[This is one of the finalists in the 2025 review contest, written by an ACX reader who will remain anonymous until after voting is done. It was originally given an Honorable Mention, but since last week’s piece was about an exciting new experimental school, I decided to promote this more conservative review as a counterpoint.]

“Democracy is the worst form of Government except for all those other forms that have been tried from time to time.” - Winston Churchill

“There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.” To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.” - G.K. Chesterton

What Do Schools Do?

Imagine for a moment that you visit 100 random classrooms in 100 random schools across the country. You’ll be impressed by some teachers; you won’t think much of others. You will see a handful of substitute teachers struggling to manage their classrooms. You’ll see some schools where the energy is positive and students seem excited to learn, and others where it feels like pulling teeth. Two commonalities you might notice are that first, in the vast majority of classrooms, the students are grouped by age and taught the same content. And second, you might notice that the learning isn’t particularly efficient. Many students already know what is being taught. Others are struggling and would benefit from a much slower pace. You will see plenty of sitting around waiting for the next thing to happen, or activities that seem designed to take up time and not to maximize learning.

What do schools do? Your first thought might be that schools exist to maximize learning. Observing 100 random classrooms may disabuse you of that notion. It sure doesn’t seem like school is doing a good job of maximizing learning. So what are schools doing?

Context

This essay is a review of school as an institution. It is an attempt to write something that is true and insightful about how school is designed and why the structure of school has proven so durable. In particular, I’m trying to describe why those two commonalities – age-graded classrooms and inefficient learning – are so widespread. I’m not trying to provide solutions. Everyone seems to have a pet idea for how schools could be better. I do think that most people who think they have the prescription for schools’ problems don’t understand those problems as well as they should. For context, I am a teacher. I have taught in public, private, and charter schools for 13 years. I have also had the chance to visit and observe at a few dozen schools of all types. I’m writing based on my experience teaching and observing, and also drawing on some education history and research. My experience and knowledge are mostly limited to the United States, so that’s what I’ll focus on and where I think my argument generalizes. I’ll leave it as an exercise to the reader to think about how these ideas apply to other countries.

Thesis

Here’s the thesis, the point of this essay. School isn’t designed to maximize learning. School is designed to maximize motivation.

This might seem like a silly thing to say. During those 100 classroom visits you might have seen a lot of classrooms with a lot of students who don’t look very motivated. The core design of our schools – age-graded classrooms where all students are expected to learn more or less the same curriculum – are the worst form of motivation we could invent…except for all the others. While school is not particularly effective at motivating students, every other approach we’ve tried manages to be worse. School is a giant bundle of compromises, and many things that you might intuitively think would work better simply don’t.

The important thing to remember is that, when I talk about school, I’m talking about tens of millions of students and a few million teachers in the US. You might say to yourself, “I wasn’t very motivated in school.” Sure, I believe you. The goal isn’t to motivate you, it’s to motivate as many students as possible, and to do it at scale. If you have a boutique solution that works for your kid in your living room, that’s nice, but that isn’t likely to scale to the size at which we ask our education system to operate.

Motivation for What?

So school is designed to motivate kids. But motivate them to do what? Do kids learn anything in school?

There are plenty of depressing statistics out there about what people don’t learn in school, but they do learn things. You can look at longitudinal studies where on average students make academic progress. For a broader sample size, the NWEA assessment is given at thousands of schools across the country each year. You can see from the average scores they publish that the average student does improve at math and reading – especially through the end of middle school. We also had a natural experiment a few years ago. The pandemic closed schools across the country, shifting to online or part-time learning for anywhere from three months to a year and a half. The result is now well-known as “learning loss.” The nationally-sampled NAEP assessment is the most objective measure, though learning loss shows up across various assessments. There’s some variability between states, subjects, and ages. For one example, 8th grade math scores declined by about 0.2 standard deviations. This is a relatively small but significant decline. It’s a good example of the broader principle: students learn less in school than we would like, but students do learn things.

It’s useful to pick a few specific examples. Do you know the meaning of the word “relevant?” Do you know what photosynthesis is? Where do you think you learned those facts? I’m sure some readers learned them by being avid readers and curious humans, outside of the school curriculum. But many kids learn stuff like that in school. If you’re skeptical, stop by a middle school classroom when they’re learning photosynthesis, or when they’re working on identifying relevant evidence in their writing. You’ll see plenty of kids who already know both, but plenty more who know neither. A lot of learning is this kind of gradual, incidental knowledge that we often take for granted.

So students can read and do arithmetic and maybe they learn about photosynthesis, but isn’t that all learned in elementary school? A number of studies suggest that additional years of education lead to IQ gains of 1-5 IQ points per year of schooling. These studies often use a change in compulsory education laws or age discontinuities as quasi-experiments. In particular, changes in compulsory education laws are typically at upper middle school or high school levels. Those are the places where we might be most skeptical of the value of education. Sure, schools teach kids how to read, but once students know how to read do schools really add any value? Kids don’t remember how to factor quadratics, yet they gain IQ points from the time they spent in school not learning how to factor quadratics, at least on average.

That gain in IQ points is worth lingering on. This might seem hard to believe for people who are skeptical of the value of school. And to be clear, the fact that school raises IQ doesn’t mean that school is designed optimally. Maybe there’s a better way to design school that would raise IQ even more? But I think that, if we all imagine a world where we give up on education and the average person had a significantly lower IQ, is that a world you want to live in? We don’t have good experiments on IQ, but higher IQs are correlated with all sorts of things that we might want – lower probability of committing crime, higher career earnings, and better physical and mental health. It’s tough to pin down exactly what students learn in school that sticks, particularly for the higher grades. During those visits to 100 classrooms you would’ve seen a lot of classrooms where not much learning was happening. Yet despite all those bad optics, school still raises IQ. Before we tear down the fence, we should think carefully about the purpose this particular fence serves.

I don’t want to overstate the case here. We should be skeptical of school learning. Kids don’t learn as much as we might hope. They forget all sorts of stuff you would think they’d remember if school was operating well. But at a basic level, most students learn to read and do arithmetic, some learn much more than that, and on average school seems to add to IQ. Revisiting Chesterton’s fence, those are the benefits of school we need to understand before we tear anything apart.

There Must Be a Better Way

Educational thought leaders have long argued that we can do better than our current system. A common theme has been personalizing learning: allowing students to go at their own pace, rather than forcing all students to learn at the same speed.

The push for individualized instruction dates back to the early 20th century. Sydney Pressey, a psychologist at Ohio State University, built the first "teaching machine" in 1924. His device, a mechanical testing apparatus resembling a typewriter, allowed students to answer multiple-choice questions and receive immediate feedback. Pressey envisioned a future where machines would free teachers from rote instruction, letting students progress at their own pace. Yet his invention was dismissed as a gimmick. Schools saw no need to automate what teachers could do manually.

In the 1950s, B.F. Skinner revived the idea with his own teaching machine, designed around operant conditioning principles. Skinner argued that traditional classrooms were ineffective because they delayed feedback and forced all students to move in lockstep. His machine broke lessons into tiny steps, rewarding correct answers instantly. Like Pressey, Skinner believed technology could revolutionize education. But his machine was never widely adopted and mostly forgotten.

By the 1960s and 70s, as computers entered universities and corporations, techno-optimists predicted they would soon transform schools. Patrick Suppes, a Stanford professor, developed one of the first computer-assisted instruction (CAI) systems, which taught math via mainframe terminals. Early studies showed promise, but the systems were expensive and impractical for most schools.

In recent years, some of the boldest claims have come from Khan Academy. Founded in 2006, Khan Academy began as a set of lecture videos created by Sal Khan and has grown to include practice exercises with feedback, full curricula, and an AI chatbot tutor. Unlike earlier personalized learning tools, Khan Academy has seen broader adoption in real classrooms. It is a common element in personalized learning programs, which have been popular with tech billionaires who like to donate to education causes.

Bill Gates has funded efforts like the Gates Foundation’s "Next Generation Learning Challenges," promoting software-driven schools where algorithms tailor lessons to each student. Mark Zuckerberg donated $100 million to Newark Public Schools in 2010, largely earmarked for "personalized learning" tech. Zuckerberg echoed a common critique of traditional education, saying that it’s absurd to teach all students "the same material at the same pace in the same way.” These arguments resonate with many parents and reformers. It seems obvious: if some children grasp fractions in a week while others need a month, why not let them move at their own pace?

With all that enthusiasm, what were the results of the push for personalization?

Personalized Learning Has Failed

Intuitively, it’s reasonable that an education at your level and meets you where you are will result in more learning than just following the prescribed course of study for 6th grade or whatever. All else equal, it’s certainly true that instruction at your level will result in more learning. The thing is, we can’t hold all else equal. Schooling is a massive enterprise, and we can’t give every student instruction at their level without rethinking that enterprise. In general, when schools have tried, they have failed.

Last year, Laurence Holt published an excellent article summarizing the core challenge of today’s education technology. There is no shortage of fancy online programs that claim to teach kids math. Khan Academy was the first to gain widespread popularity, but it’s actually used much less now than some newer entrants like IXL and i-Ready. Every one of these programs commissions some study showing that students who use their program with fidelity learn more than some control group. Holt digs into the data, and it turns out that the group who used the programs with fidelity was often around 5%. The article is called “The 5 Percent Problem.” These programs do seem to help a subset of students, but don’t do much for the rest. While Holt’s article focuses on math education, education technology has had a similarly lackluster impact on achievement in English classes. We know that reading on screens leads to less learning than reading on paper, and the personalized learning apps have a similarly disappointing track record as in math.

This phenomenon isn’t limited to schoolchildren. Remember the MOOC craze of the early 2010s? Universities started releasing free or low-cost versions of their coursework online. Briefly it was all the rage: MOOCs were supposed to democratize knowledge and disrupt higher education. Instead, completion rates were low, and the MOOC mostly died an unceremonious death. Numbers vary depending on the source but 10% completion is a generous median, the same order of magnitude as the 5% problem in K-12 education technology. The vast majority of people who sign up for a course never finish. Many MOOCs are still online and get plenty of views on Youtube, but we’ve learned that most people need more than course content posted online in order to learn. The big difference between MOOCs and school is that if you don’t finish that MOOC on the US constitution, life goes on. If a kid doesn’t learn to read, they’ll be at a disadvantage for the rest of their lives.

