A Subtle Point to Consider in a Case Where a Juvenile has been Alleged to be Neglected and/or Dependent

Can a child be neglected or dependent when the child, at the time of the adjudication, hasn’t being immediately impacted by neglectful parental behavior or is in a safe, alternative care-giving arrangement?

Surprisingly, the answer is both “yes” and “no”.

On the negative side of the equation, where a parent of a child has engaged in behavior which might be questionable but there is no impact on the child and no likelihood of an impact in the future as of the date of the adjudication hearing, an adjudication of neglect is inappropriate. The reason is that that to sustain an adjudication of neglect, the alleged neglectful conditions must cause the juvenile “some physical, mental, or emotional impairment” or create a substantial risk of such impairment. In re Safriet, 112 N.C. App. 747, 436 S.E.2d 898 (1993). Likewise, where that parent of a child is unable to provide appropriate care and supervision for a child but makes their own arrangement for the child to receive such care and supervision, then the child cannot be dependent. In re B.M., 183 N.C. App. 84, 643 S.E.2d 644 (2007); In re B.P., __N.C. App.__,__S.E.2d__(January 18, 2018).

On the positive side of the equation, where a parent’s acts or omissions create a reasonable likelihood of injury or impairment as of the time of the adjudication hearing, even when that injury or impairment has not transpired, an adjudication of neglect is appropriate. “The determinative factors must be the best interests of the child and the fitness of the parent to care for the child at the time of the [adjudication] proceeding” which requires the trial court to “. . . consider the conditions [in the home] as they exist at the time of the adjudication as well as the risk of harm to the child from return to a parent[.]” See In re K.J.D., 203 N.C. App. 653, 692 S.E.2d 437 (2010).

Additionally, even when a juvenile has been placed in an appropriate home and is no longer immediately affected by a parent’s inability to provide for the child’s care or supervision, the critical inquiry is whether the parent created the alternative care arrangement or whether the parents is merely acquiescing to a plan developed by a county DSS. In the latter case, “. . .it is not enough that the parent merely goes along with a plan created by DSS” and doing so continues to make the child’s status dependent. See In re L.H., 210 N.C. App. 355, 366, 708 S.E.2d 191, 198 (2011); In re B.P.,__N.C. App.__, __S.E.2d__(January 16, 2018).

Thus in such circumstances where neglect or dependency are alleged with regard to a juvenile, the critical inquiry is always with reference to the facts and circumstances surrounding the child as of the time of the adjudication. However, when assessing the evidence of such facts and circumstances for a time period up to the time of the adjudication, it is not enough for the trial court to assess only what acts and/or omissions have been undertaken by a parent. Rather, the court must find a nexus between those acts and present injury or impact on the child (or the imminent likelihood of the same) and, in those cases where the child has been placed with a third party, pay particular attention to who arranged the placement.

The Strange Case of In re C.P.: Permanency Planning, Judicial Warnings, and (Now) a Mandated Delay in Permanence for Children in Juvenile Court

Maybe it was a Tuesday that, but for the holiday, should have been a Monday. . .

Otherwise, there seems to be little other explanation for the North Carolina Court of Appeals most recent decision in the case of In re C.P. , __.N.C.App.__,__S.E.2d__ (January 2, 2018) where the Court effectively created a procedural mandate that amounts to what can only be called a “juvenile court mulligan”.

The case itself is fairly straightforward. It all begins on July 14, 2015, when the Orange County Department of Social Services filed a juvenile petition alleging that a thirteen-year-old child was a neglected and dependent juvenile. A hearing was held on August 6, 2015 and an order was entered on August 27, 2015 in which the trial court adjudicated the child and his older sister as neglected and dependent, and awarded custody of Carl and his sister to their adult half-brother. The Respondent-mother appealed the ruling. On October 4, 2016, the Court of Appeals reversed and remanded the case for a new hearing because the order did not result from a proper adjudicatory hearing or valid consent by Respondent Mother. See In re K.P., C.P., ___ N.C. App. ___, ___, 790 S.E.2d 744, 749 (2016). On remand, the trial court held an “adjudication/disposition and permanency planning hearing” on March 2, 2017. The trial court again adjudicated the child as a dependent and neglected child, and awarded guardianship of the child to his adult half-brother. This order, which was dated March 21, 2017, was again appealed by the Respondent Mother.

