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Fourteen states are considering bills that would allow government funding to follow students wherever they are being taught, giving parents more freedom to choose schools for their kids.

This legislation would permit a portion of the funding that would otherwise go to a student’s assigned public school to be used for private tuition as well as for tutoring, textbooks, special-needs therapy, and other approved education expenditures. 

The likelihood of these proposals becoming laws varies greatly from state to state, says Corey DeAngelis, director of school choice at the Reason Foundation, the nonprofit that publishes this website. The state legislatures of New Hampshire, Georgia, Missouri, Indiana, Nebraska, Virginia, Washington, Oregon, Iowa, North Dakota, Oklahoma, Arizona, Kentucky, and Kansas all have such bills pending. (More here.)

States with Republican-controlled legislatures, such as Missouri and Iowa, are typically more likely to pass school choice laws, DeAngelis tells Reason. Last Thursday, a school choice bill passed 5–4 through the Missouri senate education committee. Earlier this month, Iowa Gov. Kim Reynolds, a Republican, made school choice reform a major component of her annual Condition of the State Speech. Yet DeAngelis is less optimistic about states controlled by Democrats. 

“It is not going to be serious in all of the states,” DeAngelis says. “For example, Oregon and Washington are heavily blue and blue legislators tend to vote against these measures.”

Public school administrators have proven resistant to parting with government funding. On Monday, the superintendent of Westside Community Schools in Omaha, Nebraska, tweeted, “State dollars should NOT be used for non-public schools that don’t shoulder the same accountability we do and that don’t serve ALL kids.”

Teachers unions have also traditionally opposed school choice. Union leaders argue these programs work to the detriment of underprivileged students by siphoning funds from the public system, and some go so far as to disparage parents who choose to remove their children from public school.

“It shouldn’t be a partisan issue,” says DeAngelis. “School choice leads to more equity by allowing less advantaged families to have access to alternative schools that more advantaged families already have access to.” 

Research indicates that school choice programs have been overwhelmingly successful in improving student outcomes. A 2019 study by the research organization EdChoice examined three voucher programs and five privately funded scholarship programs across five states. The study found that of “the 16 random-assignment studies examining participant test scores, 11 have found positive outcomes for either the full sample or at least one subsample of students studied.” And “three found no visible effect for any group of students, and three found negative outcomes for all or some group of students.”

Shutdowns due to COVID-19 have served to bolster the popularity of school choice among voters. “Right now support for school choice is at an all-time high,” DeAngelis says. “I think it is because families are seeing that the public school system is just not there for them. Closed buildings are getting to retain their children’s education funding.”

An August 2020 poll conducted by RealClear Opinion Research and commissioned by the American Federation for Children, a pro–school choice group, shows that 69 percent of those surveyed support school choice, and only 32 percent would select a public school for their child if they had another option. Multiple national polls show that about two-thirds of Americans support school choice.

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I very much enjoyed this hour-long conversation, organized by the Pacific Legal Foundation, and I hope you do, too.

A bit more about the other two panelists, adapted from the PLF’s description:

Professor Nadine Strossen is the John Marshall Harlan II Professor of Law, Emerita at New York Law School. She is also a civil rights activist, author, and former president of the ACLU. The National Law Journal named Professor Strossen as one of America’s 100 most influential lawyers. Her most recent book is Hate: Why We Should Resist it with Free Speech, Not Censorship.

Professor Jonathan Haidt is a social psychologist at New York University’s Stern School of Business. He is well known for his pioneering research into morality and how it varies across cultures and political orientations. Professor Haidt co-founded Heterodox Academy, a network of more than four thousand professors advancing viewpoint diversity in academia. He is also the author of three best-selling books, The Happiness Hypothesis, The Righteous Mind, and, with Greg Lukianoff, The Coddling of the American Mind.

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States have many factors to consider when allocating their scarce vaccine doses: the age of recipients, medical conditions that put people at risk, and jobs that put workers in contact with the public, to name a few. A committee in Oregon is considering an unusual recommendation to allocate vaccines by race. The proposal is intended to address inequities but would invite legal challenges to a vaccination program that has already been off to a rocky start.

