Top 10 Discipline Methods Not to use on Your Child

On the same day that I received a request to answer a survey for child abuse professionals about what I think my community's beliefs are concerning discipline methods, I saw an article about one type that wasn't on the list.

A pediatrician at the University of North Carolina at Chapel Hill is circulating a survey about opinions about child abuse. Professionals in various disciplines of the child protection field were asked to say whether we think it is the norm in our communities to use certain methods on various age children usually, occasionally, rarely or never. It didn't include the one that turned out to me to be the Number 1 Truly Shocking Thing NOT to do to Your Child.

But first the list:

Top 10 Discipline Methods Not to Use on your Child

Number 10 - Pinching

Number 9 - Kicking

Number 8 - Hot peppers in mouth as punishment

Number 7 - Calling child names such as stupid, ugly or useless

Number 6 - Hitting on the buttocks with an object such as a belt or switch

Number 5 - Slapping child on the face or the back of the head

Number 4 - Hitting child elsewhere than on the buttocks with an object such as a belt, hairbrush or stick

Number 3 - Shaking

Number 2 - Beating (that is hitting over and over again with an object or fist)

and the number 1 Truly Shocking Thing NOT to do to Your Child ...

... TASING.

That's right, I saw an article about a woman who called the police on her 10 year old daughter who curled up on the floor rather than take a shower at bed time. AND THEN the mother gave the officer permission to use his taser on the child if he thought it was necessary. See the November 19, 2009, Associated Press article from Ozark, Arkansas, here.

The girl's father, who reportedly "does not have custody", described the child as having "emotional problems."

The Mayor wants the State Police or FBI to investigate and said:

People here feel like that he made a mistake in using a Taser, and maybe he did, but we will not know until we get an impartial investigation.

Really? Really? The town has to have an independent investigation to determine whether a child having a tantrum at home needs to be shocked into submission?

See also my Guest Commentary on the bill that was then pending in the Massachusetts state legislature to ban corporal punishment in the December 13, 2007, Arlington Advocate.

SJC strikes down Lowell youth curfew

SJC strikes down Lowell youth curfew - Local News Updates - The Boston Globe

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The case is COMMONWEALTH vs. WESTON W., a juvenile (and a companion case), SJC-10299, decided September 25, 2009.

Justice Cordy's decision noted:

We reject the rationale used by some courts to justify a lower standard of review, that the rights of minors are not coextensive with or are weaker than those afforded adults. Minors possess fully formed constitutional rights. See Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 74 (1976) ( "Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority"). However, in applying the strict scrutiny test to their infringement, we recognize that the government has a countervailing compelling interest in "protect[ing] children from actual or potential harm," Blixt v. Blixt, 437 Mass. 649, 656 (2002), cert. denied, 537 U.S. 1189 (2003), an interest that often justifies restrictions that could not be sustained when applied to the fundamental rights of adults. See Bellotti v. Baird, supra at 634 (constitutional principles should be applied with "flexibility" to minors because minors are vulnerable and unable to make decisions in "informed, mature manner"); Matter of Gail, 417 Mass. 321, 326-327 (1994), quoting Custody of a Minor, 375 Mass. 733, 754 (1978) (Commonwealth has "long-standing interest in protecting the welfare of children living within its borders"). In other words, the analysis "should consider whether the state's interests may be more compelling but not whether the rights involved are less fundamental." Nunez, supra at 945, citing H.L. v. Matheson, 450 U.S. 398, 441 n. 32 (1981) (Marshall, J., dissenting). See also Qutb, supra at 492 n. 6.

And then concluded:

Applying the strict scrutiny standard, the ordinance's criminal provision unconstitutionally infringes on the minors' rights to freedom of movement. Status offenses such as being abroad at night may not be "bootstrapped" into criminal delinquency and commitment to DYS custody. See Commonwealth v. Florence F., supra at 528-529 n. 8. In response to the first reported question [Does the Lowell Youth Protection Curfew for Minors violate the equal protection rights of the Juveniles under either the United States Constitution or the Massachusetts Declaration of Rights by subjecting the Juveniles to a restriction upon their rights to movement and travel that persons seventeen and older do not have to endure?], the answer is, "Yes," with regard to criminal penalties resulting from violations of the ordinance. The curfew itself and its civil enforcement mechanism, however, represent, as of the date of the proceedings below, a permissible, narrowly tailored response to Lowell's compelling interest in preventing crime by, and against, minors. Because the ordinance contains a severability clause, those provisions remain in force.

