What does public opinion about school look like midway through the “year of educational choice”? According to new polling from EdChoice, support for education choice remains high.

Interestingly, the highest support is for the most flexible form of choice—education savings accounts (ESAs). An overwhelming 84% of parents and 78% of the general public support ESAs, which are taxpayer-funded accounts that can be used for many approved educational expenses beyond just private school tuition.

The strong support for choice shouldn’t be surprising given another finding from the survey: there’s a tremendous mismatch between the type of education parents would prefer and what they’re utilizing. While nearly 75% of parents reported that their children attend their local district school, fewer than 40% prefer that option. On the flip side, less than 10% attend private schools even though nearly 40% would prefer a private school for their children.

These findings should be encouraging to the lawmakers who voted to expand or create new education choice programs in 18 states this year. EdChoice estimates that more than 4 million children could be newly eligible for an education choice program thanks to these changes, although program caps mean fewer than half of those children will be able to take advantage of their new eligibility.

Another survey finding may prompt states to follow West Virginia’s lead by enacting universal ESAs. More than 75% of respondents who support ESAs prefer them to be universal rather than targeted; among parents, that jumps to more than 80%.

One of the most promising results of this polling is that support for all education choice programs increases when what they are is explained to respondents. This should inspire anyone working to increase choice options in their state.

Over the past year, the need for education choice has become increasingly clear, whether it’s because of COVID-19 policies (in-person vs remote, masks vs no masks), curriculum battles (critical race theory, gender identity lessons in young grades), or wanting new options to recover from COVID-19 learning loss. With broad support for all forms of choice in this survey, there are plenty of reasons to expect another “year of educational choice” in the near future.

By early next week, after Labor Day weekend has come to a close, just about every child aged 5 to 17 in the United States—homeschoolers excepted—will be back in school. And that means, for the most part, literally in school, unlike last year when much of the nation was racked by heated debates about buildings closed to in-person instruction. But just because that particular fight is largely over does not mean the school year is starting with pep rallies ringing out “Kumbaya.”

When it comes to COVID-19, conflict persists but the battleground has shifted. The locus is now masking, especially whether districts can mandate it. It is a conflagration fueled, it seems, as much by ideological as medical concerns: not just whether masking in schools mitigates the spread of the virus, but when should government be able to override private decisions. As Cato chairman Bob Levy has written, it is not a clear-cut case: When one person can inflict harm on another against their will, government action may be justified.

But COVID-19 is hardly the only huge flashpoint in education. Debates over critical race theory, or at least concepts such as systemic racism and unconscious bias subsumed under it, have embroiled school boards for months. The only thing that seems to be tamping that down at the moment is the masking debate, which surpassed CRT in urgency as kids had to physically return to school.

The way to avoid most of the crippling acrimony marring the start of the 2021–22 school year, as I and other analysts explain in School Choice Myths: Setting the Record Straight on Education Freedom, is, well, freedom: let educators teach as they see fit, and families choose among them. Let those who desire maximum COVID-19 protection via mask mandates choose schools with such policies. Let those who want their children to study ideas and be subject to policies informed by critical race theory pick like-minded institutions. And, as the book explains, also save taxpayers money, create better citizens, help kids who remain in public schools, empower children with disabilities, and more.

Perhaps a silver lining to overflowing frustration with public schools’ inability to serve diverse people equally is new energy behind educational freedom. Since the start of 2021, 18 states have either created new education choice initiatives or expanded existing ones, and it is estimated that maximum take-up would increase the number of kids served from roughly 600,000 to 2.4 million.

With nearly 54 million school-aged Americans that remains too little—most people will still have to engage in political combat to get public schools to provide what they want—so much work remains to be done. And that means myths about choice will still have to be confronted, this school year and beyond.

Companies like Wal-Mart, United Air Lines, and Tyson Foods have announced plans to require part or all of their workforce to be vaccinated against COVID-19. Many employee claims for religious exemptions are likely to follow. How are they likely to fare as a legal matter?

In April I wrote:

Title VII, the federal employment discrimination law, forces an employer to accommodate employees’ religious beliefs when it can do so without cost. For that reason, employees with religious objections to vaccination can ask employers to exempt them, and employers must at least consider the request. “Consider,” however, does not mean “accede to”: under a 1977 Supreme Court case called Trans World Airlines v. Hardison, which I’ve written about here, Title VII “does not require an employer to make any accommodation for an employee’s practice of religion if doing so would impose more than a de minimis burden.” (That’s Justice Alito’s description of the holding.) It amounts to a relatively lenient standard for employers, and given that lack of COVID-19 vaccination increases the risk of contagion of a serious illness, I think most courts most of the time will accept employers’ argument that obligatory waivers would ask them to shoulder more than a de minimis burden.

As usual with legal matters, though, it can get more complicated. Even with a not-too-unfavorable ultimate standard, the current state of the law still leaves employers plenty of ways to trip up.

