Three Covid19 Lawsuits We Need

I was against masks and lockdowns and school closings in March 2020, so I’m close to losing my mind at this point.  I find this return to lockdown and masks infuriating, and no media institution seems up to the job of explaining just why it’s horrible. From Commentary to National Review to The Dispatch to Richochet to Fox News, the message is “Get vaccinated” and “it’s not our job to care about the people who don’t get vaccinated.” Sure. Fine. Whatever. I agree. That’s not the point, and by missing the point everyone taking that stance is little more than an appeaser.

What we need are lawsuits. I’ve been amazed at how few we’ve seen. Let the suing begin.

I’ve identified three lawsuits that need to happen. Two are obviously the source of much government fear. The other one isn’t even mentioned, from what I can see.

Lawsuit 1: Can Vaccines Be Mandated?

I am assured endlessly by Twitter folk that this is a no brainer. I’m….skeptical. Assume the FDA approves one or more of them.

The federal government can require immigrants to vaccinate, and I’d like to know why they are only now getting around to adding  covid19 to the list. The feds can also make life unpleasant for its own employees (and probably contractors) who don’t get vaccinated, without going so far as demanding they get “the jab”, as some so loathesomely describe it. Military vaccination mandates are  But permissible. I couldn’t find any source that disagreed with the  Kaiser Family Foundation:

The federal government’s authority to institute a general vaccine mandate is unclear, and has not yet been tested in the courts, though it is likely limited at best.

As the KFF goes on to point out, states have much more clearly defined authority (cf Jacobson vs Mass, Zucht vs King), although no state has ever mandated vaccines for adults. Employers? Health care workers live with mandates. Some states ban employer mandates. 

Bottom line, really, is that anyone who says vaccine mandates are a done deal are ignoring the fact that federal government has no case history supporting mandates, and states have never required adult vaccinations.  And the real thing I wonder about is whether the case law supporting state mandates ever intersected with the ADA? 

Finally, schools are an excellent control point for ensuring vaccinations, and while they do a very good job, it seems that a percentage escape vaccines without exemptions.

So 5% have exemptions, and another varying percent just gets away with not vaccinating. If that’s true for all the states, then even with mandates, it’s going to be tough to get full coverage.

Are Vaccine Passports Constitutional?

The difference between a vaccine mandate and a vaccine passport (proof of vaccine) strikes me as a bit fuzzy around the edges. Let’s restrict the term vaccine mandate for a requirement imposed by the federal or state government, while a passport is something that can be required by either government or private business in an environment where no vaccine mandate exists.

So for example, a private business requiring that employees and customers be vaccinated would want to see a vaccine passport, preferably one superior to a piece of paper with a scribble and a stamp. A government might not mandate a vaccine for everyone, but require evidence of vaccination to enter an official building.  Or a business could require proof of vaccine for employees and customers to be unmasked, but still employ and serve the unvaccinated. 

 Some argue  that proof of vaccine is constitutional; others say it’s not clear cut. I have no idea. Seriously, not even an opinion, although I’m far more in favor of the government just adding one more vaccine to the school list than I am a vaccine passport which in this era will see all sorts of new requirements once it’s created. That said when I consider the contortions that schools experience because of the judicial rights granted by the ADA and, separately, disparate impact, well. Let’s have that lawsuit, shall we? 

Can Governments Require the Vaccinated to Wear Masks?

I care not at all about vaccine mandates, am more troubled by vaccine passports, but am seething with rage at this one, and no one else seems to care.  Many call for people to ignore the mandate, but how will that help employees or government demands? Or, in the case of teachers, a government employer? 

There are dozens of lawsuits protesting mask mandates, for children–unvaccinated children.   Think about that.  Everyone is up in arms about protesting mask mandates for the unvaccinated, and best I can see there are no lawsuits challenging the right of the government or employers to demand that vaccinated people wear masks. 

Why not?

