Is Forced School Unconstitutional?

Most of us usually take it for granted that kids have to go to school. And that they can be forced to under the authority of the law. But should we accept that? 

In fact, might it be unconstitutional to force kids to go to school? 

My totally unofficial* non-legal legal analysis is that theoretically, in some situations, compulsory school might be unconstitutional. 

First, what is "compulsory school?" 

I'm referring to forced schooling, aka mandatory school attendance, which is enforced by police, usually under the authority of truancy laws. 

Here's my explanation of one legal argument: 

It's a basic principle of our constitution and society that people have liberty -- that generally, the government can't force people to do things they don't want to do. And that the government can't just randomly lock people up for no reason. 

But. 

Sometimes the government does lock people up (prison), and sometimes people have to do things they might not want to do (wear seatbelts, go to school, etc.). 

Why? 

Because, according to the Supreme Court, when the government's "interests" or reasons for doing something outweigh the individual person's interest in liberty, it is valid under the Constitution. 

So, for example, courts usually agree that the government's reasons for putting a serial killer in prison outweigh the serial killer's interest in being free. 

This is called a "balancing test." The equation looks kind of like this: 

government interests > deprivation of liberty = constitutional 

OR

government interests < deprivation of liberty = unconstitutional 

One of the big things that courts consider is whether there is another, less restrictive way to achieve the government's interest. 

So, for example, say that in order to ban hate speech, the government makes a law that says no one can talk or write about other groups of people. That's clearly way too restrictive. You could just say "no hate speech." That's a less restrictive alternative. 

So, what does this all have to do with school? 

Well, let's look at the balancing test again: 

government interests vs. deprivation of liberty = ? 

The government has lots of reasons for wanting kids to be in school (preparing them to be citizens, preparation for the workforce, social equality, babysitting, etc.). 

But the deprivation of liberty -- spending 15,000 hours over 13 years doing mostly mindless work in constraining environments -- is pretty big. Add to that the fact that many students suffer serious emotional and psychological harm from schooling. And the fact that many students -- especially in poor school districts -- don't even learn to read after 13 years of school. And the fact that education can be accomplished in other, less restrictive ways (homeschooling, unschooling, democratic schools, etc.). 

Considering all these factors, it starts to look like the deprivation of liberty might be greater than the government's interests. 

If a court agreed, they could find that it would be a violation of a youth's constitutional rights to force them to attend a restrictive school. 

And, btw, I didn't make this all up. A federal court laid out the argument in this case about public schools in Detroit, although they didn't decide the issue of compulsory schooling then (although they did find a fundamental right to education, which is a big deal). 

So, tl;dr, compulsory school might be unconstitutional in some situations. 

*Disclaimer: This is not legal advice. Please speak with a lawyer before you take any sort of legal action or refuse to go to school. 

To end violence against children, let’s start by making it illegal

Currently, parents in all 50 states and school staff in 19 states,[1] are legally allowed to inflict violence on children as a form of discipline, also known as “corporal punishment.”

At home, millions of children each year experience corporal punishment, and most American adults think that it is an appropriate form of discipline.[2]

At school, more than 106,000 children were physically punished at public schools during the 2013-14 school year.[3] And black students, boys, and disabled students are physically punished at a greater rate than their classmates.[4]

This needs to change.

This is not a protectionist argument. It is not based on paternalistic notions of children as "vulnerable" or "innocent" or being "our greatest resource" or "society's future." 

We must end state-privileged violence against children because children are people with human rights. People of all ages have the right to be free from violence. 

