Eugene raises a very interesting point, and he's correct that I do believe, at least as an initial proposition, that genuine goods that can be purchased by well-off folks can (even if not "must") be provided by the state to less-well-off persons. I do think the key, though, is some assessment of the good in question as a "genuine good," e.g., the ability to engage in genuine reproductive choice for state-provided contraception and abortion, the ability to perpetuate one's religion in the case of state-subsidized ability to attend religious schools. (Actually, of course, this argument was made most eloquently by Michael McConnell in his Harvard Law Review article edited by one Barack Obama.) Obviously, many people would deny that reproductive choice or socializing helpless youngsters into a religious perspective is a "good" at all, but, for the argument to work, most of the society does have to believe that these are goods. So perhaps it really does boil down to taking a ! poll and discovering a) whether most parents really do want to be able to locate their children at all times and b) whether at least older children (starting around 12?) do have some protected moral right to at least limited privacy, even against their hovering parents, and whether, at least with regard to public schools, this ought to be recognized as a protected legal right.
Also, I'm not sure we want to create citizens who believe their dty is to "comply with [all] legally enacted rules," nor do I "certainly want minor students who so comply." Perhaps I'm influenced by the terrific book written by my wife Cynthia (on four "best of 2012 lists so far," re non-fiction books for children), We've Got a Job: The 1963 Children's March in Birmingham, which details the remarkable decision by minor students to take on Bull Connor's cops and, as a result, to revive a wavering Civil Rights Movement by encouraging John Kennedy finally to commit himself on civil rights. No "unruly children," no Civil Rights Act of 1964. It's not quite that simple, but the assumption of agency by the children, who were not really encouraged to march by their parents or by Dr. King, was literally an historic act. A Happy Thanksgiving to everyone. sandy -----Original Message----- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Thursday, November 22, 2012 1:17 PM To: Law & Religion issues for Law Academics Subject: RE: High School Student's Religious Objection to Wearing RFID Chip Badge for Student Locator Program I appreciate Sandy's point, but I wonder whether the matter might be more complex than that. We don't want "docile" citizens, but we do want citizens who comply with legally enacted rules; and we certainly want minor students who so comply. We expect citizens to display their lack of docility by acting to change the law, not by disregarding the law. Moreover, we insist as a matter of law -- including tort law -- that schools protect the minors who are left in their care. Truancy isn't just bad for school funding; it's also bad for the students' education, it poses risks for children who are unsupervised when they are truant, and it might also in some neighborhoods increase street crime by some of the truants. Some degree of surveillance, it seems to me, is reasonable under the circumstances. Finally, this raises an insight that I owe to Sandy himself, though I forget the exact context in which he raised it. Adapting it to this context, let me ask this: Parents who can afford private schooling can send their children to schools that closely monitor their children's whereabouts, and make sure that the children don't cut class. I would think that many -- perhaps most, or even nearly all -- parents who had this choice would indeed prefer (all else being equal) a private school that engages in such monitoring. If I'm right, then why shouldn't parents who send their children to government-run schools also be able to take advantage of this feature (though realizing that there has to be a one-size fits-all solution at the level of the school or even the school district)? One answer, of course, is that the Bill of Rights applies to government-run schools but not private schools. But that doesn't really settle the question when it's not clear that there's any Bill ! of Rights violation. Eugene > -----Original Message----- > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > boun...@lists.ucla.edu] On Behalf Of Sanford Levinson > Sent: Thursday, November 22, 2012 10:00 AM > To: 'religionlaw@lists.ucla.edu' > Subject: Re: High School Student's Religious Objection to Wearing RFID > Chip Badge for Student Locator Program > > I must say that this seems to be an easy case for any civil > libertarian to support even (or perhaps especially) in the absence of > a free exercise claim. The RI is absolutely correct that this is > socializing students to be docile citizens within a "surveillance society." > > Sandy > > > > ----- Original Message ----- > From: religionlaw-boun...@lists.ucla.edu <religionlaw- > boun...@lists.ucla.edu> > To: Law & Religion issues for Law Academics > <religionlaw@lists.ucla.edu> > Sent: Thu Nov 22 11:41:41 2012 > Subject: RE: High School Student's Religious Objection to Wearing RFID Chip > Badge for Student Locator Program > > Yes. I did not mean to imply otherwise. The school's website says that > it has a high rate of absences. I gather the school thinks that if it > monitors all students it will somehow be able to claim a higher > attendance rate and get more state funds (which I suppose are based on daily > attendance, as they are in California). > The school was willing to accommodate her by removing the chip from > her badge, but apparently that would not affect the appearance of the badge. > > Happy Thanksgiving to everyone on the list! > > Mark > > Mark S. Scarberry > Professor of Law > Pepperdine Univ. School of Law > > -----Original Message----- > From: Douglas Laycock [mailto:dlayc...@virginia.edu] > Sent: Thursday, November 22, 2012 8:30 AM > To: Law & Religion issues for Law Academics; Scarberry, Mark > Subject: Re: High School Student's Religious Objection to Wearing RFID > Chip Badge for Student Locator Program > > The complaint alleges that all students were required to wear the > badge -- not just those in disciplinary trouble or with a history of > truancy. Nothing individualized about this. > > On Wed, 21 Nov 2012 20:47:56 -0800 > "Scarberry, Mark" <mark.scarbe...@pepperdine.edu> wrote: > >The Rutherford Institute says that it has obtained a TRO protecting a > >student > who refused to wear a badge with an RFID (radio frequency > identification) chip that would allow the school to determine her > location at all times on school grounds. See > https://www.rutherford.org/publications_resources/on_the_front_lines/v > ictory > _court_grants_rutherford_institute_request_to_stop_texas_school_from. > The application for a TRO is here: > https://www.rutherford.org/files_images/general/11-21-2012_TRO- > Petition_Hernandez.pdf. > > > >Apparently the student considers the wearing of the badge to be a > >kind of > idolatry or act of submission to a false god. She was offered the > option of wearing a badge with the chip removed, but she refused, > because wearing it would signal her approval of or participation in > the program, which raises both free exercise and compelled speech > issues. There are other issues, as well, including a claim that the > school prohibited her from passing out flyers on school grounds opposing the > RFID program. > > > >The Rutherford Institute describes the RFID program as a preparation > >of > students for a society in which everyone is constantly under > surveillance, but they also note that the school district hopes to get > more funding by improving attendance. > > > >I thought this was going to be about the "mark of the beast" from the > >Book of > Revelation. The story and the application for a TRO don't seem to be > that specific on the source of her religious objection. I think she > also claims that the program violates her right to privacy and that > the requirement that she wear a badge (even without the chip) to > indicate support for the program is a form of compelled speech. > > > >I haven't anything on this story in the mainstream press. Perhaps > >someone on > the list knows more or can provide links to news stories. > > > >Mark S. Scarberry > >Professor of Law > >Pepperdine Univ. School of Law > > > > > > Douglas Laycock > Robert E. Scott Distinguished Professor of Law University of Virginia > Law School > 580 Massie Road > Charlottesville, VA 22903 > 434-243-8546 > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu To subscribe, > unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi- bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as private. > Anyone can subscribe to the list and read messages that are posted; > people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu To subscribe, > unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi- bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as private. > Anyone can subscribe to the list and read messages that are posted; > people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