The core problem with these online programs is having every student work independently, without any connection to what the students around them are learning. That just doesn’t motivate many students. Couldn’t we try putting students into groups, so not all students in a class are learning at the same pace, but students also have a cohort they are learning with? Schools often try to meet students where they are through leveled reading groups. Imagine an elementary school classroom. Instead of asking all students to read the same book, the teacher groups students into 3-5 separate groups based on their reading skills. The stronger readers get more challenging books, and the struggling readers get a book on their level. There is a huge business in putting out sets of leveled books and assessments to determine each student’s reading level. And the result? In general, research has found that leveled reading reduces the achievement of the readers who struggle the most. We might intuitively think that reading an easier book would benefit students who have weaker reading skills, but that intuition seems to be wrong.

Ok but all of those try to take a class of students and meet students where they are. What about assigning students to classes based on their achievement? In the US this is typically called tracking or ability grouping. It’s a complex and controversial topic. The research base is hard to read because there are a lot of ideologically motivated researchers who are either for or against tracking and want to see the evidence a certain way. But the biggest theme in the research is that the effects are small. There are plenty of meta-analyses that find an effect near zero (here’s one example). You can slice and dice these results lots of ways. Schooling is complex and there are lots of different ways to implement tracking. Maybe there are some gains to be found. But the theme so far is that tracking isn’t coming to save us.

Psychological research consistently shows that humans are conformist creatures. We instinctively align our behaviors to group norms. Classic studies like Asch’s line experiments, where 75% of participants denied obvious truths to match group answers, remind us that humans are social and prioritize conformity. This tendency isn’t just peer pressure, it’s evolutionary wiring. For our ancestors, conforming boosted survival by maintaining group harmony and reducing conflict. Today, this manifests in classrooms where low-structure learners thrive on collective routines. Conformity explains why personalized learning often fails. Most students need the social scaffolding of lockstep instruction, even when it’s inefficient. Conformity isn’t a perfect solution, but it’s the best one we have.

One form of learning that has been shown to be particularly effective is deliberate practice. Deliberate practice involves being pushed outside of your comfort zone, focusing on specific, concrete goals to improve performance, and getting consistent feedback. One common characteristic of deliberate practice is that it isn’t particularly fun. Most contexts where deliberate practice is common, like sports and music training, involve expert, individualized coaching. The coach is mostly there for motivation. The coach does other things as well, but the most important thing a coach can do is motivate you to train. Deliberate practice isn’t common in school learning, but it’s a good reminder that motivation is the key to lots of forms of learning in and out of school. Learning isn’t always going to be a ton of fun. In the absence of one-on-one tutoring for every student, conformity is the best tool we have to create the motivation necessary for learning.

These two failures—self-paced technology and ability grouping—get at a deeper truth. Working at your own pace may seem like it makes sense, but it often undermines motivation. Grouping students by ability, whether within or across classrooms, has shown little benefit. Neither approach has delivered the transformation its advocates promised.

But Personalization Works for Some Kids?

Let’s explore personalization a bit more. Clearly this personalized learning thing works for some students. Maybe 5%. Maybe 10%. Why?

Here’s a broad generalization about learning. Let’s take the basics of learning to read as an example, where there is a wealth of data to back up the generalization. Some students will learn to read no matter what they experience in school. Often their parents teach them, or an older sibling or neighbor, and they pick it up quickly. Others more or less teach themselves. This group doesn’t benefit much from organized school, at least in terms of learning to read. We might call these “no-structure learners.” A second group needs the structure of school, but the quality of the teaching doesn’t matter too much. As long as they get the basics, a solid exposure to reading, and some support from a teacher, they will learn to read just fine. We might call these “low-structure learners.” Then there’s a third group. This group will struggle to learn to read. For this group, the quality of teaching matters enormously. Some will be diagnosed with dyslexia, though a strong course of synthetic phonics will reduce that number. Many will learn the basics but still struggle with things like multi-syllable words for years to come if they aren’t taught well. A carefully-sequenced, well-taught curriculum can make a large difference for these students. We might call these “high-structure learners.” There aren’t sharp divisions between these three groups, and motivation depends on context, so students may have a different motivation profile for a different subject or something outside of school. This is the answer to why personalization only works for 5% of students. Students need different levels of structure in order to succeed.

For another example, we see the same phenomenon with math facts like times tables. Some students seem to learn them by osmosis, or they pick them up entirely outside of school. Many more need a bit of structured practice, but learn their facts without much trouble and move on. Some struggle with multiplication facts for years. The structure provided isn’t enough, the curriculum moves on, and these students often struggle in math for years to come. For one example of a high-structure teaching strategy, incremental rehearsal is a highly-structured way to teach students multiplication facts.

This phenomenon is well-studied with phonics and math facts, but you could apply it to any other domain. Imagine a college computer science department. The no-structure learner is that student who is always coding on their own, learning stuff from Stack Overflow, and only occasionally going to class to make sure they get their degree. The low-structure learner shows up to class. They aren’t learning too much on their own, and coursework is motivation enough to learn and get a solid foundation in computer science. The high-structure learner has a hard time. They’re the student showing up to office hours all the time, using the tutoring center, using all the support they can find. Maybe they push through, maybe they can’t cut it and switch to a major in communications.

The same phenomenon shows up in pandemic learning loss. Learning loss was concentrated mostly in the lowest-achieving students. Many high-achieving students did fine; these are students who didn’t need the structure of school, or for whom the minimal structure of online coursework was enough to keep them moving forward. The high-structure students who already struggle in school lost the most ground.

Low- and no-structure learners help us understand a broader phenomenon: for many students, school quality doesn’t seem to matter very much. One illustration is that in randomized controlled trials, school assignment doesn’t seem to play a very large role in academic achievement. Freddie deBoer collected this research in his essay Education Doesn’t Work. I’ll quote him here:

Winning a lottery to attend a supposedly better school in Chicago makes no difference for educational outcomes. In New York? Makes no difference. What determines college completion rates, high school quality? No, that makes no difference; what matters is “pre-entry ability.” How about private vs. public schools? Corrected for underlying demographic differences, it makes no difference. (Private school voucher programs have tended to yield disastrous research results.) Parents in many cities are obsessive about getting their kids into competitive exam high schools, but when you adjust for differences in ability, attending them makes no difference.

We could pick apart these studies and I’m sure we could find examples where there is a difference, but that difference will be small.

Here are two quick anecdotes from my personal experience. I often have bright students whose parents request they get some more advanced work. I try to lay out for them a few options for more challenging work I can provide students, but I’m also clear that I am one human and I can’t teach the student for significant chunks of time each day. I can provide some resources, I can check in with them and answer their questions, but the student needs to be motivated to engage with some challenges. In the vast majority of cases, the student never touches the challenge work. Their parents bug them about it, I bug them about it, but they just can’t summon the motivation. These students are willing to keep up with our regular coursework, chugging along with content they mostly already know or can learn in a fraction of the time that it takes many of their peers. But working on their own is beyond them. To be clear, this isn’t every student. But it’s a large majority, another illustration of the 5 percent problem.

Second, online charter schools have spread rapidly in the last ten years. In my state it’s not very hard for students to enroll. I’ve had a number of students unenroll from our local public school and start at an online charter school. Most are back within a few months. They generally say one or both of two things: first, that they are bored learning on their own and they miss having people around. And second, they just weren’t motivated and didn’t learn much. Now to be clear, I’m in favor of having some online charter schools. They are a great option for some students – students who can summon the motivation, students with outside-of-school circumstances that make attending school challenging. It’s the 5 percent problem. There’s a 5 percent, those no-structure learners or students in other unique situations, who benefit from options like online charter schools. But the vast majority do best in the age-graded schools we already have.

You might think that we’ve found the solution to tracking. We just need to get all the no- and low-structure learners together and let them move much faster. Here’s the issue. The no-structure learners will always be bored, as long as we are committed to putting them into classrooms where everyone learns the same thing. And those classrooms where everyone learns the same thing are exactly what the low-structure learners need. As soon as you create a higher track there will be a ton of demand for it. Parents will insist that their kid join. And as it grows, it won’t be able to accelerate very quickly. You still need the structure of a classroom where everyone is learning the same thing, and that just isn’t a very efficient way to teach.

A good illustration of this point is to visit a gifted or exam school. If a few of those 100 classrooms from our observation thought experiment were gifted schools or schools with an entrance exam, you might be surprised by what you see. They would be doing more advanced work than peers in regular schools, absolutely. But often only by a year or two. You’d see all the same inefficiencies of students all learning the same thing at the same pace. You’d see lots of bored students who could be going faster. You’d see a bunch of students who you’re surprised are in this school at all. It’s the reality of the system we have.

No-structure learners thrive anywhere. Low-structure learners need any coherent system. High-structure learners are much more sensitive to the quality of teaching, but trying to meet each student where they are doesn’t work very well. Lumping everyone together and asking them all to learn the same curriculum seems to work better at scale than anything else we’ve tried. These are the core challenges of education.

What’s Happening Under the Hood?

If we know there are no-, low-, and high-structure learners, then the key question becomes: what internal levers predict who ends up where?

I see three main factors. First is intrinsic motivation. This isn’t a review of self-determination theory, but the short version is that some students have a lot of intrinsic motivation, others have less, and some have little at all. Second is the set of habits students bring to school. When you observe students in school, one thing that’s often striking is how some students are in the habit of completing assignments, reading when they’re asked to read, solving math problems on a worksheet when asked, and so on. Others don’t have those habits. You’ve got no-structure learners, who would happily do that learning on their own. Low-structure learners, for whom the basic structure of school and class is enough to keep positive habits going. And then high-structure learners, who are in the habit of avoiding schoolwork whenever they can. Finally, there’s fluid intelligence. Students with a high processing speed and high working memory capacity are better at learning without much structure. They have the mental tools to connect the dots and figure things out with less structure. Students without those cognitive capacities need additional structure in order to learn.