While this practice is commonly known as “corporal punishment,” to even accept this phrasing is problematic. If this was done to another adult, it would simply be assault and battery and/or domestic violence. As the legal scholar Samantha Godwin puts it:

This phrasing… “normalizes violence against children that would not be tolerated were it directed against adults. Referring to violence against children as “punishment” implies that the violent act is committed as a potentially legitimately deserved sanction for the child’s behavior. The phrase itself is an expression that implies victim blaming; it presumes the potential or actual lawfulness of the perpetrator. To speak of violence against children as “corporal punishment” begs the question of whether such violence is legitimate by presuming that some private violence is legitimate punishment.”[5]

What is commonly known as “corporal punishment” is a state-privileged battery against young people, and we should recognize this injustice. So-called “corporal punishment” advances no compelling state interest and only serves to oppress children.[6]

While I am not aware of constitutional challenges to corporal punishment in the home, corporal punishment in schools has been upheld under federal law. In 1977, in the infamous case Ingraham v. Wright, the US Supreme Court found that the Eighth Amendment, which prohibits cruel and unusual punishment, did not apply to school students, and that teachers could punish children without parental permission.[7] Many scholars agree that this was a travesty of a decision that needs to be overturned.[8]

Eliminating state-privileged violence against children would be a huge step forward in recognizing the rights of children to bodily autonomy and safety. It would also help to prevent child abuse and change the attitudes of parents towards their children. In 2018, the majority of perpetrators of child abuse and neglect (77.5 percent) in the U.S. were parents of their victims.[9] Continuing to give parents the legal privilege to batter their children only worsens this problem.

Moreover, the U.S. lags behind many other countries on this issue. Sweden banned all forms of violence against children in 1979. Currently, there are 60 countries that have banned corporal punishment in the home, and 132 countries that have banned it in schools.[10]

There is conclusive evidence that corporal punishment is harmful to children and provides no real benefits.[11] The World Health Organization (WHO) has recognized over 200 studies which associate corporal punishment with a wide range of negative health, developmental and behavioral outcomes for children that can follow them into adulthood.[12] These include, but are not limited to, death and serious physical injury, mental and indirect physical harm, impaired cognitive development, increased aggression, violent and antisocial behavior and severely damaged parent-child relationships.[13]

And eliminating corporal punishment has proven benefits on a societal scale. One study looked at 88 different countries and found that instituting a national “prohibition of corporal punishment is associated with less youth violence.”[14]

However, such evidence is not needed in order to know that the practice of corporal punishment must be ended. It is violence against children, and it violates children’s rights to human dignity and bodily integrity. It is also incompatible with liberal notions of equal protection under the law.

Many parents object to eliminating corporal punishment on the grounds that it would lead to the dissolution of the family or inability to “control” children. But the end of husbands’ legal privilege to beat and rape their wives didn’t result in the destruction of the family; there is no reason why ending state privileged parental battery of children would lead to a different outcome. Moreover, the number of parents and teachers that discipline children without using physical violence show how misguided these objections are.

Of course, challenges will remain even after corporal punishment is formally made illegal. There must also be meaningful enforcement and a change in cultural attitudes surrounding violence against children. However, formally eliminating state-privileged battery of children is an important starting point. To this end, many organizations have been working to end legally privileged violence against children, including dozens of groups in the U.S.[15] Still, the laws remain on the books and millions of children continue to experience battery as a form of punishment. There is much work to be done.

To take action, you can check to see if your local school board has a ban on corporal punishment. If not, advocate for one. You can also contact local elected officials and ask them to support a ban on corporal punishment in public schools in your state and ask them to support a ban on corporal punishment by parents. If you are a parent, you can commit to nonviolent parenting strategies and learn more about the alternatives. And finally, we can all engage in conversations to build awareness around the issue of state-privileged violence against children.

If you have other ideas, comments, or questions, please leave them below! 

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[1] Gershoff, E. T., & Font, S. A. (2016). Corporal Punishment in U.S. Public Schools: Prevalence, Disparities in Use, and Status in State and Federal Policy. Social policy report, 30, 1.; See also https://www.nytimes.com/2018/12/13/us/corporal-punishment-school-tennessee.html

[2] http://www.endcorporalpunishment.org/wp-content/uploads/country-reports/USA.pdf (citing: Ipsos Poll Conducted for Reuters: Corporal Punishment Topline (2014)).

