One of my favorite of all Supreme Court opinions was delivered by Justice Robert Jackson in West Virginia Board of Education v. Barnette, in which he claims that under the fourteenth amendment, all citizens are protected from the state itself "and all its creatures," including schools, and that while the needs of education necessitate special considerations, none are so demanding as to deny students their Constitutional freedoms guaranteed in the Bill of Rights. "That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes." In Tinker v. Des Moines (1969), arguably the most famous and often-cited case related to American schools, Justice Abe Fortas famously wrote that "schools may not be enclaves of totalitarianism."
But totalitarianism's face has changed, from the vicious and open brutality of George Orwell to a confused, bureaucratic labyrinth out of a Kafka novel. William Dobson has variously explained this phenomenon on the international scale in his book, "The Dictator's Learning Curve:"
To summarize, the old methods don't work anymore. They're too transparent. The new, more slippery and more effective way to maintain power is to use more subtle tactics: the allowance of free speech, but only in places and manners in which it is certain to have no effect; no blatantly oppressive laws, but vague laws that, when taken literally, are breathtakingly broad in scope but can be applied like a scalpel against political opponents. In short, the new totalitarians do their best to play the part of defenders of freedom, while still quietly suppressing its effects.
I used to think it was an overstatement and exaggeration to refer to school policies as "totalitarian" in nature, but I'm increasingly believing that it was Fortas, not myself, who was correct in naming the problem.
Consider, as just one example of this, the phenomenon that is FERPA law, the Family Educational Rights and Privacy Act. Two years ago, Issaquah High School expelled Cameron Gardener (name changed to protect privacy). It appears that two other students who had been caught with illegal drugs had opted to turn in Cameron as a kind of plea bargain, though the details are a bit sketchy there. Cameron was brought into the principle's office from class and told that they already knew what he had done and that there was no use lying. The administration forced him to sign a confession that he had violated the school's drug policy, and then proceeded to search his person and backpack and administered a drug test. Cameron was not allowed to call a lawyer or even his parents.
Now, what's interesting in this case is that Issaquah High School didn't find any drugs on Cameron, and his drug test came out negative. Oh well, says the school. It makes no difference. He signed the confession, therefore he broke the school's drug policy. In the school's findings on the case, they audaciously congratulated themselves on respecting all of the student in question's rights during the investigation. Apparently they forgot the IV, V, VI, and VII Amendment rights; I'm no lawyer, but if those words have any communicative value, the school's actions clearly violate them. Issaquah High School turned the emergency expulsion into a 10-day suspension and never apologized to Cameron or the Gardener family.
Here's where FERPA law plays it's part. When I called to confirm these facts with the school, after the ordinary passing off from secretary to administrator to secretary, the school claimed that they could not release the information to protect the student's privacy. It wasn't particularly important, apparently, that it was the student himself who had told me about this information and given me the paperwork that had been given to him. Whose privacy is this law defending?
A much milder but similar incident occurred at Bellevue College where, in attempting to confirm facts, English professor Elizabeth Harazim (no name change, in this case), refused to provide information about a student who she had permanently removed from her class for "question[ing] a student's contributions based on ethnicity," not because she didn't want to--so she said--but because FERPA didn't allow it. The student in question's comment was actually that everyone with American citizenship is an American, no matter what their ethnicity, or at least so they said. Instead of having to overtly deny the claim, Bellevue College could simply fall back on "the student's privacy" in order to protect their own decisions, proceedings, rulings and treatment of the student.
In mirroring the secret courts of classical authoritarian governments, schools now run on de facto secret courts, where a preponderance of evidence--rather than the "beyond reasonable doubt," or even the more lowly civil court standard of "clear and convincing evidence--as their standard burden of proof.
FERPA law is just one example of these kinds of infringements on public law that Fortas, Jackson and others warned against in attempting to teach students how to live in a free society. Free expression, free assembly, free exchange, and various other freedoms are being attacked in other, similarly sly ways, all the while paying lip service to the same rights and freedoms that our education system is systematically eroding. It's true that the schools aren't directly responsible for these laws, legal dangers and monetary incentives, but they openly and enthusiasticaly embrace of them without even a hint of a challenge or fight to retain the values they proclaim with their other face--free inquiry, freedom of speech, innocent until proven guilty, and fair, public trials. We're beyond the point where we should accept as legitimate our government school's tired old excuse that "this wasn't our fault." If they weren't taking advantage of these laws for their own sake, or at the very least being cowardly and two-faced, they would be actively working to oppose FERPA, free speech zones, oppressive speech codes and the like. But they're not, so we shouldn't be afraid of calling them by their proper descriptor: totalitarian.