On appeal, the Court of Appeals reversed the adjudication of dependency due to the fact that the child had seemingly always lived with a suitable relative. This is not surprising since a dependency adjudication always requires not only that the parent, guardian or caretaker be unable or unwilling to provide appropriate care but also that there be no other suitable alternative care arrangement. See N.C. Gen. Stat. 7B-100(9). Also understandable is the Court’s concern with the trial court which removed reunification as a plan without making necessary findings that the parent cannot provide a suitable home within the next six months as it is required to statutorily find. See N.C. Gen. Stat. 7B-906.1(e).The rest of the Court’s holding, however, where the court vacates the trial court’s order because it removed reunification as a plan at the first permanency planning hearing, requires explanation which has yet to be forthcoming.

One can concede that the Court in this part of its opinion rightly asserts that N.C. Gen. Stat. 7B-906.1(g) requires the court at a permanency planning hearing to “. . .inform the parent, guardian, or custodian that failure or refusal to cooperate with the plan [of care] may result in an order of the court in a subsequent permanency planning that reunification efforts may cease.”

However, the Court stumbles when it wrongly concludes that this statutory language constitutes a required judicial warning shot before the plug is pulled on reunification. In reaching its ultimate conclusion, a number of errors seem to have been made. First, the Court appears to have completely ignored the fact that reunification may be dispensed with altogether at the Dispositional hearing (well before any permanency planning hearing) if the trial court makes written findings of the existence of aggravating circumstances in its adjudicatory order. See N.C. Gen. Stat. 7B-901; In re G.T.,__N.C. App. __,__S.E.2d__, affirmed, __N.C.__ (December 22, 2017). Secondly, the Court seems to additionally ignore the language which proceeds subsection (g) in 7B-906.1 which provides that the trial court may at the first permanency planning hearing order a sole plan of termination and adoption (which as a  permanent plan negates the very concept of reunification) This is possible, according to N.C. Gen. Stat 7B-906.1, either because the parent cannot provide a safe, permanent home for the child within the next six months ( subsection e) or because the child has been in the custody of a county department of social services for 12 of the most recent 22 months and the parent has either (a) abandoned the child; (b)has committed murder or voluntary manslaughter of another child of the parent; or (c) has aided and abetted , attempted, conspired or solicited to commit murder or voluntary manslaughter of the child or another child of the parent. See N.C. Gen. Stat. 7B-906.1(f). In fact, the only factors that can keep a court from taking reunification away as a plan in such circumstances is if the permanent plan is already guardianship or custody with a suitable third party; termination is in some way contrary to the child’s best interest; or the county department of social services has not provided the juvenile’s family with necessary services to enable the child home. See N.C. Gen. Stat. 7B-906.1(f)(1-3).

Finally and most damaging, the Court appears to miss the very significant policy implications of giving a parent at a permanency planning hearing what, in golfing parlance, would be deemed a “mulligan”.  While there are no time requirements imposed on hearing a permanency planning hearing, and while it is conceded that the permanency planning hearing in In re C.P. took place right after Disposition, the vast majority of juvenile cases do not follow this pattern. In fact, most permanency planning hearings take place at a point where nearly a year has passed while a child has remained in the custody of a county department of social services. The holding of In re C.P. has the frustrating effect of unnecessarily prolonging a child’s stay in custody without the possibility of relief at the first permanency planning hearing.

Why?

Apparently because the trial court will be from now on required to inform the parents (if it hasn’t already done so a number of times) that they need to get their act together or bad things might happen down the road. In the vast majority of cases, if the parents haven’t gotten their act together in nearly a year, they aren’t suddenly going to come to their senses simply because a trial judge urges them to do so.

This part of the holding in In re C.P. is bad for children, because now they have to wait even longer for a permanent plan that does not involve reunification without any good reason, legal, equitable, or otherwise. It requires rectification, sooner rather than later, whether that comes through a revised opinion before the expiration of the mandate or reversal by the North Carolina Supreme Court.