Those elements are self-reinforcing. Motivation tends to beget motivation. Habits become stronger over time. Students with less fluid intelligence learn less in school, which exacerbates the consequences of less fluid intelligence. This doesn’t mean that a kid can’t change their trajectory. It’s possible to change habits, and to develop new sources of motivation. A broad base of knowledge helps to mitigate a lack of fluid intelligence. Motivation and habits are context-specific, so students might have a different profile in a different subject. But on average, students tend to stay about where they are in the no-structure, low-structure, and high-structure spectrum.

Students don’t always neatly fall into one category or another. They can shift over time, or be very intrinsically motivated yet have other challenges that require a lot of structure. Students can have different profiles in different subjects. Still, this broad taxonomy is a useful way to understand why tactics like personalization work for some students and not others, and why the basic structure of school has lasted so long.

The Thesis, Again

One way to interpret the design of school is that it’s trying to provide just enough structure to get students to learn the basics of the school curriculum. Putting kids in front of a computer on their own isn’t going to do the trick.

Schools are given a huge challenge. The goal isn’t to educate the students who are easiest to teach, or most eager to learn. The goal is to educate everyone. The core challenge of compulsory public education is motivation. The best solution we’ve found is to send kids to school beginning at age 5 (or earlier if we can), before they can reliably form long-term episodic memories. Talk to a typical high school student, and they have literally been going to school as long as they can remember. We group students by age in part because it’s the easiest way to organize the system. The system motivates high-structure learners to keep up with their peers, though that motivation does gradually fade over time. Grouping by age also provides just enough structure for low-structure learners to stay on track – not that it’s particularly efficient, but it can help schools be reasonably confident that those low-structure learners will get a broad foundation in the school curriculum. In the same way that democracy is the worst form of government ever invented except for all the others, conventional school is the worst form of motivating students to learn except for all the others. All that leads to the obvious, inevitable problems. Some students are ready to move faster, some students need more support. Schools and teachers often try to help, and occasionally experiment in bold ways, but there’s this enormous gravity that pulls back toward the conventions of a typical school. It’s easy to point out these obvious challenges and claim that school is broken, that we should blow up the system and invent something better. It’s much harder to ask why the fence is there, and understand it before taking it down.

Here’s something you have to remember. It’s easy to cherry-pick in education. If you want to start a school to prove that penguin-based learning is the future, that penguin meditation and penguin-themed classrooms are superior to the stuffy, traditional, obsolete schools we have now, you can. It’s simple. Find a way to only accept no-structure and very low-structure learners. Then start your school. Do your penguin meditation, make sure there’s a basic structure for learning core academic skills, and you’re set. The results will be great, you can publish articles about the success of your method, if you’re lucky you’ll get some of that sweet sweet philanthropy money.

Cherry-picking isn’t always that blatant. If you just manage to get a few more low-structure learners and fewer high-structure learners in your school it will make a difference. Your test scores will look better than the school down the street. Schools spend a huge fraction of their resources on special education, providing the structure and systems that those students need. Just having fewer students who need that level of resources will free up time and energy to focus on everyone else, and the selection effects will make it look like you’re doing a good job. The difference doesn’t have to be huge to help the school do a little better.

What if we were brutally honest when a family enrolls their child in school? Here’s what we would say:

If your child is a no-structure learner, they will be bored here. They will probably learn some things, but they will often sit in lessons where they know everything the teacher is teaching, and they’ll spend a lot of their time sitting around waiting for other students to catch up. If your child is a low-structure learner, they will still often be bored as our school isn’t very efficient, but the structure and routine will ensure they get a basic level of literacy and numeracy. Maybe they’ll like school, probably because of gym class and being around their friends, maybe they won’t, but they’ll learn some things. That said, the school you pick doesn’t matter too much. Your child will learn about as much anywhere else. If your child is a high-structure learner, they will need a lot of very structured teaching. Our teachers vary widely: some are good at providing that structure, others aren’t. Your child will gradually fall behind, and will perpetually feel a bit dumb and a bit slow compared to everyone else. But we will do our best to keep them moving along with their peers because that’s the best idea we have to motivate them. Hopefully, with some help, they’ll graduate high school on time. There’s a risk they just won’t have the skills, or they’ll be discouraged by constantly feeling dumb and just give up. Oh, and we aren’t very good at understanding what causes students to be motivated. It’s absolutely correlated with socioeconomic status, so it would be helpful if you’re rich, but there’s a lot of variability and plenty of rich kids need that structure too.

Some History

It’s worth taking a quick detour through the history of education in the US. When did age-graded schools become common? The story is a bit different than many common conceptions of how education has worked in the US. White people in the US, particularly men, had a relatively high literacy rate by 1800, higher than most other countries at the time except perhaps Scotland. But the education system was fragmented. It was a mix of religious education, local cooperatives, apprenticeships, formal schooling for the rich, and public education for the poor in cities. The common school movement emerged between 1830 and 1860. The goal of the movement wasn’t to increase the average education of the populace, and it didn’t cause any large increase in the literacy rate. Instead, the primary rationale was the importance of a common education system for democracy. Democracy felt fragile in the first half of the 19th century, and universal public education was the solution.1

The explicit goals of the common schools movement were to instill in students the importance of citizenship and morality. Age-graded schools were a natural next step: students should travel through school in a cohort of their peers, learning together the basics of reading, writing, and arithmetic, and the importance of education for the country’s young democracy. While these schools certainly did teach reading, writing, and arithmetic, the curriculum of the school played a secondary role to its common character. The most important goal of school reformers was to move education into common schools; whether learning happened in those schools was a secondary goal. It’s interesting that maximizing learning was never the goal of universal education.

The common school movement focused on what we would now call elementary and middle schools. It wasn’t until the 20th century that attendance in high school became widespread and then compulsory. And high school is the place where this giant compromise starts to fall apart. Even when the high school became widespread, there was broad disagreement about what high school should teach. Should high schools retain the liberal arts focus that they had when only the rich had access? Should they focus on the trades and career education? Should high schools offer a core course of study to all students, or use tracking to separate students who are college-bound from those who are not? These are the perennial questions that high schools wrestle with, and they are a logical outgrowth of the core tension of using age-graded schools. The goal still wasn’t about learning; it was about what the credentials were and who had access to those credentials. Only in the last few decades have schools tried to focus on maximizing learning. According to NAEP data there was some increase in scores between the late 80s or 90s depending on the subject and about 2012, after which there was stagnation or a slow decline, accelerated by the pandemic learning loss. This is a conjecture without any real evidence, but the increase in education technology and personalized learning software coincides with that stagnation in national test scores. The rise in test scores didn’t involve any large changes in the basic structure of school, it was driven by a lot of legislation and rhetoric around “no child left behind” and trying to support students who previously fell through the cracks.

School is Conservative

One common frustration for those who believe that schools can do better is how conservative the education system is. While there are pockets of innovation and experimentation, most schools are bureaucratic and slow to change. This is often viewed as a failure: why are our schools so obsolete and slow to adapt to the needs of the 21st century?

What if the education system is conservative for good reasons? We have always looked to education as the solution to our social problems. In the 19th century, education existed to buttress our democracy. In the first half of the 20th century, education was asked to promote social mobility. In the second half of the 20th century, education was asked to contribute to our national defense.

Maybe the best way education can contribute to all of these causes is to focus on providing a broad, basic education to as many children as possible, and maybe our current system is the best idea we’ve had so far for doing so. If education chased every fad that came along, it might be in much worse shape. It was only a few years ago that a lot of people were arguing that we should teach more kids to code. Now it looks like coding might be one of the first jobs AI can do for us. For the last few decades, many thought leaders have advocated that we reorient our education system away from antiquated content that kids can look up on Google, and instead teach critical thinking. There’s ample evidence that we can’t actually teach critical thinking divorced from content. And education seems to increase IQ, so maybe we’re already teaching critical thinking by giving students a broad, basic education.

The reality is that elementary and middle schools haven’t changed much over time. High schools, however, are the place where the drive to motivate students breaks down. At that point, low-structure and high-structure students are pretty far apart from one another. High schools handle this in a variety of ways. Some high schools specialize, either as test-in schools or schools with a particular theme. Private high schools play a role supporting high-achieving students. And at comprehensive public high schools, there is more tracking and separate experiences for students. An increasing number of high schools offer community college courses through dual enrollment, as well as a wide variety of electives. Other students move into a vocational track, with some remediation in core literacy and numeracy skills and coursework designed for careers rather than college.

This is logical if we look at school as a system designed to maximize motivation: by the time students reach high school, the gaps in academic knowledge have widened to a point where it isn’t practical to keep students in the same classroom. Most elementary and middle schools promote students socially, at least if they put some effort in. But in high school, students need to amass credits and/or pass exams to graduate, and keeping everyone in the same classroom learning the same content won’t get some students the credits they need. We see what you would expect: motivation plummets. Remember those 100 classrooms you imagined visiting? Some of them would be lower-level high school classes. Those are often sad classrooms to spend time in. Students aren’t doing very much, expectations are clearly low, there isn’t much learning happening. Schools often explicitly create easier avenues to graduate for some students, through credit recovery programs or similar ways to give credit to students who aren’t putting in much effort. It’s logical that motivation plummets: students are no longer motivated by staying with their grade-level peers.

Practicalities

What good is the hypothesis that school is designed to maximize motivation? It can help us understand all sorts of phenomena. I often hear an argument from homeschoolers that they can accomplish in two hours a day (or some other small amount of time) what schools do in seven or eight. I don’t doubt that at all. Schools aren’t particularly efficient at facilitating learning. Schools are good at educating everyone at once.

We can also better understand learning loss from the pandemic. Learning in school isn’t particularly efficient, so one might assume that missing a few months of school won’t have a big impact. But habits are powerful. What changed was motivation. During the pandemic, many students lost their long-held habits of attending and putting in effort at school. Interestingly, learning loss happened both in states that had extended school closure and those that returned to full-time school more quickly. In both cases, students lost those habits, and the power of conformity started working against school motivation, rather than in favor of it.

