DV Journal

It’s accepted that parents, not the government, have the primary right and duty to raise and protect their children.

While most Americans would not dispute this notion regarding parenting in the physical world, it has become surprisingly controversial in the digital one.

In Congress and legislatures nationwide, proposals have proliferated to wrest control of children’s digital lives from their parents. These are proposals that would “not enforce parental authority over children’s” behavior but “impose governmental authority, subject only to a parental veto,” to borrow the late Supreme Court Justice Antonin Scalia’s words in Brown v. Entertainment Merchants Association (2011). They include bills to require online age verification, micromanage social media’s algorithmic interactions with minors, and bar children from social media altogether.

Such a bill is the Kids Off Social Media Act (KOSMA), introduced recently by a bipartisan coalition of senators. KOSMA would erect two main pillars: to disallow children under the age of 13 from social media and to disallow platforms from offering “personalized recommendation systems” to teens. Parents should look suspiciously at both.

Barring children from the category of online platforms that KOSMA labels “social media” will likely harm the children it intends to protect.

“The act would inadvertently make children less safe,” TechFreedom writes, pointing out that it “makes no exception for parent-managed kid-safe accounts.”

“It would ban platforms that allow supervised child access — like YouTube Kids.”

Similarly, the provision to remove personalized recommendations would prevent algorithms from keeping objectionable material from minors.

TechFreedom explains: “By mandating chronological-only feeds for teens, KOSMA inhibits the ability of a platform to cultivate a safer online space — e.g., by downranking controversial or distasteful content that a teen has requested.”

The law of unintended consequences and the limitations of lawmakers’ foresight remain the unconquerable foes of the would-be central planner.

In addition, despite its paper-thin protestations to the contrary, KOSMA’s age-specific requirements would act as an age-verification requirement — an unconstitutional burden on speech. KOSMA’s promise that it does not intend mandatory age verification would do little for tech firms that see a deluge of litigation on the horizon. How else might a platform adequately assess a user’s age? The bill’s gapingly broad “knowledge fairly implied” standard serves as an invitation to attorneys.

Knowing the costs of a deluge of lawsuits better than the precise meaning of the law’s text, litigation-averse tech companies will treat KOSMA as what it is: a de facto — if cleverly obscured — age-verification mandate. In practice, only with age verification could platforms be sure to avoid liability under KOSMA; ergo, age verification will ensue.

Judges have long considered mandated age verification — implicit and explicit — unconstitutional. Age verification usually requires users of all ages to proffer sensitive personal data or biometrics, and enforcing it, courts have ruled, imposes unconstitutionally heavy burdens on online speech. KOSMA’s denial of its obvious effects will not save it in court.

Far from possessing rock-solid, unassailable answers, KOSMA’s supporters seem lost at sea, searching desperately for land. They have convinced themselves that something, anything, must be done to keep children from the internet. 

Despite the certainty of child safety advocates, just how social media affects children’s psychology remains unclear. Many claim that “the science is settled.” It is not.

When the government trespasses into a sphere “better left to a private individual or institution” — in this case, the family — the attendant harms usually dwarf whatever good might be accomplished. The government does not know much about American children, it has little just authority over most aspects of American children’s lives, and it certainly does not love American children.

Pretending otherwise, as if nobody exists who might do better by them, leads directly to unconstitutional, interventionist nanny statism — and likely to many judicial injunctions.

America’s Founding Fathers wisely embedded checks and balances into our constitutional republic’s governing structure. They encouraged the courts, for example, to check the abuses and overreach of the legislative and executive branches.

During the COVID-19 pandemic, we witnessed government and teachers union overreach normalized, particularly in education – with the over-sexualization of curriculum, placement of pornographic books in middle school libraries, drag shows at elementary schools, mask mandates, free water ice and cash payments for vaccination, puberty blockers, boys competing in women’s sports, and DEI/CRT. The importance of checks and balances by the legal system and by parents has become acutely clear.

Parents instinctively know the importance of addressing discipline issues with their children, even after the fact, and even when the person who raised the issue may only be indirectly involved. Why? Because it does not matter who raised the issue, wrong is wrong. Nor does it matter if the wrongdoing is no longer occurring, wrong is wrong. Addressing the bad behavior is not moot, and if not dealt with it will occur again. Ignorance is implicit enablement.

Given this backdrop, it is particularly frustrating that the Pennsylvania Commonwealth Court has, for the second time this year, dismissed complaints brought by parents, failing to rule on the substance of each lawsuit.

Will this failure have an impact on children? Parents and educators have spent the last three years predicting the harmful effects of the delusional fear mongering that caused useless masking, school closures, and the particularly destructive “virtual learning.” Validation of those predictions has come in the form of decreasing academic achievement scores.