Drafting Orders in Juvenile Permanency Planning and Permanency Planning Reviews: A Guide for the Perplexed

With an almost medieval fixation on required legal formula and “magic incantations”, the North Carolina legislature and the Court of Appeals have made the practice of crafting orders in juvenile cases an increasingly difficult task. With so many mandated requirements, including standards of evidence that occasionally change midstream, the judge or lawyer tasked with drafting an order is faced with so many snares and pitfalls that they might think they had suddenly been transported to latest instalment of the Indiana Jones franchise. Nowhere is order drafting more difficult than when it comes to drafting permanency planning hearing and permanency planning review orders.

Several years have now passed since review and permanency planning hearings were lumped under the then newly created statute, North Carolina General Statute 7B-906.1. The most daunting components of the now combined statute relate to the cessation of reunification efforts , the imposition of an alternative plan of care, and the requirements related to changing custody to a person other than a parent. These difficult areas will be outlined in turn in what follows.

Cessation of Reunification Efforts

An inherent but rebuttable assumption in juvenile cases, even where non-secure custody has been taken over a child, is that parents will have the opportunity to either work toward the goal of either family preservation (in those instances where custody remains with a parent or parents) or reunification (where custody is temporarily removed). This presumption stems from the constitutional protection afforded to parents to be able to raise their children as they see fit as long as they are fit (or capable of being fit) or as long as they act (or begin to act) consistently with their constitutionally protected status as parents. See N.C. Gen. Stat. 7B-901(c); 7B-906.1(e); Peterson v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1991); In re K.L., __N.C. App.__,__S.E.2d__(July 5, 2017).

Of course, where a parent has engaged in really bad behavior that has led to the filing of a juvenile petition—such as abandoning the child, committing murder or voluntary manslaughter of another child of the parent or aided or abetted the same---this presumption can be disposed of right at the first Dispositional Hearing. See N.C. Gen. Stat. 7B-906.1(f). Likewise, where the child has remained in the temporary custody of the county department of social services 12 of the most recent 22 months next to the filing of the juvenile petition, this presumption can also be disposed of by the trial court at a subsequent review or permanency planning hearing. Id. It is also possible for the court to make such a determination prior to the passing of the 12 month period if the court first determines that it is not possible for the juvenile to be placed with a parent within the next six months. See N.C. Gen. Stat. 7B-906.1(e). However, if the court does make any of these findings and it additionally finds that a plan of reunification should no longer be the plan of care for the juvenile, the trial court must make its findings by clear, cogent and convincing evidence, even though the other findings might be permissibly found by the preponderance standard. See Adams v. Tessener, 354 N.C. 57, 550 S.E.2d 499 (2001); In re K.L., __N.C. App.__,__S.E.2d__(July 5, 2017). The failure of trial courts to make such findings and to find that reunification should not be the plan of care by the clear, cogent and convincing evidence standard has been the source of heartache for a number of judges who have seen their cases reversed or vacated and remanded.

The Imposition of an Alternative Plan of Care

If it is clear to the trial court at a review hearing that reunification is contrary to the best interest of a juvenile, a permanency planning hearing must be scheduled within 30 days of the hearing where reunification is removed as a plan. See N.C. Gen. Stat. 7B-901(d). At the permanency planning hearing, the trial court must then make careful examination of the plan alternatives that make written findings regarding each of them, including whether legal guardianship or custody with a relative or some other suitable person should be established; whether adoption should be pursued; and whether the juvenile should remain in their current placement or be placed in another alternative permanent living arrangement (APPLA). See N.C. Gen. Stat. 7B-906.1(e). In addition, at subsequent permanency planning hearings, the court, in addition to re-evaluating the appropriateness of all the possible plans, must also make a written determination whether the county department of social services made reasonable efforts to effectuate the permanent plan or plans since the initial permanency planning hearing. Id.

Changing Custody to a Person Other than a Parent.

