School bureaucracy gone amok: Gov't inspectors "approving" home lunches??

[SoonerDave]

I had to read this a couple of times to believe it, but its true:

A North Carolina school district is appointing an inspector to assess whether a child's brought-from-home lunch is "sufficiently nutritious." If it is not, the school will require the student to obtain components from the school what the inspector deems to be necessary to "make" it nutritious.

I know it is well settled law that a school can inspect a student's locker without a warrant, because a student has no expectation of privacy with the locker - the state owns it. However, it seems an entirely different matter altogether that we allow the state to come in and mandate the inspection of a child's lunch that he brought from home. There's zero probable cause for *any* search of a child's lunch.

The state agent isn't even a policeman or law enforcement officer.

This practice is reprehensible, and I cannot fathom its happening here in America.

I thought surely when I initially read this there were some gaping omissions, some critical fact not explained. But there isn't. The school is part of a "healthy food" mission, and gets scored on how healthy their lunches are - and that includes what a child brings from home. If the lunch isn't good enough, they get marked down, so they force the child to take what the inspector decides he needs. The principal sent home a letter advising parents of the practice.

I'm just stunned and, honestly, more than a bit outraged. If I were in North Carolina, I'd be beside myself organizing some kind of appropriate civil protest.

[BBatesokc]

While concerning, I suspect there is more hype than fact in the news stories that are being told from this incident and at least one other at the same school.

I love how all the media is quoting the accounts of a preschooler as if it is 100% accurate.

Somewhere between the kiddos account and the school's account lies the truth. Regardless, its not going to keep me up at night and it appears both sides are genuinely concerned about the kids in their care.

[SoonerDave]

My concern is focused on three areas: one, whether a state inspector mandated that he or she be allowed to inspect a child's lunch brought from home, two, whether that inspector forbid the student to eat it, and three, whether the inspector or school system forced her to accept food not wanted. Moreover, did the implicit authority of this inspector create a pall over the student such that he or she felt compelled to obey the inspector even if compliance is supposed to have been "voluntary."

The state has *no business* "inspecting" anyone's lunch. The state has no business "mandating" that someone eat what the government "says" you should eat. And leveraging that authority over a child ostensibly under the guise of it being "voluntary" is an abject abuse of discretion.

If there's that "middle reality" out there, I sure would love to hear it.

[BBatesokc]

The version I've heard states the school does rarely inspect the students meals and if it could use some additional elements (say a carton of milk) then they make it available to the student.

Do I totally buy this line from school administration - no, but I don't mind if that truly is their policy.

I can certainly see some concerning aspects of this story - but I also get fed up with a public that points a finger after the fact but also criticizes when groups try to be preemptive to an issue (like obesity or nutrition).

I personally think the school overstepped its authority but did so thinking it was doing it in the child's best interest.

[Tritone]

Do the inspecting authorities also provide "Kool-Aid" for the kids to drink? We tend to allow incremental intrusions provided they are "for the children."

[SoonerDave]

The version I've heard states the school does rarely inspect the students meals and if it could use some additional elements (say a carton of milk) then they make it available to the student.

Do I totally buy this line from school administration - no, but I don't mind if that truly is their policy.

I can certainly see some concerning aspects of this story - but I also get fed up with a public that points a finger after the fact but also criticizes when groups try to be preemptive to an issue (like obesity or nutrition).

I personally think the school overstepped its authority but did so thinking it was doing it in the child's best interest.

At the risk of sounding like one who is concerned with the "slippery slope" effect, I would respectfully disagree that the "child's best interest" is sufficient grounds for sanctioning their brought-from-home lunch, and for a few reasons:

1. It trains the children, indirectly, to become comfortable with the idea that the government has an a priori right to approve the most personal aspects of your life, and if it sees fit, replace it.
2. It establishes the idea that the government needn't have probable cause to search your private belongings.
3. It teaches the child to succumb to a government authority "en passant" merely for its presence. That is, the inspector is from "the government", and implicitly must be obeyed.

I understand the school system is interested in the nutrition business, but that's an end-justifies-the-means argument. If a parent wishes their child to be involved in a healthy lunch education program voluntarily, where a parent expresses an affirmative desire for such participation beforehand, and then someone helps their children make various choices with all the attendant prior, informed consent, that's one thing. For the principal to send out a letter informing parents that their lunches will be inspected with no opt-out provision is another thing entirely.

