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More on the North Carolina Sex-Outside-School Case:

This article reports:

The suspension notice states that Ryan violated a policy that says: "No student shall engage in behavior which is indecent, overly affectionate, or of a sexual nature in the school setting."

"Students leave school and essentially take the rules with them," school board lawyer Ann Majestic said in a telephone interview Friday. "The parents and the student had signed a form indicating the conditions under which a student could be off campus during the lunch hour, and it made it clear that school rules applied while the student was off campus." ...

I'm not sure that the policy is so vague that it can't be constitutionally enforced here -- much depends on the exact terms of the form -- but it seems to me that the policy's terms further suggest that the school is acting improperly. The policy itself seems to be pretty clearly focused on behavior in school or during school-sponsored events. The purpose of the policy seems to be to maintain decorum and a proper environment for learning at school. A student who's familiar with the policy would, I think, interpret it precisely this way.

If a form then says that "school rules appl[y] while the student [is] off campus," I doubt that a reasonable student would assume that this means no french kissing (might well be "overly affectionate," no?) at home or even in the car on the way to the event. I'd say that many perfectly sensible students would understand this as simply covering the things you would do while on the field trip, surrounded by students or others. That behavior in public on a school-related field trip is treated as being part of the "school setting" doesn't mean that behavior at home while playing hooky from the field trip would be treated the same way.

But even if it's not unconstitutional to apply the policy to bar sex or french kissing at home, on the theory that such behavior is barred "in the school setting" and a form says that "school rules appl[y] while the student was off campus," surely it's not quite fair -- especially when the contemplated punishment seems to be suspension for the rest of the year, which, as the news story points out, "[s]pending so much time away puts him in jeopardy of repeating 11th grade and not graduating with his class next spring."

Related Posts (on one page):

  1. More on the North Carolina Sex-Outside-School Case:
  2. A Bit Excessive, No?
I.I (www):
Allowing that school rules may apply to any location during school hours, the students still have an out in that a private home is not a "school setting" regardless of what time it is. The rule specifically limits itself to a school setting; sexual conduct in a non-school setting is not addressed by the language of the rule, so the students can argue that the rule was in force but irrelevant, just as a rule regarding cafeteria behavior would be irrelevant inside one of the classrooms.
5.9.2006 8:56pm
Cornellian (mail):
Agreed. If "school setting" means "anywhere" that means the rules prohbit you from getting undressed in your own bathroom in preparation for taking a shower, because nudity in a school setting would be "indecent."
5.9.2006 9:05pm
eng:
I wonder at what point do school rules eventually constitute an undo delegation of legislative authority onto the executive branch.

Given the real costs of expulsion or suspension it seems rather strange that such actions are not subject to due process requirements.
5.9.2006 9:23pm
Esquire:
I would take "off-campus" to mean *anything* off-campus, otherwise the natural way to phrase it would be something like "any school-related context."

When I was in high school, there was a rule that anybody caught engaging in underage drinking at ANY time -- whether prosecuted/convicted or not -- would be banned from participating in school sports. Several members of our basketball team drank some beer one SUMMER (as "off-campus" as it gets!), and when the school found out they were off the team.

Now, there were differences of *degree* here, such as 1) the less-severe penalty than suspension/expulsion, and 2) the higher-threshold trigger of actually having to do something that's technically illegal. But in principle it would seem analogous, so would expulsion for prohibited sexual activity be any less permissible? Are we concerned about whether the policies make sense, or whether they have a right to exist? Can matters of degree/severity be taken into account, or must we say that schools can either always or never consider conduct which is unrelated to school contexts?
5.9.2006 10:04pm
Wooderson (www):
Let me tell you this, the older you do get the more rules they're gonna *try* to get you to follow. You just gotta keep livin' man. L-I-V-I-N.
5.9.2006 10:20pm
Shangui (mail):
"No student shall engage in behavior which is indecent, overly affectionate, or of a sexual nature in the school setting."

Does that mean if the kid had gone home and masturbated that he would have been as guilty of offense in the school's eyes as he was for having sex with his girlfriend? This whole thing is just idiotic.
5.9.2006 10:21pm
Traveler:
"The purpose of the policy seems to be to maintain decorum and a proper environment for learning at school."

I disagree.

When high schools implement off-campus pass programs, permitting out-of-class students (usually seniors only, or juniors and seniors, and typically limited to students with good disciplinary records), parental opposition can be strong.

In particular, parents are about allowing teenagers to go unsupervised, especially when they are released from the school environment during the middle of the day.