[3] https://www.nytimes.com/2018/12/13/us/corporal-punishment-school-tennessee.html

(Citing the latest data available from the Education Department’s Office for Civil Rights).

[4] https://www.gao.gov/assets/700/690828.pdf

[5] Godwin, S. (2011). Children's oppression, rights, and liberation. Nw. Interdisc. L. Rev., 4, 247, 289.

[6] Godwin, S. (2011). Children's oppression, rights, and liberation. Nw. Interdisc. L. Rev., 4, 247.

[7] Ingraham v Wright, 430 U.S. 651 (1977)

[8] See, e.g., Woodhouse, B. B. (2010). Hidden in plain sight: The tragedy of children's rights from Ben Franklin to Lionel Tate (Vol. 8). Princeton University Press.

[9] Child Welfare Information Gateway. (2020). Child maltreatment 2018: Summary of key findings. Washington, DC: U.S. Department of Health and Human Services, Administration for Children and Families, Children's Bureau. Available at https://www.childwelfare.gov/pubPDFs/canstats.pdf.

[10] https://endcorporalpunishment.org/countdown/

[11] See Gershoff, E. T., & Bitensky, S. H. (2007). The case against corporal punishment of children: Converging evidence from social science research and international human rights law and implications for US public policy. Psychology, Public Policy, and Law, 13(4), 231. See also Godsoe, C. (2017). Redefining parental rights: The case of corporal punishment. Const. Comment., 32, 281.

[12] https://www.who.int/topics/violence/Global-Initiative-to-End-All-Corporal-Punishment-of-Children-GAP2-violence.pdf (citing Global Initiative to End All Corporal Punishment of Children (2015), Corporal punishment of children: review of research on its impact and associations, Working paper, London: Global Initiative to End All Corporal Punishment of Children).

[13] Id.

[14] Elgar FJ, Donnelly PD, Michaelson V, et al. Corporal punishment bans and physical fighting in adolescents: an ecological study of 88 countries. BMJ Open 2018.

[15] For a list of these groups, see: https://www.endhitting.org/partnering-organizations

Free Youth Now: An Introduction to Youth Liberation

Children are oppressed. The solution is children’s liberation and the dismantling of paternalism.

This issue matters so much to me because I am a survivor of childhood. To be sure, as a cis-gender white male from a wealthy family, I experienced a relatively privileged childhood. But a relatively privileged childhood is still an oppressed existence.

Because of my privilege, I may have only acutely experienced one form of oppression. Meanwhile, many children must contend with multiple, intersecting forms of oppression and violence on a daily basis. This intersectionality means that those of us working for children’s liberation must also work towards decolonization and the liberation of Black people, Indigenous people, and other people of color. It means we must confront oppression in all its forms. But it does not diminish the severity of any one form relative to the others. Oppression is oppression.

For all 18 years of my legal childhood, most of the important aspects of my life were controlled by others, and that control was enforced by law. I keenly felt the injustice and the indignity of being treated as less than a full person. Like many young people, I knew the institution of childhood was mostly arbitrary, overly oppressive, and senselessly restrictive. I had interests, goals, desires, and aspirations for my life. Not just my future “adult” life – but my very real life that I was trying to experience as a young person. Yet I was unable to live as a free person.  

So instead, I did what many young people do, and I rebelled constantly – against forced schooling; against parental coercion; against ageism in general. It was a desperate and misguided attempt to reclaim some of my dignity and sense of self that was constantly under assault. But I saw it as my only option. In turn, I was punished. I was told that I just didn’t understand because I was a kid. I was even told that I should be grateful; that I was spoiled for not appreciating what I was "given." I was told that I would understand once I was older.

But now I have been a legal adult for a decade, and it still doesn’t make sense. In fact, it seems even more unjust than it did then. My teen angst has transformed into an inferno of purpose. Now, I fully realize the arbitrariness and violence of the oppression of children.

