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.
I'm so glad to have you back, Georg! I think your proposal here is very interesting--I had certainly never thought about it that way, but at first blush, it seems reasonable. Here are a few reactions, in no particular order.
1. You say that "adults don't have as many rights as you might think – your email can be read, your desk searched, etc." True enough, because your email server and your desk belong to the corporation. They cannot search your briefcase, or a woman's purse.
2. Part of what you have to struggle with, along with the school's authority over a minor, is the school's responsibility for the minor. Why does the Emerson Waldorf School forbid tree-climbing? Obviously, because if a kid falls out of a tree, his parents can sue the school. If we're going to tell them they cannot forbid kids from tree-climbing, we also have to promise not to hold them liable for tree-climbing kids. In Savana's case, the school needs to be assured that they cannot be sued if a student is poisoned by ibuprofen hidden in another student's underwear. These two issues have to be tackled in tandem.
3. The problem I see with your scheme is schools requiring all parents to sign a very broad delegation of powers, and then we're back where we started. The solution is simple: public schools should not be allowed to require such signatures as a precondition of attendance.
4. Last sticky question: when do parents stop having God-like authority over their kids? If the answer is 18 years old, what is the legal status of all the 18-year-old high school students?
1. The "right to privacy" is a slippery thing, since it is written in the Constitution as "freedom from unreasonable search and seizure." (Some conservative jurors think the "right to privacy" is too broad a reading of the Fourth Amendment, and that is means something much more limited.) The right to privacy can be waived, and many companies demand that you do, in fact, waive that right when it comes to searching your personal effects on site, even your purse or briefcase or even your own body (e.g. random drug testing). This is not altogether a bad thing; you just need to be sure of where you can have an expectation of privacy, and where you can't.
2. Yes, responsibility for the minor goes hand in hand with authority and control over the minor. Parents are given such sweeping powers over their children because they are fundamentally responsible for their well-being. Overall, I like the notion of tort reform and limits upon legal liability, not just for schools but for all kinds of things.
3. I think my legal scheme would have to have certain limits on what powers could be delegated, and what powers could not be delegated. The law already has certain precedents for this; for instance, medical powers of attorney explicitly delegate medical care decisions to another person, but only when the affected individual is not capable of making those decisions themselves. So maybe certain rights, like strip-searches, would be designated as non-transferrable. I don't necessarily have a problem with delegating big chunks of those powers to schools, camps, day-cares, or other entities that take care of our children. I just think those powers need to be explicitly defined, so that extremes such as strip-searches are excluded or extremely limited. I know in our own school, many of those powers are explicitly defined and agreed-upon; for instance, what medications can be dispensed, and what discipline can be applied, are explicitly agreed upon between the school and the parents. I would gladly allow schools the right to define what parental rights they want to assume, IF there was also genuine school choice and parents had the right to pick a different school . . . but that's another issue.
4. When should a minor be free of the extreme powers of their parents? I did some checking on this; a "child" is legally defined as an "unmarried person under the age of majority--usually eighteen--who has not left home to support themselves." In other words, children remain children until they are ready to be self-sustaining adults. It's like the old parental saw, "As long as you're living in my house, young man, you'll live according to my rules." This seems pretty fair. It recognizes that some people assert their adult independence earlier than others (15 or 16, since that's the earliest most states will allow full-time employment or marriage). But the basic point is the same -- you're a child until you're completely ready to be an adult. Once someone is eighteen, they have the legal right to refuse the authority of their parents . . . and likewise, their parents have the right to refuse them support. I can't think of any parental rights I would want to limit before the age of majority for the child. Maybe freedom of religion, for children over the age of twelve. But all other constitutional freedoms -- speech, assembly, privacy, bearing arms, due process, etc. -- are predicated (IMHO) on an independent, self-sustaining individuals.
Is there any particular constitutional right of an adult that you would want to give a minor, overriding a parent's authority?
For what it's worth, I have known some individuals who got stuck in that awkward over-eighteen-but-still-in-high-school gap. Her parents kicked her out of the house the day she turned eighteen, and she was unable to finish high school. She did get a GED and go on to college.