Although students have a tremendous capacity to escape supervision even at school (who didn't have friends who found private places to engage in drug use, romantic activities, or other prohibited behavior during the school day), parents tend to blind themselves to those realities and think "if Jill is in school, she's okay." At least in the school setting, there is the theoretical possibility of supervision. Once off school property, that theoretical possibility vanishes into nothingness (Ed Rooney-esque truancy officers being pretty rare today).

To assuage parents' concerns, a necessary step to enable schools to offer off-campus passes, schools promise to make students agree to follow all school rules when they leave.

Make no mistake: parents who are concerned about their kids' behavior interpret this as *all* school rules -- that's why they agree. And students who sign these forms know full well that they are agreeing to rules for lunches and afternoons off campus, not just formal field trips.
5.9.2006 10:36pm
Thorley Winston (mail) (www):
Traveler pretty much nailed it on the head.

I would just add another point, when I received permission to leave school grounds for outside activities (e.g. work, extracurricular activities), I remember that part of the conditions that came with the permission were that if for some reason the activity was cancelled, I was supposed to return to school grounds.

The story doesn't say if this school issued similar instructions but I'm willing to bet that part of the expectation for this program was that (a) if you were given permission to leave school grounds for an off-campus program and (b) you're activity was cancelled for that day then (c) you were supposed to return to school.
5.9.2006 11:32pm
Rickersam (mail):
Shouldn't that be "liberty kissing."
5.9.2006 11:43pm
wm13:
It would seem clear that if you're a school administrator, in a nation of lawyers, you shouldn't let students leave campus at all.

Hey, remember many decades ago, when there was a saying "don't make a federal case out of it"? I wonder if anyone of Prof. Volokh's generation even remembers that saying?
5.9.2006 11:49pm
Vincent, Paul (mail):
If only because of the "politics" that are central to any decision which public school administrators and school board members make, I am opposed to school administrators and boards having this power. In addition, assume that students went home during their lunch time (in a rural area) and instead of having sex took the opportunity to either shoot some claybirds, go hunting, shoot an arrow, throw some rocks, use slingshots, or throw some darts (all done legally). Should this policy extend to the students' off campus activities just because it was done off campus during the school day?
5.9.2006 11:50pm
Shangui (mail):
Many of the commentators seem to be obsessed with proving that the students did indeed violate the letter of the school rules. Fine, they clearly did. But does that mean they should be kept out of school for the rest of the school year, not be allowed to take their exams, etc.? Does the punishment come anywhere near fitting the crime here? And does the school have the right to take into account the fact that they were doing something within their legal rights (i.e. consensual sex in private) and make the punishment worse because of that?
5.9.2006 11:54pm
I.I (www):
"if for some reason the activity was cancelled, I was supposed to return to school grounds."

So bust the kids for truancy- that's a legitimate beef. Still doesn't mean that a private bedroom is a "school setting."

"The parents and the student had signed a form indicating the conditions under which a student could be off campus during the lunch hour, and it made it clear that school rules applied while the student was off campus." It'd be useful to have the exact wording of that form. If it's just an agreement to follow the school rules, though, then my argument stands: The kids agreed not to engage in sexual conduct in a school setting and they did not violate that agreement.
5.10.2006 12:03am
NoPass (mail):
Even if it does seem a little silly, Shangui's point is dead-on. Eugene emphasized the same idea with his thoughts on French kissing, but the masturbation example further reflects how ridiculous the school's policy is (and how difficult it would be to apply consistently). So even if it is enforceable, it's terribly impracticle. I'd like to see the school that would publicly embarrass a student via suspension because masturbation at home in his bedroom during school's hours was a violation. Obviously such a violation is not the same thing as having sex with one's girlfriend--otherwise 99% of high school boys would be a lot happier--but it'd be a violation nonetheless. Stupid.
5.10.2006 12:03am
Allen Asch (mail) (www):
I've always thought school rules such as these were meant to prohibit the display of sexual activity because it's disruptive at school, not so much the sexual activity itself. And, if the purpose of the rule prohibiting sexual displays is that such displays disrupt school activities a la Tinker, then Prof. Volokh's distinction between locations gets support from Frederick v. Morse, a case I tried to get discussed on an open thread.

The Ninth Circuit's suspended student, Frederick, was also only semi-supervised and off campus. His speech, a "Bong Hits 4 Jesus" banner, may have been disruptive if displayed at school (see footnote 45 of Frederick v. Morse), but the Ninth Circuit found it nondisruptive becuase it "was displayed outside the classroom, across the street from the school, during a non-curricular activity that was only partially supervised by school officials. It most certainly did not interfere with the school's basic educational mission."

Allen Asch
5.10.2006 12:24am
CharleyCarp (mail):
Hey, how come the girlfriend isn't getting punished?
5.10.2006 12:27am
I.I (www):
"Hey, how come the girlfriend isn't getting punished?"

