Tuesday, December 26, 2006

Oswego HS Students Believe Civics Class Reflects Reality, Attack Curfew

An interesting story is brewing among the placid waters and stately firs of Lake Oswego, perhaps Oregon's most East-Coast style materialist luxury suburb. With personal incomes twice the national average, and home prices approaching the $500,000 median, the city's 36,000 residents blissfully occupy an island of conspicuous wealth in an otherwise unostentatious state. Spurred by a political action assignment at the elite flagship high school of the state's top school district, students at Lake Oswego High have absorbed from their lessons that they actually have constitutional rights, and that their status as minors and subservients by law to their parents does not necessarily diminish those rights.

The story began to hit the newswires a couple of weeks ago when the students put their assignment into action and appeared before City Council to protest the town's juvenile curfew. Like those of several cities around the state, Lake Oswego's curfew is long standing and until now relatively non-controversial, appealing to parents and public safety officials as a way to keep vulnerable teens off the streets and out of danger. LO's law bars those under 14 from being out and about after 9:15 during the school year, 10:15 for those 15 to 18.

That's not to say curfews aren't a favorite target of liberty advocates and young people, amounting as it does to a nanny state after dark for anyone under 18, where teens may be stopped at will and ordered to verify their purpose or face curfew violation. The First Amendment Center has a good legal backgrounder on curfews and loitering laws in general, and applicable precedents specifically for juvenile curfews. One of them, Nunez v San Diego, a 9th Circuit appeals decision from 1997, is in fact the primary citing the LOHS students are using in their school project/fight against City Hall.

One can only imagine what the adults in this story were expecting, particularly the teachers and the Council--likely that the kids would run through the motions, see how political democracy works (or doesn't), get the grade and move on. I don't guess that anyone was expecting the teens to take it seriously enough to get the ACLU involved on an advisory basis, and to refuse any ground whatsoever when offered half-loaves by Council:
Members of the Lake Oswego City Council agreed to compromise with a group of Lake Oswego High School students who asked them to abolish the city’s teen curfew Tuesday.

But their offer to amend the current ordinance with the teens’ help wasn’t enough to satisfy the group, whose members repeatedly told council they want the curfew abolished permanently.

“Compromise is not acceptable because we can’t compromise on constitutional rights,” said student Hanna Piazza.

Group members, who are backed by the American Civil Liberties Union, said they believe the curfew ordinance discriminates against teens and violates their right to move about freely.

They also told council they feel it’s parents’ responsibility to monitor their own children — not the city’s.

“I’ve had many friends pulled over and cited for curfew,” said student Paul Trompke. “It’s something we found needed to be changed.”
I'm sorry, that's just kick ass. Kids at LO in December are typically thinking more about Vail trips and whether maybe, just maybe a car will be in the driveway on Christmas, than they are about school assignments--but here they are. And it's not because they're simply juiced on the heady wine of dissent; they've got a pretty decent argument.

As the First Amendment site points out, the judicial history of juvenile curfew law is recently pretty contradictory. The fundamental divergence is how to treat the admitted intrusion on juvenile liberty: as a fundamental breach or one that is less serious--and also whether the State must show either a compelling interest or simply a general furtherance of that interest. In general, if the court relied on the latter standard in each case, they ended up favoring the right to impose curfew. If they chose the former set of standards, known as strict scrutiny, the court was be apt to find the curfew unconstitutional. The 9th opted for strict scrutiny in Nunez, and had this to say:
Because parental power is not subject to the constitutional constraints of state
power, minors' lack of rights vis-a-vis parents does not necessarily show that they lack those rights vis-a-vis the state. The Court emphasized the school district's "custodial and tutelary responsibility for children," noting that constitutional rights are different in public schools than elsewhere. Id. at 2392. See also Reno v. Flores, 507 U.S. 292, 302 (1993). We decline to extend Vernonia to establish that the
Constitution does not secure minors' fundamental right to free movement against the government acting without regard to the parents' wishes.
As far as showing a compelling interest, at first in Nunez the Court appears interested to grant the concept, provided that the State offers evidence in record to show that juvenile crime and vicitimization are affected by the curfew, or at least represent a compelling need that might suggest one. In San Diego's case, the statistics were found highly wanting. Whether LO keeps ready statistics on victimization by age, I'm not sure.

As a generality informed by personal observation however, I'm highly skeptical that Lake Oswego could show sufficient danger--either to kids or from them--to justify their curfew. Just as a barometer, if you scan Clackamas County's (where LO is located) youth crime records from 2005 and 2000 {both pdf}, you'll see that there were 1,380 youth referrals countywide in 2005, 1 in 5 for personally violent offenses. Five years ago, the figure was 2,343, although a smaller percentage were personal crimes. On a comparative basis to other places, this site indicates a virtual crime-free paradise, rated at less than 1/5th the national average for personal crimes. it If the City wants to prove that juvenile crime is a pressing police issue, I'd be keen to see the evidence--but it may not in fact be there.

It's unclear at this time whether Council will begin taking this agenda item seriously, whether the ACLU will formally take up the banner for another test case (they currently have zip up about it at the Oregon chapter's website), and whether the kids will stay focused on the question as the weather warms and dries. But from my vantage point it's worth seeing in court, given the relative safety of the area and a natural libertarian lean in this state. We're coming to expect far more of our late-adolescents these days, particularly as it relates to work and school-sponsored programs such as athletics or drama. With those expectations must also come the respect that they will be able to live up to them, albeit imperfectly.

I'm pretty sure I wouldn't let my 13 year old wander around unsupervised in town, but then again that's part of the argument the teens are making--the parents are the rightful deciders of that question. If kids are committing crimes or making too much mischief, that's when the police need to step in. Until then, a free directive to stop and question any driver or pedestrian based solely on their age, is tantamount to convicting them of Driving While Young, another in a list of profile-based police activities that seriously strain the intent of the Constitution to prevent government intrusion without specific suspicion.