“Judges at the UK’s highest court have ruled against the Scottish government’s Named Person scheme….The system would appoint a named person – usually a teacher or health visitor – to ensure the wellbeing of every child. Judges say some proposals breach rights to privacy and a family life under the European Convention on Human Rights.” They say that insecurity of data could endanger children’s privacy rights and that the bill goes beyond the legislative powers of the devolved Scottish parliament. The government of Scotland has indicated that it intends to implement the scheme in some form after addressing the court’s objections. [BBC; earlier; my Cato piece]
We’ve warned for a while about the scheme in Scotland to appoint a state functionary, a so-called Named Person, to look after the interests of every child — not just every child in state care or for whom there are indicia of dangerous neglect or abuse, but every child, period. Now the results are coming in from early rollout of the scheme in some parts of the country. [The Scotsman]
[The professor’s] shock was compounded by the fact that work on this dossier, known as a Family Record, had started without his knowledge. He had only discovered its existence by accident long after the details of his home life had begun to be recorded. Furthermore, it was only after an eight-month battle with his local health board that he managed to obtain a redacted version of the document, which began to be compiled after an acrimonious break-up with his wife which led to a protracted legal row over access to their two children.
Initially pushed through with little opposition, the plan is now causing political grief for the ruling Scottish Nationalist Party of Nicola Sturgeon. Ruth Davidson, leader of the third-place Scottish Conservative Party, has called for rethinking the scheme, and now Scottish Labour Party leader Kezia Dugdale has suggested a halt to its implementation, while still favoring it in principle. The scheme is set to become effective for Scotland as a whole on August 1.
Tragic cases like that of 11-week-old Caleb Ness, the Edinburgh baby killed by his father despite the involvement of social work and health staff, have convinced the Scottish Government that action has to be taken. Indeed, the Named Person approach has the support of many organisations within civic Scotland, including children’s charities and teaching unions, who believe it will help struggling families and prevent tragedies…. In general, health visitors will act as Named Persons for pre-school children, with head teachers taking up the mantle as they get older.
Where not redacted, the 60-page file on the professor’s family had included observations on his children appearing to have diaper rash and runny noses not cleaned for a while, and observed the father “did not appear to take advice on board fully” regarding the thumb-sucking habit of his younger son:
“I find it sinister. I find it very creepy. I find it chilling,” he said. “They just hoover up all of this hearsay and then collate it into huge documents and on to databases. Under the new legislation all sorts of people have access to these databases. All they need is four or five reasons for intervention and they can hoover up information from any database and there is no control over whether this is true or not.”
[cross-posted at Cato at Liberty]
British law gives more of a share in decision-making about children’s lives to the state, and less to the parents, than is typical in American law. I like American law better. [Damian Thompson, The Spectator]
A reader recommends this piece by barrister Matthew Scott in Quillette defending the British authorities’ actions. While it fills in much useful detail, I’m not at all persuaded on the central issue of whether it was proper for British law in 1989 to oust parental rights from areas in which they had been long respected, all in the name of the best interests of the child as discerned by courts, experts, and the state. In my first book, The Litigation Explosion, I argued against the specious attractions of a best-interest-of-the-child standard in the child custody modification context, pointing out that to upset an existing decree of custody it should be needful to allege something stronger than that the child would be marginally better off with a switch, or that the case for a switch was supported by marginally better expert avowals than the case for leaving custody where it was. Instead, presumptions of stability and family integrity should be respected, to be overcome only by a strong showing of likely substantial harm from not switching. Likewise, the presumption that parents are the ones to direct their infant children’s medical care should be a strong one, rebuttable to be sure in some cases of wretched or misguided parental errancy, but not simply by rhetorical flourishes, even when embodied in law, about how the best interests of the child must conquer all and we determine what those are.
For examples of the narrower scope of parental rights in the United Kingdom and its subdivisions, see this 2015 story (parents warned they may be reported for neglect if they allow under-18s to play adult-themed videogames such as Call of Duty and Grand Theft Auto); this from 2009 (seven children seized from obese couple in Scotland; but note American trends too); and the Scottish Named Persons scheme. More on expertise and best-interests-of-the-child standards: Megan McArdle, Jim Geraghty.