The state’s COVID-19 Vaccine Advisory Committee is a group of 27 individuals tasked with devising “a vaccine sequencing plan focused on health equity to ensure the needs of systemically affected populations, including communities of color, tribal communities and people with intellectual and developmental disabilities, are met.” The committee’s members include representatives from health providers as well as community groups such as the Oregon Pacific Islander Coalition and the Somali American Council of Oregon. Although decision making responsibility ultimately lies with the Oregon Health Authority and Governor Kate Brown, the state has pledged to follow the committee’s recommendations.

The committee concluded its first meeting in early January unable to agree even on endorsing the efficacy of coronavirus vaccines. (Both the Moderna and Pfizer/BioNTech vaccines are remarkably effective.) At the most recent meeting on January 21, the committee deliberated who should be next in line for vaccinations after healthcare workers, senior care residents, teachers, and several other groups. 

The committee appears poised to prioritize allocation based on race, perhaps even ahead of those with chronic medical conditions. The Oregonian reports that when some members suggested prioritizing residents with relevant health conditions, a committee member representing a Native American group alleged that the committee was “dealing with our own conditioning of white supremacy as it is showing up in our decision making.” Black, indigenous, and other people of color (often abbreviated “BIPOC”) made the committee’s tentative list, with their priority vis-a-vis Oregonians at risk from chronic medical conditions to be determined later.

The committee’s next meeting is on Thursday and if it commits to this plan, the Oregon Health Authority will have to consider whether it can be implemented legally. Walter Olson, a senior fellow at the Cato Institute, has argued that explicitly prioritizing race in vaccination decisions would run afoul of the Equal Protection Clause. “This runs into the Fourteenth Amendment to the Constitution, which says citizens of all races are entitled to the equal protection of the laws,” he writes in a recent article. “The Supreme Court has long interpreted this to mean that the government may ordinarily not dole out valuable benefits, or impose harms, based on a citizen’s race.”

Access to vaccines is certainly a valuable benefit, one that Olson predicts would receive strict scrutiny from courts. Unless narrowly tailored, writes Olson, such plans would be unlikely to be approved by judges. 

Gail Heriot and Peter Kirsanow, both members of the U.S. Commission on Civil Rights, raised similar concerns with the Department of Veterans Affairs in December. They warned that a federal proposal to prioritize vaccinating minority veterans would face a “very tough standard” in court, potentially undermining the plan’s legal viability.

Such concerns should be front of mind given that the state currently has nearly $9 million in federal COVID relief funds tied up in similar litigation. The money is part of a fund that the legislature set aside for black business owners. The plan was challenged on equal protection grounds, resulting in a court freezing the remaining money until the litigation is resolved. By the time that happens, it may be too late to help affected businesses that would have benefited from relief. It’s easy to imagine similar legal challenges to any plan to prioritize vaccinations by race. If they succeed in court, the state’s vaccination plans could be significantly disrupted. 

Anticipating these legal issues is not to deny the reality of health inequalities. The pandemic truly has hit racial minorities disproportionately hard. This is due to a variety of socioeconomic factors––more exposure at work or home, less access to testing and healthcare, greater rates of complicating medical conditions, and higher rates of incarceration. Inequalities in vaccine distribution threaten to exacerbate these disparities. In Texas, for example, early vaccination sites were concentrated in predominantly white, affluent areas, disadvantaging poor and minority populations who often also lack access to transportation. Oregon’s committee wants to avoid that outcome.

Legally, however, states would be on more secure ground targeting those disparities directly than by allocating vaccines explicitly by race. “For strategies that would increase the allocation ratio above that proportionate to the population, the Supreme Court is likely to uphold racially neutral vaccine allocation criteria, which are designed to capture worse-off minorities but not explicitly,” suggests a recent article in the Journal of the American Medical Association. “A vaccine distribution formula, therefore, could lawfully prioritize populations based on factors like geography, socioeconomic status, and housing density that would favor racial minorities de facto.”

An official with the Oregon Health Authority suggested a similar approach at the most recent committee meeting, but The Oregonian reports “[that] idea didn’t seem to get much traction with the group.” If the members commit to explicitly prioritizing the BIPOC population, it will put the state in the difficult position of choosing between disregarding the recommendation of its own equity committee or risking a legal challenge that could throw vaccine distribution into chaos.

