Amity Shlaes thinks the reason grade-schoolers are being arrested for classroom misbehavior is that they are being treated as if they have rights, and they shouldn’t be.

The headline’s great: “School Kids in Handcuffs Reveal Teacher Bondage.” Really! Leading someone off in chains without justification proves he has too much protection from arbitrary power!

While arresting someone does mean treating him as the sort of person who has rights and can be held accountable for violating the rights of others, surely it is possible to recognize that students have rights while granting teachers enough authority to run their classrooms. One solution: Make education voluntary, so that schools’ and teachers’ authority can be granted by their students, just as colleges and their professors and administrators get their authority from students’ decisions to matriculate.

An elected official was banned from running for reelection because she objected to what an executive appointee had decided and called down the wrath of her constituents in the form of phone calls and e-mails; speech advocating her as a write-in candidate was censored and when, despite all efforts, the official received a plurality of votes, she was nevertheless denied office by that executive appointee.

That’s what Karissa Niehoff, then principal of Lewis H. Mills High School in Burlington, Conn., called teaching democracy. And the Second Circuit Court of Appeals says that’s OK: A reasonable principal wouldn’t have known better. The court even refused to say that the principal was wrong.

The case, which revisits an incident that has already been before the Second Circuit (then-Judge Sonia Sotomayor sided with the principal) may have broad ramifications for student rights because one of the statements for which then-junior class secretary Avery Doninger was punished was made on LiveJournal; the school thus asserted the right to control not only speech on school property, but all speech by a person who happens to be enrolled as a student, so long as it affects the school.

But the most disgusting part of the opinion is this: Under Tinker v. Des Moines, the key question in the case was whether Doninger’s speech was (or could have been expected to be) disruptive, and what the court treated as disruption was speech that should have been clearly protected: advocacy that Niehoff’s decision about a student performing event be reversed and that Doninger be elected senior class secretary. That’s a notion of disruption the butchers of Tiananmen Square would no doubt approve; it should have no place in an American public school.

Indeed, if conduct such as Niehoff’s is tolerable in American public education, we should abolish the public schools. The one worthwhile argument for having the government in charge of the schools is that it enables government to ensure that each rising generation is prepared to govern a free republic. The taxpayer should pay the teacher, on this argument, for the same reason he should pay the police officer and the judge: to protect his rights; the teacher merely does it at one remove, by educating the voters and jurors on whose judgment the future of freedom in an elective republic that relies on trial by jury must depend. Government-run schools can be legally required to teach American history and government, and because they are bound by the Constitution, they must do so while treating students as citizens with rights. As the Supreme Court said in Tinker, which the court in this case had the shamelessness to quote, “state-operated schools may not be enclaves of totalitarianism.”¬†A student in a public school thus learns both the knowledge and the habits he needs to help preserve the Republic.

But every student knows that many American public schools do not act as that argument would require. They routinely violate student rights, emphatically including the right of free speech, thus teaching students that “rights” are mere privileges granted by authority and subject to whatever limits authority chooses to set. If the courts do not teach a different lesson, both to students and to teachers and administrators, students in the public schools will continue developing the habit of submission to arbitrary rule instead of the habit of relying on their rights. And in that case, there is no reason to have public schools.

That said, it’s important to note that some students will refuse to learn such a lesson, no matter what the courts do. Avery Doninger seems to be one such student, having continued this case years beyond her high school graduation. For that, she should be honored.

Here’s the decision in Doninger v. Niehoff, courtesy of the Student Press Law Center.

The Department of Education claims it is “committed to ensuring that all students feel safe and have the opportunity to benefit fully from their schools’ education programs and activities.” But this month, it issued a letter that will make some students — male students — less safe on the nation’s campuses.

The letter demands that schools reduce the protections afforded students who are accused of sexual harassment, which it defines so broadly that anyone whose request for a date is turned down may immediately be accused of it:

Sexual harassment is unwelcome conduct of a sexual nature. It includes unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature. Sexual violence is a form of sexual harassment prohibited by Title IX. (p. 3)

The letter acknowledges that not all sexual harassment creates a hostile environment, but it does not limit its demands to cases that rise to that level. Look appreciatively at your classmate’s figure, pester her for a date every day even after she repeatedly asks you to stop, or knock her down in the back alley and rape her: the same concept and many of the same demands will apply.

One of those demands is that the complaint must be judged by a “preponderance of the evidence” standard. That means that if there is just the tiniest bit more reason to think that you are guilty than that you are innocent, you must be convicted. The standard is not only lower than the “beyond a reasonable doubt” standard used in criminal law, it is lower than the “clear and convincing evidence” standard used at many universities. Indeed, if an accuser makes up a detailed story and asserts it with confidence, and the accused has no clear recollection, this standard may lead to conviction.

Those who argue that student discipline shouldn’t offer the same protections as the criminal courts often argue that the two institutions are very different: student discipline has an educative function, so people should be less interested in procedural protections and more interested in working together for everyone’s benefit. But one big difference the advocates of this view often defend is that student discipline often is, and in their view ought to be, confidential.

And the Department of Education’s letter attacks that confidentiality in sexual harassment cases. Not only does it insist that accusers be made aware of decisions, it demands that they not be required to agree not to disclose them further.

What this means is that if you are convicted of rape by a preponderance of the evidence, the accuser can then go to the student paper and publish the fact.

You, on the other hand, may not accuse the accuser of making false rape charges, even if a preponderance of the evidence says you’re not guilty. That would be retaliatory harassment, and schools are required to protect accusers from retaliatory harassment. (p.16)

The assault on accused students’ procedural protections doesn’t end with the standard of proof. Normally, if you’re acquitted of misconduct, that’s the end of it, or ought to be. But this letter demands that if accused students are offered the opportunity to appeal convictions, students whose charges fail the first time around must be given the chance to appeal on the same terms. (p. 12)

Even before the case has been judged by the lax standard the letter prescribes, the department says schools should intervene to protect accusers from the accused — at minimal burden to the complainant. No mention is made of any value in limiting the burden on the accused. Thus, these interventions may be made, on no evidence beyond the accuser’s unsworn statement and before the accused has an opportunity to reply, with their full burden on the accused, even to the extent of taking him out of classes.

How bad will the effects on real students be? Probably not as bad as I have suggested: One hopes that school officials will act with some good sense. But in issuing this letter, the Department of Education has failed to meet that standard.

Here’s a legal analysis by a former lawyer for the department.

Remarkably, the student newspaper at the University of Nevada, Las Vegas¬†editorialized in favor of an enforcible civility code. The Las Vegas Review-Journal replied, explaining that proscribing ideas is contrary to a university’s mission. H/T Student Press Law Center.

If it seems a little funny that a professional newspaper should have to explain that to a student newspaper, here’s the part that makes it hi-larious: The student newspaper in question, devotee of political correctness and authority that it is, is named The Rebel Yell – a phrase that refers to the war cry of Confederate soldiers. Surely that could be considered offensive.

Of course, it is a good idea not to needlessly offend people. But especially on a university campus, open discussion is, both for itself and for its role in finding truth, essential to human flourishing. And therefore, courtesy must be a value considered by individual speakers, not a rule imposed by the institution.

If people who own their homes have a constitutionally protected right to keep guns there, what about students who live on campus? Aaron Tribble, midway through a law degree at the University of Idaho, thinks he has the same right — and he’s getting some experience in constitutional law trying to enforce it. (The Daily Caller)

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