We can understand why school sports are such a powerful and enduring phenomenon: motivation is the core challenge of school, and conformity is our best solution. Team sports are a great mechanism to motivate young people, so we attach sports to school to capture a bit of that motivation.

We can understand why, despite lots of hype, AI hasn’t revolutionized education. Most AI applications pay little attention to motivation, and try to personalize learning in exactly the ways personalized learning has failed. AI may yet transform education, in any number of ways. But in the short term, AI has been naive about motivation in exactly the same way as all the other education transformations that have fallen short.

We can understand why there have been so many attempts to revolutionize schools, but they have struggled whenever they try to scale. If you have the right group of students, lots of things might seem to work. When you try to scale them to meet the true needs of universal education, they will run into the same roadblocks education has always struggled with. Then, the education system will be blamed for being obsolete, and we will continue to invent new approaches to education that ignore the same basic challenges of motivation.

Something I haven’t addressed is the harsh reality of school for many kids. Everyone’s experience is different, but there are countless stories of students getting bullied, verbally abused by teachers, deprived of bodily autonomy and freedom of movement. This can all be true. I don’t want to hide from these realities; I’m a teacher, I’ve seen them. Walk into a typical middle school and you will quickly learn the byzantine collection of rules about going to the bathroom. It’s not something I’m proud of, and I’m not arguing that it’s a good thing. But policing the bathrooms, and many related minutiae of students’ lives, is a byproduct of the reality of school. We require all students to attend compulsory education of some kind. Some schools are able to filter out more of the high-structure learners. In those schools you won’t find nearly as many rules about using the bathroom, and you will also find far less bathroom vandalism. In the schools that are left to educate everyone else, we are left with the reality of trying to motivate students as best we can. We struggle with the students who predictably lash out because they are bored with moving too slow, or constantly confused as the curriculum moves too fast. We double down on conformity and structure, not because they are perfect solutions but because they’re coping strategies to deal with some of the ugly realities of mass compulsory education.

This isn’t to say schools respond appropriately in every situation. There are tens of thousands of schools, each left to their own devices to figure out the best way to educate their charges. Humans make mistakes, and when we scale a profession to the size of our public education system we have to do the best with the teachers and school leaders we have. I’ve been party to plenty of school policies I disagree with. I’m not trying to defend them, just to help readers understand where they come from.

A Prediction

I’ve used the word “designed” loosely in this essay. Age-graded classrooms are schools’ most valuable asset, but they weren’t deliberately designed. They came about by an accident of history, and they have stuck around because we haven’t figured out anything better. That lack of self-awareness will always be education’s Achilles heel.

Where will we go from here? I hope I’ve been clear that I don’t think schools are perfect. They are designed to maximize motivation, but motivation is hard to maximize, and schools don’t do a great job. Is there a better way? Maybe. But to design a better education system, we first need to understand what the current system does well. Don’t tear down the fence until you understand why it’s there. The basic structure of age-graded schools that teach the same content to students of a given age has a purpose. You might have your own ideas about what schools should do and how they should do it. You might have some good ideas. But attacking schools without understanding the basics of how they function will never change anything.

One central contradiction of schools is that schools themselves don’t understand the purpose of age-graded schooling very well. There’s constant rhetoric from teachers and school leaders about the need to meet students where they are, to move past our antiquated one-size-fits-all education system and innovate. The purpose of this essay is to review school: to understand how it works, and where its structure comes from. This review leads me to a prediction: the structure of schooling won’t change. People will continue to try to disrupt the status quo. There will be plenty of tinkering around the edges. Some of that tinkering will catch on at a broader scale. But there will be an inevitable gravity back to the status quo. That gravity exists because the status quo is the best tool we have to educate a huge number of students. It’s not particularly good at fostering learning, but at scale it’s better than anything else we’ve tried. The push and pull will continue, the criticisms of school will continue, the experimenting will continue, but the basic structure will never change.

Bryan Caplan’s Selfish Reasons To Have More Kids is like the Bible. You already know what it says. You’ve already decided whether you believe or not. Do you really have to read it all the way through?

But when you’re going through a rough patch in your life, sometimes it helps to pick up a Bible and look for pearls of forgotten wisdom. That’s where I am now. Having twins is a lot of work. My wife does most of it. My nanny does most of what’s left. Even so, the remaining few hours a day leave me exhausted. I decided to read the canonical book on how having kids is easier and more fun than you think, to see if maybe I was overdoing something.

After many trials, tribulations, false starts, grabs, shrieks, and attacks of opportunity . . .

. . . I finally made it to the part on how fun and easy this all was.

Caplan’s main argument is:

1. We spend much more time and effort on parenting than our parents and grandparents, because we think the extra effort will make our kids better, happier, and more successful.

2. But behavioral genetics finds that parenting doesn’t make much difference to later-life outcomes; it’s mostly either genes or inscrutable random seeds plus noise.

3. So you can relax. Don’t run yourself ragged rushing your kids to gymnastics classes they don’t even like.

4. If you ask parents whether they’re happy, you get different answers depending on what exact framing you use; it’s kind of a tossup. But people who understand and internalize the points above will have a better time than average. So for them, kids are probably a great bet.

I buy the behavioral genetics. I buy the ambiguous happiness results. But how long do parents really spend on childcare, and how easily can those numbers be cut?

How Long Do Parents Really Spend On Childcare?

Caplan’s most striking statistic is that fathers now spend more time with their kids than mothers did in 1960 - not because gender roles have changed, but because both parents’ workload has been growing in tandem. Equally startling is that mothers spend more time parenting today than in 1960, even though in 1960 they were much more likely to be full-time homemakers.

I can’t reach Caplan’s specific source (Bianchi et al, Changing Rhythms Of American Family Life), but his claims broadly match the data in Dotti Sani & Treas (2016):

All these numbers are kind of low, aren’t they? Do both parents, combined, really only spend three hours a day with their children?! My wife and I combined spend approximately four thousand hours per day with our kids! Is that what we’re doing wrong - the dragon that we must slay before we enter Caplan’s easy-parenting paradise?

My wife eventually found Wilkie and Cullen (2023), an alternate data source which bins responses by child age.

But where DS&T seem too low, these seem too high. When a child is one year old, mothers spend 7.5 hours a day, and fathers 5 hours? Don’t some of these mothers and fathers have to work? Don’t some people put their kids in daycare? Even at age nine, W&C say both parents are spending a combined 9 hours per day, every day! Why are these two sources so different?

Zick & Bryant point out that a large portion of childcare time is “secondary childcare” while doing something else. This could be anything from “you’re sneaking a peek at your phone in the middle of babysitting” to “you’re napping, but your teenager is downstairs and can wake you if he needs you”.

Maybe C&W count secondary childcare, and DS&T don’t? Z&B’s own surveys find that this category only takes up an hour or so a day - not enough to close our gap. But this Bureau of Labor Statistics report is more promising:

Adults living in households with children under age 6 spent an average of 2.3 hours per day providing primary childcare to household children … primary childcare is childcare that is done as a main activity, such as providing physical care or reading to children. (See table 9.)

Adults living in households with at least one child under age 13 spent an average of 5.1 hours per day providing secondary childcare - that is, they had at least one child in their care while doing activities other than primary childcare. Secondary childcare provided by adults living in households with children under age 13 was most commonly provided while doing leisure activities (1.9 hours) or household activities (1.3 hours).

This matches both sources pretty well, so we can consider the discrepancy solved. BLS goes on to separate its findings into ever-finer categories:

The weekend numbers add up to 19 hours of childcare a day, which is longer than most children are awake. Probably this is because both parents provide some secondary childcare together. I don’t know if these numbers count “childcare” “provided” when the children are sleeping, eg you’re watching a movie at 9 PM after putting your kid to bed.

I put more effort into finding these numbers than can be justified by curiosity alone. I wanted to know if my wife and I were doing something wrong or crazy - spending way more time with our kids than everyone else does. Now, with all the data in front of me, I find them impossible to interpret.

What does it mean to do secondary childcare for one-year-olds? They can’t exactly play quietly on their own while their parents are upstairs, can they? Or maybe everyone else’s one-year-olds can, and mine can’t? Or maybe I falsely think that mine aren’t, and that’s why I’m having so much trouble? Or maybe one-year-olds without twin siblings can do it, but twins have to - KAI! STOP PULLING LYRA’S HAIR RIGHT NOW! I’M TRYING TO WRITE A REVIEW OF THE BOOK ON HOW EASY TAKING CARE OF CHILDREN IS!

The Wisdom Of The Ancients

The first chart finds that 1960s mothers - including many stay-at-home-moms - spent only half as long on primary childcare as modern parents. How could this be?

Caplan treats this question in the genre of life advice - why not relax and spend less time parenting, like your grandparents did? But to me it feels more like ancient occult wisdom. If you heard that the people of 10,000 BC built vast crystal pyramids that channeled the music of the spheres into infinite free electricity, you wouldn’t think “Oh, nice, guess that gives me permission to relax and stop fretting so much about energy policy”. You would wonder how they accomplished this seemingly impossible feat!

Here’s Caplan’s explanation:

When he was a boy, my dad rode his bike all over downtown Los Angeles.. My friends and I had more supervision, but our moms still got us out of their hair by ordering us to play outside until dinner. My mom kindly let me read in my room, but the philosophy was the same: Entertaining myself was my job, not hers. Today, I almost never see kids playing outside without a watchful parent.

This seems basically right. I lived just close enough to the tail end of this period to recognize the phrase “Remember to be home by dinner!”

G.K. Chesterton wrote about the phrase “you can’t turn back the clock”:

There is one metaphor of which the moderns are very fond; they are always saying, “You can’t put the clock back.” The simple and obvious answer is “You can.” A clock, being a piece of human construction, can be restored by the human finger to any figure or hour. In the same way society, being a piece of human construction, can be reconstructed upon any plan that has ever existed.

There is another proverb, “As you have made your bed, so you must lie on it”; which again is simply a lie. If I have made my bed uncomfortable, please God I will make it again. We could restore the Heptarchy or the stage coaches if we chose. It might take some time to do, and it might be very inadvisable to do it, but certainly it is not impossible as bringing back last Friday is impossible. This is, as I say, the first freedom that I claim: the freedom to restore.

