April 26 (Bloomberg) -- Another week, another tot gets his rights violated. A few days before Easter police in Maspeth, New York, handcuffed a first grader who had a temper tantrum after coloring an egg at school.
"I want those cops to say sorry to me and the principal for calling the ambulance on me and handcuffing me," the 7-year old later told a TV station, about the time his mother retained a lawyer.
In Shreveport, Louisiana, the American Civil Liberties Union is looking into the case of a sixth-grader handcuffed in the principal's office. Last year authorities in Port St. Lucie, Florida, sent a 6-year-old girl to a mental-health facility after the 40-pound child acted up. The Citizens Commission on Human Rights in Florida is all over the case.
This looks like yet more evidence that the U.S. is becoming the creepy militaristic state that the anti-body scan, Guantanamo-obsessed crowd warn about.
But there's something awry in these school scenes. Child. Tantrum. Principal. Police. Mom. Civil Rights. Lawyer. Lawsuit. There are a lot of players in such scenarios, but someone is missing. It's the one person who has dedicated years of training to help a freaked-out child through a difficult moment without creating a federal case: the teacher.
The real scandal is that our teachers are desperate enough to abdicate or absent themselves when kids have tantrums. This is due to a series of changes in precedent, statute and regulation that took place over decades. The changes were well-intentioned, says Philip Howard, founder of Common Good, a nonpartisan legal reform group that works on education issues. But over time, "law, like acid, has corroded teacher authority," Howard said.
What happened? Education once was a local affair. Children didn't have rights. Parents scarcely had rights. The teacher wielded a lot of authority, and usually a ruler or stick as well. So did the teacher's backup, the terrifying principal, who has the power to suspend.
Looking back, two features of these policies couldn't be tolerated -- corporal punishment and racial segregation. The general attitude became: this must change.
Change it did. The U.S. Supreme Court intervened on the racial integration issue in 1954, with Brown v. Board of Education. The case itself did nothing to undermine teachers or principals.
Expanding Pupil Rights
Brown proved to be only the start of the expansion of pupil rights. In another case, Tinker v. Des Moines Independent Community School District, the court upheld the constitutional rights of children to freedom of expression. In 1975 the Supreme Court heard Goss v. Lopez, a lawsuit filed by high school pupils. In that case several Columbus, Ohio, high schools responded to rioting by suspending students for 10 days without hearings. The pupils claimed their 14th Amendment rights to due process had been violated. The court sided with the pupils.
Again, it sure sounds fair. But as the author of the dissenting opinion in Goss v. Lopez, the late Lewis Powell, noted, the emphasis on child rights altered the balance of power in the classroom, creating "avenues for judicial intervention that may affect adversely the quality of education." Powell also noted that teens are exquisitely sensitive to changes in the power structure. The High Court's support for the Ohio rebels, he wrote, might spur many other rebellions.
A child, Powell warned, "is rendered a disservice if appropriate sanctions are not applied or if procedures for their application are so formalized as to invite a challenge to the teacher's authority -- an invitation which rebellious or even merely spirited youngsters are likely to accept."
In the 1980s and 1990s new rules restricted teacher autonomy. Governments, state and federal, pushed schools to provide more support for children with disabilities and to include them in regular classes. Schools that resisted new plans or philosophies were running the risk they might be accused of violating a disabled child's civil rights.
We don't know enough to comment on the incidents in Maspeth, Port St. Lucie or Shreveport. Yet it's clear that legal changes make it harder for teachers to do their jobs. Teachers and their principals realize they have to tread carefully. No one will back them up. Small children sometimes respond best when they get a hand to hold or a lap to sit in. Still these days an educator who lays a friendly finger on a child may be accused of corporal punishment, sexual harassment or some combination of the two. Powell was a visionary, but even he couldn't foresee the extent to which parents would use civil rights issues to contest school policies.
Teachers, Howard says, now ask themselves: "Why take the risk of legal hearings or threats by an angry parent?" It's easier to dial 911. The child's rights may win in such a case, but the child does not. In a child's life, a good lawyer can't substitute for a good teacher.
The perversity here is that laws meant to protect children acquaint them far too early with police stations, courtrooms and handcuffs. You don't have to bring back the paddle or racism to undo this dynamic. All you have to do is give educators the chance to educate. It's time. Just ask a teacher.
(Amity Shlaes, a senior fellow in economic history at the Council on Foreign Relations and author of "The Forgotten Man: A New History of the Great Depression," is a Bloomberg News columnist. The opinions expressed are her own.)*
© Copyright 2011 Bloomberg
Available for order: