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Student Rights and Wrongs – Kathleen Nicole O’Neal

Written by Kathleen O'Neal Jun 11, 2011

On television news programs, in political magazines, and in college classrooms around the country, fashionable (and indeed important) discussions take place about civil rights and liberties. The focus of these discussions run the gamut: the rights of prisoners, due process rights for those accused of a crime, labor rights, the rights of racial minorities, women, people with disabilities, and  lesbian, gay, bisexual, and transgender (LGBT) people, reproductive rights, the rights of those suspected of terrorist activity, Second Amendment rights, free speech rights, and on and on and on. All of these topics are important and worthy of our attention. These are all topics that I pay careful attention to and have strong feelings about. They are also all topics that intersect with youth rights issues in important ways that deserve sustained attention.

However, there is one category of issues that deal with the rights of youth and youth alone. It is also all but completely ignored in our national discourse despite the fact its scope is broader than almost any other government institution: broader than the prison system, broader than psychiatric facilities, broader than any other government social program. I am talking here about students’ rights: the elephant in the room when it comes to our national discourse on civil liberties, educational reform, and American young people.

When I took a class on constitutional law for public administrators, my professor discussed the many ways public administrators could run afoul of our Constitution and the law by abusing individual rights. They can do so by denying medical care to prisoners. They can do so by violating the due process rights of a person accused of a crime. They can do so by revoking someone’s government benefits without going through the proper procedures to do so first. They can do so by denying students admission to a public university based upon their race. And although legal controversy exists in these areas, many argue they also do so when they deny same-sex couples the right to marry or use eminent domain laws to take private property in order to give it to a private business. Since the 1960s, 1970s, and 1980s, our nation’s courts have expanded the scope of legal rights for many previously oppressed groups of Americans. With Griswold v. Connecticut and Brown v. Board of Education, the Supreme Court ensured a right to privacy regarding women’s medical decisions regarding contraception and struck down racial segregation in educational institutions, respectively. Since then, the new property doctrine of the 1970s established certain types of government welfare (including government employment) as individual property that cannot be revoked without due process of law. Increasingly, the courts are revisiting the right to bear arms and are exploring for the first time the rights of LGBT Americans.

Nonetheless, as concern for rights has expanded for everyone from teachers to terrorists, American public school students have been worryingly absent from this discourse. The courts have repeatedly struck down challenges to violations of student rights, using the doctrine of “in loco parentis” to justify unwarranted search and seizure, violations of due process rights, and other egregious student rights violation in America’s schools. All the while, under the legal doctrine of “qualified immunity” teachers and school administrators enjoy immunity from prosecution for serious violations of these same students’ rights. The legal precedent on these cases would be troubling but not completely damaging were there sustained public concern about these issues. (After all, as public opinion has changed about issues as diverse as abortion, contraception, homosexuality, gun rights, and racial equality, the courts have followed suit.) The troubling thing is that nowhere in our public discourse is student rights a priority – not in the civil liberties community, not among social justice advocates for the poor, women, LGBT people, people with disabilities, and/0r people of color, not among education reformers, and not among small government libertarians and conservatives. While many in all of these groups of activists are sympathetic towards student rights to varying degrees, nowhere is it a priority.

Perhaps because youth are disenfranchised and perhaps due to ageism, few are truly aware of many of the real rights violations that take place routinely in America’s schools. Students are not allowed to freely carry medications they need for optimal functioning, even when they are almost legally adults. Students are not allowed to eat, drink, or use the restroom as needed despite the long term problems for their health this can and does create (and very likely has created in my case as I started developing kidney stones soon after high school, not surprising as I spent most of my days in an environment where my access to restrooms and water was rationed). Students are often punished severely for the most trivial of things (for instance “swearing” or “talking back” to school authority figures which teaches young people the dangerous concept that questioning the views or commands or someone older or higher in authority than oneself is a punishable offense). Zero tolerance policies make it impossible for students to physically defend themselves when attacked by other students due to rules stipulating that anyone involved in fighting will be punished. (Amazingly the absurdity of these regulations is never discussed when we wring our collective hands over the problem of bullying in our schools.) When students are sent to the office for their supposed misdeeds it is nigh impossible for them to defend themselves against accusations and they can almost never expect fair treatment at the hands of school officials. Even good teachers and administrators (and there are some) often find it hard to work actively against these regulations and this climate.

It is within this mileau that American youth first experience the absurdity and injustice of the system. Many become resigned and others become enraged. At different times growing up I was both. However, no matter the response, this sets young Americans up to accept surveillance and arbitrary rule as an established feature of their lives and imparts to them the futility of fighting against it. Within this context, some youth also have their oppression compounded by factors like poverty, pregnancy, immigration status, language barriers, looks, disability, sex, religion, race, family structure, sexual orientation, gender identity, and/or simply being “different” in some way (the clothes they wear, the music they like, the people they hang out with, etc.).

Much is made in American culture of the many strange features of teenage life: an obsession with popularity, preoccupation with media, and the division of students into cliques based on superficial criteria (i.e. who likes hip hop vs. who likes heavy metal). What most commentators fail to realize is that these strange pathologies are a direct result of the absurdities of the American school system which deprives youth of any meaningful control over their lives, thus resulting in extreme fixations on seemingly trivial matters. When all you can control is where you sit at lunch and what musical acts’ poster you display in your locker (which can be searched without due cause at any time) these things suddenly become very important. They are all you have.

A large part of why I am running for the NYRA Board of Directors is because I care deeply about student rights issues. They are the most widely neglected set of issues affecting a huge group of Americans in this country. I want them to be a priority in NYRA and I want them to be a priority in our national discourse. Together we can start the discussion and together we can change things. Things for subsequent generations do not have to be like they were for us. The founders of our nation worked to ensure that future generations of Americans would have constitutional safeguards against individual rights violations that had never been put in place previously anywhere in the world. They wanted future Americans to have a say in their government that was then unprecedented in global history. Previous generations of women’s rights advocates ensured that I was able to attend college, vote, access contraception, and earn a living despite their inabilities to do these things in many circumstances. Previous generations of LGBT people have ensured that I can live my life as an openly bisexual person in an America that is becomingly increasingly comfortable with me and others like me. Past advocates for racial equality ensured that the relationships I have had with people of different racial, religious, and ethnic backgrounds than mine have not gotten me socially ostracized or worse. I am thankful every day that these people came before me to make my life and the lives of millions of others easier and better. We stand at a critical juncture for students’ rights. I want to do for future generations of students what, in a million different ways, so many past generations have done for me. By raising our collective and individual voices for student rights, this is an achievable goal. Attitudes often change slowly but they can and do change. But we have to take the first step of speaking up and speaking out on these important violations of civil rights and liberties.liberty-tattoo2

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