I asked a lawyer friend who shrugged and said first, no one is interested in challenging these mandates. He also said that the courts would defer to health emergencies for some amount of time. Great, I said, for how long? He said that a lawsuit might result in a government response that explained their standards, and most likely a protest that the mandate would be of short-term. Well, I said, wouldn’t that be a good thing? Once the government made that response, wouldn’t a judge be more likely to use that standard–or even question the standard? He agreed that was a decent possibility. I’m depressed that a judge would defer to the government for a vaccinated mask mandate under any conditions, but as absurd as that would be, at least a judge would at worst demand the government prove its standard and duration. 

So why no lawsuit? I am really boggled by people like Tim Carney and Jonah Goldberg, who agreed on a recent podcast that they were fine with a mandate if it prevented lockdowns (Carney said it again in an article.) I can’t bear such thinking and that it comes from “the right”, it’s downright disgusting. (When Carney and Goldberg moan that the right has moved inexplicably away from them, I hope they remember how willing they were to bend the knee to this bullshit.)

So where’s the lawsuit?

Do people not realize that if the government starts mandating masks for covid19, it’s a short step to mandating them for measles outbreaks, diptheria, pertussis?  You may think that’s absurd, and I hope it is, but there’s literally no difference. If the government no longer accepts vaccines as the last word in prevention. And yet I can find no one challenging this demand legally–and legally is what matters.  God help us all if the court system holds that the government can force citizens to wear masks any time it wants to. 

I am reasonably certain that the government is mandating masks for everyone because they are afraid they’ll lose the first two lawsuits. The loopholes for disabilities and disparate impact in the other two challenges seem obvious. And maybe all the zealots in pursuit of zero covid19 understand how reluctant everyone is to challenge a mask mandate for the unvaccinated. Because reluctance is the only word I can see for it, given all the brave, bold people calling to ignore the mandate.

As regular readers know, I’m getting back into writing after a long hiatus (and long intermittent spells before that) in part by abandoning the research component that would normally send me down a bunch of enjoyable rabbit holes learning the ins and outs of Jacobson vs Massachussetts and Zucht vs. King or the Public Health Service Act. But I am a damn good internet researcher and I can’t find any serious legal analysis of forcing vaccinated to wear masks and on that point, I’ve been looking hard. Misleading headlines of worried articles, sure.  But even a cursory discussion of the legal issues involved in forcing vaccinated people to wear masks, I can’t find. Maybe I missed something. By all means, let me know. Here’s a starting search. I went down four pages. 

Meanwhile, everyone left right and center is righteously demanding that the unvaccinated comply. Why the hell should they, if the government can randomly demand we wear masks despite the fullest medical protection any time they feel queasy? 

Far too many conservative commentators are more interested in mocking liberals and using the child mask mandate to push for their favorite school choice initiative. If you don’t see mask mandates for the vaccinated as the single most pressing issue–worse than making unvaccinated kids wear masks, worse then refusing vaccination, then you are doing it wrong. We need start there, if we’re going to push back. 

I don’t bargain with these control freaks and think the many conservative appeasers who originally backed or demanded these mandates and are now whining did much to lead to this appalling situation. I think it’s all a horrorshow. Back when most of the media was calling for a temporary lockdown, I was warning that it was a foolish overreaction that would be hard to undo. I don’t care if people get vaccinated and find the lectures are articles on “persuasion” to be offensive and condescending. I oppose vaccine passports. I don’t think children should have to wear masks. But none of these are as bad as forcing masks on people who have vaccinated. So let’s start with the most important idiocy.

White Flight From Admissions-Test High Schools

I’ve written this approximately 5 billion times on Twitter, but Razib Khan’s review of Charles Murray’s new book, coupled with my recent failure to create any articles at all, combined to convince me to put it in essay form.  The point has nothing to do with the book, which I haven’t read yet but is certainly excellent, or the review, which is perceptive, particularly the last bit.

