Category Archives: The Nanny State

The Nanny State Strikes Again: School’s Implementation of Zero Tolerance Goes Too Far

In an effort to control perceived growing violence in schools, Congress passed the 1994 Gun Free Schools Act (GFSA) which required states to implement zero tolerance policies on school property as a prerequisite for receiving federal aid from the U.S. Department of Education. In 2002, Congress repealed this version but reauthorized the zero tolerance requirement under the No Child Left Behind Act. The revised bill expanded the school’s jurisdiction for such offenses from school property to any school-related function. So under the No Child Left Behind Act, school districts would not receive federal funding unless they implemented zero tolerance policies with a mandatory one year expulsion for any student who brings or possesses any firearm on school property or at any school function. School officials are also required to report these offenses to law enforcement agencies.

Have school boards taken these policies too far? Despite no duty or requirement to do so, most school districts have enacted strict zero tolerance policies for other offenses including possession of knives, drugs, alcohol, and tobacco. They have also enacted zero tolerance offenses for acts of violence and even expression of speech, all under the guise of protecting students. For example, an honor student in Dearborn, MI was suspended this month for a year because school officials found a small pocket knife in her bag at a football game.  From the Huffington Post:

A Detroit-area high school has suspended an honors student for the rest of the school year over a pocketknife the student says she had by accident.

Atiya Haynes, 17, was caught with the pocketknife at a homecoming football game in late September at Annapolis High School in Dearborn Heights, Michigan. School officials were searching the bags of female students exiting the restroom after a security guard claimed to have smelled marijuana nearby, according to local outlet WXYZ-TV. When officials searched Atiya’s bag, they found no marijuana, but did find a small knife.

Atiya says she did not realize the knife was in her bag. Her grandfather had given it to her over the summer, urging her to carry it for protection when riding her bike through dangerous neighborhoods to her lifeguarding job, according to MLive.

Atiya, an Advanced Placement student, was originally expelled from Annapolis High following the incident. However, on Monday, the school board rolled back her punishment, albeit slightly. Atiya is now suspended for the rest of the year, but will be allowed to take online classes and graduate with her class in 2015, reports local outlet WJBK-TV.

For starters, students do not lose their constitutional rights when they enter school property. Tinker v. Des Moines Indep. Cmty. Sch Dist, 393 U.S. 503 (1969). The Supreme Court has further held that public school administrators are considered state actors for purposes of Fourth Amendment searches. New Jersey v. T.L.O., 469 U.S. 325 (1985). Students also have a reasonable expectation of privacy in items that they bring to school, even though this expectation is diminished. School officials do not need probable cause to search, like law enforcement would. They may search based on a reasonable suspicion of wrongdoing and most jurisdictions require that this reasonable suspicion is individualized. One US District Court has held that the scent of marijuana is insufficient to show an individualized reasonable suspicion of wrongdoing if the scent cannot be determined to come from any individual or confined group. Here, the security guard claimed that s/he detected the scent of marijuana “nearby”, but there is nothing to suggest that the scent could be confined to Atiya or anyone else in the immediate area. I would argue that this was an unreasonable search and the knife is just “fruit from the poisonous tree.”

Let’s say, for all intents and purposes, that the search was valid. The punishment still does not fit and is excessive. Miss Haynes is an honor roll student, enrolled in AP classes, and potentially college bound. I would imagine that this suspension will go on her permanent record, which could affect her ability to receive scholarships or even get into certain colleges. Furthermore, the evidence suggests that she didn’t even know that the knife was in her purse. Is this the type of protection that Congress had in mind when it passed No Child Left Behind? In this case, Atiya Haynes is the only child being left behind and she is not the only one. Here are some other examples of overreaching zero tolerance policies:

In 1998, a Colorado school expelled a ten year old student when her mother inadvertently packed a small paring knife in her lunch. Despite trying to do the right thing by turning it in, she was expelled under zero tolerance policies and school officials said they had no discretion. While the expulsion was eventually overturned, her family was forced to move after receiving harassing letters that her family was trying to destroy the school.