- Georgia sheriff mass-frisks 900 students at a high school. Is that legal? [Scott Greenfield, Lowering the Bar]
- Federal judge dismisses “clock boy” discrimination suit against Dallas-area school district [CBS News]
- Ilya Shapiro on Gloucester County v. G.G., the transgender school bathroom Title IX case [Federalist Society]
- Social worker on public reaction against Named Person program in Scotland: families “had wanted a single point of contact for parents,” but Scottish government instead created “point of contact about parents” [No2NP campaign, earlier]
- “In places like New York City, schools have made it more difficult for principals to suspend disruptive or threatening students. The results? Increased violence, drug use, and gang activity, according to the Manhattan Institute’s Max Eden.” [Hans Bader/CEI, Eden paper, related on national policy]
- Rethink your assumptions about Betsy DeVos’s appointees [Erica L. Green, New York Times] More on appointee Candice Jackson [George Leef, Martin Center, earlier]
- In the mail: “No Child Left Alone: Getting the Government Out of Parenting,” forthcoming book by Abby Wisse Schachter [more: Pittsburgh Tribune Eric Heyl interview]
- Neighbor reports Winnipeg mom to child services for letting kids play in fenced-in back yard [Canadian Press/National Post via Amy Alkon]
- “Public space in Germany is not held hostage by liability lawsuits; Berlin playgrounds are not designed by lawyers.” And they’re awesome [Anna Winger, New York Times]
- Controversy intensifies further on Scotland’s Named Person scheme [Scottish Mail on Sunday (“complete stranger” will be assigned as Named Person to each child over school holidays), Gerald Warner/CapX, earlier here and here]
- Omar Mateen’s road to becoming a security guard: “He had issues. All the records were discarded by the school system, per statute. Clearly, if his employer had access to his juvenile record, he would be the last person to own a weapon.” [Yahoo]
- Kansas Supreme Court orders state legislature to increase funding for poor districts [ABA Journal, earlier here, here, etc.]
- Left-right cooperation on school reform begins to break down amid demands to toe social justice line [Robert Pondiscio]
- “5th Circuit Court Rejects ‘Disingenuous’ DOJ Anti-School Choice Lawsuit” [Jason Bedrick at Jay Greene’s blog]
- HHS urged to exclude biography, oral history and some other ventures in humanities research from IRB (Institutional Review Board) review of human subjects experimentation [National Coalition for History comments, earlier]
- Revere, Mass. schools punish high school cheerleader for a tweet about immigration [Eugene Volokh]
- Education Law Center, which has pursued long-running Abbott litigation demanding higher New Jersey expenditures on urban schools, describes $18,208/pupil Newark as in “extreme chronic fiscal distress” [Jim Epstein, Reason]
- “NEA’s $131 Million Influence-Buying Spree” [RiShawn Biddle, Dropout Nation]
- Yale’s gender studies program seems well pleased with the protests, and why not given likely infusion of funds/staff? [compare Robert Tracinski linked earlier] Still time to un-burn things down? Yale investigation finds “no evidence” to back frat party racism charge [Washington Post]
- Scotland: “Propaganda being used in our schools to sell Named Person scheme” [Jenny Hjul/The Courier (Dundee), earlier]
- “A legal challenge at Scotland’s top civil court failed earlier this year, but the No To Named Persons (NO2NP) campaign group has secured a hearing at the Supreme Court in London in March.” [Scotsman, earlier on named person scheme]
- “The auditors found students in two schools who carried contraband salt shakers” [WSJ editorial on 4.5% drop in participation in school lunch program]
- Teachers’ union AFT spends tens of millions a year on politics, policy, influence [RiShawn Biddle]
- “A Short, Sad History of Zero-Tolerance School Policies” [Nick Gillespie, Reason]
- Divergent Paths: The Academy and the Judiciary is a new Richard Posner book forthcoming from Harvard University Press [Paul Caron, TaxProf] Shouldn’t the program offerings at the Association of American Law Schools include at least as much range of diversity of thought as, for example, the panels at the Federalist Society convention? [John McGinnis, Liberty and Law] Heterodox Academy is a new website and project with its goal to “increase viewpoint diversity in the academy, with a special focus on the social sciences.” [Nicholas Quinn Rosenkranz] More: Jonathan Adler on a widely noted Arthur Brooks op-ed on ideological imbalance in the academy. And don’t forget my book;