But this part here is often repeated and quite misleading:

In New York City, the elite Stuyvesant public high school illustrates the discrepancy between the quality of our discussions of systemic racism and how race, class, and education actually interact in the real world. Admission to the school is based on a standardized test. The current student body is 73 percent Asian American and 19 percent white. New York City is about 15 percent Asian American and 30 percent white. In other words, white kids are under-represented in the student body (though far less so than blacks and Latinos).

John Podhoretz mentioned the same stat a few months ago:

If you add whites, blacks, and Latinos together, they will constitute around 37 percent of the kids at these eight schools. Now take a wild stab at the ethnic origins of the absolute majority of admits—a stunning 53.7 percent in all. You guessed it. Asian.

…

This is the case even though Asians make up a little less than 12 percent of New York City’s population. Black people make up 26 percent. White people make up around 26 percent. Latinos make up around 26 percent. And Asians? Around 12 percent.

The stats are all true, but there’s one big problem: both Khan and Podhoretz use the wrong stat. It doesn’t matter how many whites and Asians are in New York City, but how many of them are in public schools. 

White kids are twice the absolute number of Asian kids in the New York City general population, but public school population is a different matter:

• • 40.6 percent Hispanic
  • 25.5 percent black
  • 16.2 percent Asian
  • 15.1 percent white

These stats have been mostly consistent for a decade or so; the NY Times correctly lists the populations back in 2010, when whites were 15% and Asians14%.

So Razib and Pod use the fact that whites are twice as populous as Asians to demonstrate the shocking disparity in the specialized school population. But in fact, whites and Asians are equally represented in the public school population, so the disparity is already half as bad as they say. 

But there’s still more data that is rarely mentioned in the white/Asian disparity debate–Podhoretz does bring it up, but as usual misses the relevance. Given that whites and Asians represent equal populations in public schools, it’s worth looking at the attempts and admit rates:

NYCDOE on 2020 SHSAT results

The dark blue line at the bottom shows the acceptance rate of testers by race. Notice that whites and Asians have basically the same admissions rate (caveat: the thousand multi-racial or unknown race have a very high acceptance rate). Asians probably have higher scores on average than whites, as more of them get into top-ranked Stuyvesant. Given the much higher, one might say obsessive, Asian dedication to test prep, this isn’t surprising. New York City test scores show 3rd through 8th grade white and Asian ELA proficiency rates the same in English, although 77% of Asians test proficient in math and “only” 66% of whites do the same. I couldn’t find granular data for 8th grade in NYC only, but suffice it to guess that they test at roughly parity in ELA and Asians do better in math.

Point being that whites and Asians both have high proficiency levels on state tests and identical admissions rates to the specialized high schools.

However, take a look at the top line of the graph, showing overall testers by race.  Despite their overall population parity, whites and Asians have very different interest level in the schools. Twice as many Asians took the test as whites. 

This reporting tool reveals that in 2019, at least, there were 12,769 Asian and 11,147 white 8th graders.  So about 64% of Asian and 39% of white 8th graders took the SHSAT.

Well, that’s…..weird. 

It’s almost like whites aren’t nearly as interested in attending the “best public schools in New York City”. 

This thoroughly screws with the traditional conservative take on merit-based high schools, which goes like this: “Asians work hard, study hard, care about school, and that’s why they dominate admissions in the best schools.” 

How come whites aren’t testing–that is, applying–to the “best” schools? 

In an article that almost certainly couldn’t be written today, the Atlantic goes through the history that explains why whites are less interested. First, a very interesting graph on Stuyvesant student population over a 20 year period:

Atlantic also did populations for Bronx Science and Brooklyn Tech

Notice that black and Hispanic population has been cut in half, but white population has dropped by more than half. If Stuyvesant admissions are truly test-based, as I’m sure they are, that shouldn’t happen. Only at Brooklyn Tech did white population increase, and only slightly.

The Atlantic points out that the drop began in 2002, when mayor Michael Bloomberg instituted school choice:

The white population at Stuyvesant hovered around 40 percent from the late 1980s until the early 2000s, according to the National Center for Education Statistics. Around 2003, when Bloomberg became mayor, the number of white kids at these schools dropped as the number of schools that screen for academic criteria like grades or exams, or require an audition or interview, more than doubled.** This selectivity increased the pool of schools that were considered “good,” which diverted many white students away from the specialized schools and into these newly prestigious schools.