In 1999, a Florida high school student was suspended for one year for bringing nail clippers to school. This expulsion was also reduced to a ten day suspension. However, the principal of the school was quoted as saying that he “was not…ready to arm kids with more ammo, to bring more items on our campus and make it an unsafe place.” Forget the fact that the student never used the nail clippers herself. Did I mention that her “crime” was bringing nail clippers to school? Nail. Clippers. This is the kind of “dangerous” activity we are trying to protect students from? Let that one sink in.

In 2013, two Virginia middle school students were suspended for nine months for shooting airsoft guns (similar to BB guns) in their front yard. The school claimed jurisdiction because the bus stop was in front of their house.

In 2012, a six year old student in Maryland was suspended for pointing his finger in the shape of a gun and saying “pow.” The principal sent a letter home to the parents stating that the boy “threatened to shoot another student.” Yes, this will be on this boy’s permanent record.

Similarly, a seven year old Maryland student was suspended in 2013 when he bit his pop tart into the shape of a gun and said “bang bang.” These two events led Maryland State Senator J.B. Jennings (R-Baltimore) to introduce the “Reasonable School Discipline Act of 2013″ to the Maryland Legislature, which would prohibit schools from suspending or expelling students who use any object that resembles a gun, but serves another purpose. In other words, the bill requires school administrators to use a little common sense. Has it really come to the point where we need such legislation?

In 1999, a Missouri high school junior was suspended for ten days when he responded “yes!” to an online message board asking whether students thought that a Columbine incident could happen at their school. As a result, he became ineligible for the National Honors Society and missed taking achievement tests which would have placed him in college level courses.

Finally, we saw the post made by Tom Knighton yesterday about the five year old student who was forced to undergo a psychological evaluation and sign an agreement to not harm anyone or herself because she drew a picture of a gun and held up a crayon, saying “pew pew.” She is five!

According to the National Association of School Psychologists, students who are suspended from school are more likely to suffer psychological disorders such as depression and anxiety from being ostracized. They are also much more likely to wind up in the juvenile justice system and therefore, the “playground to prison pipeline.” The American Psychological Association’s Zero Tolerance Task Force further found that zero tolerance policies had the opposite effect on preventing school violence. This is just another example of overreaching state power and the government, in its “infinite wisdom”, thinks it knows best. We would be better off to eliminate or reduce zero tolerance offenses. Our kids and future generations will thank us.

Albert holds a J.D. from Barry University School of Law as well as an MBA and BA in Political Science from The University of Central Florida. He is a conservative libertarian and his interests include judicial politics, criminal procedure, and elections. He has one son, named Albert, and a black lab puppy, named Lincoln. In his spare time, he plays and coaches soccer.

The problem with “Wouldn’t it be…” and “Wasn’t it…”

Progressive ideas usually begin with:

“Wouldn’t it be great if…” (progressives are generally theorists)

Ok, right there with you so far…

Conservative ideas usually begin with:

“Wasn’t it great when…” (conservatives are generally empiricists)

Yup, that works for me too…

The complication is the next step, taken by both progressives and conservatives:

“Since that would be great, it is our moral obligation, to use the force of government to MAKE it that way”

… and that’s where we part ways.

The problem, is that I believe I have no moral right to force MY personal beliefs, preferences, or ideas on anyone else (no matter how “great” or “right” they may be).

I also believe that we have a moral obligation to use the force of government as little as possible (even if doing so may be “for the greater good”).

Of course, that’s where the kicker hits, from both left and right…

“Since you oppose something which is great, and which is a moral obligation, you must either be stupid, or evil”

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Tax Hike Mike Threatens To Take His Toys And Go Home

Former Arkansas Governor “Tax Hike Mike” Huckabee was a guest on the American Family Association’s “Today’s Issues” program where he ripped into the Supreme Court’s decision this week to not hear gay marriage cases, which essentially increased the number of states in which gay marriage became legal to 30 plus the District of Columbia.

