Archive for April, 2012

Students’ Rights: Do They Have Any?

April 20, 2012

Student Rights: Grammar School, High School, Colleges and Universities

What is the reach of the law inside a grammar school? Can a policeman go into a grammar school without the principal’s permission? Does it make a difference if the grammar school is a private school instead of a public school? If the school is a high school are the students’ legal rights more extensive than they were in grammar school? Is there a difference between public and private high schools.? In colleges and universities are student rights more expansive than they were in high school? One of the earliest legal concepts applied to students while at school was the Latin phrase “in loco parentis”  It translates into English as “in place of a parent.” The legal premise was that students were required to listen and to obey their teachers and principal as if these educators were taking the place of their parents while at school. This authority was diminished during the student rights movement of the 1960s. Today , this concept has all but been abandoned in colleges and universities although it still has some resonance in private institutions and in public grammar and high schools. “In loco parentis” allows educational institutions to act in the best interests of their students as they see fit. The pendulum may be swinging back toward reintroducing a modified form of ‘in loco parentis” in the wake of the shooting and killing of students at Columbine High School and Virginia Tech University. The 1942 Supreme Court case that was responsible for the limitation of ” in loco parentis” was West Virginia State Board of Education v. Barnette. The court ruled that students cannot be forced to salute the American flag. However, in 1969 the Supreme Court decided the case of Tinker v. Des Moines Independent Community School District in which the court held that “conduct by the student, in class or out of it, which for any reason – whether it stems from time, place, or type of behavior – materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.”  In 1985, in the case of New Jersey v. T.L.O. the Supreme Court upheld the search of lockers and other personal space while on school property. It indicated the court’s thinking that students are not afforded the same rights as adults while they are at school. In the 1989 decision of Hazelwood School District v. Kuhlmeier the Supreme Court ruled that ” [f]irst Amendment rights of students in the public schools are not automatically coextensive with rights of adults in other settings, and must be applied in light of the special characteristics of the school environment.” Schools may sensor school sponsored publications,  such as a school newspaper, if the content is “…inconsistent with its basic educational mission.” Some form of “in lococ parentis” continues to be applied in primary and secondary education; it has been diminished in higher education. In 1961, the Supreme Court, in a landmark decision, held in the case of Dixon v. Alabama that Alabama State College could not summarily expel students without due process. Some of the issues that currently arise with practically all students in all types of schools, public or private, are the following: underage drinking, security, privacy and social media, roommate behavior, drugs, mental health issues, suicide; and the concern of parents to know what is happening to their child at college versus the student’s expectations to be treated as an adult with the right of privacy and confidentiality. Each of these issues is handled differently depending upon whether the student is in grammar school, high school or college and whether the educational institution is public or private. The germinal case in Massachusetts concerning college security is Lisa Mullins vs. Pine Manor College 389 Mass. 47 (1982). The Supreme Judicial Court held that colleges have a duty to take reasonable measures to protect their students against foreseeable criminal acts of third parties. Under Massachusetts law, the college was considered a charitable institution. Its liability on damages was capped at $20,000 but the security officer of the college was also sued in his individual capacity. The court held that an officer of a charitable institution is not immune from liability for negligence in the performance of a discretionary function. The court stated that the defendants were negligent in permitting certain deficiencies in the college’s security system.

Copyright 2012

Arthur F. Licata

Why Do We Stop On Red and Go On Green?