The most significant task confronting the trial court in a juvenile case at a permanency planning hearing is implementing a plan which requires a change in custody or conferral of guardianship upon a third party. To do so, the court must engage in a one to two-step process. First, in those cases where the trial court has previously entered an order of custody, the court must subsequently determine that “. . .there has been a substantial change in circumstances affecting the welfare of the child; and (2) a change in custody is in the best interest of the child.” See N.C. Gen. Stat. 7B-1000; In re A.C., __ N.C. App. __, 786

S.E.2d 728 (2016). Second, regardless of whether the court has previously entered an order of custody, in order to confer custody upon a third party, the court must make a determination that each parent is either unfit or is acting inconsistently with their constitutionally protected status as a parent. See In re K.L., __N.C. App.__,__S.E.2d__(July 5, 2017). Again, failure to do so will result in a trial court’s orders being reversed or vacated and remanded.

Thus, one can readily see that drafting court orders, particular those related to permanency planning or permanency planning review, is a difficult and potentially dangerous practice in these current times. The only relief and guidance is to be found in persistent attention to the statutory requirements, keeping up to date on the latest statutory interpretations by the Court of Appeals and the Supreme Court, and in careful drafting. With increased case-loads in the area of child welfare in the past few years, putting in this extra effort is a luxury few can afford. Yet it is clear that it is necessary and a requirement of competent legal representation.  To quote Benjamin Franklin, an ounce of prevention is truly worth a pound of cure.

The Fourth Amendment and Social Services: What are the Limits on Assessments and Investigations?

In a recently released statement drafted by the North Carolina Attorney General’s Office, county social services agencies were advised that drug screens upon children  are considered a Fourth amendment Search and therefore require either parental permission, a court order, or  “exigent circumstances” before they could be performed.  This guidance is nothing new. In fact, the Division of Social Services of the North Carolina Department of Health and Human Services has since December of 2016 advocated this specific course of action for drug endangered children. See N.C. Div. Soc. Svcs. Family Services Manual, Vol. 1, Chapter IX (December 2016) Nonetheless, it has widely been common knowledge that some county child welfare agencies have been conducting such drug screens on children as a matter of routine practice without either parental permission or court authorization (and for the record, these are not agencies in Judicial District 22A, which includes both Iredell or Alexander counties). While the efficacy of the Attorney General’s position has yet to be tested in the courts, there is strong evidence to suggest that county social services, while not usually be considered agencies of the state in the same way as law enforcement, may nevertheless engage in behavior that implicates the Fourth Amendment. As such they are restricted in the same way as law enforcement in their ability to conduct searches and seizures in child welfare assessments and investigations. 

What are these areas?

The most notable areas are those involve searches of the home and of the person. With regard to the home, county social services agencies are prohibited from entering a home pursuant to an assessment of investigation absent (1) a reasonable belief that a juvenile is in imminent danger of death or serious physical injury; (2) the permission of the parent or person responsible for the juvenile’s care; (3) the accompaniment of a law enforcement officer who has legal authority to enter; or (4) an order from a court of competent jurisdiction. See N.C. Gen. Stat. 7B-302(h).  It should be noted that the N.C. Administrative Office of the court’s Order for non-secure custody specifically provides for the court to allow law enforcement to enter a home for the purpose of protecting a child who is at imminent risk. See AOC-J-150 at http://www.nccourts.org/Forms/Documents/483.pdf.

With regard to searches of the person, the first restriction relates to searches of a custodial parent. Absent a parent’s permission and acquiescence or a court order, a social services agency cannot compel that parent to submit to medical examination or drug screen. However, this does not mean that a parent is immune to being ordered to submit to a medical examination or drug screen before a juvenile adjudication, as the same is specifically provided for in Rule 35 of the North Carolina Rules of Civil Procedure. Likewise, following adjudication and pursuant to the dispositional orders of the juvenile court, a parent ordered to submit to random drug screens must submit to the same or face being held in civil contempt. See N.C. Gen. Stat. 7B-904; N.C. Gen Stat. 5A-21-24.

As to other searches of the person, a county department of social services has authority pursuant to an order of non-secure custody pursuant to N.C. Gen. Stat. 7B-505.1 or a dispositional order pursuant to N.C. Gen. Stat. 7B-903-7B-903.1 and 7B-906.1 to provide routine medical and dental care or treatment; emergency medical, surgical, psychiatric, psychological or mental health care or treatment and testing and evaluation in exigent circumstances. This latter provision encompasses the drug screening of children that was the subject of the N.C. Attorney General’s latest admonition. It also includes a child medical examination which may only be performed if the court makes written findings demonstrating that the county social services agency has a compelling interest in such an evaluation prior to a regular non-secure custody hearing. See N.C. Gen. Stat. 7B-505.1(b).