We don't know that she isn't; the reports say they cannot say whether she is or not. Presumably, she gets privacy while he does not because he's the one with a lawsuit.
5.10.2006 12:33am
John Jenkins (mail):
Even if the rules were to be applicable at home, aren't there intimate association issues presented here, like those in Lawrence? The state has already dictated what the age of consent is, so the argument that greater restrictions are warranted because of the age of the participants isn't available.

Some of the comments above seem to be entirely off base. The student does not appear to have been suspended for failure to return to school as required by the conditional permission to leave (which would be entirely within the school's purview). Rather, he is being punished for consensual sexual activity in his girlfriend's home.

The particular policy, on its face, obviously doesn't apply outside the "school setting." The 10-day suspension was within the principal's power (according to WCSB policy). It will be interesting if reason prevails and the superintendant denies the request for a suspension for the rest of the year, in which case the court action would probably be dismissed as moot.
5.10.2006 3:44am
David Newton:
There are two things which need answering here:

1. Do the rules of the school state that a student must return to campus if any event that they have been given permission to attend off campus is cancelled?
2. What exactly is the student being punished for: is it the sex or is it the potential truancy?

If the student is being punished for the sex then the school don't have a leg to stand on. The sex was consensual, in private, the people engaged in it were both over the age of consent and it was not, despite what over-officious school staff might think, in a school setting. It is also possible to argue that the rules are not being applied equally thus violating the 14th amendment.
5.10.2006 4:28am
ReaderY:
BTW, what form of sex did the teens have? The Crime Against Nature is a felony in North Carolina, not a misdemeanor, (NCGS 14-177) it has already been held to survive Lawrence v. Texas wherever possible State v. Pope, 168 N.C. App. 592 (2005), it's very broad in North Carolina and includes such things as vaginal penetration by an object State v. Stiler, 162 N.C. App. 138 (2004), and of course Lawrence v. Texas doesn't apply to sex with minors, which both participants have done.

Heck, compared to such not-so-distant past events as a Supreme Court case involving a 5-year prison sentence in 1980 (State v. Poe,State v. Poe, 40 N.C. App. 385, appeal dismissed, 445 U.S. 947) and for that matter had life imprisonment until 1965 and as late as 1964 people were complaining about things like getting 20-30 year prison sentences when their accomplices got only 5-7 years (Perkins v. North Carolina, 234 F Supp. 333, things have gotten pretty lenient!
5.10.2006 11:29am
Shake-N-Bake (www):
"Lawrence v. Texas doesn't apply to sex with minors, which both participants have done."

However, as people have already mentioned, the age of consent there is 16, not 18, so under NC law both participants did not have "sex with minors" in this particular case, and Lawrence could therefore, if applicable, be applied.

I think there's a big difference between revoking someone's privilege to participate in extracurricular activities, i.e. being kicked off a team for drinking, and revoking a student's ability to finish his high school education on time for an activity that was legal under the relevant state law. While I'm not sure if education rises to a "right", it is much closer to that level than playing on the basketball team or participating in Model UN.
5.10.2006 12:31pm
KevinM:
Punish hooky, not nooky.
5.10.2006 12:40pm
tomjedrz (mail):
The only problem I see here is with the severity of the disciplary measure.

The two of them were caught off-campus without permission, cutting class and having sex.

Suppose that, rather than the off-campus activity being cancelled, a teacher did not show for class, perhaps because of a car accident. Would it be OK for the kids to leave campus and return for their next class? Of course not; the kids would be expected to contact the office and would be directed to go somewhere for a study hall. These two should have gone back to campus, and not doing so clearly violated the rules.

Suppose that the kids had cut class on campus, found an empty classroom and had sex. Would this be a more serious violation of the rules than if they had been caught listening to their iPods in an empty classroom. Duh ...

That said, the officials should structure the discipline so that the academic year is not lost for these kids.

BTW - I assume that the young man and the young woman were treated similarly, but the young man's family is raising the fuss.
5.10.2006 12:41pm
Aaron:
Again, it's the moral judgement that I take issue with. Undertake a legal activity (consensual sex)--suspend for the rest of the school year. Undertake an illegal activity (smoking)--nothing.

There is no allegation that the students were busted for truancy--all of the accounts stip that they had "90 minutes to kill". Stop adding facts, or at least if you do so, then say so.

Regarding whether or not the female student's father was upset, she has a legal right to have consensual sex--let her parent deal with that (and let Ryan's parents deal with his sexual activity).

