(Bloomberg Opinion) — First there were a  spate of teacher lawsuits aimed at keeping public schools shuttered during the coronavirus pandemic. Now we’re seeing a rash of litigation aimed at forcing schools to open. Parents in several states are suing to require in-person instruction. Private school parents have also filed lawsuits challenging orders that essentially require all schools to close if the public schools are closed.

I don’t know how these suits are going to play out. Nearly all will be decided under the arcana of state constitutions. But the avalanche of litigation does provide the occasion to consider the equities of the situation. For public schools, the question is complex. For private schools, it’s easy.

Let’s start with the public schools. As I’ve noted before, studies tend to show that classroom learning is superior to the online version. But that’s surely not enough of a case for those who believe the classroom to be an unsafe space.

Advocates of reopening like to point out that schools mostly stayed open during the 1918 influenza pandemic, the worst in recorded history. But we have to be cautious about over-reading those experiences.

In 1918, the reasons the schools stayed open were varied and complex. Among them was patriotism. Newspapers of the era called on communities to keep educating their children because education was considered a part of the war effort. “Don’t close the schools, use them!” proclaimed the Secretary of the Interior. Moreover, in the absence of mass communications in today’s sense, local leaders were largely cast upon their own resources in making their decisions. Even communities that existed side by side would often reach different conclusions, as when Minneapolis closed its schools for several weeks and St. Paul didn’t. 

Yet despite all this diversity, the historical record seems clear: The localities that closed their schools early in the outbreak had lower overall mortality rates. These figures have held steady in other pandemics. (1)

The literature has long supported closing schools during a pandemic, but not as a device to prevent people from getting sick. The traditional argument has been that closing the schools delays the peak, allowing time to implement medical counter-measures, and keeping medical facilities from being overwhelmed. (That was also the argument pressed early in the current pandemic.) At no point in the nation’s history has the case been seriously put that schools must stay closed until classrooms are “safe” or the pandemic is over.

Moreover, the purpose of closing schools has always been to keep children healthy, not to protect grownups. There’s little evidence that shuttering classrooms does much to reduce flu transmission among adults. Covid-19 may be different, but scientific conclusions are still tentative. The studies preferred by reopening advocates suggest that children are inefficient spreaders of Covid-19. This seems to be true, although children children might also spread the disease from school indirectly, via surface transmission. In any case, it’s widely agreed that the illness tends to be much less severe in the very young.

Given all the hubbub, it’s small wonder  that  surveys of parents tend to be  all over the proverbial map. But most of those polled are at least a little worried. And here the polls matter. On reopening public schools, expert opinion should have an honored place. So should the voices of teachers. In the end, however, the question is how to balance risks and benefits, and there the opinions that should matter most are those of the parents whom the schools exist to serve. Alas, so far, parents are a long way from consensus on the issue.

As for private schools, the answer is easy: State authorities should back off. Private schools should be free to make their own decisions without regard to what public schools do. For one thing, private schools have skin in the game. If private schools guess wrong on opening, they might face legal liability. Thus they have an extra incentive to get the decision right. Those who run public schools are, for most purposes, protected by sovereign immunity. This doesn’t mean they don’t want to make the right decision; it does mean that if they’re wrong, the potential punishment is less.

Moreover, private schools tend to be smaller, whether measured by enrollment or by student-teacher ratio. They also have to be responsive to parental demand. This increases the likelihood that their decisions will be fine-grained, closely adapted to the characteristics of their particular student bodies.

Critics have argued that if private schools open physical classrooms and public schools remain online, public-school students will suffer. But to use this disparity as a justification for shuttering private schools is a bit like prohibiting parents from helping their children learn at home because not all parents can do so. Besides, if the concern is truly about equality, there’s an easy solution: the state is free to provide resources that would allow every parent who prefers private education to purchase it. A state that prefers not to do so is poorly suited to cite its own policy choice as a reason to deny private-school children the education their parents are using their own after-tax dollars to pay for.

None of this tells us whether the lawsuits will succeed. But few tasks are as important as the education of the next generation. What matters, then, is that we get this right.

(1) During the 1968 pandemic, which was comparable in severity to Covid-19, schools rarely closed except for a few days at a time. Some later studies suggested that given transmission rates, closing the schools would have made little difference.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”

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