Are "kids" protected by the fifth amendment?

[Foolmewunz]

http://www.dailyherald.com/article/20130525/news/705259921/

Article pretty much speaks for itself. I saw mention of other comments from board members on blog or commentary sites, but nothing from an independent news source with citations, so I'll leave it as is.

If Wildcat is reading - I know he follows Chicago area news very heavily. If there are any updates to this, I'd appreciate hearing about them.

At issue: A school sends out a survey, with student names printed on each copy, and asks students to self-identify as using alcohol or drugs or having emotional problems. Sounds like material for private interviews with advisors or counselors or the school nurse to me.

I'm siding with the teacher. He sounds a reasonable chap and is a fine looking bear of a hippie (obvious appeal to TragicMonkey for support ). He is not dissing his superiors or co-workers but questioning how and why this was handled this way and whether there were better ways of going about it.

 

[Dissolution]

Not only did he do the right thing in the first place, but his approach to the reaction appears to have been pretty admirable, too.
Seems like a sensible, skeptical guy.
Perhaps they should promote him?

 

[TragicMonkey]

"Social-emotional learning standards"? Whatever happened to the idea that schools were there to, you know, teach stuff, and stay out of students' personal business unless specificially invited to interfere?

And refusing to release the survey because "it's propriety business information" is total BS. If this is a public school, the public has a right to know what they're up to. Even if they're not, the parents certainly do. What else is the school nosing into? Are they satisfied with quizzing students on their drug use, or are they asking them about their sex lives as well?

 

[sgtbaker]

"Social-emotional learning standards"? Whatever happened to the idea that schools were there to, you know, teach stuff, and stay out of students' personal business unless specificially invited to interfere?

The social emotional learning aspect, I think is good. I've done some research on Social Emotional Learning and I am hard pressed to find any negative aspects of it. Parents typically shy away from the idea because some of the programs involve mindful meditation; they think the schools are preaching Buddhism. The benefits include higher academic performance and stress coping skills. I, personally, don't feel it is the school's responsibility to "teach my kids how to behave," that's my job. However, children just don't learn academics in school. They learn what's normal, what's "cool", a lot of their social skills are developed through the influence of their peers.

That being said, I never heard of this aspect of SEL programs. An anonymous questionnaire that is followed up some time later to see if the programs are benefiting higher risk students, is one thing. Putting names on it, though, yes, that is a fifth amendment violation. When students are in school, the school is acting in loco parentis but that position does come with limitations. The article says that the school gave the parents the option to opt their children out of the test but it had to be before the 17th (the day before the test) but that's the parents. The students should be the ones with the right to opt out.

And refusing to release the survey because "it's propriety business information" is total BS. If this is a public school, the public has a right to know what they're up to. Even if they're not, the parents certainly do. What else is the school nosing into? Are they satisfied with quizzing students on their drug use, or are they asking them about their sex lives as well?

The not releasing the survey may have been an agreement between the school and the company that produced the survey. Their hands may be tied on that one.

 

[TragicMonkey]

The not releasing the survey may have been an agreement between the school and the company that produced the survey. Their hands may be tied on that one.

As for that, I don't believe a public school should be able to enter into such arrangements. If it's public, it should be transparent. No for-profit corporations doing deals with it without full disclosure to the public of what, exactly, the public's tax dollars are paying for.

 

[sgtbaker]

As for that, I don't believe a public school should be able to enter into such arrangements. If it's public, it should be transparent. No for-profit corporations doing deals with it without full disclosure to the public of what, exactly, the public's tax dollars are paying for.

You are right.

 

[Foolmewunz]

As for that, I don't believe a public school should be able to enter into such arrangements. If it's public, it should be transparent. No for-profit corporations doing deals with it without full disclosure to the public of what, exactly, the public's tax dollars are paying for.

I agree wholeheartedly. (Hey, who'd a thunk "wholeheartedly" was a single word according to my spellchecker. I'd have opted for a hyphen, myself.)

I have no problem at all with a school taking interest in the subject matter. I'd like that to be a QUALIFIED counselor or doctor or mental health professional, though. An across-the-student-body survey with names printed on them so they can go back later (I guess - assuming they find the funds) and address the issues? What a lazy and horrible way to address something so significant. And the cause, they say, was several suicides or attempted suicides??!! "Oh, I know, let's do a survey!"

 

[fuelair]

As for that, I don't believe a public school should be able to enter into such arrangements. If it's public, it should be transparent. No for-profit corporations doing deals with it without full disclosure to the public of what, exactly, the public's tax dollars are paying for.

