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Should the COVID-19 lockdowns be replaced with a more targeted strategy?

On October 4, 2020, epidemiologists from Harvard, Oxford, and Stanford authored the Great Barrington Declaration, which advocates for ending the COVID-19 lockdowns and turning to a strategy of protecting elderly and vulnerable populations, while allowing everyone else to resume their normal lives.

Critics of the Declaration issued a counter-petition, called the “John Snow Memorandum,” stating, “Any pandemic management strategy relying upon immunity from natural infections for COVID-19 is flawed. Uncontrolled transmission in younger people risks significant morbidity and mortality across the whole population.”

In an online Soho Forum debate on December 13, Martin Kulldorff, a Harvard biostatistician and epidemiologist and coauthor of the Great Barrington Declaration, debated Andrew Noymer, an associate professor of population health and disease prevention at the University of California, Irvine, who signed the John Snow Memorandum.

It was an Oxford-style debate, and in this case, the contest ended in a tie: Both debaters convinced 5.56 percent of audience members to switch to their side over the course of the debate.

The Soho Forum, sponsored by Reason Foundation, is a monthly debate series typically held at the SubCulture Theater in Manhattan’s East Village, but which has gone remote during the pandemic.

Narrated by Nick Gillespie; audio production by Regan Taylor

Photo: Steve Sanchez/Sipa USA/Newscom

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The Supreme Court yesterday declined to intervene on behalf of Danville Christian Academy, which challenged Kentucky Gov. Andy Beshear’s pandemic-inspired closure of K-12 schools. The Court emphasized that Beshear’s November 18 order expires soon with the beginning of winter break, after which schools currently are scheduled to reopen. The Court left open the possibility that Danville Christian Academy could renew its challenge if Beshear, a Democrat, extends his order into the new year. Justices Samuel Alito and Neil Gorsuch dissented from the decision, noting that Beshear could avoid Supreme Court review by issuing a series of temporary orders that would have the same effect as a long-term closure.

Unlike New York Gov. Andrew Cuomo’s restrictions on houses of worship, which the Court overturned last month as a violation of the First Amendment’s Free Exercise Clause, Beshear’s order does not explicitly discriminate against religious activities. But Danville Christian Academy, joined by Kentucky’s Republican attorney general, Daniel Cameron, emphasized that the governor, while closing religious schools, is allowing many secular activities that pose similar or higher risks of virus transmission.

U.S. District Judge Gregory F. Van Tatenhove, who last month issued a preliminary injunction allowing religious schools to open, found that argument persuasive. “This court wonders why, under this executive order, one would be free to attend a lecture, go to work or attend a concert, but not attend socially distanced chapel in school or pray together in a classroom that is following strict safety procedures and social distancing,” he wrote.

Four days later, the U.S. Court of Appeals for the 6th Circuit imposed a stay on Van Tatenhove’s injunction pending resolution of the case. Cameron and Danville Christian Academy asked the Supreme Court to lift that stay.

“The Order applies equally to secular schools and religious schools, but the applicants argue that the Order treats schools (including religious schools) worse than restaurants, bars, and gyms, for example, which remain open,” the Court notes. “For the latter reason, the applicants argue that the Order is not neutral and generally applicable.” The Court has said the Free Exercise Clause does not require religious exemptions from neutral, generally applicable laws. But it also has said laws are presumptively unconstitutional when they discriminate against religion.

The Court declined to get involved in the dispute for the time being. “Under all of the circumstances, especially the timing and the impending expiration of the Order,” it said, “we deny the application without prejudice to the applicants or other parties seeking a new preliminary injunction if the Governor issues a school-closing order that applies in the new year.”

In a dissent joined by Alito, Gorsuch notes that Beshear, while forbidding in-person primary and secondary education, “permitted virtually all other in-person activities to continue with only capacity restrictions.” For example, “Movie theaters, indoor wedding venues, bowling alleys, and gaming halls remained open for business.” Such distinctions are hard to justify on scientific grounds, especially given the lack of evidence that K-12 schools are an important source of virus transmission. Gorsuch says the 6th Circuit erred by failing to “address the plaintiffs’ argument that the two [executive orders], considered together, resulted in unconstitutional discrimination against religion.”

