In its latest foray into determining schools’ disciplinary authority over student speakers, the U.S. Supreme Court took pains to balance all of the participants’ interests—except the speakers’.
The Court’s 2021 opinion in Mahanoy Area School District v. B.L. expressed deep concern for the interest of school authorities in maintaining order and responding to cyberbullying, and equally great concern for the interest of parents in raising their children free from governmental interference during out-of-school hours. Strikingly absent was any recognition that a young person’s complaint about unfair treatment by a coach might have intrinsic worth—for the speaker’s own self-actualization or for the larger audience.
As described in Justice Stephen Breyer’s majority opinion, and in Justice Samuel Alito’s influential concurrence, the case of a 15-year-old cheerleader disciplined for profanely criticizing her school on Snapchat was not about freedom of speech but about control. In their view, the case was about drawing a line where the school’s authority to control speech gave way to the parents’ authority to control speech. “Geographically speaking,” Justice Breyer wrote, “off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility.” That a teenager might control her own speech was not even within the range of possibilities.
The Mahanoy ruling is part of a larger contemporary drift toward depriving young people of agency over self-determination. The reality of the contemporary legal system is that courts are increasingly choosing between two competing visions—“what is best for the government is best for the child” and “what is best for the parent is best for the child”—without much consideration of “what is best for the child.”
Across the country, state legislators and school policymakers—at times with the acquiescence of judges—are moving to strip away the discretion of young people to make their own decisions about what books they read, what websites they visit, what they wear to school, and what gender identity they adopt among their schoolmates. For instance, at least seven states (Arkansas, Louisiana, Mississippi, Montana, Texas, Utah, and Virginia) have recently enacted statutes requiring website operators to verify the ages of their users, if the sites contain content deemed “harmful” to minors. An eighth state, California, is being sued over a 2022 statute that requires operators of any website “likely to be accessed by children” to track which of their users are minors and to store those data. Lawmakers were unpersuaded by arguments that such aggressive screening might well result in websites that carry valuable news content “age-walling” their sites so that they will not be accused of serving harmful material to minors.
This selective infantilization of young people—treating minors as incapable of making rational decisions when it suits the regulator’s ideological objective to do so—is the predictable product of decades’ worth of aggressive lawyering by public schools, which have convinced federal courts that constitutional rights for young people are an impediment to well-meaning authority figures concerned for their safety. Thus, young people no longer have any ability to resist suspicion-less drug testing in school or—with the very extreme exception of a strip search—to resist being searched in school on the most minimal of justifications.
The notion that constitutional rights should apply with less rigor to the class of people most vulnerable to government overreaching—“for their own good”—fundamentally misconceives the role of a declaration of rights in a free society. Nevertheless, this “training-wheels” level of constitutional protection for minors is increasingly the law. Consequently, the only muscular check on schools’ authority is the counterweight of parental due process rights, recognized in the Supreme Court’s 1972 Yoder v. Wisconsin ruling, which gave parents the constitutionally protected right to withdraw their children from school on religious grounds, notwithstanding state attendance laws.
In such a climate, it is unsurprising that youth autonomy rarely enters the discussion when elected officials are formulating policy or when judges are adjudicating the legality of it.
The anti-censorship organization PEN America reports that, since the beginning of 2022, schools in at least 32 states are known to have removed books from school libraries in response to challenges alleging age-inappropriate discussion of race or gender issues, with the bulk of those disputes concentrated in Florida, Missouri, South Carolina, Texas, and Utah. The explosion of these book-banning controversies is part of a larger activism movement in which conservative parents, and their allies in state legislatures and on local school boards, are seeking greater control over the ideas children are exposed to in public schools.
One focus of this movement is on challenging school policies supportive of LGBTQ+ students who might adopt names and pronouns other than those corresponding to their sex at birth, insisting that parents—not students—should decide what names children use at school. Recently, a federal judge in Wyoming refused to dismiss the claims of a parent who argued that a school district policy allowing her 16-year-old to adopt a male name and pronouns in school without parental notification interfered with her constitutional right to raise her child as she chose. And a federal district court in Kansas allowed a middle school teacher to proceed with claims that a school policy, which required her to withhold a student’s transgender status from parents if the student indicated that their parents were unsupportive of the transition, violated the teacher’s constitutional rights.
Increasingly, young people cannot make even the smallest of decisions without parental sign-off. Over the past two decades, at least four states (Georgia, Oklahoma, Tennessee, and Utah) and dozens of local districts have enacted regulations requiring parental consent before a student can join a club, even one that is student-organized and student-led. This movement is widely seen as a backlash against the popularity of Gay-Straight Alliance clubs that became widespread during the 1990s.
Paradoxically, the infantilization of young people in connection with their own education coincides with an ongoing rollback of laws that protect young people from abuse and exploitation in other contexts. Most notably, in just the past year, Arkansas and Iowa have loosened labor laws to allow children as young as 14 to work hours once considered unsuitable for minors. (Tellingly, even the rollback subordinates the will of the young worker to the will of the parents; Iowa’s new law lowers the legal age for serving alcohol to 16, but only if the teen has a parent’s signed permission.)
At common law, the “rule of sevens” has long been established as a line of demarcation at which young people are presumed to have both legal accountability for their behavior as well as legal capacity to consent to certain undertakings. Under this principle, a child of seven or younger is deemed legally incapable of acting with the intent necessary to make decisions of legal consequence. Conversely, a child of 14 or older is presumed to be capable of giving informed consent, subject to some statutory overrides (such as laws mandating a minimum age to consent to sexual activity, purchase alcohol or firearms, or drop out of school).