Posted by Joseph Knippenberg
My latest op-ed, on Fields v. Palmdale School District, the 9th Circuit opinion on parental rights, is here.
Update: Rob Vischer comments over at Mirror of Justice.
A fine reflection cum counsel, Joe. Glad to see you followed up on your initial posting(s) and tentative reflections.
I enjoyed your piece very much. I think it is right on, esp. concerning the 9th Amendment. I think political pressure is great, but I think you forgot to include a legitimate form of legal pressure. I am pretty certain that the parents could have sued the school and the researchers for lack of informed consent.
Medical doctors are not allowed to do things to patients without their informed consent (unless it is an emergency). Although pscyhology differs from medicine (medicine involves touching the body so it is battery), I think informed consent would apply to both. If enough parents sued (and I do not see why they wouldnt, it would be free money, even if they approved of the test and questions they could claim they did not) then the financial impact would be substantial.
I have no idea whether the informed consent argument would work, did you research it and find it would not? I am curious about how informed consent would play out concerning pscyhology.
Youre right. There may be a civil action there on the consent issue, though I dont think its straightforward. The consent letter refers to obstacles to learning and gives one example (violence), while leaving others to the imagination. You and I might agree that the school authorities should have mentioned sex, but would a judge or jury regard failing to mention it as a tort?
And for my purpose the issue is not just deterring shoddy consent procedures, but the larger question of parental responsibility, parental control, and the state.
Are there prohibitions on exposing minors to such explicit material (masturbation and fondling of others)? Something along the lines of the "corrupting a minor" offense.
The notification letter warned that the survey may be upsetting to the students, essentially anticipating that some students would be harmed emotionally if the participated.
So they willfully proceeded to expose underage children to explicit sexual material, fully expecting some of them would be emotionally harmed.
I could see a civil action coming as well as parents piling into school board meetings. Civil action should be the absolute last resort for parents if the school board, teachers and administration will not admit the letter was miseleading. Little children cannot handle many subjects with the adult understanding that we have. And why do we need to gauge their understanding of sexuality at all? I know a teacher who requires her education students to take GLSEN training in case they come across a 5 year old who tells his teacher hes gay. Ive told her that requiring something that goes against the moral beliefs of a student is wrong and the student can refuse to attend the training on those grounds AND the student cannot be penalized for it. She dismissed it as so much noise by "The Right". College students dont want to risk their future on principle so they will go along with the requirements of the professor unless they are strong enough to speak up for their beliefs.
So its unreasonable to think parents have a stake in their childrens education?? Id get on a campaign to pull kids out of school and demand the ENTIRE resignation of the school board for "pandering", "corruption of a minor", what else? And enjoin the entire state - if the court ruled the state is responsible for education, then the state is responsible for the consequences of the educational process, ALL OF IT. Power to the parents!
Why in the world should civil suit be an absolute last resort? The school board will never admit the letter was untruthful because this would be used against it in court. You act as if a civil suit were like a nuclear bomb. This is America. There are plenty of lawyers. There are plenty of lawyers who would take this case. The lawyers do all of the case work, parents give a few statements, etc. This is a much more efficient use of time and resources than parents spending time engaging in politics. The losers would pay for the lawsuit (since the suit would pay for the plaintiffs attorney). You can bet that once the people responsible for the survey had to pay a huge amount of money, or a huge settlement, that they would craft consent letters that were truthful. This is the best politics could do (create truthful letters), plus politics would not compensate for the harm the children went through (I assume this concerns you).
The only problem with the civil suit idea is that the statute of limitations period has probably already run. I have no idea if they pursued a lack of informed consent tort claim, or not, but it seems that they wasted their time trying to create new Constititonal rights, instead of seeking money (which would have the same end result).
Youre right that politics is messy and inefficient, but do you really want to encourage litigiousness on the grounds of its efficiency? I dont have time to explain the various ways in which proposing litigation as a substitute for politics troubles me, so Ill leave it at this. Americans already have a tendency (Tocqueville observed it) to turn political questions into legal questions, political disputes into legal disputes. That in turn leads them to formulate political interests in terms of rights, which makes politics even less likely to result in a resolution. In the end, the rule of law becomes the rule of lawyers, not the self-government of a responsible republican citizenry.
I agree with your concerns about lawsuits harming politics and the rule of law when the suit seeks to have a new constitutional right created. Constitutional rights make political solutions impossible. Look at Roe to confirm this.
I completely disagree with you concerning tort law claims. I do not see how they harm the rule of law. Some Tort laws provide monetary compensation for people who have been unlawfully harmed. The State decides what is unlawful through the political process. It is unlawful to beat people. If I beat someone they have a tort action against me, and can force me to pay. It is unlawful to trespass. If I trespass on someones land they have a tort action against me.
Judging from Fungs comments (I believe he is a sociologist) it is clear that what happened here was unlawful. At some point the State passed a statute giving an agency or board authority to create rules relating to psychological research. Any violation of these rules is unlawful. How does allowing prviate individuals to receive compensation when the law was disregarded violate the rule of law?
Furthermore, it is not as if lawyers can invent tort laws out of thin air and are completely unchecked. Lawyers have to stick with what has been accepted in the past. Furthermore, juries have to agree that the violation occurred, etc. and all of these decisions and laws are revieweable by appellate courts. You paint the picture of some Wild West barroom brawl, but I assume it is a well established rule, derived from the law, that these things (lack of informed consent) cannot go on.
Finally, if the people of the State did decide that such Tort actions were too much, if they decided that lack of informed consent was not a big deal, then the State could pass laws restricting such Tort law claims. Many States have already done this concerning Medical Malpractice. It seems quite a stretch to assert that tort law in such cases would hurt the rule of law, when the citizens of the State are free to change the tort law at any time they wish. A tort law action in this case would merely be enforcing the law as it currently exists. Not enforcing the law would seem to hurt the rule of law more.
It is efficient in this case to bring suit because the policy of the state has already been settled. Informed consent is required. Why fight the same battle twice? The problem is not determining policy, rather it is enforcing the policy that has been determined. Making people pay lots of money is a very efficient way to get this done.
As I indicated initially, I think the big issue here is parental rights and parental control, of which the informed consent process is a small part. Im less confident than you that the tort claim would succeed, and more interested in establishing a process whereby the contact between parents and schools is as unmediated as possible (that is, political, rather than judicial). Filing suit should be a last resort, not the first reflex.
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