So when Bloomberg allowed all public schools to screen for academic criteriam, suddenly, whites weren’t interested in Stuyvesant and the other specialized high schools. (Note: while elite private schools do suck up a lot of bright black and Hispanic kids, a lot of the others attend these “choice” high schools.)

White NYC public school students aren’t failing in their efforts to get into the specialized high schools. They aren’t interested. They aren’t applying. They have schools that are just as good.

While the national status of the specialized high schools is unquestioned, it’s pretty clear that the local status is much diminished. Asian students are overrepresented in these schools not because the schools have high academic standards and desirable status, but because bright white, black, and Hispanic kids have equally good options that they find more attractive. Why bother with obsessive test prep and a school culture that Americans find unpleasant when you can set a perfectly solid standard that keeps out the low-skilled and unengaged? 

Look throughout the country at the test-based schools and you’ll find a similar pattern, although the SHSAT is the only test whose results are readily available online. But in every area with a mostly Asian test-based public high school, look for  an equivalently ranked school that’s mostly white, that also has more blacks and Hispanics. I don’t know enough about Virginia area schools to state this with a certainty, (I’m trying to write more, research picayune yet interesting details less) but this 2019 reporting reveals that whites comprised only 25% of the admissions to Thomas Jefferson High School, while they are surely more than 25% of the population.  In other areas, like San Francisco and Lowell, whites rich enough to live there pay for private school or move south or east in the megalopolis.

It’s simply inaccurate to refer to the specialized high schools as “New York City’s best schools”.  It’s totally wrong to argue, as most conservatives do, that Asian kids are “dominating” academics, or that the lack of black and Hispanic kids at these schools is a mark of a “failed education system” or even “black culture not valuing academia”.

The simple fact is that everyone involved in this debate has no idea what they are talking about. They see the specialized high schools as pure meritocracies. In fact, they are an expensive service NYC provides Asian immigrants who want to get their kids away from black and Hispanic students.

Now, some of this is my interpretation, so I’ll try and break it down.

Fact: white student interest in the NYC specialized schools is far lower than Asian interest, despite similar representation in public school population and similar acceptance rates to the eight schools.

Fact: when Bloomberg allowed public schools to restrict admissions, a large number of prestigious local schools set standards and this led to a drop in white student interest in the eight specialized high schools.

Opinion: whites are uninterested in the NYC specialized high schools because of the Asian immigrant culture.

Opinion: immigrant interest in any “merit-based” institution, coupled with the ability to build less competitive, but still exclusive, institutions leads to reduced white interest. 

Opinion: what the media refers to as “best schools” is not what American parents consider “best schools” if the schools are overwhelmingly populated by Asian immigrants and contain the competitive, grade-obsessed Asian culture.

The white flight away from test schools to public schools with test-in standards explains why white parents were freaked out when di Blasio threatened to end this option. DiBlasio can’t change the specialized high school requirements but he can end white parents’ ability to sculpt their own schools. If diBlasio did end these programs, I’d expect white participation in the specialized high school application process to double.  Alternatively, whites may decide it’s time to leave the city entirely, although that’s a different decision in New York City than it is when moving from San Francisco to, say, Palo Alto.

So the primary rationale for ending or changing test-based high schools is to make public schools more attractive to American (read white) parents.  The real driver isn’t equity. That’s just cover. District leaders might talk about the importance of black and Hispanic achievement, but  (as many have noted) ending test-based admissions always leads to more white students. Most of the parents screaming about the end to test-based schools are Asian parents–most of them immigrants, many making demands that might possibly be considered a tad ungrateful. Given a choice between a school that pleases newly-arrived Asian immigrants and one that pleases their tax base of mostly white but all high-income parents–and also improves black and Hispanic participation–which option is the best political strategy?