Even if legally permissible, it’s far from clear that the committee’s recommendations would be the most effective strategy for minimizing loss of life. New modeling published in Science concludes that under most realistic scenarios, the best way to reduce mortality is to prioritize vaccinating older adults. Depending on how the committee ends up prioritizing various groups, demands for equity may be in tension with the goal of preventing deaths.

As Liz Wolfe reported for Reason last week, Oregon is already bucking advice to vaccinate the elderly first by putting teachers at the front of the line, with the aim of reopening schools in February. (We’ll see if that actually happens; around the country, teachers unions have resisted reopening.) Unlike other states, Oregon has also denied health providers permission to give soon-to-be-expired doses to anyone available, which ensures that valuable doses do not go to waste. In one of the few high points for the Oregon vaccination program, in which surplus vaccines were used to immunize vulnerable inmates, the state regretfully attributed the decision to a miscommunication.

Oregon should aspire to treat marginalized groups fairly, ensuring that they are provided with access to vaccinations; the advisory committee can play a valuable role holding the government to account on these goals. But the experience of other jurisdictions suggests that flexibility is key to rapidly putting vaccines to use. Oregon should focus less on vaccinating people in a rigidly dictated order and more on immediately vaccinating the most vulnerable groups, such as the elderly and those with chronic health conditions. Doing so would by itself help to address racial inequalities in healthcare while avoiding the legal perils of allocating doses by race.

Fortunately, the recommendations of Oregon’s vaccine advisory committee are non-binding. If they proceed to call for explicitly prioritizing vaccinations based on race, the state should thank them for their service, set their recommendation aside, and proceed independently with strategies to legally, effectively, and rapidly put vaccines to use to maximize their life-saving potential and bring the pandemic to an end.

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Across the country, a flurry of new legislation aims to expand educational options during the pandemic and beyond. Iowa is on its way to passing a major school choice bill backed by Republican Gov. Kim Reynolds. Nebraska may bring opportunities for homeschooled students to play team sports and participate in public school extracurriculars. Colorado, Florida, Georgia, Indiana, Missouri, Vermont, and Washington state are also considering some positive changes.

In celebration of National School Choice Week, here’s a look at some of these reforms.

Iowa

A new proposal from Reynolds establishes school choice in Iowa by granting state scholarships to public school students who want to attend private schools. “We do not believe this is a private vs. public school debate. It is simply a school choice for the parents to choose,” said Anne Rohling, president of St. Albert Catholic School and a strong supporter of the proposal. “Open enrollment in the public schools [has] allowed families the opportunity to seek out the best fit for their children. If this legislation will empower more families to have more choices, then we are in support of it.”

But the bill also faces strong opposition, in and outside the Iowa statehouse. The President of the Iowa-Nebraska NAACP “says this could lead to segregation in some Iowa Schools,” reports CBS 2 Iowa. “We agree that parents should have the choice to enroll their child in a private or religious school, but not with public taxpayer funds,” said Council Bluffs Superintendent Vickie Murillo.

Larry Gray, director of the Council Bluffs Heartland Christian School, responded:

The concern we hear from parents has always been ‘we live in the community, pay for and attend a Christian school, but our taxes still go to the public school system.’ I would say that most—if not all—parents would simply appreciate their tax dollars going to the school of their choosing.

On Monday, the legislation (Senate Study Bill 1065) cleared the Iowa Senate Education Committee.

Washington

Washington state Rep. Vicki Kraft (R–Vancouver) is trying to establish a school choice voucher program in her state. Last week, Kraft introduced House Bill 1215, which “would establish the K-12 Education Scholarship Program in Washington state [to] award up to $7,000 per student each school year to be used for costs related to private school or homeschool instruction,” according to Clark County Today.

“We’ve seen how students have been affected this past year from a lack of education choices. This year alone, more than 32,000 Washington families have pulled out of the public-school system as they find that traditional zip-code assigned schools are simply not working for their children,” said Kraft in a statement. “This bill will allow parents to be able to provide the best learning environment for their child, no matter what the circumstance.”