So - could you, today, kick your child out the door at 9 AM on a Saturday and tell them to be back by dinner?

Bryan worries that most parents refuse to do this because they think the world is less safe than in their parents’ and grandparents’ generation. He says that’s wrong. Modern death rates for children are a quarter what they were in the golden age of outside kids. Most of the improvement comes from less disease, which is only slightly relevant to this question. But deaths from accidents (including car accidents) are down even more (5x!). Deaths from homicide are up slightly, but realistically it doesn’t matter given how rare homicides were to begin with (and most child homicide victims are unfortunately killed by family members).

You could think of this improvement in two ways - either as proof that coddling kids works really well, or that coddling kids is unnecessary. Caplan chooses the latter, at great length - although when I read the several pages he devoted to this question I cannot figure out his exact argument disproving the former.

One potential argument is that the child trends mostly mirror adult trends. Adult accident death rates have also gone way down (and adult murder rates stayed about the same) since the 1960s. The simplest explanation is that child trends simply mirror adults. And the adult trend certainly isn’t caused by coddling. So maybe the kids aren’t either.

What about kidnapping? Plenty of people are kidnapped, but it’s usually something like a relative stealing them away in defiance of a divorce custody agreement. The “traditional kidnapping” where a creep in a white van plucks a child off the streets is much rarer - only about 100 such incidents come to the attention of the authorities per year. Even if the true number is 10x higher (is this is a reasonable multiplier?) that’s still only 1/70,000 children per year. On the other hand, over ~ten years of relevant childhood (I’m assuming babies can’t get into white vans, and nobody wants to kidnap 17 year olds) that’s a 1/7,000 chance. And surely if you’re the only person still letting your kid play outside, your chances are worse than average. But if you’re an upper-class person in a good neighborhood, your chances get better than average again. Let’s estimate a 10x penalty for playing outside and a 2x bonus for not being a poor person in a ghetto. Now it seems like your total chance of child abduction per child-lifetime is 1/1,400.

But it seems like most abductions are navigated successfully:

Across the country, only 181 Amber Alerts were broadcast in 2022, including one in New York, according to the National Center for Missing and Exploited Children. In those cases, 180 children were recovered and only one was still missing as of March. Four of the children were killed.

If 4/180 abducted children are killed (I don’t know if number of Amber Alerts is the right denominator), that’s a 1/63,000 chance of child death via abduction per child-lifetime. Seems not great but not like a deal-breaker.

So maybe the more relevant question is - if you decide you want to do this, is it even possible?

I live next to a rationalist group house with several kids. They tried letting their six-year old walk two blocks home from school in the afternoon. After a few weeks of this, a police officer picked up the kid, brought her home, and warned the parents not to do this.

The police officer was legally in the wrong. This California child abuse lawyer says that there are no laws against letting your kid play (or walk) outside unsupervised. There is a generic law saying children generally need “adequate” supervision, but he doesn’t think the courts would interpret this as banning the sort of thing my friends did.

Still, being technically correct is cold comfort when the police disagree. Even if you can eventually win a court case, that takes a lot of resources - and who’s to say a different cop won’t nab you next time? To solve the problem, seven states (not including California) have passed “reasonable childhood independence” laws, which make it clear to policemen and everyone else that unsupervised play is okay. There is a whole “free range kids” movement (its founder, Lenore Skenazy, gets profiled in SRTHMK) trying to win this legal and cultural battle.

The Free Range Kids website has some tools and tips, but they don’t go about it the exact way that I would (yes, I’ve thought about this a lot). When Kai and Lyra are older, I fantasize about organizing the local rationalists - we have five families with kids on the same block. They’ll all wear bright orange t-shirts and hats with “FREE RANGE KIDS” on them, and they’ll all have a flyer - which they’re encouraged to show any adult or officer who complains - saying something like:

Thank you for your concern about our child. We are part of the free-range kids movement; you can read more about it at letgrow.org. We’ve given our children permission to roam between XXth street and YYth street. This decision is protected under California law based on the arguments we list at whyfreerangekidsarelegal.com. This has been endorsed by such-and-such a lawyer, and we also talked it over with our local city council member, so-and-so, who agreed. If you see our kid doing a specific dangerous thing, or inconveniencing anyone else, please call us at XXX-XXXX and we’ll come over immediately. Otherwise, please let them be!

Thank you,
Your Neighbors

PS: We are rich and extremely litigious.

Eventually the kids in the bright orange shirts will become a local fixture among neighbors and cops alike, and people will stop bothering us. I have no idea if this will work, but it works in my head.

Still, age one is too early to try this; my kids would still run into the street if we weren’t there to stop them. Did the mothers of the 1950s have some other trick for spending less time with their one-year-olds? I can’t find any data on this, and can’t imagine what the trick would be.

The “Wisdom” Of The Moderns

Let’s be real - if you dial back your parenting efforts while making no other changes, your kids won’t spend all day playing in the woods, Calvin-and-Hobbes-style. They’ll use screens.

Caplan seems to mostly accept this fate:

[These] suspicions are almost certainly correct. If you give mature adults extra free time, many relax in front of the TV or computer. It would be amazing if childish children didn’t do the same. But what’s wrong with that? Electronic babysitters are a vital component of cultural literacy. I hope my kids grow up to know both The Simpsons and Shakespeare. In any case, electronic babysitters are undeniably a lot of fun for kids, and - as a cheap, dependable substitute for a human babysitter - a blessing for parents, too. So why the hostility? It’s as if parents think that anything that feels good for every member of the family must be bad.

I’m not advising people to put their kids in front of the television and forget about them. My wife and I don’t let ours watch more than an hour or two a day, because we don’t want them to miss out on the other joys of childhood. I’m merely suggesting pragmatic adjustments in the way that families spend their time. If parents feel exhausted by their kids’ busy schedule, they should trim a few hours of activity from their week - even if their kids spend most of their extra hours on TV and video games. The parents will be happier, and the kids will probably be happier too.

Wise words - in 2011, when SRTHMK was written. What about the age of TikTok and Instagram?

We all know what argument comes next: “You think a newfangled thing is bad. But the ancients thought their newfangled thing was bad, and now that we’ve had time to get used to it, we realize it’s fine. Therefore, no new thing is ever bad.” People in 2000 were afraid video games were destroying society, people in 1960 were afraid TV was destroying society, people in 1600 thought the novel was destroying society, and people in 500 BC thought writing was destroying society.

Therefore, nothing can ever destroy society? Sorry, this is too Outside View, even for me (1, 2, 3). Every generation of Romans worried they were growing decadent and courting disaster. But eventually Rome did grow decadent and collapse. I’m not enough of a historian to know whether everyone was wrong until 476 AD and then they were right all at once - or whether each generation was right that they were slightly more decadent and less stable than the last, until finally the decline became unsustainable. But the guys in 475 saying “har har, we’ve read Livy, he thought his generation was decadent and about to collapse too” would have been in for a nasty surprise. So let’s at least consider taking this at face value.

There are two lines of evidence that phones are genuinely rotting people’s brains in a way past technologies haven’t. First, standardized test scores are down. Second, teachers are freaking out.

The Financial Times presents the argument from standardized testing: Have humans passed peak brain power? Student and adult test performance peaked in 2012, and has gone down ever since.

Cremieux thinks this might be fake. He says part of the effect is demographic shift. Blacks, Hispanics, and some Middle Eastern populations tend to underperform whites on most scholastic tests; if they are recent immigrants, they may not even speak the language fluently. As these groups increase in proportion of the test-taking population, test scores go down (there’s also a more arcane issue called measurement invariance; click the link for the explanation). Cremieux finds that when you adjust for these things, some of the problem goes away:

But these are American scores only. The pre-COVID decline in American scores was marginal at best. And the Financial Times’ cited scores across all OECD nations.

The best way I could think of to test this was to look at PISA scores filtered by the question “Does one of your parents have an immigrant background”? I hoped that this would filter out most of the ethnically diverse test-takers in non-US countries, allowing an apples-to-apples comparison:

Here ALL is all test-takers, and NAT is those with two native-born parents. 5/6 of the 2012-2018 score decline remains in the latter group. I’m not showing the 2018 - 2022 score decline, because most of that is COVID learning loss, but I analyzed it separately and found similar results.

This doesn’t really look demographic shift related. I can’t prove it, because it could be demographic shift among third-generation-plus immigrants. But most PISA countries don’t have enough third-generation-plus immigrants to shift trendlines on their own. These findings don’t 100% prove that something bad is going on, but they’re consistent with it.

I am more convinced by the widespread negative reports from teachers. People dismiss these by claiming there is some generic bias to think “the youth” used to be better in “the good old days”. But I hear stories like these from teachers who have been in the field for 30, 40 years, never said anything like this between 1980 and 2010, but now suddenly think there’s a crisis (one of them is my mother, who taught high school until her retirement in the late 2010s). This recent essay by blogger “Hilarius Bookbinder” is representative of the (voluminous) genre:

I’m Gen X. I was pretty young when I earned my PhD, so I’ve been a professor for a long time—over 30 years. If you’re not in academia, or it’s been awhile since you were in college, you might not know this: the students are not what they used to be. The problem with even talking about this topic at all is the knee-jerk response of, “yeah, just another old man complaining about the kids today, the same way everyone has since Gilgamesh. Shake your fist at the clouds, dude.”1 So yes, I’m ready to hear that. Go right ahead. Because people need to know […]

Most of our students are functionally illiterate. This is not a joke. By “functionally illiterate” I mean “unable to read and comprehend adult novels by people like Barbara Kingsolver, Colson Whitehead, and Richard Powers.” I picked those three authors because they are all recent Pulitzer Prize winners, an objective standard of “serious adult novel.” Furthermore, I’ve read them all and can testify that they are brilliant, captivating writers; we’re not talking about Finnegans Wake here. But at the same time they aren’t YA, romantasy, or Harry Potter either […]

Things have changed. Ted Gioia describes modern students as checked-out, phone-addicted zombies. Troy Jollimore writes, “I once believed my students and I were in this together, engaged in a shared intellectual pursuit. That faith has been obliterated over the past few semesters.” Faculty have seen a stunning level of disconnection […[ it is getting harder and harder and we don’t know what to do.