- “Judge Tosses Concussions Lawsuit Against Illinois Prep Group” [Insurance Journal]
- In case you were wondering, yes, law school trade associations did support that “law school’s a bargain, there’s no real economic crisis for grads” research [Outside the Law School Scam]
- Why campus trigger culture and offense bans aren’t just anti-intellectual and a foretaste of wider speech regulation, but fail at specific therapeutic goal of reducing psychological upset [Greg Lukianoff/Jonathan Haidt, The Atlantic cover story]
- Newtown shooting advanced existing trend toward a regular police presence in schools; consequences may include escalation of low-level discipline [ACLU of Pennsylvania report “Beyond Zero Tolerance,” pp. 28-34]
- “Scottish Government’s named person scheme criticized by experts who will implement it” [The Courier (Dundee), earlier]
- “Kids Dig for Worms, Sell to Fishermen. Town Says Not So Fast: That’s Illegal!” [Cornwall, Ont.; Lenore Skenazy]
- “British Universities See Ethics Committees as ‘Easy and Convenient’ Censors” [Zachary Schrag, Institutional Review Blog]
- “His son’s school requires student athletes to carry their own insurance, a move that many other schools also have had to make because of the rising costs from lawsuits.” [Charleston, S.C.-area Palmetto Business Daily] “NYC has paid nearly $20M from playground injuries since 2010” [Reuven Blau, NY Daily News]
- Mom in famous Silver Spring, Md. “free range kids” episode is writing book, solicits stories of unattended kids and CPS abuse
- “Someone could have put their hand in the window and unlocked the door and taken the kids” [Lenore Skenazy/Free Range Kids; related stories here and here; similar, Illinois Policy]
- Police warn that plan in Scotland to provide state guardian for every child could backfire in abuse investigations [Telegraph, more on “named person” scheme]
- Also from Scotland: Law Society says proposed ban on liquor promotion is so broad it might snag parent wearing rugby-sponsor jacket at school pickup [Express]
- Judge rejects Mississippi school finance suit [Andrew Ujifusa, State Education Watch, background]
- Widespread criticism of Michigan judge for sending kids to juvenile detention for not wanting to have lunch with their father [Radley Balko]
- “Two Parents Weren’t Sure How Their Little Girl Fractured Her Leg, So CPS Took the Kids” [Lenore Skenazy, more, yet more on “medical kidnapping”]
- Caleb Brown and Andrew Grossman discuss educator-dues case of Friedrichs v. California Teachers Association [Cato Daily Podcast, earlier on case, its SCOTUSBlog page]
Per Ilya Somin, there might be: “In two landmark cases in the 1920s, Meyer v. Nebraska and Pierce v. Society of Sisters, the Supreme Court ruled that the Due Process Clause of the Fourteenth Amendment protects parents’ and guardians ‘to direct the upbringing and education of children under their control.'” Meyer struck down a ban on instruction of students in foreign languages before eighth grade, while Pierce struck down a ban on private and religious school education. While authorities presumably have wider leeway to regulate pedestrian activity on public streets than instruction that may take place within private homes, churches, or schools, a degree of regulation that forcibly substitutes the state’s judgment for parents’ on debatable issues of child-rearing might cross a line.
The idea of a Constitutional right of parental autonomy appears to be alive and well on both conservative and liberal sides of the Court, but some may be surprised at which current Justice has written most critically of the idea: Antonin Scalia, because of his dislike for “substantive due process” theory and in general its protection of individual rights not enumerated in the Constitution. In a 2011 article I haven’t had a chance to read, David Wagner traced the Scalia-Thomas conflict and apparently also looked at whether Scalia continues to count as a holdout given what might be a softening of his views on the issue.