As usual, conservatives–and, for that matter, black opponents like Glenn Loury, John McWhorter, and Wilfred Reilly–get it all wrong. They are wailing about the injustice to the Asian immigrants and the threat to merit. They complain that black students aren’t encouraged to compete or achieve. But this is all bullshit. There are smart black kids. They have other options that they find much more attractive.

Asian dominance of specialized public schools has nothing to do with academics or high standards. It’s white flight. Districts are taking action to end white flight. This is unsurprising and something that conservatives would normally support except their loathing of public schools interferes with their ability to notice the obvious. 

I  shouldn’t have to point this out. But there’s one thing that I’ve noticed elites of either party are categorically reluctant to discuss, and it’s something that a (barely) upper middle class white living in extreme diversity is uniquely suited to observe. White people living around huge populations of Asian immigrants aren’t enamored with them. When you read that Asian participation in an institution or activity has soared, start by wondering whether absolute white participation has significantly declined. Then find out why.

Naturally, when elites do discuss this behavior, it is tagged as racism by conservative and progressive alike. Plus ca change, and all that.

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There are many reasons my writing has fallen off a cliff this year, not least of which that remote teaching is far more work. But another key reason that I just figured out recently involves the huge push over the last year to end SAT and other test based admissions policy, an issue that would normally be right in my wheelhouse. But my opinions on all this have grown more complicated in the past five years. 

There are people who think I dislike Asians, and that’s just not true. I do have concerns about the huge influx in Asian immigrants since the 90s. (there’s a clear distinction between them and those who have been in the country for decades and multiple generations.) South and East Asian academic culture is rife with fraud and competition, and I don’t welcome its influence here in America. I grit my teeth and scowl at Americans* who talk about the Asian work ethic, Asian two-parent families, and all the other “positives” that they are just sure lead to Asian success (recently on display in Andrew Sullivan’s podcast with Wesley Yang). It’s all bullshit. Asian immigrants are people, and like all people they range from utter scum to totally amazing. But culturally, they have attitudes and values that are in total conflict with American ones, and Americans should not allow these values to override what makes American education great–and yes, American education is great. Nor has our education system ever been overly obsessed with grades, competition or endless study. We should seek to acculturate Asian immigrant education values, not reward them.

Leaving aside all the value-judgment (theirs and mine), I am also disturbed at the constant confusion between grades and achievement, as well as the utter ignorance of the real problems with the SHSAT scoring that would reward an Asian immigrant (or anyone else) scoring in the high 90s in math and the 40s in verbal while rejecting a black or Hispanic kid (or anyone else) scoring in the high 80s on both.

But none of my distaste leads to approval for college admissions offices discriminating against Asians by using enough of them to boost their metrics and dismissing the rest. Nor does it mean we can ban test prep. And using grades as a proxy for achievement, which is the actual means by which we are eliminating test-based admissions at both college and high school, is utter madness. Not only are grades basically fraud, but a grade-based admission process will encourage segregation, particularly for blacks and Hispanics. Black kids at integrated high schools have better scores than those at majority minority high schools, but lower grades. This is the Big Lie that runs all through the “top students at each school” admissions process. Grades favor low achievers. Tests don’t. 

However, I’m far more skeptical of the value of test scores past a cutoff mark than I was before around 2016. That is, an SAT score of 600 verbal or math has meaning. I’m not sure a 2400 SAT score does anymore. Well, it does, but not reliably. That’s a topic for another article. 

So tests, yes. But cut scores and a lottery, not ranking by score. That’s a topic for another day as well, but I wanted to be clear that I am unhappy–very, very unhappy–with the current move away from test-based college admissions. I believe we are destroying the value of a college diploma beyond redemption. It’s very worrying.

Once again, parts of this are more disjointed but focus is on writing to get past this perfection block, so bear with me.

*I mentioned this throughout, but unlike Asians, who often say American to mean “white”, I mean American as all races. If I mean American whites I usually say so.