I now see that what I was experiencing was paternalism. This same tool was used to try to justify the oppression of women and the enslavement of Black people. They were told that they didn't deserve equal rights because they were inferior; that they should be grateful for the current system. But paternalism is founded on a false and violent assumption that some people are entitled to control the lives of others because of perceived differences. 

I now see the very real violence that it perpetrates against youth. And I see that with a little creativity and much effort, we could develop liberatory alternatives. In fact, many of these already exist. And it’s time to commit to this work.

Most of us want to live in a world of free and liberated people. But this can’t happen if there is normalized systemic oppression. And one of the most pervasive forms of oppression is ageism.

Young people are categorically denied rights in our society. Young people can’t vote; can’t choose what to learn; can’t choose how to spend their days; and mostly can’t work. Parents are legally allowed to hit their children and send them to “troubled teen” boot camps and conversion therapy (in many states) against their will. Runaway laws prevent children from leaving even toxic and abusive homes (except in the most extreme circumstances – when they are transferred to state custody). Incorrigibility laws mean that courts can force children to obey their parents. Parents and relatives regularly fondle and touch children without their consent. For many children, the cumulative effects of this reality mean that childhood is an inescapable hell.

Yet this oppression is almost entirely arbitrary. The oppression of children is not some natural state of humankind; it is not a given of organized society. Like racism; like the oppression of women; like patriarchy in general – the oppression of children is socially constructed. The age of majority, parental rights, paternalism, and the nuclear family are relatively recent legal fictions created primarily to serve the interests of those with power.

The oppression of young people is morally and philosophically indefensible. It causes serious harm and normalizes violent systems of power and hierarchy. By the time most children are five years old, they already understand that sound reasoning doesn’t matter; that consent is contingent; that bodily autonomy only applies to those with power; that power is control; and that might makes right. These are the consequences of systemic paternalism and the oppression of children.

But the fact that we were born into and normalized to systems of paternalistic oppression does not mean we are condemned to perpetuate them. Cycles of violence are doomed to repeat until there is a moral awakening to the injustice of the pattern. What follows is an effort to unlearn the violent behavior and create new relations. Struggles for liberation from other forms of oppression – such as racism and sexism – show us that the fight against systems of domination and violence is necessary and worthwhile. They show us that society can and must change. And they teach us that systems of oppression are interconnected, and that collective liberation means taking an intersectional approach to the work.

It is now time to take up that fight for the liberation of young people. A liberated world means that people of all ages are free from oppression. A liberated world means free youth now. 

Children and Pets: Similarities in Oppression

I recently spoke with a friend who is a veterinarian about the treatment of companion animals (pets), and animal protection and liberation movements. I was shocked by how similar it sounded to the treatment of children and the various children's rights movements. 

In fact, even their histories are intertwined. Animal abuse was made illegal before child abuse was. And in the U.S., children's rights advocates actually relied on animal abuse laws to argue that children should also have protections against violence from adults. 

There are several core reasons for the similarities in oppression and maltreatment of pets and children. One is that adult humans see both of these groups of beings as inferior, and thus undeserving of certain rights. Moreover, both children and animals have essentially been treated by the law as property throughout history. And both children and animals have been used to serve the interests of society (adult, human society), while their immediate desires and experience have largely been ignored. Of course, there are differences between children and pet animals -- and please feel free to address these in the comments section. But the focus of this post is on the similarities in how they are treated. 

I have noticed a striking number of these similarities:  

- Both forms of oppression are justified by paternalism (the idea that it's actually in their best interests). 

- Both forms of oppression attempt to justify themselves with science which claims that children and animals are inferior beings, incapable or undeserving of exercising autonomy. 

- Very little about the relationships of children-to-adults or animals-to-humans is consensual. Both sets of relations are dominated by hierarchies of power and control. 

- Children's rights advocates generally either subscribe to a child "liberation" ideology (National Youth Rights Association) or a "welfare/protection" ideology (National Center for Youth Law). The same is true of advocates for animals -- between animal "welfare/protection" (like many veterinarians) and "liberation" (PETA). 