Gorsuch says Beshear should not “be able to evade judicial review by issuing short-term edicts and then urging us to overlook their problems only because one edict is about to expire while the next has yet to arrive.” He notes that “the Governor has expressly told us that he reserves the right to issue more decrees like these if and when religious schools try to resume holding classes.”

In a dissent joined by Gorsuch, Alito notes that the Court’s order is “based primarily on timing” and argues that “it is unfair to deny relief on this ground since this timing is in no way the applicants’ fault.” The plaintiffs filed their lawsuit on November 20, two days after Beshear issued his order, and sought the Supreme Court’s intervention on December 1, two days after the 6th Circuit issued its stay. “It is hard to see how they could have proceeded more expeditiously,” Alito writes.

The Court’s order does not address the merits of the plaintiffs’ claims, and it may yet have an opportunity to do so, depending on whether Beshear actually allows schools to reopen in January. In addition to the issue of whether his policy is neutral and generally applicable, the case raises the question of whether it is unconstitutional in any event because it not only burdens religious freedom but also impinges on the rights of parents to direct their children’s education.

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From U.S. v. Jackson, decided Wednesday by Judge Allyne R. Ross (E.D.N.Y.):

The government moves to seal its December 5, 2020 letter and defendant’s December 4, 2020 letter because they discuss Civilian Complaint Review Board (“CCRB”) and Internal Affairs Bureau (“IAB”) allegations against the government’s witness, Detective Kevin Deleon. Gov’t’s Letter, The government argues that sealing is necessary in order to protect Det. Deleon’s privacy interest because the allegations contain speculation and unsubstantiated complaints.

The public has a presumption of access to judicial documents under both the common law and the First Amendment. District courts must therefore “avoid sealing judicial documents in their entirety unless necessary.” In certain circumstances, however, “[d]ocuments may be sealed if specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” …

This circuit has held that the First Amendment right attaches “to written documents filed in connection with pretrial motions” in criminal cases, but generally does not apply to discovery materials exchanged privately between the parties or between one party and the court…. Here, the presumption of access attaches to the parties’ letters because they were “filed in connection with [a] pretrial motion[].” The government argues that this presumption is outweighed by Det. Deleon’s privacy interest because the letters contain speculation and unsubstantiated complaints against him. The letters do contain summaries of and references to unsubstantiated IAB and CCRB allegations disclosed by the government pursuant to its Giglio obligation. As I have already made clear, these unsubstantiated allegations are irrelevant to the witness’s character for truthfulness and therefore inadmissible. Defendant did not seek to admit these unsubstantiated complaints as impeachment evidence but did discuss the facts of these complaints in support of its argument for admitting evidence of a substantiated CCRB allegation from 2009. Def.’s Letter.

While I agree with the government that the unsubstantiated allegations are unreliable, speculative, and immaterial, the government has failed to provide “specific, on the record findings … demonstrating that” sealing the letters in their entirety “is narrowly tailored to serve” the witness’s privacy interest. Therefore, I deny the government’s motion to seal the letters but find that narrowly tailored redactions that remove references to the facts of the unsubstantiated allegations are warranted.

I think the court is quite right that, given the public’s right of access to court filings, it’s better to redact material rather than to seal the entire filing. I’m not sure, though, that even redaction (as opposed to allowing the whole document to be open) is proper.

The rationale for redacting the allegations is both that (1) publicizing them would be unfairly harmful to Det. Deleon’s reputation, because they are “speculate[ve] and unsubstantiated,” and (2) they won’t be used in the case, because they are “immaterial” and “irrelevant to the witness’s character for truthfulness and therefore inadmissible.” On the other hand, I take it that the allegations are relevant to the underlying decision whether they are indeed immaterial and irrelevant, so that would be an argument for admitting them. Again, I’m not sure what the right answer is in such cases, but I thought I’d pass along the decision in case readers find it interesting.

Here, by the way, is the prior finding about irrelevance to which the court refers:

The government intends to call Detective Kevin Deleon to testify about Mr. Jackson’s prior firearm possession. I have reviewed the letter filed on November 27, 2020, summarizing the allegations against Detective Deleon and do not find that any of them relate to his character for truthfulness. I have not received any objections from the defendant. I therefore grant the government’s motion to preclude the defendant from cross-examining Detective Deleon about this material.

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New York City’s outdoor dining patrons who needed to relieve themselves were left out in the cold briefly by a state policy that forbade them from using a restaurant’s indoor bathroom.