Thus while case law has long distinguished the work of social services agencies, whose primary task is to protect children, from the work of law enforcement, whose task is to “ferret out crime”, it is important to realize that both social workers and law enforcement officers can still be subject to Fourth Amendment scrutiny, especially when the tasks each performs become more similar in nature. North Carolina’s legislature has sought a middle ground which recognizes the importance of protecting children while at the same time recognizing a parent’s constitutional right to privacy.  The North Carolina appellate courts, excepting the infamous case of In re Stumbo, for the most part have done likewise, staying away from a full throttle imposition of a warrant requirement upon social worker investigations. See In re Stumbo,357 N.C. 279; 582 S.E.2d 255 (2003) . How long this restraint lasts depends in part upon the temperament of times. But it depends also upon every social worker and law enforcement officer to have a strict understanding of their specific roles , being religious-like in their devotion to and observance of legislative and case law restrictions which protect all children and all  parents from governmental over-reach.

Free Speech or Else: Legislatures React to Student Disruption of Invited Campus Speakers

As reported in this blog, a growing trend on college campuses has been episodic disruption by student activists of the public speech activities of third parties. Reminiscent of the tactics of ACT-UP demonstrators in the 1980’s, student demonstrators utilize a variety of tactics to silence the viewpoint of speakers with whom they disagree through the use of cell phone rings, heckling, chants, intimidation, and blocking access to the speaker, among other forms of behavior. These tactics have had a pronounced and negative effect on the dissemination of ideas and free speech on college campuses, a fact which has not escaped the attention of state legislatures. The point of departure for discussions of the protection of campus free speech has been the First Amendment itself, which largely protects the speech acts of demonstrators on the premises of educational institutions. However, First Amendment jurisprudence does not afford an absolute right to free speech when it comes to educational institutions. It has long been established that such institutions, from grade school to graduate schools,  may impose limitations on speech that are content neutral such as limits on the time, place, and manner such speech is delivered. See for example, Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 106 S. Ct. 3159, 92 L. Ed. 2d 549 (1986) upholding school’s ability to prohibit the use of vulgar and offensive language). Moreover, the so called speech being utilized by demonstrators, which includes the use of profanity and derogatory epithets, coupled with intimidation, blocking access to fora, and occasional violence, troubles claims as to whether “shouting down” a speaker qualifies as protected speech at all.

State legislative response to this latter question has thus far been in the negative. Two states, Wisconsin and North Carolina, have led the way to placing limits on the activities of demonstrators when it comes to their disruption of invited speakers.  In Wisconsin, state legislators enacted the Campus Free Speech Act which prohibits “ protests and demonstrations that interfere with the rights of others to engage in or listen to expressive activity”; requires that campuses within the Wisconsin system be open to any speaker invited by students, faculty or staff; mandates that Wisconsin campuses be open fora; requires introduction of free speech discussions in Freshman orientation; and sets forth mandated punishment for individuals who violate the Act. See Campus Free Speech Act, Assembly Bill 299 (Wis. 2017). Following the passage of this legislation, the Wisconsin Board of Regents passed the Commitment to Academic Freedom and Freedom of Expression Policy to comply with the statutory mandate. See Similarly, the North Carolina Legislature passed the Act to Restore and Preserve Free Speech on the Campuses of the Constituent Institutions of the University of North Carolina. The North Carolina Act, like the Wisconsin Act, prohibits the disruption of speech on North Carolina’s college campuses, guarantees North Carolina’s college campuses to be open fora for free speech, and prohibits North Carolina’s institutions of higher education from requiring particular viewpoints of its students. See Session Law 2017-196 (N.C. 2017). The State of Ohio has also seen an interest in prohibiting speech suppression on its college campuses with its Campus Free Speech Act (H.B. 363, 132th Gen. Ass. (Oh. 2017).