If I’d known I was going to write this post, I would have saved the dozens of similar claims I’ve come across recently - as it is, I’ll just have to hope that you’ve seen them too.

Hilarius lists seven causes, which separate into three groups.

The first root cause group is COVID. Faculty lowered standards when things were genuinely tough. Then students pushed back when they tried to raise standards again, so the new low standards got locked in.

The second is general technology. Teachers started giving lectures on PowerPoint; they sent out the slides afterwards to help people study; students figured they could skip the lectures and read the slides instead. There are plenty of ways to use technology to get learning experiences which are easier than the real thing and 80% as good. But when you get too reliant on them, you learn 20% less.

But the third is screens. Bookbinder writes:

[Students are] pretending to type notes in their laptops. I hate laptops in class, but if I try to ban them the students will just run to Accommodative Services and get them to tell me that the student must use a laptop or they will explode into tiny pieces. But I know for a fact that note-taking is at best a small part of what they are doing. Last semester I had a good student tell me, “hey you know that kid who sits in front of me with the laptop? Yeah, I thought you should know that all he does in class is gamble on his computer.” Gambling, looking at the socials, whatever, they are not listening to me or participating in discussion. They are staring at a screen.

Maybe this is a subspecies of the previous category: bringing a laptop to class makes lectures far more tolerable at the cost of learning 20% less material. But also:

It’s the phones, stupid. They are absolutely addicted to their phones. When I go work out at the Campus Rec Center, easily half of the students there are just sitting on the machines scrolling on their phones. I was talking with a retired faculty member at the Rec this morning who works out all the time. He said he has done six sets waiting for a student to put down their phone and get off the machine he wanted. The students can’t get off their phones for an hour to do a voluntary activity they chose for fun. Sometimes I’m amazed they ever leave their goon caves at all.

Suppose that screens genuinely harm many students. Does that mean that parents should keep screens away from toddlers? It depends on the mechanism of harm. If phones harm kids by gradually damaging their brains somehow (chronic dopamine poisoning? I’m pretty sure this isn’t a real thing, but I’m sure some self-help guru has an infomercial that disagrees), and this damage is worst during childhood, then sure, keep your kids away. But if phones are merely very addictive - so addictive that college students scroll through social media instead of going to class - then it’s less obvious that it matters. You can’t realistically prevent your teenager from using a phone during college; if she has addictive tendencies, she’s going to get addicted. So why not save yourself some babysitting time when she’s three years old by letting her go on Toddler Instagram?

Or does giving kids phones at age three (when they have no hope of resisting) deny them the right to exercise their free will at age eighteen (when they might have some slight hope)? Do Caplan’s exhortations to remember the behavioral genetics literature apply here? Will those with phone addiction genes get addicted no matter how we raise them? Only 10% of variability in alcohol addiction is shared environmental (eg potentially due to parenting); should this also be our estimate for phone addiction?

I feel about 75% sure there’s a trend towards recent intellectual decline which needs to be explained, I think phones are about 60% of the explanation, and I think it’s about 25% likely that early childhood phone use causes some damage beyond what would happen if you kept your kid away from phones until age 18 but then let him use them normally afterwards. When I multiply those all out, that’s an 11% chance that letting my kid use a phone will rot his brain. I can already hear Bryan Caplan saying that’s not so high - that living with a stressed-out parent who constantly resents the demandingness of childcare has a much more than 11% chance of being bad.

But it’s not just addiction. What if they wander into the wrong part of the Internet and become incels, or SJWs with seven genders, or sedevacantists? Lots of people get one or another mind virus; why should my kids be immune? Because I’ll give them a happy childhood? I checked this on the ACX survey, and although alt-rightists did have significantly less happy childhoods than normal liberals (5.93 vs. 6.70 on a ten-point scale), the effect was too weak to rely on on an individual level (46% of alt-rightists had happier childhoods than the average liberal). Also, I married the only centrist-classical-liberal woman left in the San Francisco Bay Area - what kind of off-the-chart-outlier genes did she need in order to pull that off? If my son inherits those genes in a male body and moves to Chicago or something, will he become the next Costin Alamariu? And what about our daughter? What percent of women from intellectually-inclined non-practicing-Jewish families avoid becoming insane woke people? 20%? 10%? Sure, we’ll try to inculcate her into our reasonable liberal culture. But what do you think all those woke teenagers are rebelling against?

Can a 2011 book say anything about these dangers? Caplan still blogs; some of his more recent output addresses them more directly. But maybe his greater contribution is the way SRTHMK teaches us to challenge our fears. Are the dangers of today really worse than those of yesterday? Is some real-but-small chance of harm from insufficient caution really worse than the certainty of making ourselves and our kids miserable through excessive discipline? Can we really win a fight against the spirit of the age and our children’s genetic proclivities?

When I try to apply SRTHMK’s lessons, I can’t deny that I’m being exactly the kind of hypocrite who says that my generation was okay but the next generation is destroying society. I chafed against all of my parents’ stupid computer use restrictions as a teenager - why couldn’t they understand that I was only playing classy games, like Civilization, and hanging out on decent sites, like LiveJournal? Now it’s twenty years later and…

…actually, I guess I became an anti-woke influencer (surely every good liberal mother’s worst nightmare). And I did sort of join a doomsday cult (comparatively tame but still unfortunate). Is that bad enough that my parents were right? If my kids end up as weird compared to me as I am compared to my parents, will I tolerate them as graciously as my parents still somehow tolerate me?

At this age, none of this affects me as much as my visceral reaction when I see a phone-addicted toddler. I shudder to see a three-year-old in the grocery store screaming “PHONE? PHONE?” until her parents relent and let her watch algorithmically-recommended YouTube videos of dancing monsters. And I know my kids would fall for it. I got them a toy keyboard-like-object once, the kind where you press a button and it plays terrible nursery rhymes. Sometimes I would not want to hear terrible nursery rhymes and would turn it off. Big mistake. My son would scream at me until I changed my mind; eventually I stopped even trying. The moment he gets a phone, his life is over.

And this is part of a more general argument against superstimuli. I used to let my kids stand on top of the table, under supervision. They loved it. Every time they saw me, they would grab me and point to the table. But sometimes I didn’t want to supervise them that closely, or there were breakable objects on the table, and then they (okay, mostly my son) would throw tantrums. Eventually my wife made a no-tables rule so they would lose the expectation that pestering us might work. This has expanded into a broader principle: don’t let toddlers know a superstimulus exists if you’re not prepared to fight them about whether they get to have it all the time.

So I’m not giving in yet. If nothing else, I want to be able to spend quality time with my kids without it turning into an argument over whether they get the phone or not.

Selfish Reasons To Do Less Childcare

None of this addresses my primary interest in this book: am I wrong to feel overwhelmed by childcare?

I was curious enough about this that I emailed Bryan and asked him how much time he spent on childcare when his kids were toddlers. He said about two hours a day for him, one hour for his wife. Relatives and nannies picked up the rest.

I could complain that sure, childcare isn’t overwhelming when you’re only doing two hours of it a day. But honestly, this is about the same amount of childcare I do now. And I do feel overwhelmed. So advantage Bryan.

When I thought about it more, I realized a lot of my overwhelmedness came from not being able to consistently choose the two hours, and from survivor’s guilt about my wife doing her 7-8 hours. When I talked more with Bryan, he recommended hiring more nannies.

(Daycare would also work, except that my wife and nanny both have terrible immune systems and get knocked out of commission if they catch anything from the kids. Any solution which exposes them to more germs probably saves me negative childcare hours.)

I’d been resisting this. Partly it was out of stinginess - something something tariffs, something something impending recession. But partly it was pride. We’re a two parent family with a stay-at-home mom, a work-from-home dad, and a part-time nanny. Millions have it far worse.

I read SRTHMK hoping it would have some loophole, One Weird Trick that would let me stop feeling overwhelmed and join the ranks of those pronatalist influencers who blog about how childcare is great and you should go ahead and have kids right now, even if you’re only twenty-five, even if you don’t have your career totally figured out, even if you lost all your limbs in a tragic boating accident and are incapable of independent movement. It doesn’t, at least not for one-year-olds.

Instead it had a vibe: stop beating yourself up over your parenting decisions. So I put out a classified ad for babysitters and got two people I really like. Things are a little better now. I can even write research-filled book reviews again!

This whole time I was reading Selfish Reasons To Have More Kids, when I should have been waiting for Pro-Market And Pro-Business (released last month, now available on Amazon). There really is a Bryan Caplan book for everything!

Ask Redditors what’s the worst subreddit, and a few names always come up. /r/atheism and /r/childfree are unpopular, but if I read them with an open mind, I always end up sympathetic - neither lifestyle is persecuted in my particular corner of society, but the Redditors there have usually been through some crazy stuff, and I don’t begrudge them a place to vent.

The one that really floors me is /r/petfree.

The denizens of /r/petfree don’t like pets. Their particular complaints vary, but most common are:

• Some stores either allow pets or don’t enforce bans on them, and then there are pets go in those stores, and they are dirty and annoying.

• Some parks either allow off-leash pets or don’t enforce bans on them, and then there are off-leash pets in those parks, and they are dirty and annoying.

• Sometimes pets attack people.

• Sometimes inconsiderate people get pets they can’t take care of and offload some of the burden onto you.

• Sometimes people are cringe about their pets, in an “AWWWWW MY PRECIOUS WITTLE FUR BABY” way.

• Sometimes people barge into spaces that are about something else and talk about their pets instead.

These are all valid complaints. But the people on /r/petfree go a little far:

These people are crazy. So let’s return to our usual question - what kind of crazy? Which DSM-recognized disorder do they have?

One easy answer would be cynophobia, the pathological fear of dogs. I don’t think this is true. The people on /r/petfree mostly don’t seem afraid, unless they’re sublimating it in some really weird way. And I know people with actual disorder-grade dog phobia, and they’re not angry about it. Many of them are apologetic, or agree dogs are cute, or at least don’t spend all their time fuming about the existence of dogs. You would really have to stretch the definition of phobia here. You can do it - witness “homophobia” for people with normal political or religious objections to homosexuality - but it would feel wrong.

