Perhaps the student's right to privacy can be found in the "penumbra" as was
contraception and abortion. And as a separate right from the student's parents.
Students don't leave their rights at the schoolhouse gate (except when the
Supreme Court looks the other way as it did in Morse v. Frederick (2007)).
Bob Ritter
Jefferson Madison Center for Religious Liberty
A Project of the Law Office of Robert V. Ritter
Falls Church, VA
703-533-0236
On November 22, 2012 at 1:16 PM "Volokh, Eugene" <vol...@law.ucla.edu> wrote:
> 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/victory
> > _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
> > _______________________________________________
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