On Thursday, the city, through the Office of the Counsel to the Mayor, issued a guidance FAQ to help restaurants understand Gov. Andrew Cuomo’s executive order shutting down indoor dining in the city this past Monday, as well as guidance from the State Liquor Authority (SLA) interpreting that order.

Among those FAQs was a question asking, “If my SLA-licensed establishment is offering outdoor dining, may I allow customers to use the bathroom inside?” The answer was an emphatic no. “No. Customers may not enter the inside of the establishment for any reason,” reads the document.

The same document also made clear that restaurant staff were not allowed to share meals together. Employees were barred from eating or drinking at bars, in dining rooms, or other areas of their workplace that are used by the public. (Better that they eat their shift meal in a crowded kitchen, I guess.)

This FAQ document and the underlying state guidance sparked fierce criticism from restaurant advocates.

“The new guidance issued by [New York State] and shared by [New York City] on the indoor dining shutdown is another example of why restaurants and bars feel like government is purposely kicking them in the gut and then stopping [sic] on their hand when they’re already down,” said Andrew Rigie, executive director of the New York City Hospitality Alliance, on Twitter last night. “This is absurd and must be fixed ASAP.”

The new guidance issued by NYS and shared by NYC on the indoor dining shutdown is another example of why restaurants and bars feel like government is purposely kicking them in the gut and then stopping on their hand when they’re already down. This is absurd and must be fixed ASAP https://t.co/dkCZ0yTq8X

— Andrew Rigie (@AndrewRigie) December 18, 2020

The guidance elicited no small amount of controversy from Twitter users as well.

Um, where in any CDC guidance has a risk been flagged related using a restroom, alone, while masked??

Keeping people safe AND allowing restaurants to survive are not mutually exclusive. This latest memo just adds to the insurmountable challenges these businesses already face.

— Barak Pliskin / Pliskin Architecture (@_panyc) December 18, 2020

This has to be a joke. Not allowed to use the toilet while outdoor dining? Not allowed to place orders on site? Not allowed to pass through the restaurant to access an outdoor backyard or patio seating area? https://t.co/A8OVX3ssHP

— ant????️‍???? (@AJPrincipato) December 18, 2020

@NYCMayorCounsel @NYCMayor the bathroom and ordering inside guidelines make no sense and are not based in science. If gyms are open, people should be able to use a bathroom when dining and drinking outside. You might as well go to takeout. This is torture.

— Rebecca Laurel Anderson (@OmegaBlonde) December 18, 2020

In response, members of Mayor Bill de Blasio’s press team said on Twitter Friday morning that they had asked the state to revise its guidance, which it apparently did within a few hours.

The new rules are set by the State, not the City.

We’ve asked them to change the rules around bathroom use to keep outdoor dining viable and help our restaurants survive. https://t.co/u69Kq7bp1U

— Bill Neidhardt (@BNeidhardt) December 18, 2020

After discussions with the State, they have agreed to change the rule around bathroom access. https://t.co/d6DVCCa6Ow

— Avery Cohen (@CohenAvery) December 18, 2020

The SLA’s own FAQ on Cuomo’s indoor dining ban now unequivocally states that customers can in fact use a restaurant’s bathroom.

The reversal is obviously a good thing for restaurants and diners alike. The state’s speed in ditching this ridiculous restriction is commendable.

That a bathroom ban was ever imposed, however briefly, is nevertheless evidence of how arbitrary and heavy-handed Cuomo’s public health restrictions on restaurants and bars have been. He’s required customers to order food before they can be served drinks, then micromanaged what kind of food they have to order. He’s dragged his feet on reopening indoor dining in New York City until the local government assigned thousands of cops to enforce social distancing rules.

This week, as mentioned, he’s banned indoor dining in the city despite bars and restaurants being responsible for only 1.4 percent of COVID-19 infections, according to the state’s own contact tracing data.

It’s fortunate that New York City diners can now pee inside restaurants. Maybe they should be allowed to eat in them too.

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Insisting that “the push to reopen schools is rooted in sexism, racism and misogyny,” the Chicago Teachers Union is fighting plans to return children to the city’s public school classrooms. Not only is the union seeking an injunction to keep kids at home, but it says “all options are going to be on the table“—an implied threat of a strike in an already chaotic year—if it’s not happy with the school board’s decision.