Managers may dismiss some religious objectors without considering accommodation (in effect, without negotiating) because they perceive them as insincere, opportunistic, or patently irrational. Watch out for that. Ohio employer-side lawyer Jon Hyman notes that the federal Equal Employment Opportunity Commission takes a super-broad view of which objections are religious:

The EEOC does not limit its definition of a religious belief, practice, or observance to those that are espoused by an actual religion. The EEOC’s definition also includes moral or ethical beliefs as to what is right and wrong that are sincerely held with the strength of traditional religious views. Moreover, per the EEOC the fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a protected religious belief of the employee.

So even though relatively few organized churches actually take a theological stand against vaccination, and even though a given employee may have paid zero heed in the past to the teachings of religion, employers may be well advised to treat each objector as the implicit founder of his or her own church-of-one. (Courts, it should be noted, don’t always defer to EEOC positions.)

Also less than reliable, by and large, is what you might call the “but that’s crazy!” defense. In one celebrated case not involving vaccination, the EEOC went to bat for a coal company employee who feared its biometric check-in hand scanner would impart to him the Book of Revelation’s “Mark of the Beast.” He proceeded to win a $600,000 award. It’s true there is a certain logic to the idea that the government (including the courts) cannot put itself in the position of evaluating the truth claims of one religion as against the next. But note the remarkable practical result here, which is that even private actors may also be forbidden to take practical sides on the truth claims of religion.

Then there are the logistic trip-ups. Consider a case I wrote about in 2018 in which an Asheville, N.C. hospital agreed to pay $89,000 to settle EEOC claims that it had failed to accommodate workers’ request to be excused on religious grounds from the seasonal influenza vaccine:

Mission had in fact agreed to exempt employees from the flu shot based on religious objections, but required that they declare their intention ahead of time. And that turned out to be not accommodating enough, since not requiring that extent of advance notice would not in the EEOC’s view have posed an undue hardship on the employer — hence the expensive lesson.

That’s not the only case in which the EEOC has extracted settlements from hospitals that were too inflexible in handling flu-vaccine exemption requests. It’s possible that the commission, the courts, or both may grant employers more leeway on the recognition that COVID-19 is much more dangerous than the flu virus – but then in hospital settings the flu virus itself can be a pretty big deal.

Provided they can get past these pitfalls, employers do have some high cards they are allowed to play in negotiations. In particular, they can offer accommodations other than just coming to work and forgetting about the policy. These might include, Hyman says, “masking while at work, a change in work location or shift to minimize contact with others, remote work, or even an unpaid leave of absence.” That might weed out some of the insincere and opportunistic.

The ideological background of the objections is perhaps not surprising at this point: it is mostly “conservative” groups that are mobilizing to promote litigation based on the more liberal interpretations of employers’ obligations. That’s not a stance friendly toward the values of private ordering, free association, or contract or property rights in the workplace setting. But it is, perhaps, a sign of the times.

After calls from members of the scientific, public health, and medical community—myself included—the Food and Drug Administration finally overcame bureaucratic inertia and granted full approval to the Pfizer-BioNTech mRNA COVID-19 vaccine—ahead of its self-imposed deadline of January 2022. This is good news. Pfizer will now market the vaccine under the brand name Comirnaty.

Hundreds of millions of doses have been administered over the course of nearly a year and the safety profiles of these vaccines have been remarkably good. Now the FDA should move quickly on the other mRNA vaccine made by Moderna. The company submitted its application for full approval in June, a month after Pfizer’s application. Johnson and Johnson, makers of the one-dose adenovirus-based vaccine has not yet applied for full approval.

It is important to stress that, while the vaccine does not prevent 100 percent of infection, it is highly effective against severe disease—severe enough to require hospitalization and/​or death. The health care news site MedPage Today reported that Peter Marks, MD, PhD, Director of the FDA’s Center for Biologics and Research issued the following statement:

Our scientific and medical experts conducted an incredibly thorough and thoughtful evaluation of this vaccine. We evaluated scientific data and information included in hundreds of thousands of pages, conducted our own analyses of Comirnaty’s safety and effectiveness, and performed a detailed assessment of the manufacturing processes, including inspections of the manufacturing facilities.

Full approval of the Pfizer vaccine hopefully will reduce vaccine hesitancy. Claims, especially by those in the “anti-vax” community that the vaccine is “experimental” influence many of the vaccine-hesitant. Ironically, many who oppose the so-called “experimental” vaccine instead urge the off-label use of the anti-inflammatory/antimalarial drug hydroxychloroquine or ivermectin, used to treat parasites in animals, to prevent or treat COVID-19 infections. Yet the use of those drugs for COVID-19 is truly experimental.

Hopefully, full approval of the Pfizer vaccine and, before much longer, the Moderna vaccine, will alleviate much of the vaccine hesitancy. While politicians and public health officials have employed various approaches to the pandemic—from lockdowns to stay-at-home orders to elective procedure moratoria to mask mandates—the evidence shows that immunization is clearly the most effective and least damaging form of COVID-19 harm reduction.

The right to make one’s medical decisions is a fundamental human right. Taking health care rights seriously means recognizing that consumers have a right to choose which medical products they use and that government has no right to stand in their way.

