Wednesday, March 18, 2009

New thought on Jessica Serafin case: old enough to drop out, old enough to vacate premises

New thought on Jessica Serafin case: old enough (18) to drop out of school legally; old enough to vacate premises at will. She never returned to that school in use of her right not to.

Her being held down to be paddled therefore may be seen at the state prosecution level as an unauthorized punishment -- the school was not operating "in loco parentis" from the moment she insisted on leaving. Anytime a student is corporeally punished without authority it should be prosecuted as an criminal assault under the normal statutes.

Being criminally detained to be physically assaulted raises the issue of kidnapping/illegal detainment (there are so many legal pitfalls once you cross the line of assaulting with a weapon).

LAST THOUGHT: the school had no more legal power to hold her down and beat her when she expressed desire to vacate the premises than it would have had to visit her home or grab her on the street and beat her. Whatever legal power the school has to beat students does not exist under these three circumstances.
Here in Chicago we have multiple incidents of teachers using corporal punishment after it has been banned in the state -- published widely in the media yet! -- and nobody thinks to prosecute every last instance.

We have to get over thinking of students as some kind of slaves to be whipped. Maybe what we need is a federal civil rights statute -- under the 14th Amendment's equal protection and enabling clauses -- to recognize that students may not be whipped without a compelling need (bringing chronic disorder to the point the institution permanently cannot function -- felony offenses -- the equivalent of self-defense). That is how far the parent's so-called "sovereignty" over children can be stretched to corporeally punish students and no more.

When I was in Cardinal Hayes High School in the Bronx our dean of discipline was thought the toughest in the city, Father Jablonski. But there was never any thought of corporal punishment. Priest, unlike nuns an brother, hear confessions. Priests are in charge of the Ten Commandments; they are concerned with drunkenness, pre-martial sex, stealing, dangerous violence, etc. -- the real moral struggles of Catholic school boys. Priests could care less about you being late for school -- be late every day. If you want to trade a minute in the morning for an hour after school that was your problem.


Under my notion of constitutional equal protection, before legislatures are free to exempt school discipline from conventional assault prohibitions -- to allow corporal punishment -- they ought, first, to be able to identify a compelling state interest in deterring certain misbehaviors and, second, attest to an absence of workable alternatives -- the institutional equivalent of rules of engagement.

Practical example: if Oliver were leading a charge of kids on the lunch counter day after day and no other punishment restrained him -- the institutional equivalent of self-defense.

How much offense can be caused the great commonweal – as opposed to the likes and dislikes of deans of discipline -- if, for a practical example, occasionally disorganized students arrive a few minutes late for class every couple of weeks (20 times a year! -- as I did in high school; not in my shorter stay in college)? Many colleges do even not require students to show up for classes, so long as they master course materiel. Employers of the New York City of my youth would have been happy if employees only showed up a couple of minutes late for work only every couple of weeks given the state of rush hour commuting there.

The excuse most offered for exempting schools from normal assault prosecutions – in carrying out the equivalent of everyday office management – is that school teachers act “in loco parentis”, in place of parents. And everyone knows that parents may – as long as state law does not proscribe it – legally paddle children for even minor infractions.

However, so called “parental sovereignty” itself is less a natural verity and more a legal device to insulating sacrosanct family life from potentially crackpot state interference (parents may not legally strike children for no reason)...
…which compelling family privacy interest has absolutely zero application to school administration and in no way should exempt schools from conventional criminal prohibitions. Acting “in loco parentis” may constitutionally require student obedience; it does not confer any “parental sacrament” to disobey criminal law.

Whatever about instinctive human nature teaches us – sensibly -- to treat minor children as subordinates – may less sensibly – magnify their transgressions in our (bureaucratic?) eyes, especially repeated transgressions and -- even less sensibly -- put us on the (bureaucratic?) path to discipline for its own sake: the war on the student!

Legislatures should not feel free to suspend constitutional equal protection -- against assault with an instrument designed to deliver to slaves maximum pain but with minimum injury (same physics still delivers; same biology receives) -- in carrying out our sometimes too thoughtlessly applied genetic code of child deference.

For a very comprehensive treatment of school corporal punishment click on: Corporal Punishment in Schools: Economic, Liable, Practical, Ethical, Constitutional?

1 comment:

Hal said...

There are two arguments to make in Jessica's favor, which the court declined. First, her lawyer was right to allege that adults have a higher degree due process rights than younger children because she has the option to leave the school. The court's decision was that she had not exercized that option previously. However, in fact she still had that option, and as such this means that she should get greater protection whether she exercized that right or not.

Secondly, Ingraham v Wright left open whether the Court could protect students as a substantive right from extreme cases of beatings. Naturally they do, because it would be cruel and unusual infliction of punishment by the state.

The courts however are not interested in revising these precedents. Typically they are older judges from a time when beatings were more common and the "spirit" of court precedents are to allow beatings, even if an inspired judge could use the law to outlaw them.

Even though schools are designed to take the place of the parent and she was an adult, the court may still claim that she was part of a system designed for minors. Now I believe that she could argue for an exemption from such a system based on being an adult, but my guess is that the case law will be mixed on this point.

The judges also don't distinguish between beating students and sending them to detention as far as their rights are concerned. So within their psychology of brutality, her request is like her asking to avoid detention because she is an adult.

However even with this mentality that beating students is like detention, the law should still outlaw cases of abuse. Texas laws have made teacher immunity statutes protecting teachers, not students, when they abuse students.


Now in reality what happened is that a female adult was brutally beaten against her will by three strong men in a private area of her body, causing bleeding.

Really her only option is whether to kick the people who will beat her, throw things at them or try to hit them with objects in the office, and scream constantly that she is an adult. She would have to treat the situation as if she were being abused in an office someplace else. She may end up being beaten much worse, but I believe that it is worth it. Also, she may end up going to jail for fighting her abusers, and in Texas jail she may experience rape and further beatings. But it is also worth the risk to fight back, I believe.

The world is a brutal place, although it can be a kind place too.