Nebraska

State Sen. Dave Murman (R–Glenvil) seeks to expand athletic and extracurricular activities for homeschooled students. Murman’s bill (LB210) would let homeschooled kids participate in sports and other activities at local public schools. LB210 “would require school boards to set policies affording the same access to athletics, music, journalism and speech as public school students, without requiring home-school students to earn any credit at the school,” reports the Lincoln Journal-Star. “Under current guidelines, students must enroll in at least 10 credit hours—or two classes per day—to participate in extracurricular activities.”

Colorado

Legislation from state Sen. Tammy Story (D–Jefferson County) and Rep. Cathy Kipp (D–Fort Collins) would remove a requirement for public colleges and universities to get standardized test scores from all applicants. “We believe there are plenty of students out there who have great potential while they may not have great tests scores,” said Story. “They should have all the same opportunities to go forward with higher education if they choose.”

Georgia

A proposal from Rep. Kasey Carpenter (R–Dalton) would let the state’s undocumented immigrants living legally in the U.S. under the Deferred Action for Childhood Arrivals (DACA) program pay in-state tuition at Georgia’s public colleges and universities. “If it becomes law, DACA recipients will pay the same rates as other Georgians, provided they are under 30, graduated from a Georgia high school, have been in Georgia for four years and have been living in the United States since they were at least 12,” reports the Georgia Recorder.

Georgia is also considering a larger school choice bill:

House Bill 60 would put money into a state fund that would pay for private school tuition and learning materials for homeschooling, and pay state money directly to vendors providing it.

“I genuinely believe that everyone does better if we provide an option for that four or five percent of students who are not performing well in their traditional public school,” said the bill’s sponsor, state Rep. Wes Cantrell (R-22nd Dist., Woodstock).

Cantrell says public schools would keep the tax dollars funded by local property taxes but would lose the per-student portion funded by the state government. That state portion would fund home school supplies or private tuition.

Missouri

Missouri is on its way to expanding charter school options and vouchers for homeschooled and private school students. Senate Bill 55, from state Sen. Cindy O’Laughlin (R–Shelbina), “passed its first hearing Thursday, but not before the measure morphed into an even larger omnibus package making it the 2021 session’s likely flagship education legislation,” notes The Center Square. “Its next stop is the Senate floor for debate.”

FLORIDA

Last week, Florida state Sen. Manny Diaz (R–Hialeah) introduced a bill to expand and consolidate school choice voucher programs.

Indiana

Indiana House Bill 1005 would expand the number of stipends available for students to use on private school education. “About 12,000 students who already attend participating private schools but don’t currently qualify for state aid could become eligible,” says the Indiana Business Journal. “In addition to expanding eligibility for state vouchers to more students from middle-income families, the bill would create a form of school choice—known as education savings accounts—that would give stipends to parents of children with special needs to spend on their education.”

Vermont

Vermont is considering a proposal to launch an “education freedom account program.” HB 20 says “families whose children have left their local public school [can] redirect state aid to the educational program of that family’s choice,” reports New Hampshire Public Radio.

See also: How COVID-19 Made School Choice a Priority

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FREE MINDS

The Supreme Court won’t hear a case out of Nevada concerning state restrictions on religious services during the COVID-19 pandemic. “In a one-line order, the court said it would not hear an appeal from Calvary Chapel Dayton Valley, a church in western Nevada that has been battling pandemic restrictions imposed by Gov. Steve Sisolak,” notes NBC News:

The rules originally allowed casinos, restaurants and other businesses to operate at 50 percent capacity while limiting churches to no more than 50 people, regardless of a facility’s size.

The state has since imposed a 25 percent capacity limit on most public gathering places, including movie theaters, casinos, restaurants, bars and religious constitutions. It therefore is not engaged in religious discrimination, lawyers for the state told the Supreme Court.

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FREE MARKETS

Pundits push advertisers and cable companies to cancel conservative networks. Flush with undeserved credit for reforming Pornhub, New York Times columnist Nicholas Kristof is now calling for companies to “pressure on advertisers to withdraw from Fox News” as well as other right-leaning networks, including Fox Business, One America News Network, and Newsmax TV.

Meanwhile, Max Boot of The Washington Post wants the Biden administration to turn the Federal Communications Commission against Fox News and writes that if that doesn’t happen, “large cable companies such as Comcast and Charter Spectrum, which carry Fox News and provide much of its revenue in the form of user fees, need to step in and kick Fox News off.”