Prof. Gates' Unconstitutional Arrest - Forbes.com

It may have been a Town v. Gown controversy rather than a racial incident. Or even, as Steven Colbert proposed on Comedy Central's "The Colbert Report," a jock v. nerd matter with Sgt. Crowley as the jock and Prof. Gates, pictured riding his tricycle on Martha's Vineyard, as the nerd. But I prefer to agree with Massachusetts criminal defense and civil rights attorney Harvey Silverglate, who, in this Forbes commentary, "Prof. Gate's Unconstitutional Arrest: There's a First Amendment right to be rude to a cop," argued persuasively that "fundamentally the situation can, and should, be analyzed as a free speech case."


In my two plus decade criminal defense career, I too saw many police reports that parroted the words "loud and tumultuous behavior which caused a crowd to gather and created public inconvenience, annoyance and alarm." Disorderly conduct is what the Boston police used when the City's equally unconstitutional "Sauntering and Loitering" Ordinance somehow didn't fit or wasn't enough. As a new, young, white law student in 1976, I was threatened with arrest by a Cambridge police officer for insisting that he shouldn't be smoking inside the front of the Porter Square Star Market right under the "No Smoking" sign. Unlike Prof. Gates, I swallowed my First Amendment rights and stopped my confrontation upon the police officer's threat even though I knew it would have been an unconstitutional arrest.


As Atty. Silverglate points out:

There is a serious problem in this country: Police are overly sensitive to insults from those they confront. And one can hardly blame the confronted citizen, especially if the citizen is doing nothing wrong when confronted by official power. This is, after all, a free country, and if "free" means anything meaningful, it means being left alone--especially in one's own home--when one is not breaking the law.

See the article also for Atty. Silverglate's brief but thorough history of First Amendment jurisprudence and the evolution of the "four exceptions to the First Amendment's protection for free speech."

Happy Birthday, United States of America!

Happy Birthday, United States of America, may you continue to mature into the beacon of hope and liberty that your birth certificate envisioned.

See photo of original here: Rare copy of US Declaration found in England and the text here: Declaration of Independence from Boston Globe editorial page of July 4, 2009.

Teen Strip-Search Ruled Unconstitutional, But School Officials Are Off the Hook

At least the U.S. Supreme Court got the main part of the case right -- they found it was outrageous and unreasonable for school officials to search 13 year old Savanna Redding for Ibuprofen. The court though gave qualified immunity to the school officials saying it wasn't constitutionally settled before now such that they should have known it was a violation.

Here's a summary of the case from the Willamette Law School Supreme Court news:

Safford Unified School District #1 v. Redding
Decided: 06/25/09
No. 08-479
Full Text: http://www.supremecourtus.gov/opinions/08pdf/08-479.pdf

FOURTH AMENDMENT (The Fourth Amendment prohibits a search of a student by school officials that extends beyond the outer clothing and belongings when the degree of suspicion of further contraband is low, and when the contraband is of limited danger)

The United States Supreme Court held 8-1 (opinion by Souter) that a search of a student’s underwear is a violation of the Fourth Amendment when suspicion of further contraband is low and the contraband is of limited danger because the measures adopted must be reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”

The Court also held 7-2 that the school officials were still protected from liability by qualified immunity, because the search was not a violation of the Fourth Amendment by clearly established prior case law.