I am much more in the camp of the government having no business whatsoever in the private eating habits of people, but that's another thread.

[BBatesokc]

Do the inspecting authorities also provide "Kool-Aid" for the kids to drink? We tend to allow incremental intrusions provided they are "for the children."

Anyone who knows me knows I'm the first to cry foul when the government tries to build policy around "but its for your own good." I can't stand flying and the whole take off your shoes and get fondled for that very reason.

[BBatesokc]

At the risk of sounding like one who is concerned with the "slippery slope" effect, I would respectfully disagree that the "child's best interest" is sufficient grounds for sanctioning their brought-from-home lunch, and for a few reasons:

1. It trains the children, indirectly, to become comfortable with the idea that the government has an a priori right to approve the most personal aspects of your life, and if it sees fit, replace it.
2. It establishes the idea that the government needn't have probable cause to search your private belongings.
3. It teaches the child to succumb to a government authority "en passant" merely for its presence. That is, the inspector is from "the government", and implicitly must be obeyed.

I understand the school system is interested in the nutrition business, but that's an end-justifies-the-means argument. If a parent wishes their child to be involved in a healthy lunch education program voluntarily, where a parent expresses an affirmative desire for such participation beforehand, and then someone helps their children make various choices with all the attendant prior, informed consent, that's one thing. For the principal to send out a letter informing parents that their lunches will be inspected with no opt-out provision is another thing entirely.

I am much more in the camp of the government having no business whatsoever in the private eating habits of people, but that's another thread.

In spirit I get that and if the stories being reported are actually accurate (which I doubt) then the tale being told is concerning, though extremely isolated.

But I also see the other side. I wish we were all intelligent enough to make good decisions but the sad fact is many people are not. Have you ever seen the criminal docket for parents who simply don't even make a real attempt to get their kids to even go to school? My son went to Del City and many of the parents I came into contact with were a complete disgrace.... Obesity ran rampant, the parents would have $200 tennis shoes on but their kid needed to be in the free meal program and was signed up for a free coat. A huge percentage of our son's classmates qualified for free college under 'Oklahoma's Promise' but less than 10% of the parents even tried to take part. I'm not going to throw too many stones at a school who thought they were giving a child the option of a balanced meal (not so sure mechanically separated nuggets is balanced) over parents who set their kids up for failure and health issues in many cases.

While I cringe at the idea of the food police looking into each child's lunch sack, I cringe more at the reality that many parents have no idea what a balanced meal is because we've trained people to start drinking soda from the moment they wake up and that if cake is in the form of a muffin then its a good choice for our kids to eat at 7am.

My wife and I will be a the Food Bank today. Last time we were packing meals that schools give out to kids on Fridays because otherwise the kids would get absolutely nothing or nothing nutritious to eat the entire time. We were not talking about a few meals. We packed thousands! Its a disgrace. While that's a non-profit and not the gov't - I have a feeling some here (not necessarily within this thread) would be all up in arms if it was a gov't program and not for reasons of cost.

[Roadhawg]

I agree with Brian on this and several of the points he made.

[SoonerDave]

Brian,

I certainly appreciate your thoughts on this, and in fact I believe the folks at the Food Bank are ideally situated to help deal with the problem at hand. Heavens, my wife is a teacher at a lower-income school, and I suspect you and she could share a wide variety of similar stories about kids absent proper parental leadership. So please don't think I believe the problem doesn't exist.

What does come to my mind, however, is that we're a nation of laws, not of men, and we cannot let even the best of our intentions trump the laws that presumably make the nation such a desirable place to live. And one of those fundamental laws mandates that we are secure in our persons from unreasonable searches and seizures. I just can't abide a situation, no matter how well intentioned, where the government seizes upon an opportunity to create for itself search, seizure, and enforcement rights they simply do not and should not have under the banner of "we, the government, know better,"particularly when it comes to the intimidation of a child to coerce government compliance. Well-meaning situations like this where the government has decided what's better have a curious way of expanding well beyond the reach of their original intentions, and I believe that's why the practice described here must be stopped.

Appreciate the discussion.