- Both liberation movements face complex practical challenges. For example: How would it work to release all pets in an urban area? What would happen if children weren't forced to go to school? 

- Adult humans objectify both animals and children (by labeling them as "innocent," "cute," etc.). This objectification diminishes the ability of adults to empathize with them as equally sentient beings with their own desires and experiences. 

- Adult humans use children and animals to serve their own interests -- such as love objects or companionship -- even when the animals or children clearly do not desire it. 

- Children and animals both have their freedom of movement restricted and are typically forced to stay in a certain house with a certain family, even against their will. 

- It is legal for adult humans (parents and pet owners) to hit children and animals. 

- Pet abuse and child abuse are correlated. 

These comparisons are not made to say that either form of oppression is more or less serious or important than the other. I only mean to contextualize and relate various forms of oppression so that we might become more aware of how systems of oppression intersect and how patterns of oppression repeat in different ways. Moreover, perhaps the children's rights and animal rights movements may have something more to offer each other in terms of philosophical or legal arguments, as they have in the past.

The Bystander Problem

We've all seen it a hundred times. 

A parent in the supermarket notices their child doing something they don't approve of -- usually, something completely harmless like looking at candy bars, or playing a game with their sibling -- and the parent reacts aggressively. They yell at the child, or they grab their arm and yank them, or they threaten them, or they otherwise demean them. Often it's clear that the child is hurt or embarrassed. 

And everyone else in the store just watches it happen. Some people nod approvingly. Some people (like myself) might get really uncomfortable or angry. But in all but the most extreme situations, we just sit by. We are bystanders. Because parents have a "right" to treat their children how they want, don't they? 

Tradition and custom in our society say that we should usually mind our own business and let parents treat their children however they wish. Most parents agree. Often, parents will get extremely defensive, and even aggressive, if you question their treatment of children. 

But I think that this societal norm of bystander silence is harmful to children. I think intervening is justified in many cases. In fact, I think we should do it more often. 

I think there is a moral obligation to step in when we see people mistreating other people. 

I just don't buy the idea that parents "own" or "control" their children (and there are strong legal arguments against parental rights). Therefore, I see children as people -- independent people deserving of respectful treatment. Even equal treatment. 

If I saw one person treating another person the way many parents treat their children, I would be horrified. I might even contact the authorities if one adult yelled at, viciously grabbed, and then threatened, another adult -- like I have seen many adults do to their children in public. 

I don't think that respect for human dignity should only be for adults. I believe we have a duty to extend this same respect and concern to children. 

There is no law saying that you can't step in and tell someone that what you think they are doing to their children is wrong. Even if the parent doesn't change, it might mean a lot to the young person to have someone stand up for them; to show them that the world doesn't necessarily have to be so arbitrary and cruel. Of course, many parents will attempt to justify this violence by calling it their own style of "parenting" or "discipline." 

But make no mistake -- this is abuse. And it needs to be called in. 

Youth Oppression Hurts Us All

The oppression of youth doesn't just harm young people -- it oppresses everyone.  

We all want freedom. But my freedom is tied to the freedom of others. We can't be free unless we are all free. 

As long as young people are segregated from the rest of society and forced to be obedient and follow strict paths against their will, the options for the rest of society are limited and we don't experience collective freedom.

When the freedom of young people is violated and oppressed, the freedom of legal adults is constrained too. It's just as hard for many adults as it is for children. Just think about all of the teachers and parents trapped in systems of oppression -- trying to control young people against their will. Think about how frustrating and stressful it is to be a strict parent of a rebellious teenager in our society.  Is that freedom? Is that a liberating relationship? I don't think so. 

In a free world, there are so many possibilities; so much creative potential; so much community and partnership. But this is lost when young people are oppressed. Age-based discrimination and restrictions limit the possibilities for young people's lives and legal adults' lives. 

The liberation of young people means the liberation of all people. 

Free Youth Now.