The condition this reminds me of, more than any other, is misophonia.

Misophonics - and I say this as one of them - are angry. As I discuss in the link above, the anger seems more characteristic of the condition than the sensory sensitivity. If they go deaf, they’ll still be angry that people are making the noises they hate, even though they can’t hear them. Confronted with the noises they hate in a context where they don’t know it’s the noise they hate, it won’t bother them. I think of misophonia (again, explained at the link - the rest of this post won’t make sense without it) as a superstructure of anger/trauma/phobia/rumination built on top of a foundation of otherwise-non-disabling noise sensitivity. This isn’t to belittle misophonics’ problems - they genuinely hate the noise exactly as much as they say they do, and there’s no way for them to “turn it off” or “just get over it”. But the condition only enters full bloom when you take it from the neurological context of noise to the social context of people making noise.

Freud called intellectualization a defense mechanism. But at least for me, it functions as more of an overflow. When I’m at my worst - low on sleep, off all meds, forgot all earplugs - I go from hating whatever noise I’m hearing, to hating the fabric of civilization. I ruminate on crazy theories of how everything about modern urban life has been designed by crooks and liars to annoy me personally, and who we have to tax/ban/imprison to make it stop.

I look at some of those /r/petfree posts. There’s the one where someone said his friend posted a meme about how much she loved her dog, and now he “can’t ever go over to her house”. There’s the one where somebody asked a reasonable question about dog grooming on a hygiene sub, and the poster said that THEY HAVE TO INFEST EVERYTHING 😩😥🤢. I look at stuff like that and think - yeah, if there was a subreddit like this about noise, I’d post on it.

Someone - I think it was Philosophy Bear - once asked why a certain type of conservative treats it as axiomatic that order and low crime are the fundamental public goods. If a city has a few more muggings than usual, why is that automatically worse than the city having a few more families on food stamps than usual, or a little worse traffic than usual? This was great food for thought - I agree with the conservatives that public order seems somehow more fundamental, but I agree with Philosophy Bear that this wouldn’t feel obvious to an alien observer.

Since then I’ve been noticing how much of politics seems driven by different people having rumination clouds / purity instict violations about different kinds of omnipresent aspects of public life. For me it’s noise. For the /r/petfree people it’s dogs. For the /r/fuckcars people, it’s cars. For what was once r/TheDonald, it’s brown people (am I joking on this last one? absolutely not). I’m not asserting that none of these are real problems or that you can’t have rational objections to them. I’m just saying, one less-than-perfectly-mentally-well person to another, that I can see myself in you.

I think when you have something you get exposed to every day, plus starting variation in which things mildly annoy people, you have the opportunity to get the kind of cloud of mutually-self reinforcing triggers and automatic negative thoughts that sustain a misophonia-like condition. Then, depending on their levels of intellectualization and paranoia, some people will develop broader theories of why they’re right to hate these things and their all-consuming unhappiness accurately reflects an all-consuming evil in society. It’s a miracle that the /r/petfree people haven’t developed some word that cashes out to basically meaning “the petarchy”.

This is the point in an essay like this where I’m supposed to say that this is a Growing Problem Fueled By Social Media - that the existence of communities for these people validate and intensify their emotions and make everything worse. But I’m not feeling it - all my misophonic symptoms happened before I talked to anyone about them, and removing every other misophonic in the world wouldn’t improve things a bit.

In the 1970s, the discovery of the Tennessee snail darter in the Tellico River was used to halt completion of the Tellico Dam under the Endangered Species Act (a tale many law students learn in TVA v. Hill). The dam was only completed after Congress expressly exempted it from the ESA's dictates.

It has long been understood that the snail darter was the right species at the right time, as it gave dam opponents a powerful legal weapon. Now, the New York Times reports, it turns out the snail darter was not really the right species, as it is not a distinct species at all.

"There is, technically, no snail darter," said Thomas Near, curator of ichthyology at the Yale Peabody Museum.

Dr. Near, also a professor who leads a fish biology lab at Yale, and his colleagues report in the journal Current Biology that the snail darter, Percina tanasi, is neither a distinct species nor a subspecies. Rather, it is an eastern population of Percina uranidea, known also as the stargazing darter, which is not considered endangered.

Dr. Near contends that early researchers "squinted their eyes a bit" when describing the fish, because it represented a way to fight the Tennessee Valley Authority's plan to build the Tellico Dam on the Little Tennessee River, about 20 miles southwest of Knoxville.

"I feel it was the first and probably the most famous example of what I would call the 'conservation species concept,' where people are going to decide a species should be distinct because it will have a downstream conservation implication," Dr. Near said.

What Dr. Near is hinting at is the incentive structure created by the ESA--an incentive structure that encourages the distortion and politicization of scientific findings.

Under the ESA, the listing of a species (or subspecies or distinct species population) triggers regulatory restrictions, such as those that halted the Tellico Dam. Section 7 of the Act, for example, bars federal agencies from undertaking actions that could jeopardize a species' survival or destroy any of its critical habitat.

As I explained in this paper, this means that if an interest group wants to influence regulatory decisions under the ESA, they need to influence the scientific findings that trigger regulatory constraints. What should be policy fights over whether the benefits of a project justify harms or risks to particular species instead become fights over whether something is a species or is at risk of extinction. Thus political and ideological concenrs infect what should be scientific disputes over how best to identify what constitutes a distinct species.

From the article:

Dr. Plater, who also argued successfully for the fish in the Supreme Court case, took issue with the Yale study. He said the approach favored by Dr. Near and colleagues makes them genetic "lumpers" instead of "splitters," meaning they reduce species instead of making more. He believes the findings also lean too heavily on genetics.

"Whether he intends it or not, lumping is a great way to cut back on the Endangered Species Act," Dr. Plater said of Dr. Near.

Dr. Near said being described as a "lumper" was a pejorative in his world, and he added that most of the research he and colleagues had performed had resulted in speciation splits, including a 2022 study.

While the intent of the ESA is to provide greater protection of species, it is not clear the hard regulatory trigger actually maximizes the effectiveness of species conservation efforts. As I noted in this paper on the ESA's 50th anniversary, the Act has been far less successful at recovering species than one would like, and its unforgiving regulatory structure may be part of the reason.

The post "There Is, Technically, No Snail Darter," But the Snail Darter Still Delayed the Tellico Dam appeared first on Reason.com.

Happy Tuesday, and welcome to another edition of Rent Free.

This week's newsletter closes out the year by looking at the latest homelessness census released by the U.S. Department of Housing and Urban Development (HUD), which found a staggering increase in the number of people living on the streets or in shelters.

Number of People Without a Roof Over Their Head Goes Through the Roof

This past Friday, HUD released the results of its Point-in-Time (PIT) count—an annual census of the homeless population conducted each January by local homeless service providers.

The 2024 numbers are not pretty. According to the HUD survey, 771,480 people were homeless in January 2024. Of those, 497,256 were "sheltered" homeless, meaning they were sleeping in an emergency shelter or transitional housing. Another 274,224 people were "unsheltered" homeless who slept outside, in vehicles, abandoned buildings, or other areas not fit for human habitation.

The top-line figure represents a remarkable 18 percent increase in the country's homeless population. That increase is even more shocking when one considers that the country's homeless population grew by 19 percent between 2007 and 2024. Near two decades' worth of growth in the homeless population occurred between 2023 and 2024.

A year-over-year comparison pic.twitter.com/eKA2YrkFlV

— Christian Britschgi (@christianbrits) December 30, 2024

That top-line figure obviously masks a lot of yearly ups and downs. Nevertheless, the numbers are moving decidedly in the wrong direction, and fast.

Breaking Down the Numbers

The huge rise in the homeless population is attributable to related increases in the sheltered homeless population and the number of homeless families.

Of the 118,376 additional homeless people counted in 2024, 100,762 (or 85 percent of the total) were sheltered. This represents a 25 percent annual increase.

The 2024 PIT found that the unsheltered population grew by 17,614, which represents a 7 percent increase. That significant, albeit less severe, increase is effectively a continuation of the steady pre-pandemic rise in the unsheltered homeless population.

Conversely, the sheltered homeless population boom is both a huge increase and a reversal of the trend line. The sheltered homeless population had been on a steady decline in the years before the pandemic. Shelter populations plummeted even more during COVID-19 as shelters slashed capacity as a social distancing measure. This fall was significant enough to push down the overall homeless population, even as the unsheltered homeless population was rising.

Similarly, the 2024 PIT count found a record 39 percent annual increase in homeless families with children. The population of homeless individuals grew by a more modest 9.6 percent. The veteran homeless population was the only group to see a decline, dropping by 7.6 percent.

Migrant Surge, Homeless Surge

The HUD report notes that 13 Continuum of Care (COC) organizations (the local federally funded groups that provide homeless services and perform the PIT) saw a large influx of migrants into their shelter system.

HUD attributes the massive increase in homelessness to a range of factors, including rising housing costs, the belated expiration of some pandemic aid programs and eviction moratoriums, the end of the child tax credit, and "systemic racism." One reason stands out above the rest: the recent influx of migrants to major northern U.S. cities.

"You combine the increase in family homelessness and the increase in sheltered homelessness, it looks like this is overwhelmingly driven by the migrant surge," says Judge Glock, director of research for the Manhattan Institute.

This is most obviously the case in New York City, which has a longstanding, robust "right-to-shelter" policy, and has seen its emergency shelter population grow from 55,677 in 2022 to 81,108 in 2023 to 132,892 in 2024—during which time the city received some 225,000 new migrants and asylum seekers.

New York City's COC attributes 88 percent of the increase in sheltered homelessness to asylum seekers. And the increase in New York City's homeless population accounts for roughly 40 percent of the national increase in the homeless population.

Cities like Boston, Chicago, and Washington, D.C., which all have robust right-to-shelter policies and which have been primary destination cities for new migrants, also reported some of the largest jumps in their homeless populations, Glock notes.