[Midtowner]

I'm not sure a DHS official or whoever looking at what a kid brings to lunch is going to be considered a search. I don't think there's a reasonable expectation of privacy as to what you're feeding your kid, and that's generally something needed to trigger 4th Amendment protections.

[SoonerDave]

If a government official requires an individual to surrender a personal container, say a briefcase, with no warrant, I don't think there would be any question as to an expectation of privacy. A cop grabbing that case with no warrant would almost certainly find any evidence in that case disallowed for precisely that reason. Why wouldn't a lunchbox or paper sack containing a lunch be just as viable a container worthy of 4th amendment protections? The relative merit of what's being searched isn't at issue; its the fact that a personal container of any sort brought from a private residence is being searched with no probable cause and no warrant, and certainly no exigent circumstances or plain-sight exceptions.

If we, as a society, are OK with a rationale allowing a government official to behave this way to a child, for no other reason than "the government knows better," there is absolutely no reason we cannot expect at least as aggressive behavior on the part of that same government toward everyone for any comparably manufactured reason. I realize, Midtowner, that I'm not a lawyer, so I wouldn't presume to debate the finer points therein with you, but I don't think one has to be a JD to understand that fourth amendment privilege has been tortured to protect every form of drug dealer and social menace we can think of. Perhaps its time we start torturing it a bit more to protect children from the invasion of privacy from their own government.

[BBatesokc]

Since when are warrants needed to search me before boarding a plane or entering a courthouse. I saw no warrant when they took items from my carry-on and threw them away. Cars are seized for misdemeanor crimes in this state and without conviction or even criminal charges being filed. Not to mention the millions that are seized from citizens often without charges or conviction simply because police believe the items were from criminal acts.

Students are routinely told what they can and cannot wear to school, if their cell phone is visible its seized, if they are disrespectful they are punished.

While the 4th Amendment certainly applies to children at school it is subject to balancing competing interests. My understanding is that the Supreme Court has ruled that it is impractical for school officials to seek warrants to search a students possessions. I also believe the Supreme court ruled that searches are not limited to violations of the law but also school rules.

Of course I don't read these things daily, so its possible the cases I recall are no longer valid.

[BDK]

Since when are warrants needed to search me before boarding a plane or entering a courthouse. I saw no warrant when they took items from my carry-on and threw them away. Cars are seized for misdemeanor crimes in this state and without conviction or even criminal charges being filed. Not to mention the millions that are seized from citizens often without charges or conviction simply because police believe the items were from criminal acts.

Students are routinely told what they can and cannot wear to school, if their cell phone is visible its seized, if they are disrespectful they are punished.

While the 4th Amendment certainly applies to children at school it is subject to balancing competing interests. My understanding is that the Supreme Court has ruled that it is impractical for school officials to seek warrants to search a students possessions. I also believe the Supreme court ruled that searches are not limited to violations of the law but also school rules.

Of course I don't read these things daily, so its possible the cases I recall are no longer valid.

You're right on the money, Brian. See New Jersey v. TLO, 465 U.S. 329 (1985).

http://www.oyez.org/cases/1980-1989/1983/1983_83_712

There's probably at least a shadow of an argument under the "special needs doctrine," as well. I couldn't tell you the state law, though.

[SoonerDave]

Since when are warrants needed to search me before boarding a plane or entering a courthouse. I saw no warrant when they took items from my carry-on and threw them away. Cars are seized for misdemeanor crimes in this state and without conviction or even criminal charges being filed. Not to mention the millions that are seized from citizens often without charges or conviction simply because police believe the items were from criminal acts.

Students are routinely told what they can and cannot wear to school, if their cell phone is visible its seized, if they are disrespectful they are punished.

While the 4th Amendment certainly applies to children at school it is subject to balancing competing interests. My understanding is that the Supreme Court has ruled that it is impractical for school officials to seek warrants to search a students possessions. I also believe the Supreme court ruled that searches are not limited to violations of the law but also school rules.

Of course I don't read these things daily, so its possible the cases I recall are no longer valid.

And I agree entirely, Brian, that the examples you site in the first paragraph are tenuous at best, but I will concur about the compelling state interest, eg protecting a planeload of people from someone carrying on a dangerous weapon. I'm not familiar with the issue you cite re cars being seized.

