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Kids are People Too?
The New Three-Fifths Compromise
© 2001 Gary S. Stager/District Administration Magazine

A shorter edited version of this article will appear in the February 2002 issue of District Administraton Magazine

As a kid I grew up singing "Kids are People Too," along with Wonderama TV host Bob McAllister. (I can still play it on the piano due to my short, but horrific stint as a substitute elementary music teacher) Ever since I've believed that kids are people with all of the rights and privileges afforded to other citizens. Apparently, members of the Supreme Court, Federal Courts and talk radio audiences disagree and are rolling back the rights of children with hardly a whimper of dissent.

Sure other groups argue that their civil liberties are being violated, but they have a voice in the process. Kids can't vote and when parents voice concerns on behalf of their children they are dismissed as well, parents. Despite the rhetoric about parental participation, it is worth remembering that many schools don't want parents to set foot on the holy compound. Sure, we would like them to make their kids do their homework and not pack a butter knife in their lunchbox, but do we really want parents to "participate" in their kids' school? Just how public are the public schools anyway?

Two recent court cases and the public's reaction to them make me think that we may be witnessing the dawn of a new three-fifths compromise (ask your history teacher). Children and their parents only count as three fifths of a human in American society.

On November 27, 2001, Owasso Independent School District v. Falvo* was argued before the United States Supreme Court. The case began in 1997-98 school year when an Owasso, OK parent, Kristja Falvo, complained to the school district that students in the 5th-7th grades were routinely required to swap and grade the papers of a classmate before publicly calling out the scores to the teacher who would record them in his/her gradebook. Ms. Falvo's son was a mainstreamed special education student who experienced hostile ridicule and bullying by the other students as a result of his weak academic performance.

You might be thinking, "how the heck did this time-honored classroom practice make it to the United States Supreme Court?" The answer is because when the parent asked that this humiliating classroom ritual be retired she was treated to the familiar refrain of "things have always been done this way." Ms. Falvo sued claiming that the school district violated the Family Education Rights and Privacy Act. FERPA protects the secrecy of educational records and a Federal Appeals Court ruled that calling out a grade so it could be recorded constituted an educational record.

Gosh how the Supremes and pundits yucked it up about this case. Who cares if a kid's feelings are hurt? It's the school's right to behave in any way they wish.

The justices quibbled about whether a teacher's gradebook is a record since it's not stored in an office safe. Is it a record before it's written down? Justice Breyer fondly remembered how his third grade teacher used grades to punish and inspire students. Justice Scalia went so far as to mock the student's learning disability. There was an argument about whether parents should have veto power over school conduct. The scales of justice apparently weigh against the will of parents and interests of students.

There was heady debate about the honor roll, gold stickers and no-pass/no-play rules - all cherished patches of Americana that one could argue are also miseducative and counter productive.

There was much discussion about how teachers have too many students and too many papers to grade and therefore must rely on student slaves to pick up the slack - as if two wrongs indeed make a right.

Teachers who don't wish to mark hundreds of papers per day should not assign so many isolated tasks. Meaningful work is not often found in book bags full of dittos. Ms. Salvo suggested that if students marked their own papers they would reap the benefits of learning from their mistakes in real-time. The justices also mocked this solution as unrealistic since everyone knows that kids are cheating little weasels.

Teachers called into radio shows and wrote editorials about how peer-editing and cooperative learning would be prohibited if this poor little child were deprived of a humiliation-free school. The sky is falling!

There is a profound difference between peer-editing and what we know was going on in the classrooms of Ms. Falvo's children. In one case, children consent to help each other construct knowledge. In the other, sloppy teaching is enhanced by the non-consensual public exclamation of numerical dunce caps.

Since this case may be decided by the time you read this, let's put aside the legal wrangling and get to the heart of the matter. The Court will probably rule against the privacy rights of students. In any event, do the NEA, NSBA, AFT and Owassa County Schools really wish to defend shoddy teaching or are they just fighting to prove "who's boss?"

The defendants never challenged the accusation that children were being harmed by the practice they were so vigorously defending. The attorney representing the school district asked, "How important are hurt feelings in the context of day-to-day activities in the classroom? "Kids are mean to one another from time to time. It's unfortunate, but is that what Congress was really intending to protect?"

Should schools add humiliation to the already overcrowded curriculum? Will we need standards to ensure that we hurt every child's feelings?

Back to Columbine
U.S. District Judge Lewis T. Babcock of Denver recently ruled that Columbine school defendants were entitled to immunity from state and federal liability claims raised on behalf of several of the students killed or wounded at Columbine. In other words, the school assumes no responsibility for the loss of life and suffering caused within its four walls. No remuneration may be claimed and no message of deterrence sent?

OK, the law makes it difficult for citizens to sue the government, but are public schools the government? If so, aren't gradebooks records? This may be the letter of the law, but is it the spirit?

James Cederberg, the attorney a student who was paralyzed during the massacre, was disappointed the judge did not "look at the bigger picture." "Children have a right to some reasonable amount of protection while they are attending a public school," he said.

Judge Babcock concluded that some Columbine educators had acted negligently in regard to the warning signs about the two students. Mr. Harris' video-production teacher, for example, "was privy to information that demonstrated Harris' and Klebold's long-time obsession with violent themes and ideas," the judge said.

However, the judge ruled that the teacher's failure to take action did not amount to "willful and wanton" conduct under Colorado law.

"These kids did everything but rent out a billboard across from the school to announce what they were going to do," Mr. Cederberg said of the Columbine killers.

Ironically, the judge refused to dismiss a case filed by the family of David Sanders, the teacher who was allowed to bleed for three hours while police officials secured the building. What does this say about the relative value of teachers vs. children? Are schools beyond reproach?

Since that murderous Colorado day in 1999, parents and students have expressed their concerns about the Lord of the Flies environment of Columbine High School. The judicial system apparently believes that this is an acceptable way to treat our country's "little" people. Should a child ever be made to cry or be injured by school? Can't we do better?

National Public Radio's Nina Totenberg reported a terrific piece about the arguments before the Supreme Court in the case of Owasso Independent School District v. Falvo. Click here to listen to the NPR Supreme Court coverage.

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