Pretty much all the proprietary tests (FCAT, etc.) are also legally not released to parents, news etc. As an ex- teacher who has seen large numbers of FCAT questions officially released after many years of the tests they were used on(thus legally) a number of test questions on FCAT were definitly wrong in answer , answer choices (all) or poorly thought/written as questions. Even the practice questions many school systems put out for stuent testing (more recently counting in the students average for the year) have had a number of problems. In my district, they handled that problem by not allowing the teachers to read the test booklet or ansers - so they would not notice - as that is how the problem was brought to light in earlier years. As FCAT has that same rule, you are free to assume - and you will be right.

I am only giving no examples as Mrs. F and I were two of the problem verifiers of question error - easier for us due to multiple science backgrounds. And we are retired, safely!!!

 

[Dancing David]

The social emotional learning aspect, I think is good. I've done some research on Social Emotional Learning and I am hard pressed to find any negative aspects of it. Parents typically shy away from the idea because some of the programs involve mindful meditation; they think the schools are preaching Buddhism. The benefits include higher academic performance and stress coping skills. I, personally, don't feel it is the school's responsibility to "teach my kids how to behave," that's my job. However, children just don't learn academics in school. They learn what's normal, what's "cool", a lot of their social skills are developed through the influence of their peers.

That being said, I never heard of this aspect of SEL programs. An anonymous questionnaire that is followed up some time later to see if the programs are benefiting higher risk students, is one thing. Putting names on it, though, yes, that is a fifth amendment violation. When students are in school, the school is acting in loco parentis but that position does come with limitations. The article says that the school gave the parents the option to opt their children out of the test but it had to be before the 17th (the day before the test) but that's the parents. The students should be the ones with the right to opt out.



The not releasing the survey may have been an agreement between the school and the company that produced the survey. Their hands may be tied on that one.

My wife as a social worker does a lot of the social emotional learning stuff, conflict reduction and resolution and the decrease bully behaviors stuff, the midfulness can just be called 'awareness' as well.



people forget that a large amount of schooling is the 'social curriculum', like not shoving, taking turns, sharing, cooperative learning.

 

[shemp]

Are school administrators really that stupid? (Hint: Yes.) Do they think that students who uses alcohol or drugs, or have emotional problems, will answer truthfully? If I was such a student, I'd just give them the "right" answers. This is as idiotic as a loyalty oath.

 

[iangoeswest]

At risk of missing the forest for the trees, but just for the record:

- Yes, "kids" are protected by the 5th Amendment (I use "kids" in quotes - children of tender years cannot be subject to criminal prosecution and thus are outside the ambit of the 5th amendment).

- A school asking kids to answer incriminating questions is not a 5th Amendment violation unless they truly "coerce" the kids into doing so, and not necessarily even then.

I dig this teacher. I think the school meant well without thinking through what it was doing. I don't think anyone violated the 5th Amendment, but I would be grateful to a teacher who reminded my children that they should be circumspect in who they share information with - this is a larger lesson applicable to our modern world that children should be taught from an early age.

 

[sgtbaker]

At risk of missing the forest for the trees, but just for the record:

- Yes, "kids" are protected by the 5th Amendment (I use "kids" in quotes - children of tender years cannot be subject to criminal prosecution and thus are outside the ambit of the 5th amendment).

- A school asking kids to answer incriminating questions is not a 5th Amendment violation unless they truly "coerce" the kids into doing so, and not necessarily even then.

I dig this teacher. I think the school meant well without thinking through what it was doing. I don't think anyone violated the 5th Amendment, but I would be grateful to a teacher who reminded my children that they should be circumspect in who they share information with - this is a larger lesson applicable to our modern world that children should be taught from an early age.

From what I understand from the article, the teacher got into trouble for reminding the students of their 5th Amendment right. The kids had to answer the questions unless the parents opted them out prior to the day of the test.

 

[iangoeswest]

From what I understand from the article, the teacher got into trouble for reminding the students of their 5th Amendment right. The kids had to answer the questions unless the parents opted them out prior to the day of the test.

Yeah, I got the same from the article. The interesting "next step" is what would have happened to the kid who says "I didn't 'opt out' but I'm not answering these questions." That would bring the issue into greater focus.

 

[theprestige]

My take is that kids are protected by their parents, and in most cases their parents are responsible for upholding or waiving rights on behalf of their minor children.

The minor children themselves aren't really protected by the constitution at all, except in so far as they are wards of their parents, who exercise full constitutional privilege and authority on their behalf.

 

[iangoeswest]

My take is that kids are protected by their parents, and in most cases their parents are responsible for upholding or waiving rights on behalf of their minor children.

The minor children themselves aren't really protected by the constitution at all, except in so far as they are wards of their parents, who exercise full constitutional privilege and authority on their behalf.

Well, yes and no. In terms of criminal protections, the situation is complicated by the fact that there isn't any firm Constitutional prohibition against charging minors as adults - certainly, a minor over the age of 14 presents no such Constitutional problem (individual states are free to set more generous laws).

