I appreciate Sandy's point, but I wonder whether the matter might be
more complex than that. We don't want "docile" citizens, but we do want
citizens who comply with legally enacted rules; and we certainly want minor
students who so comply. We expect citizens to display their lack of docility
by acting to change the law, not by disregarding the law.
Moreover, we insist as a matter of law -- including tort law -- that
schools protect the minors who are left in their care. Truancy isn't just bad
for school funding; it's also bad for the students' education, it poses risks
for children who are unsupervised when they are truant, and it might also in
some neighborhoods increase street crime by some of the truants. Some degree
of surveillance, it seems to me, is reasonable under the circumstances.
Finally, this raises an insight that I owe to Sandy himself, though I
forget the exact context in which he raised it. Adapting it to this context,
let me ask this: Parents who can afford private schooling can send their
children to schools that closely monitor their children's whereabouts, and make
sure that the children don't cut class. I would think that many -- perhaps
most, or even nearly all -- parents who had this choice would indeed prefer
(all else being equal) a private school that engages in such monitoring. If
I'm right, then why shouldn't parents who send their children to government-run
schools also be able to take advantage of this feature (though realizing that
there has to be a one-size fits-all solution at the level of the school or even
the school district)? One answer, of course, is that the Bill of Rights
applies to government-run schools but not private schools. But that doesn't
really settle the question when it's not clear that there's any Bill !
of Rights violation.
Eugene
> -----Original Message-----
> From: [email protected] [mailto:religionlaw-
> [email protected]] On Behalf Of Sanford Levinson
> Sent: Thursday, November 22, 2012 10:00 AM
> To: '[email protected]'
> Subject: Re: High School Student's Religious Objection to Wearing RFID Chip
> Badge for Student Locator Program
>
> I must say that this seems to be an easy case for any civil libertarian to
> support
> even (or perhaps especially) in the absence of a free exercise claim. The RI
> is
> absolutely correct that this is socializing students to be docile citizens
> within a
> "surveillance society."
>
> Sandy
>
>
>
> ----- Original Message -----
> From: [email protected] <religionlaw-
> [email protected]>
> To: Law & Religion issues for Law Academics <[email protected]>
> Sent: Thu Nov 22 11:41:41 2012
> Subject: RE: High School Student's Religious Objection to Wearing RFID Chip
> Badge for Student Locator Program
>
> Yes. I did not mean to imply otherwise. The school's website says that it has
> a
> high rate of absences. I gather the school thinks that if it monitors all
> students it
> will somehow be able to claim a higher attendance rate and get more state
> funds (which I suppose are based on daily attendance, as they are in
> California).
> The school was willing to accommodate her by removing the chip from her
> badge, but apparently that would not affect the appearance of the badge.
>
> Happy Thanksgiving to everyone on the list!
>
> Mark
>
> Mark S. Scarberry
> Professor of Law
> Pepperdine Univ. School of Law
>
> -----Original Message-----
> From: Douglas Laycock [mailto:[email protected]]
> Sent: Thursday, November 22, 2012 8:30 AM
> To: Law & Religion issues for Law Academics; Scarberry, Mark
> Subject: Re: High School Student's Religious Objection to Wearing RFID Chip
> Badge for Student Locator Program
>
> The complaint alleges that all students were required to wear the badge -- not
> just those in disciplinary trouble or with a history of truancy. Nothing
> individualized about this.
>
> On Wed, 21 Nov 2012 20:47:56 -0800
> "Scarberry, Mark" <[email protected]> wrote:
> >The Rutherford Institute says that it has obtained a TRO protecting a student
> who refused to wear a badge with an RFID (radio frequency identification) chip
> that would allow the school to determine her location at all times on school
> grounds. See
> https://www.rutherford.org/publications_resources/on_the_front_lines/victory
> _court_grants_rutherford_institute_request_to_stop_texas_school_from. The
> application for a TRO is here:
> https://www.rutherford.org/files_images/general/11-21-2012_TRO-
> Petition_Hernandez.pdf.
> >
> >Apparently the student considers the wearing of the badge to be a kind of
> idolatry or act of submission to a false god. She was offered the option of
> wearing a badge with the chip removed, but she refused, because wearing it
> would signal her approval of or participation in the program, which raises
> both
> free exercise and compelled speech issues. There are other issues, as well,
> including a claim that the school prohibited her from passing out flyers on
> school grounds opposing the RFID program.
> >
> >The Rutherford Institute describes the RFID program as a preparation of
> students for a society in which everyone is constantly under surveillance, but
> they also note that the school district hopes to get more funding by improving
> attendance.
> >
> >I thought this was going to be about the "mark of the beast" from the Book of
> Revelation. The story and the application for a TRO don't seem to be that
> specific on the source of her religious objection. I think she also claims
> that the
> program violates her right to privacy and that the requirement that she wear a
> badge (even without the chip) to indicate support for the program is a form of
> compelled speech.
> >
> >I haven't anything on this story in the mainstream press. Perhaps someone on
> the list knows more or can provide links to news stories.
> >
> >Mark S. Scarberry
> >Professor of Law
> >Pepperdine Univ. School of Law
> >
> >
>
> Douglas Laycock
> Robert E. Scott Distinguished Professor of Law University of Virginia Law
> School
> 580 Massie Road
> Charlottesville, VA 22903
> 434-243-8546
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