The student was suspected of distributing common pain relievers some of which were prescription strength. The school officials found pain relievers in the student’s belongings. The school officials had the student strip down to her underwear and then extend out the elastic of her bra and waistband of her underwear and attempt to shake out any other drugs she might have been hiding. The student’s mother filed suit, alleging the strip search violated the student’s Fourth Amendment rights. Claiming qualified immunity, the school officials moved for summary judgment. The district court granted the motion, finding that there was no Fourth Amendment violation, and the federal appellate court reversed.

The United States Supreme Court affirmed, holding that the search of the student’s underwear violated the Fourth Amendment. The Court reasoned that individual and societal expectations of personal privacy support the notion that a search extending beyond the outer clothing is a distinct search from the previous search. The court held that this level of search requires a further element of justification on the part of a school official. The suspicion must match the degree of the intrusion. In this case the threat was possession of common pain relievers which are a limited threat in their nature and which were not suspected of being passed around in large quantities. Further, the school official had no specific reason to suspect that there were more drugs hidden in the student’s underwear. [Summarized by Jim LeBlanc]

And here's a link to the AlterNet story about the decision:

SCOTUS: Teen Strip-Search Ruled Unconstitutional, But School Officials Are Off the Hook | Rights and Liberties | AlterNet

School curbs girl's report on gay rights activist Milk

The project was to create a powerpoint about a famous person to present to the class. The sixth grade girl chose Harvey Milk, the first openly gay public official in the U.S., about whom a feature film had recently been released. When it was her turn to present to the class the school principal said the teacher had to get permission from parents under the school's sex education policy for other class members to attend.

School curbs girl's report on gay rights activist Milk

The powerpoint is included in a link with the above article. Give me a break - she mentions that Milk was gay (no-duh) and the name of his partner but there was nothing else in it that should have required a parental permission slip. The ACLU is asking that she be allowed to give her presentation to the whole class and that the school give her an apology that they send to all the parents who received the original sex ed notification.

I'm all for parents having a say in the education of their children but, as the U.S. Supreme Court said in Tinker v. Illinois ..., students "do not leave all their rights at the schoolhouse door." The government should not be engaged in content-based censorship.

Shaken baby or not?

A report in the Brockton Enterprise Increases in shaken baby cases concerns officials tells of various officials' speculation about the rise in reported cases of suspected shaken babies.

There are experts in the field of evidence-based medicine who suggest that there are other explanations for many of the injuries that the shaken baby prevention advocates attribute solely to vigorous shaking. The pediatric neurologist and pediatric radiographer who spoke at a seminar I attended sponsored by the (Massachusetts) Juvenile Bar Association two years ago delineated the genesis of Shaken Baby Syndrome. They pointed out the flaws in the "research" of the founder of the Shaken Baby movement and how the advocates ignored contrary evidence in a series of cases.

The Shaken Baby Advocates insisted that the injuries and signs apparent in various infants and toddlers could not have been caused by anything other than being vigorously in the manner they propose. Then the evidence-based medicine teams would scientifically prove that the injuries could have been caused by a car accident as described by the accused parents in one case, by falling down the stairs with the baby as described by the accused parents in another case and even by falling out of a high chair as described by the accused parents in yet another.

The cases often rely on the assertion that certain retinal damage patterns can only be caused by a baby being vigorously shaken but the evidence-based presenters showed that the claim was based on believing an assumption that did not look at a wide enough collection of retinal damage patients. When retinal images across other medical specialties besides just child abuse pediatrics are viewed, there are many other causes including some as benign as sneezing that cause the retinal images that shaken baby prosecutors so often rely upon.

The bad economy may be causing a lot of hardship but it is not necessarily the cause of an increase in reported shaken baby cases. An increase in reported shaken baby cases may not even be caused by an increase in shaken babies. When DCF investigators or police are investigating an injured baby case they may well have a predilection to think shaken baby and be dealing with a system of "experts" too quick to disbelieve the parents and assume inflicted injury.

If you are the subject of a 51A (report of child abuse or neglect), are accused of having shaken your baby or are subjected to any other investigation by police or the Department of Children and Families (DCF, formerly the Department of Social Services, DSS) be sure to contact an attorney with experience in this field BEFORE your interviews, BEFORE letting them into your home.