On the whole, these developments are positive in that they safeguard the ability of ideas of invited speakers to be presented to student populations, those ideas can be constructively debated, and discourse in the realm of ideas can once more be realized, at least on a small scale, in a nation that increasingly is inclined to shut off any measure of dialogue. While certainly these laws will be tested by both the left and the right by invitations being extended to political anarchists, black, as well as white supremacists,  and others who will seek to denigrate and marginalize whole swaths of people, the reality is and must be in a country such as the United States people must be allowed to have and foster any idiotic idea they desire so long as it doesn’t lead to the physical harm of others, harm to property, or systemic disruption of public institutions. These laws restore a constitutionally required balance that has been missing for decades from our public educational institutions. It is hoped that students of persuasions will avail themselves of these laws in Wisconsin, North Carolina, and eventually Ohio, In so doing, these young people may come to learn the fact that all lawyers know, that there truly are two sides to every story and that while one may have the wisdom of Solomon, no one, except God, has a monopoly on the truth.

Continuances are a Necessary Evil In Juvenile Court

In juvenile court, often the most feared word uttered in the courtroom is that of “continuance”. There are a lot of reasons for this fear and a number of good arguments that continuances in a juvenile case may not be the best thing for children. Many would agree that at the top of the list of arguments against continuances in juvenile court, one could say that by continuing a case, the child who is the subject of the case will be have their permanence delayed. Permanence in this context means one of two things: either the child returns back to the parental home or the child continues on to a home that is not that of a parent, either to one of a relative or nonrelative kinship, or a foster care placement, in the shortest possible time. This notion of expedited juvenile permanence has a long history, dating back to the passage of the Adoption and Safe Families Act of 1997, where the specter of children languishing in the child welfare system and long term foster care--the chief enemies confronted by Congress with this legislation—were sought to be forever banished from American juvenile courts.  Since 1997, North Carolina has increasingly seen an amplification of concern about timeliness in juvenile proceedings, from the passage and imposition of a number of increasing time standards for juvenile hearings to the adoption of expedited appellate procedures by the North Carolina Court of Appeals.

While in most respects the attention to timeliness of juvenile hearings and concern for attaining permanence for children in the shortest time possible is a good thing, it should also be remembered that there is another side of the story out there that must be taken into consideration when decisions are made regarding whether to continue a case. That other side of the story is that relating to the constitutionally protected due process rights of parents in juvenile proceedings.

Due process in juvenile court takes in a great deal of territory, from issues of service and notice of the issues alleged in a juvenile petition to able to be present in court and to have the effective assistance of counsel. Not every one of these rights are absolute: they may be waived or, in the case of a parent who engages in belligerent or disruptive behavior in the courtroom, may be nullified by parental behavior inconsistent with the rights afforded by the Constitution. Nonetheless, in every consideration by a judicial official with regard to whether to grant a motion to continue in a juvenile case, both the best interest of the juvenile as well as the rights of the parent or parents need to be fully considered and appropriately weighed before a ruling is handed down.

But isn’t this obvious to everyone?

Not necessarily. There are a number of advocates in the North Carolina legal community who favor strict adherence to statutory guidelines, adopting the mantra that “if the statute says shall, then “shall” means “shall.” These advocates would most certainly be right if the courtroom reality was that DSS attorneys, GAL attorney advocates, or court appointed attorneys had witnesses who stuck with their original story, if subpoenaed records arrived in court on time, if there were no such thing as secure leave or personal illness, or if no attorney had other court obligations other than that of juvenile court.

But this is not the reality in North Carolina’s juvenile court rooms. Even though the word “shall” is used, sometimes that term must be used in the aspirational sense with due emphasis placed on the famous footnote of all economic literature, that “shall” shall mean “shall” under conditions of “ceteris paribus” or “if all other things are equal”.

Legal dogmatism has its place but divorced from the facts of everyday reality, such dogmatism places undue emphasis on form over substance. The United States has long rejected the feudal legal notion where legal form was equivalent to the notion of possession: being nine-tenths of the law. Insistence upon a “no continuance policy” is just another legal feudalism. It must be rejected in favor of the trial judge’s full consideration of the substantive as well as the procedural facts, with both the needs of the juvenile and the rights of the parents being taken into consideration.

