Kenny wrote an excellent defense of the rights of minors in his essay "Of Strip-Searches and Students," in which he commented on the recent Supreme Court case of Safford Unified School District v. Reading. 13-year-old Savana Reading was strip-searched by school administrators on suspicion that she was carrying ibuprofen. (Yes, you read that right -- an OTC drug available in every household in the country is contraband in a government-run school.) The High Court found (thank God) that Savana's 4th Amendment rights against unreasonable search and seizure were violated. But Kenny is looking for a larger legal precedent. He wonders: why shouldn't minors enjoy the same legal rights as adults, when it comes to respecting their basic human dignity?
Read Kenny's essay if you haven't already. Then come back here, because I want to propose another angle from which one could construct a theory of the legal privacy rights of minors.
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It's hard to talk about the legal rights of minors without also talking about the legal rights of parents. In general, the law provides parents with absolute power and authority over their children. Children do require a lot of governing, relatively speaking, and our culture trusts that the parents are the ones most likely to have the child's best interests at heart when using that authority. A parent's powers are pretty broad – they can search, seize, and physically restrain the freedom of their children as they see fit. Most people see that arrangement as appropriate; so long as the children are not physically endangered and adequately provided for, parents should have that right to exercise those powers. (As a matter of good parenting, I think parents are well advised to restrain their use of those powers. You should, in general, treat children with all the respect and autonomy you would accord to any adult, within the bounds of the child's ability to hold up their end of an adult relationship. But I still think it is appropriate that parents have the legal right to those powers.)
The only problem with that arrangement is that it gets us used to thinking of children as entities without rights. We wouldn't think it wrong to search our own children's rooms if we suspected wrongdoing, so we generalize that out to "children have no privacy rights at all." I think parents have rights that may trump the child's right to privacy (or association, or religion, or speech, or many other constitutional rights) but that doesn't mean the children don't have those rights at all.
Things get especially murky with schools, in which the teachers and administrators are acting in loco parentis – that is, they are delegated some of the powers of the parents while the children are in their care. They are permitted to control where the children go, what they are allowed to say, and can even apply certain punishments. The question is: do teachers and administrators have the same powers as parents when it comes to privacy, or not?
My feeling is no. I think the only parental powers over children that are given to other adults are those that are explicitly delegated from the parents. If a school wants the right to search a child's backpack or locker, they need the explicit consent of the parent. If a parent does not delegate those parental powers, then a child has exactly the same constitutional rights as an adult. (You may find, by the way, that adults don't have as many rights as you might think. There is no legal expectation of privacy in most workplaces, for instance – your email can be read, your desk searched, etc.)
This model isn't perfect. Savana could still be strip-searched for ibuprofen under this legal theory, had her parents signed some consent form that gave administrators the power to do so. As long as there are bad parents, there would be bad outcomes. But this, at least, would start us from the correct basis: children have the same rights as adults, unless some other parental power prevails.
