[rayiner]

I went through public school here, and never suffered through anything worse than the general pettiness that is endemic to teachers and school administrators. There are problems with the American school system, but these outliers are not those problems. Heck, I remember in high school there was a huge protest over attempts to introduce minimum dress standards (e.g. no wife beater shirts, no spaghetti straps) in which the teachers participated in the protest.

And I don't see how this is an example of kids being "manipulated." At best this is an example of a school district not consulting its lawyer before giving a well-intentioned survey. The purpose was to try and identify kids who needed additional psychological support, not get kids to cop to their drug use so they could be prosecuted.

And you know what? It's not even clear the teacher was factually correct here. The school administrator argued that once the surveys were filled out, they would become student records (which are protected by a law called FERPA). I haven't done a close analysis of the issue, but if FERPA kept the documents from being obtained by the police, there was no 5th amendment privilege against incrimination because there was no real and tangible threat of disciplinary action. Moreover, there was no "custody" by the police which would invoke certain requirements for the purposes of the 5th amendment.

At best, the teacher was teaching his speculation about what is still unsettled law as actual fact about the 5th amendment.

[carbocation]

1. FERPA information can be released in a "health" or "safety" emergency.

2. Records created by a designated official for the purpose of referring violations to police are not subject to FERPA.

3. Institutions have relatively broad power to designate people as school officials with legitimate educational interests, and thereby to designate who may receive FERPA-protected records. Some sources recommend to schools that they designate police or security personnel as "school officials with legitimate educational interests" for this reason [a].

a = http://www.campussafetymagazine.com/Channel/University-Secur...

[rayiner]

These cut in favor of the school, though.

1. FERPA information can be released in a "health" or "safety" emergency, but only for the immediate duration of the emergency, and only to "appropriate parties." Moreover, FERPA has a specific carve out for disclosing student health records to parents in the case of drug or alcohol abuse. Read together, the provision can be interpreted to imply that drug use is by itself not a "health" or "safety" "emergency" because otherwise the specific carve-out would be superfluous and statutes are interpreted to avoid making any parts superfluous.

2. Right, but this survey was created for the express purpose of evaluating student psychological health, not for referring violations to police.

3. The same advice notes that police with access to private student information can only disclose that information pursuant to FERPA. Moreover, in the case law there is an emphasis on keeping the separate "hats" of student resource officers separate.

[carbocation]

> These cut in favor of the school, though.

I completely agree.

> The purpose was to try and identify kids who needed additional psychological support, not get kids to cop to their drug use so they could be prosecuted. (Quoted from your prior post.)

One of the reasons I replied is to show that, regardless of the stated purpose of the survey, the FERPA rules appear to favor of the school even if they should decide to use the survey for other purposes. From my reading, FERPA may very well not protect these kids from a school's decision to ultimately convey this information to police.

[fmstephe]

My concern is not with the intention behind the survey. I believe that the intention was very good. My concern is the idea that a teacher reminding students that they are not under any obligation to complete the survey represents manipulation. Teachers are in a position of real power, there are a great many situations where are expected to do what their teacher tells them. It really is very important to be allowed to remind students of those situations where they don't _have_ to obey.

I think that the legal considerations here are a distraction. I think (and I am assuming here) that the teachers actions were largely driven by his conscience. And the simple fact that arguments about this tend to circle around debates over the constitution, and other legalities, make me more worried about the United States than anything else.

[talmand]

I'm failing to understand, are you saying the survey was manipulation or the teacher reminding the students of their fifth amendment rights?

How would debates about the US Constitution and its laws make you worried about the US? These are likely the same discussions and debates that many people from many different countries have over their local issues and/or laws. How is the US any different?

[fmstephe]

I may have chosen the wrong word with 'manipulation'. I think that the school administration is unhappy that the students were told they could reasonably choose not to fill in the survey. What makes me feel uneasy here, and why I used the word manipulation, was that this choice _was_ available to the students but the school felt that informing them of this fact was inappropriate. This, in my mind, amounts to manipulation or at least a form of exploitation of the fact that most young students feel they are obliged to do as they are told.

Now, in this case the survey wasn't very sinister in itself. But the reaction of the school, to a teacher telling students that they could choose not to take this survey, is.

With respect to your second question. I think that in this case there is a fundamental question of how we expect people to treat the children who are in their care. I think that a debate around the complex legal aspects of this case tend to distract from this real central concern. Whether constitutional law was applied correctly here would not change for me one way or the other whether I felt comfortable with the school treating my children this way.

[talmand]

Well, now that I know the context I wouldn't necessarily disagree with your usage of manipulation. It seems to fit to me.

First, I would say I agree with your thought on how people should treat our children. I guess I would explain the reason the constitutional discussion is very relevant in this case because the laws define how the government may treat the citizens. In this case the students are citizens and the school is the government entity. The school asking the students to fill out a survey that could possibly be used to incriminate them in some form of crime is a potential violation of the students' fifth amendment protections.

If the school in question were a non-government entity, such as a private school, then there is no worries over fifth amendment protections. At that point it's more like what you say, a privacy and courtesy issue. The student in that private school could refuse to answer the survey but there might be consequences of that choice, such as being expelled from the school.

Either way, a person has the total right to not say anything at all for any reason regardless of who asks, unless compelled to do so by a court of law. Even then, in the US and I'm sure many countries, there are restrictions on what the court can compel you to say which leads us back to the fifth amendment.

[fmstephe]

Thanks a good explanation.

[rayiner]

> I think that the legal considerations here are a distraction.