I find it borderline pathetic that the same folks who don't want sex-ed in schools because it usurps parental rights in teaching their children about sex see no problem in the school reaching into someone's private home to regulate what goes on there.
5.10.2006 1:18pm
American Psikhushka (mail) (www):
I for one welcome our new school district overlords.

May they gather plunder as far as the eye can see, and may their jackboots tread lightly upon us.
5.10.2006 1:58pm
dweeb:
When I was in high school, there was a rule that anybody caught engaging in underage drinking at ANY time -- whether prosecuted/convicted or not -- would be banned from participating in school sports.

I'd love to see them try to enforce that against the Catholics and observant Jews, whose religions both have rites that involve drinking wine.

I'd bet that there would be no punishment if it had been two girls or two boys - the squeaky wheel gets the grease, and nobody wants to cross the forces of political correctness.
5.10.2006 2:24pm
Ziske68 (mail):
I believe David Jenkins and Aaron are closest to the mark here. I personally went to a school (admittedly private) that had policies that made it in effect a completely "open" campus by the time you were a senior. In effect, the only time you had to be there was when you were in class. Now, there certainly was the possibility of being punished for "poor conduct" when not on campus during the school day, however, we are talking about an arm of the state regulating a legal,consenual activity in a private home.
My reading also interprets punishment to be for having sex and not for truancy. In this case according to the oft quoted "school setting" policy, the kids were absolutely NOT breaking any school rule. A private home is not a "school setting" no matter how you parse it.
The issue I see here is the reach of the schools' in loco parentis....for example, if the kids were on an overnight field-trip in a hotel (the room itself not being a "school setting") is this different, and if so why? What limits are there on the reach of the state to regulate lawful conduct for minors through the school system?
5.10.2006 3:15pm
Aaron:
I actully believe that, were this an overnight, supervised, sponsored school trip, the district may have more of a leg to stand on. The ability of the school to regulate legal activity outside of the school setting must have some limits. Imagine if instead of having sex, the students, in violation of a school regulation prohibiting political campaigning, went to a rally supporting Liz Dole's re-election campaign (in my opinion as morally objectionable as pre-marital sex). Can the district punish the students for that activity?
5.10.2006 3:25pm
Aaron:
One of my colleagues opined that smoking wouldn't be punished because the school is located in North Carolina, after all...
5.10.2006 3:27pm
hey (mail):
This just highlights the exceptional weirdness that is the US school system. We had open campus, students over 18 (at the time normal course had grade 13, so you could spend 1.5 years as an adult in hs) who could write their own notes, students who were running sports teams or clubs (like myself) could create our own school approved abscences... You could spend half a year being of legal drinking age! If you were caught drinking/inebriated on school property (such as by extensive vomiting during a school dance... frequent ocurrence) you could be suspended for up to 10 days, but usually just 5. Absolutely 0 effect on extracurricular activities, whether or not you were of legal age to consume alcohol.

Don't let your kids grow up in the US, send them to boarding school in Canada, the UK, or Switzerland!
5.10.2006 4:28pm
Mike99:
KevinM:

Excellent. How about this one:

If he boned her at home, leave him alone.
5.10.2006 4:38pm
Patrick:
One said: "I find it borderline pathetic that the same folks who don't want sex-ed in schools because it usurps parental rights in teaching their children about sex see no problem in the school reaching into someone's private home to regulate what goes on there."

The school only reached in after one parent called the cops after being shocked to find the kids 'in flagrante' and they got hauled back to school.

Another said: "If only because of the "politics" that are central to any decision which public school administrators and school board members make, I am opposed to school administrators and boards having this power."

This is yet another excellent justification for school choice.

Some parents *want* a school that has control over student behavior sufficient to the point where their own children aren't influenced or harmed by the misbehavior of others. I don't want a school run by jackbooted thugs, but
I also don't want a school run by the ACLU and an overly legalistic and anti-moralistic mindset that is antithetical to a healthy, disciplined learning environment.

So let's have school choice so parents pick the kind of school environment for children that parents want.

"Hey, remember many decades ago, when there was a saying "don't make a federal case out of it"? I wonder if anyone of Prof. Volokh's generation even remembers that saying?"

Apparently not. Something like this should end at the school Superintendent, if at that. And if school administrators cant be trusted on this, then maybe the concept of public school needs changing ... see the school choice option.
5.12.2006 3:27am
Cousin Dave (mail):
I think Aaron has the right point. BTW, I'm opposed to sex education in public schools, and I'm also oppposed to the school's authority reaching into private homes.

As for those forms the parents signed: If I were a judge, I'd find the enforceability of those things to be nil. Because I know how those work. Parents are told, "Sign these forms, or we'll expel your kid". Doesn't sound like a meeting of the minds to me.
5.12.2006 4:49pm