Here’s a video of Tax Hike Mike threatening to leave the GOP over gay marriage:

For those of you who prefer to not watch the Huckster, Rare has transcribed what he said:

“If the Republicans want to lose guys like me and a whole bunch of still God-fearing Bible-believing people, go ahead and just abdicate on this issue,” Huckabee said.

“And go ahead and say abortion doesn’t matter, either, because at that point, you lose me, I’m gone, I’ll become an independent, I’ll start finding people that have guts to stand. I’m tired of this,” he said.

Poor Tax Hike Mike is not getting his way so he’s going to take his toys and go home. Well, the problem for Tax Hike Mike is that the Republican Party and the country are changing and it’s not to his liking.

Young Republicans are overwhelmingly in support of gay marriage for example. Pew Research Center found that 61% of young Republicans support gay marriage.

Gay marriage isn’t the only issue where young Republicans are bucking social conservatives. Young Republicans are also bucking social conservatives on marijuana as the AP reported back in May.

Beyond being a generational issue, young Republicans say their positions stem from the party’s belief that government shouldn’t intrude on people’s lives. Ron Paul’s 2012 presidential campaign got most of its following from younger Republicans attracted by his libertarian message that allowed for gay marriage and the legalization of marijuana.

It’s not just Tax Hike Mike’s increasingly out of date positions on social issues that should stop anyone who loves liberty from shedding tears over his departure from the GOP, it’s his terrible positions on just about everything. Here’s a brief summary:

  • There’s a reason why we call him Tax Hike Mike around here, because as Governor of Arkansas, he loved to raise taxes
  • Tax Hike Mike increased spending by 65% as Arkansas governor and Cato gave his overall reign a “D” on their grade for fiscal policy.
  • Tax Hike Mike continues to defend his fiscal progressivism.
  • Tax Hike Mike has supported cap and trade in the past and says “God wants us to fight global warming.
  • Who can forget Tax Hike Mike’s support of Common Core
  • Oh social conservatives, do you know that Tax Hike Mike signed a law in 2005 that mandated contraception coverage, even for religious organizations?
  • For more goodies about Tax Hike Mike, please visit this blog that has compiled a list of the numerous times Mike Huckabee has supported big government.

    After the disaster that was the presidency of George W. Bush and “big-government conservatism”, the last thing the Republican Party and the country needs is for that banner to be carried to victory in an election. It’s time to show Tax Hike Mike and those who support the big government nanny state the left does, except their own version of it, the door.

    I’m one of the original co-founders of The Liberty Papers all the way back in 2005. Since then, I wound up doing this blogging thing professionally. Now I’m running the site now. You can find my other work at IJ Review.com and Rare. You can also find me over at the R Street Institute.

    BOOK REVIEW: The United States of Paranoia

    Conspiracy theories are only believed by people on the fringe of American politics? Not so says Reason’s Jesse Walker in his latest book: The United States of Paranoia: A Conspiracy Theory. Walker argues quite the opposite in his opening chapter: “The Paranoid Style is American Politics”:

    By the time this book is over, I should hope it will be clear that when I say virtually everyone is capable of paranoid thinking, I really do mean virtually everyone, including you, me, and the founding fathers. As the sixties scare about the radical Right demonstrates, it is even possible to be paranoid about paranoids. (p. 24)

    For those who are hoping that this is another book in which the author’s goal is to prove or disprove any particular conspiracy theory, Walker makes is clear that this is not what this book is about (for the most part). He also makes a point to acknowledge that some conspiracies have been proven true (ex: Watergate among these, see Chapter 7 for more examples), “At the very moment you are reading this, someone somewhere is probably trying to bribe a politician. The world is filled with plots both petty and grand…” (p.21). Instead telling the reader what to believe, Walker tells a history about what people have believed on this continent from colonial times to now and how these beliefs have shaped the political debate and very the culture itself.

    Among the earliest examples of American conspiracies shaping politics and culture resulted in the infamous Salem Witch Trials of the late 1600’s. According to the belief at the time, witches conspired together and with the Devil to bring evil to the land. Disease and other misfortunes the colonists suffered were believed to be the direct result of these alleged Satanic rituals. Men and women were accused, tried, and executed with little or no evidence. The legacy of Salem continues today. When some public official is accused with wrongdoing, credibly or not, the accused and his or her defenders inevitably will call the proceedings a “witch hunt.”