Youthful Student Protest and Liability for Damages to Third Parties: A Student and Parent Dilemma

It has become a commonplace in the present day for the news to be dominated by examples of youth protest which sadly has become violent. This was the case in May 2017 at Evergreen State University in Portland, Oregon, where students protesting alleged inequities on the traditionally left-leaning campus expressed their wrath against Evergreen biology professor Bret Weinstein. It seems the professor, who is Caucasian, publically refused to leave campus when he and all other Caucasians were asked to leave campus by various minority activists in the spirit of honoring “A Day of Absence.”  This led to various disruptions across campus, including student scuffles with police, the University’s president being held hostage in his office, and the eventual firing of the biology professor. A much more subtle protest took place one month earlier at Linfield College, in McMinnville, Oregon, where a tumultuous student and faculty protest prevented University of Toronto professor Jordan Peterson from speaking on the Linfield College campus at considerable expense to the speaker.

While in the United States the right to free speech is highly protected and as a course of conduct enjoys a privileged position by the First Amendment , such protection is not absolute.  Justice Holmes was one of the first to articulate limits to the exercise of free speech when in Schenck v. United States when such speech was “ . . .used in such circumstances and [of] such a nature as to create a clear and present danger.” Schenck v. United States, 249 U.S. 47 (1919). However, the mere fact that speech is offensive or incites hostile feelings alone does not give rise to the State’s ability to abridge such speech. Rather, such speech may only be abridged when it is accompanied by acts or statements “. . . likely to provoke violence and disturbance of good order, even though no such eventuality be intended.” Cantwell v. Connecticut, 310 U.S. 296 (1940).  Thus, when speech is laden with fighting words, lewd references, profanity, libel, obscenity, or other elements of low speech value, there exists no First Amendment protection. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). Finally, when speech has the potential to lead to serious damage to persons, places or national security, such speech may be abridged or eliminated altogether. Haig v. Agee, 453 U.S. 280 (1981).

In both of the instances of protest cited above, youthful protest has led to actual damage to persons. Thus, the conversation no longer turns on issues of the preservation of free speech but rather the liability incurred by the exercise of speech, lawful or not.

It is reasonably certain that the victims of the protests at both Evergreen State University and Linfield College have legally recognizable causes of action on the basis of wrongful discharge of employment, intentional infliction of emotional distress, tortious interference with contract, violation of civil rights, false imprisonment,  and libel and slander. Assuming that the protesters' actions can be demonstrated at trial to be the direct and proximate cause of injury, the question arises:  are young people who engage in these protests liable to third parties for their injuries? Are these protestors shielded by their youth from the various civil rights and torts claims that can be arrayed against them? And how about the parents of these protesters: Are they vicariously liable for the tortious actions of their children?

The overwhelming evidence out there is that both the protestors and their parents (if the protestor is under the age of majority) can be held liable.

In most states, legislation exists that hold parents or legal guardians liable for the willful or malicious conduct of their unemancipated children that results in property damage or injury to another person.  See Cal. Civ. Code §1714.1; N.J. Stat. Ann. 2A:53A-15; Tex. Fam. Code Ann. §§33.01-33.03. In North Carolina,  North Carolina General Statute §1-538.1 makes parents responsible for the acts of their children who “maliciously injure [any] person or destroy the real or personal property of such person.” N.C. Gen. Stat. §1-538.1 (1993).  So in the case of a youthful protestor under the age of majority who has caused a person to be wrongfully terminated or otherwise sustain damage to their person or property, the parents may very well be on the hook (at least for part of the damages). As to those that are above the age of majority, there is no shield to liability for the tortious acts one commits against a third party. If, in the course of exercising a speech act a young person engages in conduct that brings harm to another person, no matter how righteous their cause, they will be held responsible for the damages inflicted upon the other person.

All this should give one pause to consider two valuable points:

First, to the Students: know that just because you are young, you are not above the law and that your actions can and will have consequences that may complicate your financial future.

Second,  to the Parents: do you know what your child is up to on campus and will it end up causing you to pay claims that will compromise the child’s ability to financially remain in college?