“All of these commentators should refamiliarize themselves with the First Amendment,” suggest the editors at National Review, “and then follow up with a closer reading of the laws and Supreme Court decisions that have shaped the interpretation of that basic right, as well as the FCC’s regulatory authority. They might also consider that their own jobs depend upon the social acceptance of free speech as a value. The tools of authority, once taken up on the left, will inevitably tempt a response from the right.”

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FOLLOWUP

Supreme Court vacates 5th Circuit’s abortion access ruling. Toward the start of the pandemic, Texas Gov. Greg Abbott, a Republican, declared all abortions (including non-surgical abortion) to be among the nonessential medical procedures which were off-limits. At first, “a federal judge in Texas declared the order too broad and lifted the ban. But the 5th U.S. Circuit Court of Appeals in New Orleans restored it,” explains NBC News.

Abbott issued a new order a short time later that allowed abortions in Texas to resume, but the state asked the Supreme Court to keep the appeals court rulings on the books.… In a brief order, the Supreme Court dismissed the appeal and vacated the 5th Circuit’s ruling.

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QUICK HITS

• Nine Houston police officers were indicted by a grand jury, one of them on a murder charge. The indictments stem from a 2019 drug raid in which officers killed 59-year-old Dennis Tuttle, his 58-year-old wife Rhogena Nicholas, and their dog.

• D.C. is set to send home 6,000 National Guard troops …. leaving 7,000 still in the city. Around 5,000 troops will be there through at least part of March, a Department of Defense spokesperson said yesterday.

• California Gov. Gavin Newsom, a Democrat, lifted the state’s stay-at-home orders.

• “Josh Hawley believes disliking Josh Hawley is an act of censorship,” writes Jonathan Chait.

• Twitter unveils a new fact-checking feature, Birdwatch.

• Lips aims to be a social media platform open to sexual expression.

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As the drama of the Trump administration lame duck period fades and the impressive number of troops stationed at our nation’s capitol shuffle back to their respective states, the Biden administration is up and running for its first 100 days in office. The old D.C. fixture started with a bang, issuing some 15 executive orders on his first day—a new record.

With this newfound energy to hit the ground running, we can already see a few trends to expect in technology policy over the next four years. From platform policy to cryptocurrency, here are a few things to look out for as the new administration begins to shape its approach to technology and innovation in America.

Big Tech has several seats at the table

Many on the Left had hoped that the Biden administration would be an ally in its efforts to overturn the consumer welfare standard that guides antitrust proceedings in the US and take a tougher stance against Silicon Valley, which paradoxically is a stronghold of Democrat support. But if the Biden administration’s transition team and rumored political appointees are any indication, we shouldn’t expect Google to get broken up any time soon.

Roughly a dozen former employees from companies like Facebook, Twitter, and Google held key advisor and counsel roles in the Biden transition team. This tendency may extend to government personnel, too. For instance, antitrust hawks have been dismayed that the shortlist of likely antitrust enforcers includes corporate attorneys that have helped banks and tech firms navigate antitrust cases in the past.

This is not to say that Big Tech won’t see any new regulation. We may see federal privacy legislation and beefed-up government content moderation controls spring forth under the new administration. Even if companies complain, these policies would have the effect of shoring up incumbents’ market positions at the expense of competitors since upstarts don’t have as many resources for compliance. And the big guys might not even grumble. Most Silicon Valley companies have voiced support for a federal privacy law, whether to generate good press or to undercut California’s more quixotic foray into data privacy controls.

It’s not surprising that Joe Biden would continue the trend of Silicon Valley chumminess that first blossomed under the reign of his old boss, President Barack Obama. But the more progressive wing of the Democrat party may get their fair share of tech antagonists appointed as well. We’ll probably see a lot of back-and-forth as the new administration attempts to appease both its corporate allies and more anti-capitalist ideological base.

We may end up with a situation that is the worst of both worlds: Big Tech animus will be exploited to justify changes to antitrust and data policies that make the overall economy less productive and competitive while largely sparing the big companies that have managed to hold the president’s ear.