    Soon after the colonies won their independence from Great Britain and became the United States of America, the citizenry turned its distrust of power inward. Who could be trusted to lead this new nation and how could the people keep another tyrant or a cabal of tyrants from taking control? As it turns out, many of these fears were quite legitimate. Not everyone was satisfied with the Articles of Confederation. There were actual conspiracies afoot to overthrow existing system under the AOC in which the several states had most of the power while the national government had little. An attempted military coup called the “Newburgh Conspiracy” was stopped when George Washington convinced his fellow soldiers that overthrowing the government by force was not the right way to go about changing the political system.

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    I Want My — I Want My — I Want My DNA

    Today the FDA dropped a big m-fing hammer on 23andme, a service that will allow you some insight into your own genome. They offer, along with the ability to get a raw report about the specific genes they track, some level of analysis of your genome. They can use your data to look for specific known genetic markers of inherited conditions, and giving you advance warning that you may be at elevated risk of certain problems. In addition, by trying to build a large database of genetic data, they are vastly accelerating the degree to which future genetic markers can be understood for analysis.

    This, according to the FDA, is data used for diagnostic and prevention purposes, and therefore makes 23andme a “Medical Device”. Suffice to say that medical devices must to be FDA approved, according to the law, and 23andme hasn’t completed all the hoops necessary to allow me to spit in a cup and send it to a lab. So they can’t sell their kits any longer.

    This puts some people, like my wife and myself, in a bit of a strange position.

    As many of you know, our 4yo son is autistic. We’ve been through quite a bit to potentially understand the causes of his autism. Without getting too deep into the matter (there are many possible causes, each with its own camp of die-hard adherent believers, all of whom hate each other*), one of the avenues we’ve been traveling down is testing for various types of biomedical dysregulation. As a result, we’ve found that he has a genetic mutation common in a lot of autistic individuals related to what is called the “methylation pathway”. This is a biologic process related to brain activity and development, so the fact that it’s short-circuited gives some indication of where things can be helped**.

    So my wife and I are taking this as a chance to better understand more about our own genetic profiles, and with the added benefit of determining more clearly where my son’s genetic mutations have come from***. So we both did the “spit in a tube” thing last week, and our samples are happily on their way to 23andme.

    Now, I’m smart enough to know that genetics is NOT an exact science. That getting a report that there might be elevated risk for X doesn’t mean I have X****. I’m not going to use the information to make rash decisions about my medical care.

    But it’s a start. It’s information that I don’t have today. It’s information that may be of immeasurable benefit to me in the near term and down the road, if it reveals something real. And it’s information that the FDA doesn’t trust me to have.

    “Trust” is the term there. The FDA doesn’t trust us mere citizens. It doesn’t believe we’re capable of making decisions that affect our very lives. The 23andme genetic information isn’t perfect, but they believe that if we can’t get perfect information, we’re better off with no information. This information, of course, is getting better. One of the possible advantages of a widening circle of people partaking in 23andme research is that they can improve their ability to analyze a sample, looking for correlations years from now based on the sample I just gave. Part of the reason I wanted to do this was based upon expected future benefit in addition to learning about the aspects of my genetic that already relate to known markers.

    So, our saliva is on the way. With the FDA’s recent proclamation, does that mean that 23andme will complete the testing on our samples? Or will the brakes be put on before they’re allowed to run the test? Will this action end up killing the company, so that even if I *do* get my results today there will never be any future research to make the findings more valuable to me?

    So thanks a lot, FDA. You’re making me wonder if I’ll ever get the information I absolutely want and paid for. You’re making the future value of that investment lower, by putting into question the future of 23andme and the amount of data they have access to to analyze. And by doing so, you’re probably putting the brakes on the speed at which future genetic breakthroughs will manifest by artificially culling the data set. Nobody will know how many people will die in the future as a result of slower progress in the growing field of genetic research, but they won’t thank you, nor will I, for protecting me from this information today.

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