Friday, January 30, 2009

In Locus Parenti

Courts have often recognized that the first amendment rights of students in public schools are "are not automatically coextensive with the rights of adults in other settings" -- Bethel School Dist. No. 403 v. Fraser.

Indeed, first amendment rights are not automatically coextensive with the rights of adults in a home environment; just try calling your Mom a “douchbag” and applying to a court afterwards on the grounds that your Mom, in punishing you, had violated your first amendment rights.

One of the reasons schools may on occasion and with good reason abridge the first amendment rights of children is because, in the absence of parents, school official act in locus parenti, on behalf of parents. The locus is important in deciding just how far a school may go in trimming constitutional rights. The authority of a school to abridge a fundamental right in law is related to the place at which the offense occurs, because the authority of school administrators lapses when their charges are in “other settings.”

Had Avery Doninger used in connection with her parent the offensive word she used to characterize certain school administrators, she might have received a condign punishment from her parent. Had she used the word in school in connection with an administrator who was charged by law with acting in locus parenti, possibly no one, least of all her parent, would have objected to a just punishment.

But Doninger used the word at home, while she was under the direction of her parent, about a school administrator who was not operating in locus parenti; she was punished by the school, which stripped her of an elected position as junior class secretary; she sued, and her case was decided in favor of the school administrator who assigned the punishment.

The case raises the question: Does the authority of school administrators reach into the home when the administrators are not acting in locus parenti?

At least one legislator, Gary LeBeau, a retired High School teacher from East Hartford who co-chairs the General Assembly’s Commerce Committee, thinks the answer to that question should be “No.”

In a perfect society, every adult would act towards a child as a parent in the absence of a parent. But it is an affront to human nature and common sense to behave in such a way when the parent is present. The authority that teachers have over children is one surrendered by the parent to the teacher; the parent delegates the authority even as he retains title to it.

“I strongly believe in the First Amendment,” LeBeau said. “And after what school administrators did in the Doninger case, what’s needed is a bright line of where the state — since the school was acting on behalf of the state — can impinge on the rights of individuals. I think they overstepped in this case."

LeBeau has introduced a bill that would re-assert the authority of parents over their children when they are exercising their rights at home or “in other settings” in which schools are not acting in place of parents.

According to a story in the Journal Inquirer, “LeBeau’s single-paragraph measure would specifically amend the law ‘to prohibit school authorities from punishing students for the content of electronic correspondence transmitted outside of school facilities or with school equipment, provided that such content is not a threat to students, personnel, or the school.’”

LeBeau's legislation is a sensible measure that would incur no costs. The legislature ought to pass it for two reasons: The dispensation of power the court in its decision gave to the administrators of schools is in this particular situation an authority they do not need to maintain order in their schools; and that power invested in administrators properly belongs to parents when the school is not called upon to act in their behalf.
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