To the extent that a teacher undertakes to teach something, he should do it correctly.

Remember the background context of this: there was notice and opt-out opportunities provided to parents in advance of the survey. The teacher then undertook to tell students that they had a right not to fill out the survey, not withstanding their exercise of the opt-out opportunity, as if it were a fact.

[mindcrime]

The teacher then undertook to tell students that they had a right not to fill out the survey, not withstanding their exercise of the opt-out opportunity, as if it were a fact.

It is a fact that they don't have to fill the survey out. Whether you want to use the 5th Amendment or something else as an argument to support that, is irrelevant. Bottom line, as a student, you absolutely have the right to wad the survey up, throw it in the trash and say "fuck this". Yes, you may get detention, or suspended from school, but no one has any authority to use force to compel you to fill out a frickin' survey.

What we need here, are more people who are willing to spit in the face of so-called "authority" and take back a little bit of their own power and sovereignty. Just because "they" told you to do something, does not mean you actually have to do it.

Edit: To elaborate more on this, per rayiner's comments, let me add this: I believe the bit about the teacher telling the kids they can skip the survey due to the 5th Amendment protection is approximately correct, given the context. That is, it's a potentially viable legal argument and certainly not something one can dismiss out of hand. Given that the class wasn't a law-school class, that level of approximation strikes me as totally reasonable.

The more interesting point, however, is that whether or not the 5A applies here is kind of irrelevant, since there's a bigger issue at stake. And that is what the 2nd paragraph above is getting at. Forget the Constitution, forget the Bill of Rights, forget the SCOTUS, etc.... none of those things grant us rights. Ultimately, we have the rights we are willing to demand, and willing and able to defend, and that's regardless of what some "authority" figure tries to sell us.

[rayiner]

So teaching misinformation is okay so long as it plays in to your angsty feelings about authority?

[mindcrime]

I'm sorry, what are you talking about?

[rayiner]

You implied it was okay for the teacher to talk out his ass about the 5th amendment because someone needs to tell kids to "spit in the face of authority."

[dpark]

There was an opt-out notice sent via email to parents, at least several of whom claimed not to have received any such notice. The students were not given any opt-out opportunity.

> The teacher then undertook to tell students that they had a right not to fill out the survey, not withstanding their exercise of the opt-out opportunity, as if it were a fact.

It might come as a shock, but the students also have their own rights. Being a minor does not mean all of one's rights are subjugated to authority figures. Students do have 5th amendment rights.

[rayiner]

Students have rights, but it is well-settled that they do not have the same rights as adults. The Bill of Rights applies to schools, but cannot be applied wholesale to minors. There is an analysis where the rights are fitted in to the unique requirements of the school context. The only precedent I'm aware of in the context of the 5th amendment is J.D.B. v. North Carolina (2011), which found that a uniformed police officer who questioned a student on school grounds about a robbery should have given the student a Miranda warning. It's a huge leap from that to conclude that school administrators can't ask about drug use on a survey in a non-custodial setting.

[dpark]

Minors have largely the same rights as adults. There are reasonable restrictions on those rights, but the default is not "no rights with a few exceptions". It's "all rights with a few exceptions". For example, schools are allowed to place some restrictions on students' speech, but they cannot forbid speech unreasonably (e.g. cannot require pledge of allegiance; could not force students to remove black armbands protesting Vietnam War).

And no one said the school can't ask about drug use. But the students can refuse to answer.

[jessaustin]

Do you claim that the students did not have "a right not to fill out the survey"? If that is your claim, could you elaborate on this novel theory?

[nsxwolf]

Dryden didn't have time to hire a constitutional lawyer and hash out all the nuances on how the 5th amendment does or doesn't apply. He believed it did. To me it's pretty clear that it should apply here.

If we're all going to restrain ourselves from asserting what we think our rights are we might as well all give up.

[rayiner]

The problem is Dryden's gut feeling gets the gist of the rule wrong. The gist is not: "you don't have to tell the government anything that might make you look bad." The gist is: "You can't be forced to testify at a witness against yourself in a criminal proceeding." The further away you get from that core scenario, the less likely the 5th amendment is going to apply.

You're right, Dryden didn't have time to hire a constitutional lawyer. But he shouldn't be teaching his gut feelings as constitutional law. He could have just said: "I don't think the school can make you fill out this survey, so feel free to opt out."

And yes, I realize I'm being horribly anal retentive here. I was taught a lot of misinformation and oversimplifications as a public school student.

[pdonis]

There's more to it than just whether the teacher was right or wrong, though. Let's suppose that he was wrong, that there is no 5th Amendment issue (the school board gave some reasons why that would be true, which are described in the article). Even so, why reprimand the teacher? Why not just release a statement saying that the teacher was incorrect in saying that there is a 5th Amendment issue involved (giving the reasons why), and leave it at that? Then the teacher could discuss that with his class; was he right or wrong? The students could actually debate the question and learn something--they might even learn the lesson the teacher was really trying to teach, which is, never take any authority's word without question--always consider the possibility that they might be wrong.

Instead, the school board is teaching the students a very different lesson: that our society is run, not by reasoned debate, but by arbitrary exercises of power.

[rayiner]

I don't disagree with your point or agree with the school board's actions. This story contains two things that drive me nuts: 1) teachers talking out of their ass; 2) school administrators being petty assholes.

[sk5t]

Suppose the government sent you a non-anonymous survey inquiring about your various activities, ostensibly for the purpose of shaping national health care policy, but not explicitly disclaiming the option of using the responses for other purposes? Do you believe the 5th would shield you from admitting to crimes in this case?