I appreciate Doug's point, but I wonder whether the difference between
children and adults might actually be especially significant here. After all,
when it comes to adults, we don't order them to go to school, or allow the
police to pick them up in order to bring them home to their parents, or give
their parents the right to withhold their property if they come home late or
fail to keep the parent posted about where they are. As courts have pointed
out, a child -- unlike an adult -- is always in someone's custody, in the sense
that someone (whether parent, school official, or what have you) is entitled to
control the child's actions in ways that are not tolerated as to adults.
Children aren't in the custody of the prisons or the pretrial release system;
but they are in the custody of someone.
The question is whether the propriety of these restrictions on liberty
of movement (applicable to children and to others) also supports restrictions
on liberty from surveillance of one's movements. I'm inclined to say that it
does, though I might be mistaken.
Eugene
> -----Original Message-----
> From: Douglas Laycock [mailto:dlayc...@virginia.edu]
> Sent: Thursday, November 22, 2012 12:02 PM
> To: Law & Religion issues for Law Academics; Volokh, Eugene
> Subject: Re: High School Student's Religious Objection to Wearing RFID Chip
> Badge for Student Locator Program
>
> It seems to me that Eugene is talking about ends, and that this is a dispute
> about means.
>
> Of course we want students to attend school, we generally want them to
> comply with the rules, and we generally want adults and students alike to
> comply with the law. But we do not in this country use continuous surveillance
> as a means to those ends. Continuous surveillance, typically implemented with
> ankle bracelets, is reserved for people already convicted, or at least
> indicted,
> for serious crime -- for people who could be confined to jail or prison, and
> who
> are getting a break by being released subject to continuous surveillance.
>
> The rights of children are not always equal to the rights of adults. But I
> would
> want to see much stronger justification before creating a student exception to
> something so fundamental.
>
> As Marc Stern said, this is like the GPS device planted on a car -- except
> without
> even a claim of reasonable suspicion.
>
> On Thu, 22 Nov 2012 11:25:09 -0800
> "Volokh, Eugene" <vol...@law.ucla.edu> wrote:
> > Though I agree with much that Sandy says (and especially join in his
> Happy Thanksgiving wishes), I wonder whether the item below involves the
> tailing wagging the dog a bit. Many virtues that we inculcate in schools are
> only presumptive virtues, that sometimes must be set aside in favor of other
> virtues. That's true of honesty. (You might have to lie to the Nazi who
> comes
> to ask whether you're hiding Jews in your home.) It's true of solving
> problems
> in non-violent ways. (You might need to use deadly force in self-defense, or
> fight in a war to protect your country.) That's also true of following the
> law,
> and using law-abiding means to try to change laws you disapprove of. Yet it
> seems to me that it's good to teach such virtues, and have disciplinary or
> monitoring measures that help reinforce the virtues, even though we recognize
> that in rare circumstances such virtues need to yield to other concerns.
> >
> > Eugene
> >
>
> 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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