So, let's consider a hypothetical 15 year old accused of a crime. In terms of the 4th Amendment, it's probably his parents who get to decide whether the police can search his room; it's really "their" room in which he lives. In terms of the Fifth Amendment, if he's being interrogated in police custody, they must give HIM the Miranda warning, and the decision to speak or not rests strictly with him; the right is not his parents to waive.

Of course, you can't MAKE someone talk, so let's consider, say, the 6th amendment right to jury trial. For serious crimes (in state court anyway) one may choose to be tried before a jury or before a judge, subject to one's own strategic considerations. Here, the parents' opinion is of no moment whatsoever. Presuming the child able to make such a decision "knowingly and voluntarily," it's his call.

Most of this holds true outside the criminal context as well; a law that prevents ten-year olds from criticizing the President runs afoul of the First Amendment as surely as a law that prevents you or I from doing the same.

Parents exercise a great deal of functional control over their children in areas that would otherwise implicate constitutional norms (such as controlling their religious observance), but this has to do with the fact that the Constitution concerns itself with the relationship between individuals and the government not, generally speaking, with the relationship between individuals and other individuals. Most of its individual protections - those found in the first eight amendments - speak of "citizens" or "people," categories which include children just the same.

This PARTICULAR case is further complicated by the fact that although schools stand in the parents' shoes in many respects, they are still "the government" from a constitutional perspective. Your parents can punish you for no reason whatsoever; a school is bound by certain substantive limitations. Your dad can throw you out of the house for dating someone of another race. Your public school cannot, even if your dad would be willing to "waive" that aspect of the 14th amendment on your behalf.

 

[Foolmewunz]

Thanks, Ian, for the legal perspective. I was working from a much simpler sort of anecdotal perspective of one of the points you mentioned: If a minor can be charged as an adult in many jurisdictions, how could you even think of not having the protections of the 5th available to them?

 

[mikedenk]

From what I understand from the article, the teacher got into trouble for reminding the students of their 5th Amendment right. The kids had to answer the questions unless the parents opted them out prior to the day of the test.

I don't like the "opting out" requirement, the district should be required to get an affirmative response from parents before subjecting their minor children to things of this nature.

Good for the teacher, he nicely demonstrated some real-world application of his teachings. Thinking back, my HS social studies teachers were among my favorite, regardless of their political leanings.

 

[Professor Yaffle]

Apart for anything else, if the school expects to get accurate information from pupils on subjects like this without anonymity/confidentiality etc, they are major idiots.

 

[Dancing David]

I don't like the "opting out" requirement, the district should be required to get an affirmative response from parents before subjecting their minor children to things of this nature.

Good for the teacher, he nicely demonstrated some real-world application of his teachings. Thinking back, my HS social studies teachers were among my favorite, regardless of their political leanings.

I am not defending this dumb survey in anyway.

But the opt out is sort of standard, say that you do not want your child to appear in schools district photos. At registration each year our parents have the option to opt out, we have to maintain the list of students who may not appear in our public photos, like on our website.

Now I am very suprised taht this does not run afoul of FERPA
http://www.ed.gov/policy/gen/guid/fpco/ferpa/index.html

although they might argue that is falls under

'Organizations conducting certain studies for or on behalf of the school;'

However this may run a foul of other areas in that it may be diagnosis and assessment of a substance abuse or mental health disorder

http://nces.ed.gov/pubs97/p97527/Sec2_txt.asp

The confidentiality rules, known as 42 CFR, apply to assessment, diagnosis, counseling, group counseling, treatment, or referral for treatment in most programs in which students participate, including programs sponsored by public and many private schools. They forbid the release of any information without a patient's consent, even when the patient is a student inschool and under eighteen years of age

 

[Foolmewunz]

I am not defending this dumb survey in anyway.

But the opt out is sort of standard, say that you do not want your child to appear in schools district photos. At registration each year our parents have the option to opt out, we have to maintain the list of students who may not appear in our public photos, like on our website.

Now I am very suprised taht this does not run afoul of FERPA
http://www.ed.gov/policy/gen/guid/fpco/ferpa/index.html

although they might argue that is falls under

'Organizations conducting certain studies for or on behalf of the school;'

However this may run a foul of other areas in that it may be diagnosis and assessment of a substance abuse or mental health disorder

http://nces.ed.gov/pubs97/p97527/Sec2_txt.asp

I think it was established above that parents cannot "opt out" of the kids' rights to not self-incriminate.

As to the other part, I fully agree. I mentioned above that I'd be happy to hear that counselors and health professionals were looking into substance abuse, depression, etc... Again, they were dealing with suicides or suicide attempts and that's serious stuff. But I'd insist that it was professionals and that it was inviolably private information.