Students abiding a dress code is, in my opinion, hardly comparable to his personal effects being seized without probable cause. Even in the Jersey v TLO case BDK sites in the later post still requires a minimum standard of "reasonableness" for a search, and, also in my opinion, there's no such reasonableness even remotely established merely because the government wants to approve what the child eats. No one can look at a paper bag or lunch box and say "aha, I'm the state, and I believe there aren't enough pieces of fruit in that lunch" and mandate a seizure (or, in my opinion, should not be able to) on that basis. Jersey v TLO cited an example where the principal had a reasonable belief a child was smoking. There's no such reasonable belief here re the "nutritiousness" of the lunch.

We've come so far in allowing our rights against government intrusions that we don't really think about them anymore. And I agree, many of the things you cite are prime examples. I just inherently recoil at the notion that its appropriate for a government official to leverage their implicit authority to compel a child to turn over their food because the government doesn't like it. The very notion is, to me, personally abhorrent.

[BBatesokc]

Cars in Oklahoma are seized if they were allegedly (charges/conviction not required) used in the commission of narcotics trafficking, drive-by shooting (unless you're an off-duty police officer doing the drive-by in the Night Trips parking lot), flee a police pursuit or used the vehicle to solicit or aid/abet prostitution. Possibly others, but those are the one's I'm aware of.

I wasn't trying to cite direct parallels, just that the 'intrusions' into our personal lives are so common place as to almost be expected.

In recent years local governments have even removed children from their homes because the state deemed the parents allowed the kids to get too fat.

I'm sure some would argue it is far more in the child's best interest to intervene prior to obesity setting in. Not that I agree, but I kinda enjoy this civil debate on the topic.

[SoonerDave]

I enjoy the good discussion too. I've tended to avoid (not always successfully) too many discussions on various Internet message forums because the discussions typically turn nasty or at least angry (and I can't claim any perfect virtue on that, either), but a good discussion like this helps everyone to think about what they believe, and what's really right for keeping society on the right track. There are lots of hot-button issues in this issue, that's for sure!

[Midtowner]

If a government official requires an individual to surrender a personal container, say a briefcase, with no warrant, I don't think there would be any question as to an expectation of privacy. A cop grabbing that case with no warrant would almost certainly find any evidence in that case disallowed for precisely that reason. Why wouldn't a lunchbox or paper sack containing a lunch be just as viable a container worthy of 4th amendment protections? The relative merit of what's being searched isn't at issue; its the fact that a personal container of any sort brought from a private residence is being searched with no probable cause and no warrant, and certainly no exigent circumstances or plain-sight exceptions.

Actually, the relative merit of what's being searched is definitely an issue. There are several theories I think this passes on. 1) It's an administrative search, ergo, not a search under the 4th Amendment. An administrative search has been ruled to be not a search at all. If the search is done to further administrative goals, such as making sure children are being fed proper meals by their parents, not to search for evidence of a crime, we might not be talking about it being a search at all for the purposes of the 4th Amendment so long as the government can argue that there is a compelling need. Working as much in juvenile deprived cases as I do and knowing just how clueless and cruel some parents are, e.g., packing crackers as their child's lunch, I'll bet if these administrators start keeping track of what they find, we'll see some shocking statistics with regard to the poor quality of what some parents will pack for their kids (or not pack anything at all).

The second ground is that within the school setting, the 4th Amendment protections are far, far lower. Take Safford United School v. Redding, 557 U.S. 2009. In that case, an administrator with reasonable suspicion had evidence that a child had non-prescription painkiller (like Asprin). The administrator had the female student called to his office where he had a female police officer conduct a strip search which involved the female officer searching the child's underwear. The Court held that based on reasonable suspicion, search measures used by school officials to root out contraband must only 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. Although the Court ruled that these school officials didn't have sufficient suspicion to extend the search tot he child's underwear, the Court also gave us a standard.

Is a search through a child's lunch sack excessively intrusive? Probably not.

Is it even a search? Is there a reasonable expectation of privacy to the contents thereof? I'd argue not. The child will shortly display the contents of said lunch bag on the lunchroom table.

This probably falls under the administrative search family since the search isn't for the purpose of finding evidence of the crime, but I don't even think we get there because I don't think there's a reasonable expectation of privacy for a school lunch, which is clearly different from your example, an individual being picked up off the street with a briefcase.

