IX, claiming it had been biased against him because of his sex. In today’s decision in Doe v. Oberlin College, written by Judge Ray Kethledge and joined by Judge Chad Readler, the court allowed the case to go forward; here’s an excerpt (though there’s a good deal more to the decision as well):

Doe sued Oberlin under Title IX, which bars universities that receive federal funds “from discriminating against students on the basis of sex.” Doe asserts in particular an “erroneous outcome” claim, which is that a university reached “an erroneous outcome in a student’s disciplinary proceeding because of the student’s sex.” To state a  claim under that theory, “a plaintiff must plead facts sufficient to (1) cast some articulable doubt on the accuracy of the disciplinary proceeding’s outcome, and (2) demonstrate a particularized causal connection” between the flawed outcome and sex discrimination.

Here, everyone agrees that Doe pled facts casting doubt on the accuracy of his proceeding’s outcome. The question, then, is whether he pled facts plausibly suggesting that outcome was caused by sex bias….

For any number of reasons, we hold that he did. We begin with the “clear procedural irregularities” in the College’s response to the “allegations of sexual misconduct,” which, as the Second Circuit has held, “will permit a plausible inference of sex discrimination.” The College’s own Policy states that usually its investigation will be completed in 20 days, and the matter as a whole will be resolved in 60. But here the investigation alone took 120 days; Doe was not even informed of the specific allegations against him for that same period; and the hearing panel did not reach a decision until about 240 days after the complaint, which was 180 days later than contemplated by the Policy.

That delay was compounded by the College’s failure to do what the Policy twice promised it would do, namely to notify the parties “of the reason(s) for the delay and the expected time frames.” Those omissions were especially strange given that those promises were included in the Policy precisely because, in 2012, a female student had understandably complained about the emotional harm caused by the College’s delay in resolving the proceeding in which she was involved.

And those omissions were stranger still given that Doe pleaded with [Title IX Coordinator Professor Meredith] Raimondo via email about the emotional devastation wrought by the delays in his proceeding—and received little or no response. Remarkable as well was advisor [Assistant Dean Adrian B.] Bautista’s performance, given that he did not even attend the entire hearing, even though his role was to assist Doe there. {Such an advisor, the College conceded at oral argument, is supposed to serve the best interests of the accused at the hearing.}

Likewise remarkable—in a proceeding in which the credibility of accuser and accused were paramount—was the failure of the hearing panel even to comment on the flat contradiction, expressly noted by Nolan at the hearing, between what Roe told him during his investigation and what she said during the hearing, regarding whether Doe “asked” for oral sex. And of a piece was the Appeals Officer’s failure even to acknowledge the importance of [proposed newly discovered witness] J.B.’s statement as impeachment evidence regarding Roe’s claims. Procedural irregularities provide strong support for Doe’s claim of bias here.

Doe’s claim also finds support from his allegation that—throughout the pendency of his disciplinary proceeding—the federal Department of Education’s Office of Civil Rights was engaged in “a systemic investigation of the College’s policies, procedures, and practices with respect to its sexual harassment and sexual assault complaint process.” For “pressure from the government to combat vigorously sexual assault on college campuses and the severe potential punishment—loss of all federal funds—if [the College] failed to comply” can likewise yield “a reasonable inference” of sex discrimination. Oberlin contended  at oral argument that we should reject that inference here, because Raimondo “welcomed” the federal investigation. But on this record, suffice it to say, that fact could cut either way.

Doe’s complaint also cites Oberlin’s “Spring 2016 Campus Climate Report,” which stated that—during the very academic year in which Doe’s “responsibility” was determined—”every single case” that went to a hearing panel resulted in a decision that the accused was “responsible” (i.e., guilty) on at least one charge. That statistic likewise supports Doe’s claim. Oberlin responds that only 10 percent of sexual-assault complaints were resolved through a formal hearing that year. But Doe reads that same Report to mean that, in 80 percent of the cases, the complainant herself chose not to pursue the matter formally. In still other cases, the responding party had graduated or otherwise left the College. And in any event the 100 percent responsibility rate—in cases where most if not all the respondents were male—supports an inference regarding bias in the hearings themselves.

But Doe’s strongest evidence is perhaps the merits of the decision itself in his case. True, the first element of an erroneous-outcome claim—whether the facts of the case “cast some articulable doubt on the accuracy of the disciplinary proceeding’s outcome[]”—already takes into account the proceeding’s outcome to some extent. But when the degree of doubt passes from “articulable” to grave, the merits of the decision itself, as a matter of common sense, can support an inference of sex bias.

And on the merits here the panel’s decision was arguably inexplicable. Per the terms of Oberlin’s Policy, intoxication does not negate consent—only “incapacitation” does. The Policy rather precisely defines that term. And the record here provided no apparent basis for a finding that Roe “lack[ed] conscious knowledge of the nature of the act” of oral sex, or that she was “asleep, unconscious, or otherwise unaware that sexual activity [was] occurring[,]” or that she “no longer underst[ood] who [she was] with or what [she was] doing.”

Nor was there any apparent reason for Doe to perceive that Roe was in such a state. To the contrary, Roe was conscious and aware enough to engage in a coherent exchange of texts, to make small talk, and to reason that, “[w]e were no longer clothed and I felt that if anything was to continue  happening, I wanted a condom.” Thus, on this record—and making all inferences in Doe’s favor at this stage of the litigation—one could regard this as nearly a test case regarding the College’s willingness ever to acquit a respondent sent to one of its hearing panels during the 2015-16 academic year. Doe has amply stated a claim for sex discrimination in violation of Title IX….

Continue reading “Expelled Student’s Sex Discrimination Claim Against Oberlin College Can Go Forward”