The Privacy of the Public Schools

This Article compares the liability of the public schools with that of families for harms to children in their care. Families serve as an apt vehicle for comparative analysis because families’ and schools’ responsibilities for children overlap substantially. Despite these overlapping responsibilities, however, the law allows schools to evade liability for harms to children and penalizes families for the same or similar harms. Drawing on feminist theory on privacy and the public/private divide, this Article argues that the limits of public school liability mean they have privacy.

Feminist theorists identify privacy as freedom from regulation and intrusion into decision-making. Public schools enjoy privacy in this sense because when they allow or cause harm to children, they are largely not held legally responsible. In the context of harms to children, therefore, the public/private divide is inverted. Recognizing this public school privacy has significance in three ways.

First, it highlights how the law privileges school authority over the rights of children. Second, recognizing public schools’ privacy allows for its deconstruction. Third, once deconstructed, elements of this privacy justify a theoretical argument that the Fourteenth Amendment imposes a duty on schools to protect children, and that children have a corollary right to be free from harm in school.