The net neutrality battle is back

Speaking of Silicon Valley, we can expect some of their desires to be reflected in telecom policy at the Federal Communications Commission (FCC). The biggest issue to look out for is a revival of the Obama administration’s Open Internet Order that is often (and imprecisely) referred to as “net neutrality.” Despite the doomsday warnings that internet users would be forced to cough up major dough or face snails-pace websurfing without these rules, the net neutrality debate is basically a dispute between Silicon Valley content providers (e.g. Netflix) and ISP-owned content providers (e.g. AT&T’s HBOMax) over pricing arrangements. It’s a battle of corporate constituencies.

The Trump administration rolled back these heavy-handed regulations on ISPs that would have probably increased the cost of broadband infrastructure expansion and therefore limited access for users with the Restoring Internet Freedom Order. None of the doomsday prophecies came to pass, of course, but that doesn’t mean that the corporate dispute is resolved. Now that the Democrats are in power, the net neutrality debate is sure to rise again.

Biden’s early moves on telecom indicate that net neutrality is back on the table. He hasn’t said anything specific on the topic, but it’s a good bet that he will support and continue the policies undertaken while he was Vice President. He appointed current commissioner Jessica Rosenworcel, an outspoken net neutrality advocate, to serve as the acting chair of the FCC. And now that the Democrats have a 3-2 majority at the FCC, the rulemaking calculus is in their favor. The grounds are fertile for legislation, too, since the Democrats recently eked control of Congress as well.

Cryptocurrency: a mixed bag

Although Biden has yet to outline a detailed cryptocurrency policy plan, we have an inkling of what his policies might look like given his early appointments along with general trends in the discourse. Although his personnel picks have been mostly promising, we should expect something of a mixed bag given the overall direction of cryptocurrency regulations.

First, the good news. Biden has tapped Gary Gensler to lead the Securities and Exchange Commission (SEC). Gensler is a known quantity in the crypto space, having testified before Congress and penned several knowledgeable articles in cryptocurrency news outlets. He’s also taught a course on cryptocurrency for MIT. If nothing else, the decisions that emanate from the SEC would be grounded in expertise under Gensler’s tenure.

Rumored picks for the Office of the Comptroller of the Currency (OCC) and Commodities Futures Trading Commission (CFTC) are likewise at least familiar with cryptocurrencies. CFTC chair likely Chris Brummer is an expert on financial technology (fintech) and has written about cryptocurrency before. Biden’s expected OCC head, Michael Barr, has a bit of a more tenuous connection with the crypto world: he served on the board of advisors for the controversial and SEC-indicted Ripple project. Still, he’s at least somewhat familiar with the space, and will hopefully follow in the pro-crypto lead of his predecessor Brian Brooks.

Then there’s Janet Yellen. Biden’s pick for Treasury Secretary famously testified that her former roost at the Federal Reserve had no authority to regulate cryptocurrency. At the Treasury, she sings a different tune. During her nomination hearing, Yellen told Congress that Bitcoin is mainly used for “illicit financing” and that she wanted to “examine ways in which we can curtail their use and make sure that [money laundering] doesn’t occur through those channels.” This is troubling to hear, since the Treasury Department operates a major financial surveillance program that is coming to ensnare more cryptocurrency transactions within its dragnet.

In the short term, Biden has already given the cryptocurrency industry a bit of breathing room. He issued a freeze on “midnight regulations” proposed by the Trump administration in his waning hours in power. This includes the controversial “unhosted wallet” surveillance rules that would create a major privacy and security risk for privacy-minded cryptocurrency recipients. Still, given future Treasury Secretary Yellen’s comments on money laundering, we shouldn’t be surprised to see similar financial surveillance proposals under a Biden administration. In general, governments like to have control over technologies, so the tendency to want to regulate cryptocurrency will be strong regardless of who staffs the regulating agencies.

All together now

Much has been made of the Biden administration’s promise to bring a “return to normalcy.” As libertarians can well appreciate, this is cold comfort. Normalcy, to the establishment, means more big government, big regulation, and big headaches for private people who just want to live their lives peacefully.

There is some cause for optimism, as some of the rumored or announced personnel decisions at the very least demonstrate expertise with their administrative areas. Let’s hope they wield their insight for good. If they don’t, well, at least there are decentralized and encrypted alternative technologies that we can turn to. Supporting technological projects that innovate around the points of control that governments can exploit is always a better bet for freedom than crossing your fingers and hoping that federal agents show mercy to new technological applications.

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