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