1. Supreme Court Punts on Extreme School Surveillance
By Daniel E. Witte
Can public school students be searched, interrogated and given intimate physical examinations by government officials at school without advance parental disclosure or any warrant? That was the gripping Fourth Amendment issue recently presented to the United States Supreme Court inCamreta v. Greene.1 A federal circuit court had earlier ruled that a warrant was required.2
Many Utah parents of government school students are unaware of the fact that their children may be subjected to graphic questions about whether the minors have observed or engaged in sexual activity. Students are interrogated to obtain a variety of private information about their parents and households, ranging from diet to drugs to sexual activities observed. Some of these interrogations turn into efforts by government officials to suggest to the children that they have been abused. Some students are subjected to intensely traumatizing3 activities, including involuntary physical examinations of their genitals and body cavities. Occasionally, as happened in Camreta, questionable evidence is gathered with use of coercive techniques against impressionable children, which is then used to prosecute parents, students or others.
All of this is often done without informing parents, obtaining any warrant, identifying any probable cause, or videotaping the interrogations to safeguard against abusive practices.
This current state of affairs has been a while in the making. The notion of utilizing government schooling for education, law enforcement and intelligence-gathering functions was championed by Richard Henry Pratt during the Indian Wars of the late 1800s. Schools could be used to control populations rather than simply educating them. Instead of parents controlling their local schools, schools could be used to control parents, families and local communities. This concept was adroitly summarized by Pratt’s friend J. D. Miles, who wrote a letter fondly recalled by Pratt as follows:
The child being in school the parents are much easier managed; are loyal to the Government … and never dare, or desire, to commit a serious wrong. …
[B]y having their children in school the parent becomes personally interested
in … the prosperity of the school. … [H]is habits are consequently localized. … The parents of these children are as completely committed to the general welfare of the whole people of the United States as any other loyal citizen, and by this mixing and blending of common interests they will soon be prepared to enter into and take upon themselves the duties and responsibilities of common citizenship. … In the management of the school … the service of the police is called into requisition – looking up truants, absentees, etc., and in this way the … police force becomes interested in the school and its progress.4
Over the course of time, schools came to be seen as a pre-eminent tool for expansive social engineering. Schools could be used, for example, to impose purportedly enlightened political philosophies; fight the drug war; combat child abuse; change dietary habits; impose medical treatments on the populace; advance the war on terror; and provide intelligence to law enforcement and the military against disfavored groups or individuals in the community. In order to make all of this possible, the constitutional rights of parents and students had to be gradually but dramatically reduced over time.
Now Camreta has drawn back the curtain on these extreme surveillance tactics. Government schools have now reached the point where innocent students are routinely subjected to detainments, interrogations, X-rays and strip searches, all without any warrant and often without probable cause. Many educators, social workers and law enforcement officials have arrived at the belief that students shed their rights at the schoolhouse door. Under this interpretation, students have little more right against these activities than incarcerated prisoners. On the other side of the coin, many parents and students have taken the controversy to the courts. Camretaupset the apple cart when a victimized family persuaded a court that the intrusions are a violation of the Fourth Amendment. Government officials asked the U.S. Supreme Court to reverse the federal appeals court decision on appeal.
Ultimately the U.S. Supreme Court punted. On May 26, 2011, it vacated the federal appeals court decision on the ground that the minor was 9 years old when she was interrogated and examined in Oregon; today she is 17 years old and has moved with her family to Florida. However, given the prevalence of the practices at government schools and the lack of any Supreme Court decision on the merits, the legal and political controversy is unlikely to go away.
Utah should not wait for the U.S. Supreme Court to rule on these matters. Nor should Utah take an approach designed to reduce civil liberties to the minimum level permitted by the federal constitution. Instead, Utah should enact a statute requiring that non-criminal minors in government schools cannot be strip-searched without a warrant based upon probable cause. Likewise, students at government schools should not be subjected to interrogation, or detained, unless there is a warrant based on probable cause or a truly exigent circumstance that makes securing a warrant truly impractical.
When interrogations regarding alleged child abuse are necessary and authorized by warrant, they should be statutorily permitted only when videotaped to show the minor and the interrogator. Interrogations that are not reliably videotaped should, under most circumstances, be inadmissible as evidence in court. Current Utah law enabling coercive interrogation and non-use of videotape for minors over the age of 9 should be eliminated.5
The author, Daniel E. Witte, J.D., is director of Sutherland Institute’s Center for Educational Progress. Mr. Witte has an extensive background in issues related to parental liberty, educational choice, and organizational reform. He has worked with the Utah Supreme Court, the U.S. Attorney’s Office in the District of Utah, the 10th and 7th Federal Circuit Courts of Appeal, the U.S. Senate, law firms in Korea, Puerto Rico, and California, and as associate general counsel for an insurance company.
1. Camreta v. Greene, No. 09–1454, May 26, 2011, available athttp://www.supremecourt.gov/opinions/10pdf/09-1454.pdf.
2. Camreta v. Greene, 588 F.3d 1011, 1016 (9th Cir. 2009), available athttp://www.ca9.uscourts.gov/datastore/opinions/2009/12/10/06-35333.pdf.
3. Doriane Lambelet Coleman, “Storming the Castle to Save the Children: The Ironic Costs of a Child Welfare Exception to the Fourth Amendment,” 47 Wm. & Mary L. Rev. 413, 417 (2005).
4. Daniel E. Witte and Paul T. Mero, “Removing Classrooms from the Battlefield: Liberty, Paternalism, and the Redemptive Promise of Educational Choice,” 2008 BYU L. Rev 377, 392-93 n. 67 (citing Richard Henry Pratt, Battlefield & Classroom 242–43 (Robert M. Utley ed. 2003)).
5. Utah Code Ann. § 62A-4a-414 (2-4).
2. Relief from federal education mandates may be in sight
By Matthew Piccolo
We have some good news out of Washington. Utah’s own Rep. Rob Bishop, an educator in Utah’s public schools for 28 years, has introduced a bill in Congress that could exempt Utah and other states from burdensome federal education programs.
The Academic Partnerships Lead Us to Success Act (A-PLUS) would allow states to continue to receive federal education funding as block grants while not being subject to onerous federal regulations like those in No Child Left Behind (NCLB) – a program that Utah teachers do not like. States would be able to use this funding to address the unique needs and priorities of their students in the best way they see fit. …
To read the rest of this post on the Sutherland Daily blog, click here.
3. Interviews shed light on Ogden education debate
By Alexis Young
We have been writing a lot about the Ogden School District’s decision to sign its teachers on an individual basis and to move toward a pay-for-performance plan. These steps are important ones that could gradually help change the landscape of public education in the best interest of Utah students.
To help shed some light on why the district made this decision and on what interested parties think about it, we interviewed Noel Zabriskie, superintendent of Ogden School District; Doug Stephens, president of Ogden Education Association; and Derek Monson, manager of public policy at Sutherland Institute. …
To read the rest of this post on the Sutherland Daily blog and watch the video, click here.
4. Uproar in Ogden: Middleman frets about losing clout
By Derek Monson
A key part of their objections is a perceived lack of teacher involvement in the decision of the district to move towards a performance-based pay system.
First, a little clarification. When the opponents to the OSD plan say “teachers,” what they really mean is the “union” (aka the teachers association). …
To read the rest of this post on the Sutherland Daily blog, click here.