If we, as a society, are OK with a rationale allowing a government official to behave this way to a child, for no other reason than "the government knows better," there is absolutely no reason we cannot expect at least as aggressive behavior on the part of that same government toward everyone for any comparably manufactured reason. I realize, Midtowner, that I'm not a lawyer, so I wouldn't presume to debate the finer points therein with you, but I don't think one has to be a JD to understand that fourth amendment privilege has been tortured to protect every form of drug dealer and social menace we can think of. Perhaps its time we start torturing it a bit more to protect children from the invasion of privacy from their own government.

By searching a lunch sack (or not searching it rather), whose rights are we protecting? The child's? I think not. The child certainly isn't going to get a visit from DHS if they are found to have a lunch sack containing a baggy with 3 crackers in it stolen from McDonald's. The parents, however, are definitely going to get a visit from DHS and at the very least, have to work a prevention plan. I have zero problems with that. Some parents need a little help in order to have a clue. You seem like a reasonably intelligent person. Keep in mind that many parents are looking out into this world with their own notions of what is right and wrong because they, themselves were abused and therefore have no concept of what good parenting looks like. Further, you're a smart guy, so this stuff seems like common sense to you. Take a parent with an IQ of 85 and nothing is common sense. They need a little hand holding.

[HewenttoJared]

The school has a goal of educating as many kids as well as they can. Malnourished kids don't learn so well.

[Roadhawg]

The school has a goal of educating as many kids as well as they can. Malnourished kids don't learn so well.

Could also be used as a learning experience for the parent too... they may not know proper nutrition for a growing child.

[bombermwc]

Well school nutrition in oklahoma is a joke. Schools and food vendors lobbied to get pizza classified as a vegetable item because of the marinara. Last time i had a school pizza, it was the most greasy, nasty thing ever. We always joked about how you put your napkin on it and lift it up, and you could see through it. School lunches here have always been a joke for me. The food was always terrible, and a lot of it was far from the "best" thing for you. I think i actually got better nutrition from something at Sonic.

[ctchandler]

I have to admit that if I had school age children in this day and age, home schooling would be in order. I disagree though about searching in schools, that was solved many years ago and I can't name the year law or what, but they certainly searched lockers when I was in high school. I think it had to do with us being minors. As for search and seizure of vehicles/property involved in drug trafficking, that was taken to the Supreme court sometime in the last thirty years. We even had a recent (last couple of years) case involving a perfectly innocent couple who's son was raising marijuana on their small farm and the government was going to take the forty acres and home away from them. They went to court and proved that they had no knowledge of what was going on and won. As for Mr. Bates comment about being searched at the airport or before entering federal institutions, some of that has yet to be challenged. The one thing I hear in defense is with those you have an option, turn around and walk out. The government controls the airways (air traffic control) and can require unusual things but I don't think we have seen the end of the challenges to the TSA. I have real mixed emotions, would I rather be x-rayed, groped, forced to remove my shoes or be allowed to stroll leisurely into my waiting area while waiting to board my plane that is about to be hijacked by someone that strolled leisurely as I did. Then I can enjoy a leisure flight into a large building. I can't find any way to be disagreeable on this subject except telling me how to feed my children, so I think it's time for to sit down and shut up. Maybe I will learn something.
C. T.

[HewenttoJared]

Could also be used as a learning experience for the parent too... they may not know proper nutrition for a growing child.

Exactly. This will probably be a rarely-used, decent law.

[Tritone]

BBates:

Certainly did not mean to imply you are in favor of intrusions. I agree with you on the "but it's for your own good" aspect. I also see all to often how things are justified by being "for the children." Do keep up the good work at the food bank. It's needed and appreciated.

[Roadhawg]

BBates:

Certainly did not mean to imply you are in favor of intrusions. I agree with you on the "but it's for your own good" aspect. I also see all to often how things are justified by being "for the children." Do keep up the good work at the food bank. It's needed and appreciated.

Fighting childhood obesity is also "for the children". Hopefully it prevents any number of health issues from diabetes to heart problems which are costly not only in $$$ but lives. I'm all for preventative care and it needs to start with young children and their parents.