April 4, 2012

As you approach a red traffic light you place your foot on your car’s brake pedal. Perpendicular drivers place their feet upon their accelerators because their light is green. This orchestrated movement happens millions of times every day. It allows people to safely use the roads. Why does this system work? Why red-why green? Why do all drivers agree to obey these symbols? The system works because the governed consent to be governed. There is a consensus about the terms and conditions for using cars based upon the concept of providing the greatest good for the greatest number of people. We, as citizens, have determined that these simple devices are the most efficient means for controlling the motoring public, even if some ( such as blind people) are excluded from driving and are therefore inconvenienced. What would happen if we started to disregard these regulations? What if we drove forward or stopped regardless of the colors shown on the traffic lights? Certainly there would be some accidents. We currently see intersection accidents every day. However, what would happen if everyone decided , in the exercise of their individual freedom, to do exactly what they wanted to do? We would expect to have accidents – horrible , needless accidents, occurring with more and more frequency. The police would be stretched to the limit in order to control the lawbreaking. Yet, we all know that there are not enough police in the entire United States to make people “stop” at red and “go” on green. The people basically govern themselves. The police merely reinforce that consensus. The police ticket and occasionally arrest the small minority who disregard the rules of the community. Suppose it wasn’t a small minority who disobeyed the rules. Suppose it was a majority of the citizens; and there was no consensus about the meaning of red and green signals. The government would be powerless to supervise its citizens without their consent, or without the necessity of imposing martial law, as it does in times of national disaster or civil insurrection. Why do citizens stop on red? It appears to be based on some of the following: education and training, custom, law enforcement, safety, and the consensus concerning its utility. Citizens seem to acknowledge that this “give and take” system wherein you go and then I go provides for an orderly and efficient movement of traffic. This system ultimately promotes an individual’s own enlightened self-interest by preventing traffic gridlock. Without such a system no one could go anywhere. There would be no communally accepted guidelines for behavior. In recent years, we all have experienced situations in which this consensus has broken down. The following scenario is typical: drivers are stuck in the middle of an intersection. They are unable to go forward or backward. More and more drivers continue to inch into the intersection  as the traffic light alternately turns red and green. Drivers facing the “go” signal lean on their horns in indignation as their turn to drive forward is denied to them. The result is gridlock. Gridlock occurs when drivers ignore traffic rules for an intersection and, as a result of the anarchy created, no car can move. These irrational acts of  individual aggressiveness have become so common that traffic signs are now posted at major intersections in New York city admonishing drivers to avoid gridlock. The traffic signs urge drivers to obey the law so that they can get home more quickly. A rather simple idea that would seem self-evident. In Boston, the traffic situation has so deteriorated that policemen now patrol major intersections at rush hour to control traffic movement. This is necessary because there is no longer a consensus by drivers as to when to go and when to stop. A driver’s decision currently seems to be based upon situational ethics: can I get away with it; will anyone catch me; will I get a ticket; or will that other driver really hit me as he seems prepared to do, or will he, in the rush-hour game of “chicken,” turn away at the last possible moment. What rage and anger are festering in our fellow citizens that leads mature men and women to risk life and limb in 4000 lb. cars that are powered by huge engines? They are isolated and alienated from each other’s concerns by tinted glass, stereo systems, sunglasses, over-sized utility vehicles mounted on tremendous tires, and talk show-powered adrenaline. Where do people learn to govern themselves? How do they come to the goal of being informed citizens? How long does it take to become an educated person, that is, not someone who is formally educated but someone with knowledge of the rights and obligations of a citizen? The old wives’ tale is probably true. “Attitudes are shaped at your mother’s knee.” They begin with the non-verbal examples of one’s parents. Imagine the following scenario: As a two-year old child you are sitting in the front seat of your father’s car. He backs out of the driveway of your house. He enters the street and drives forward. He comes to an intersection. At the intersection there is a steel pole at the corner with a box on the top and lights within the box. You notice that the light which is illuminated and facing you is red. Your father stops the car. Up to that point your father has said nothing to you. Over dozens, perhaps hundreds of times, this occasion repeats itself each time you enter the car. As a three-year old you notice the light even before it is illuminated. You point to it and your father begins a familiar pattern. He says to you the words: “Light, red, stop; light green, go.” You learn the meaning of these symbols but it takes a long time, and it requires constant reinforcement. On other occasions, you walk to the store with your mother. She comes to a street corner and waits. She points to that light again – red and green. It must be important because your mother stops walking when it is red. Cars drive by when it is green. It is just like the situation with your dad in his car. The child begins to learn he is not an island but a social being who will develop, mature and flourish in a social environment. He or (she) will realize that society has rules that will in many ways limit, control, shape and even impinge upon his actions. He will understand that he does not have unlimited freedom. The United States is unique because the overwhelming majority of its citizens are immigrants or the descendents of immigrants. The process of consensus building therefore is important and useful. As immigrants arrived in the United States they were assimilated into the “melting pot” of American society. Whether Irish, French, Jewish, Spanish, Italian or a person of African descent, upon entering the country the different characteristics of each group combined to create a unique, zesty and powerful stew that nourished unparalleled growth and prosperity for all citizens. In contrast to the past, we now emphasize not what we have in common but what divides us. We promote separateness, differences, diversity, and excess individualism to the exclusion of the commonness necessary to bind us together as one people. The glue that held us together combined the best traits of each heritage’s accomplishments. It made a uniquely democratic people and very prosperous ones too. Why do we now act in the very manner likely to destroy these healthy underpinnings?

Why do we go on red and green?     

Copyright 2012

Arthur F. Licata 

www.alicata.com   

arthur@alicata.com