Chicago's COC reported that most of the increase in its homeless population was a result of newly arriving migrants and asylum seekers.

Kevin Corinth of the American Enterprise Institute notes that 75 percent of the increase in sheltered homelessness over the past two years can be attributed to rising shelter populations in Massachusetts, metro Denver, New York City, and Chicago.

One-Off Increases, Chronic Problems

The number of migrants in big-city shelter systems is already falling, thanks partly to smaller influxes of new migrants and cities' own curtailment of shelter benefits.

There were 69,000 migrants in New York's shelter system in January 2024 when this year's PIT was performed, The New York Times reported. That's since fallen to 55,000.

A lingering question is whether this will merely shuffle currently sheltered homeless migrants into unsheltered street homelessness.

The Times reported earlier this summer on a rise in tent encampments in the city, populated by migrants who'd been evicted from the city's shelter system after staying the new maximum of 30 days.

Glock says right-to-shelter policies also pull people into the shelter system and into free temporary housing where they're counted as homeless. Places without right-to-shelter policies have lower overall rates of homelessness, suggesting migrants exiting shelters will find housing on their own.

HUD says that the January PIT likely captured sheltered homeless populations near their peak and that those numbers are declining. We'll have to wait until December 2025 to know for sure if that's true.

The huge, likely migrant-driven increase in the sheltered homeless population obscures the more depressing, humdrum reality from the 2024 HUD homeless report: the number of people sleeping on the streets is at record levels and continues to rise.

Homelessness continues to increase in almost every state in the country. That includes West Coast states that have not experienced a New York City–like migrant surge and already have among the country's worst rates of homelessness.

This steady rise in homelessness has occurred even as federal funding for homeless programs has steadily increased under the Biden administration.

It's no coincidence that homelessness continues to rise as housing continues to get more expensive in the country. Lower housing costs correlate with lower rates of homelessness.

In the places where homelessness is worst, housing costs continue to rise. We can expect homeless problems to continue to rise with them in the new year.

Quick Links

• Earlier this month, the Las Vegas Review-Journal reported that the city of North Las Vegas, Nevada, rejected the nonprofit Tunnels to Towers plan to build a privately funded 112-unit housing complex for low-income veterans on a vacant five-acre lot across the street from a Veterans Affairs hospital. The city argued that the location was a poor fit and thus declined to rezone the commercial property to allow the proposed housing.
• Housing inventory (the total number of homes available for sale) is at the highest it has been since November 2020, reports listing company RedFin.
• Last week, a judge ruled that the City of Los Angeles illegally tried to prevent a housing developer from using the city's streamlined development process known as ED1 to build a 220-unit project in a single-family neighborhood. LAist has the details.
• Mobile home prices are on the rise, reports Fortune. 
• California massively undershoots Gov. Gavin Newsom's campaign trail goal of building 3.5 million new homes by 2025.

The post Unprecedented Rise in Homelessness appeared first on Reason.com.

On a Monday in August 2020, Camryn Kuehl and her family embarked on a snorkeling trip in Jupiter, Florida, on a boat operated by a company that specializes in shark encounters. During the trip, the boat's crew, John R. Moore Jr. and Tanner Mansell, spotted what they described to the Kuehls as an "illegal longline fishing line" attached to a buoy. With the Kuehls' help, Moore and Mansell hauled in the line and freed the 19 sharks caught on it—a rescue operation they encouraged the Kuehls to document with their cellphones. Moore called Florida Fish and Wildlife Officer Barry Partelow to report the incident.

As Partelow ultimately discovered, Moore and Mansell had made a mistake. The line had been set by Scott Taylor, a seafood distributor whom the National Oceanic and Atmospheric Administration had authorized to catch sharks for research purposes. Although Moore and Mansell clearly thought they were doing good by releasing illegally ensnared sharks, they were nevertheless convicted of theft at sea, a federal felony punishable by up to five years in prison. Prosecutors alleged that Moore and Mansell had stolen Taylor's fishing gear, which they left on the dock, where marina employees discarded it in a dumpster.

In addition to a year of probation, Moore and Mansell were saddled with felony convictions that trigger lifelong disabilities, including barriers to employment and loss of their Second Amendment rights. They challenged their convictions on the grounds that the jury instructions included a broad, counterintuitive definition of stealing that did not require an intent to use Taylor's gear for their own benefit. Last September, a three-judge panel of the U.S. Court of Appeals for the 11th Circuit rejected that challenge. Moore and Mansell are now asking the full appeals court to reverse that decision and correct the flagrant injustice of treating them as federal felons based on an honest, well-intentioned error.

Moore and Mansell were convicted under 18 USC 661, which applies to someone who "takes and carries away, with intent to steal or purloin, any personal property of another" within "the special maritime and territorial jurisdiction of the United States." During their trial, they asked U.S. District Judge Donald Middlebrooks to instruct the jury that stealing property means wrongfully taking it "with intent to deprive the owner of the use or benefit permanently or temporarily and to convert it to one's own use or the use of another." After the prosecution objected to including a conversion element, Middlebrooks omitted it, although he did tell the jury that the defendants maintained they had "removed property without the bad purpose to disobey or disregard the law and therefore did not act with the intent to steal or purloin."

The jurors, who sent the judge half a dozen notes while deliberating for two days (longer than it had taken to present the evidence against Moore and Mansell), struggled to reach a verdict. When they told Middlebrooks they had been unable to reach a unanimous decision, he gave them an Allen charge, encouraging them to continue deliberating and saying they should be open to changing their positions, provided they could do so "without violating your individual judgment and conscience." After sending one more note asking whether they should consider any other defense theories, the jurors found Moore and Mansell guilty of one charge each.

In an opinion by Judge Charles Wilson, the 11th Circuit panel ruled that Middlebrooks had been right to conclude, based on the relevant precedents, that Section 661's definition of stealing does not require evidence that the defendant "carrie[d] away" property for his "own use or the use of another." But in a concurring opinion, Judge Barbara Lagoa, joined by Judge Britt Grant, highlighted the perverse consequences of that reading and harshly criticized Assistant U.S. Attorney Thomas Watts-FitzGerald for his "imprudent exercise of discretion" in choosing to prosecute the case.

Lagoa noted that Moore and Mansell had openly stated their motivation in freeing the sharks, had enlisted their customers to help and to take pictures while doing so, had reported the incident to the relevant law enforcement agency, and had "returned the gear to the marina dock as instructed." Kuehl, for her part, "thought [they] were doing a great thing," and she "shared pictures on social media reporting as much to her friends." Yet "for reasons that defy understanding," Lagoa said, Watts-FitzgGerald "learned of these facts and—taking a page out of Inspector Javert's playbook—brought the matter to a grand jury to secure an indictment for a charge that carried up to five years in prison."

Despite evidence that "plainly suggests a good-faith mistake on Moore and Mansell's part," Lagoa wrote, Watts-FitzGerald "determined that this case was worth the public expense of a criminal prosecution, and the lifelong yokes of felony convictions, rather than imposition of a civil fine." Explaining that decision during oral argument last August, the government's lawyer likened the case to car theft on federal property. "If someone steals a car on a military base," she said, "the proper response isn't, well, pay restitution for that. That's a crime." Grant called that "a silly example," adding, "There's no comparison."

In her concurring opinion, Lagoa proposed a different analogy. "Imagine that Bob, walking along a path in a federal park, sees a man rush up to an elderly woman from behind, pull a gun from his pocket, and yell 'Give me your purse or I'll shoot,'" she wrote. "Bob rushes the robber, yanks the gun from his hand, and ushers the old woman out of harm's way."

What if "what Bob witnessed was not a genuine robbery, but a scene being acted out by some students from the local community college"? In other words, Lagoa wrote, "the robber was not a robber at all, but the elderly woman's scene partner for drama class. Bob, of course, had no way of knowing that when he interrupted what he believed to be a violent crime."

Under "the government's theory in this case and applying § 661 as broadly as the government did here," Lagoa noted, "this genuine mistake would be of no moment, because all that matters is that Bob took the 'robber's' property with the intent to deprive him of it. Perhaps it would move the needle if Bob's lawyers requested an instruction on mistake of fact, aiming to undermine the mens rea needed to convict." But for Lagoa, the bottom line is that Bob, like Moore and Mansell, "should not be prosecuted in the first instance."

What happens when prosecutors nevertheless defy fairness and common sense by pursuing criminal charges in a situation like this? In a brief urging the 11th Circuit to reconsider Moore and Mansell's case, the Cato Institute emphasizes the vital role that juries can play in correcting such injustices.

"From a purely originalist standpoint, perhaps the single greatest protection against unjust convictions and punishments was the institution of jury independence,
which included—but was by no means limited to—the power to acquit against the
evidence," writes Clark Neily, Cato's senior vice president for legal studies. "At the Founding, criminal jurors were not relegated to the role of mere fact-finders, as they are today. Indeed, the conception of criminal juries as having no proper role in assessing the wisdom, fairness, or legitimacy of a given prosecution is a more recent invention that early American lawyers and jurists would rightly have condemned as antithetical to centuries of common-law understanding and practice."

Neily notes that "the jury in this case appeared reluctant to convict, and only did
so after sending out seven notes and receiving an Allen charge from the trial judge." If the jury instructions had "better embodied the Supreme Court's directive that 'ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity,'" he argues, "the verdict would likely have obviated this appeal by more accurately reflecting how ordinary people understand the word 'steal' in the context of potentially ruinous felony charges."

Although "the spectacle of an imperious national government prosecuting virtuous
citizens for activities within its 'special maritime jurisdiction' would have been entirely familiar to the Founders," Neily writes, "they would likely have been dismayed by the identity of that government and by the miscarriage of justice that occurred here. It is
highly doubtful that a Founding-era jury, fully cognizant of its historic powers and
duties, would have branded John Moore and Tanner Mansell lifelong felons for their
misguided attempt to fulfill what they perceived to be a civic duty. The Court can still avoid that result by granting the Petition and applying a suitably restrained interpretation of the relevant statute."

The post 2 Florida Men Who Thought They Were Freeing Illegally Caught Sharks Are Now Felons appeared first on Reason.com.