Amidst a multitude of such battles across the country, it’s no wonder that families weary of being held hostage to other people’s decisions are abandoning government schools to enroll their kids in private institutions or to teach them at home. That shift is likely to permanently transform education in the United States in a way that lets children experience diverse approaches and viewpoints.

School and union officials in Chicago differ over their reading of public opinion tea leaves. The board points to the 37 percent of students whose families have opted for in-person teaching, while the union flips that around to emphasize that a majority of families want to delay reopening. But both sets of data indicate the same thing: people have different risk tolerances and come to varying conclusions about the right way to educate their children. Uniform, top-down approaches inevitably leave large numbers of them dissatisfied and looking for something that better suits their needs.

With similar battles playing out around the country, many families are heading for the exits. The evidence shows that more children than before the pandemic are learning their lessons from options chosen by their parents and free of the whims of school boards and unions. Public school enrollment is down in California, Colorado, Massachusetts, Maine, Minneapolis, Mississippi, and elsewhere.

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

“The reason is no mystery,” according to The New York Times. “With public schools mostly shifting to remote or hybrid learning, parents are pulling their children out entirely, opting to keep them at home or looking for options that offer more in-person instruction.”

Where are those kids going? Perhaps some are getting lost in the year’s chaos, but it’s obvious that many families have embraced education options both traditional and new.

“More families are choosing to home-school or send their children to private schools,” notes the Lewiston Sun Journal in Maine.

Homeschooling, in particular, is booming. Once regarded as a fringe choice for hippies and religious families, various approaches to DIY education pushed into the mainstream in recent decades and reached critical mass this year. An estimated 3.3 percent of children were homeschooled in 2016, up from 1.7 percent in 1999, according to the National Center for Education Statistics. That share roughly tripled this year to nine percent, in an Education Week survey. Gallup agrees, finding that 10 percent of children are now being homeschooled.

“Home schooling will become more mainstream and socially acceptable, now that so many people are getting experience with schooling their own children from home—whether it’s through traditional home schooling or overseeing their children’s remote schooling,” Christopher Lubienski, a professor of education policy at Indiana University, told Education Week. He predicts that some families will return to public schools after the pandemic passes, but the ranks of homeschoolers will permanently increase.

Many private schools, too, are seeing growth in enrollment. That comes after years of declines because of the Great Recession and the proliferation of charter schools which offer options without charging tuition.

“As the pandemic drags on through the fall, more families are seeking out schools that are fully in-person rather than remote — and, for many, that means switching to an independent institution, despite the cost,” CNBC reported last month.

“In a survey of 160 independent schools over 15 states and the District of Columbia, almost half of schools (78) surveyed report they have experienced higher enrollment in the current school year, relative to the prior year,” according to Damian Kavanagh, president of the Mid-South Independent School Business Officers association and Ben Scafidi, the director of the Education Economics Center at Kennesaw State University. “Forty-eight schools experienced a decrease in enrollment, while the remaining 34 schools had enrollments ‘stay about the same.’ Of schools where enrollment essentially was unchanged, the reason that enrollment did not increase at 14 of them was because they were at capacity.”

That means that, even as the economy is slammed by pandemic lockdowns and people idled from work in a way that usually decimates private school enrollment, more Americans are digging into their pockets to pay for their kids’ education.

Kavanaugh and Scafidi emphasize that independent schools offer “diversity of educational, religious and social offerings in K-12 education.” The same can certainly be said of families that tailor their homeschooling approaches according to their own values and their children’s needs rather than school board policies.

Perhaps nowhere is this more important than in the range of ideas with which students are presented, and the interpretations that teachers offer to students.

“American history textbooks can differ across the country, in ways that are shaded by partisan politics,”  Dana Goldstein of The New York Times marveled last January, in a stark summary of the country’s curriculum wars. She contrasted different editions of the same textbooks prepared for public schools in California and Texas and found that “classroom materials are not only shaded by politics, but are also helping to shape a generation of future voters.”

Deliberately or incidentally, families are leaving those politicized lessons behind as they abandon unsatisfactory institutions that have been paralyzed by pandemic-era battles between school boards and unions. The world they’re creating is bound to be more diverse in terms of its ideas and approaches even as it’s better suited to the needs of parents and children.

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