From the moment Ugur Sahin and his colleagues developed the Pfizer-BioNTech COVID-19 vaccine in January 2020, they and consumers have had the right to sell and buy it, so long as both parties agreed to the transaction. When government interferes with that right to voluntary exchange, it interferes with the rights of patients to make their own medical decisions. This fundamental human right to voluntary exchange is all the more important when it involves life-or-death medical decisions.

From mid-January 2020 until December 2020, the U.S. Food and Drug Administration violated the rights of the manufacturers and consumers to buy and sell the life-saving Pfizer-BioNTech COVID-19 vaccine. The FDA only stopped violating those rights when it granted the vaccine an emergency use authorization on December 11, 2020. Under the terms of that authorization, however, the FDA would again begin to violate those rights once the federal government declares this public-health emergency has ended.

Today’s announcement that the FDA has granted full approval to the Pfizer-BioNTech COVID-19 vaccine is welcome news—but not because government should be in the business of reviewing the safety and efficacy of drugs (it shouldn’t), nor because the FDA has any moral authority (it doesn’t), nor because patients need the FDA’s seal of approval (though some rightly value it). It is welcome news only because it means that once the federal government declares this public-health emergency has ended, the FDA will not automatically resume violating the right of consumers to use this vaccine.

The COVID-19 pandemic has demonstrated over and over again that the FDA is a threat to public health. 

At The Hill, I’ve written an op-ed that explores, in the context of the COVID-19 pandemic, what a libertarian position on vaccine mandates ought to be. Of course, there are many questions one needs to answer to draw a philosophically consistent conclusion.


As I explain:

Here’s the controversy: If the vaccine causes no appreciable injury, can you still refuse to be injected, notwithstanding that you might be visiting significant risks on others?

It’s a close call. Even those who resist government intervention in private matters will endorse rules that bar some persons from violating the rights of others.


Ordinarily, those rules ban or limit harm-inducing activities. Occasionally, however, advocates of limited government will condone directives to engage in benign activities (even when not cost-free) if failure to do so might cause injury to innocent bystanders.

And some pertinent questions:

How much increased risk do I have to endure before your potentially malign failure to act can be redressed? When rights theory doesn’t provide adequate guidance, defenders of liberty often look to utilitarian, cost-benefit tradeoffs. In the context of the vaccine, here are a few relevant factors …


… First, how safe is the mandated act? … Second, what’s the magnitude and frequency of an injury that could occur without a mandate? … Third, can we be sure that a vaccine mandate will remedy the problem? … Fourth, are there remedies available that are less intrusive than a vaccine mandate? … Finally, what peripheral concerns need to be addressed before implementing compulsory injections?

I address these questions in detail, ultimately concluding that:

“Those are crucial questions, which should be examined before embarking on a program that encroaches on personal autonomy. And yet, we are in the midst of a health emergency, which means that suitably modified, narrowly-tailored, time-limited rules may be justified.”

You can read the full piece over at The Hill here.

The Cato Institute is committed to being a libertarian think tank: individual liberty, limited government, free markets, and peace. But one thing that’s often misunderstood is that Cato as such does not take institutional positions on particular policy questions. Cato scholars speak for themselves and have the freedom to reach their own conclusions, particularly on things that are contested among libertarians.


Recently there was an example of this as two Cato scholars appeared in major media to articulate their differing views on vaccines and how to apply libertarian principles in the context of the COVID-19 pandemic. One of our senior fellows, Todd Zywicki, wrote in the Wall Street Journal on August 6 to explain why he is suing George Mason University, where he is a law professor, over their policy requiring COVID-19 vaccination. In particular, he objects to the application of the policy to people like him who have already had and recovered from COVID, and thus already have some degree of natural immunity.


Another Cato adjunct scholar, also a George Mason law professor, Ilya Somin, appeared on MSNBC on August 11 to discuss why he sees vaccine requirements as potentially justified and preferable to other policy options. Drawing on libertarian principles, he made the case that a disease like COVID involves the potential of harm to other people. Somin pointed out that mask mandates, lockdowns, and restrictions on international travel are all much more intrusive than the relatively slight imposition of a safe and effective vaccine. There is a particularly strong libertarian case that private institutions, and even the government when acting as employer, can set policies attached to what are voluntary relationships: employees, customers, students, and the like. Florida’s recent attempt to ban private businesses such as cruise lines from adopting vaccine requirements has already suffered defeat in court and is one example of an affront to libertarian sensibilities.


In this case as on other issues, we don’t require uniformity or suppress differing views among our scholars. And any one scholar’s individual view is not necessarily “Cato’s position” on a matter. That diversity of viewpoints and intellectual freedom is part of why Cato has been able to provide an effective voice for classical liberal and libertarian ideas across the entire range of public policy issues. The standards we uphold are for intellectual rigor and solid grounding in good data, especially for work Cato publishes. Our scholars also frequently write, publish, and engage in advocacy outside of Cato, which we happily encourage. It’s that reputation for intellectual honesty and serious engagement with opposing points of view which has helped put Cato routinely near the top of rankings of America’s most influential think tanks, making a difference for freedom in state capitals, on Capitol Hill, and at the Supreme Court, where Cato’s renowned amicus program is tied with the ACLU at the top of the rankings for filing on the winning side of major policy cases.