“This is the fifth consecutive year of declines in average scores, a worrisome trend that began long before the disruption of the COVID-19 pandemic, and has persisted,” said Janet Godwin, the CEO of the ACT.

Earlier this year, the court dismissed a case brought by parents demanding compliance with Pennsylvania’s requirement for 180 days of in-school instructional learning. At the time, school districts knew using virtual learning was illegal, but they did it anyway.

How do we know it was illegal? Mark Hoffman, executive director of Bucks County’s Intermediate Unit stated in a July 6 email to all 13 Bucks County superintendents, “No authority yet granted to PDE [PA Dept of Edu] to issue waiver for 180 day school year,” and “Hybrid options and staggered schedule options are NOT legal as of today,” and “Research provided by PDE that offers suggestions for hybrid options are NOT currently legal options as school code currently stands.”

The court did not rule on the substance of the complaint, but rather tossed it – twice – ruling that parents do not have standing to bring such a complaint. Perhaps they overlooked that parents, via school real estate taxes, fund nearly 100 percent of the costs that provide those 180 days of education.

Then on December 1, the Commonwealth Court tossed another parent-led lawsuit which asked the court to declare Pennsylvania’s secretary of education was wrong to advise school districts that they had the authority to mandate masks. Yes, you read that correctly, the secretary of EDUCATION, not the Secretary of HEALTH. Oddly enough, this time last year, the same Commonwealth Court declared then-Sec. of Health Alison Beam’s statewide masking order void ab initio (void from the beginning). Beam was fired after the ruling and – shocker – was hired by UPMC as a government liaison.

The court held the “guidance” issued to school superintendents by the secretary of education “was not an order, directive requirement, or mandate requiring” Pennsylvania school districts “to implement masking mandates within their schools.” Accordingly, the court found that any order it would issue would amount to an “advisory opinion.” Oddly enough, that advisory opinion is exactly what the Complaint demanded, and is exactly the job of the court – to interpret the law.

The court also ruled the complaint was moot because the school districts had already made masks optional. The court ignored the argument that districts’ Health and Safety Plans continue to this day to have language enabling mask mandates to be reinstated at any time in the future.

The complaint cited the expressio unius est exclusio alterius doctrine – a Latin phrase meaning the inclusion of specific powers to one government agency implies the exclusion of such powers to other agencies. Because the legislature delegated disease control to the Department of Health, the Department of Education has no power to govern disease control.

Abdicating its responsibility to determine constitutionality, the court did not rule on the substantive issues brought by the parents in either complaint. That is literally their job. Parents and students deserve better.

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Documents released by court order show Tredyffrin/Easttown teachers are learning about Critical Race Theory and how to “transform” the district. However, a lawyer for the school district says the controversial race-based theory is not reaching students.

Parent Ben Auslander contended Tredyffrin/Easttown School District officials violated his First Amendment rights when he tried to take verbal notes on Critical Race Theory (CRT) materials from a vendor.

Auslander, working with America First Legal and Wayne attorney Walter Zimolong, sued the district, winning the release of 166 pages of documents that vendor Pacific Educational Group (PEG), a California-based education consultant supplied to T/E.

PEG claims “systemic racism is the most devastating factor contributing to the diminished capacity of all children.” The district had hired the company to run teacher training and shape the curriculum, according to the America First Legal (AFL) press statement.

Auslander wanted to see the PEG materials. District officials told him he could look at the papers, but he could not take notes or pictures and had to look at the materials at the district office.

When Auslander tried to make a voice recording on his cell phone about what he saw, he was told to leave and officials threatened to call the police, the lawsuit said.

The materials show, “PEG’s ‘training’ of the district staff included exercises on’ walking through the barriers to teaching Critical Race Theory at your school,’ and how ‘Critical Race Theory is a vital step in your School Transformation Action Plan,'” according to AFL.

Kenneth Roos, the district solicitor, denied CRT is taught in the school district but acknowledged it is part of “district staff discussions.”

“To be clear, CRT is not taught in TESD schools,” said Roos. “The district has developed its own initiative related to equity, inclusion, and belonging. The district works with multiple vendors to craft the steps to support our own initiative. In some EIB initiative leadership training (including the ones PEG did), district staff discussed with each other (not students) what CRT is and how it fits into the national context. CRT is not an underpinning of what the district teaching in the classroom, and it is not in the TESD curriculum.”

However, former school board Director Kyle Boyer acknowledged at a public meeting in 2021 the district does use elements of CRT in its curriculum.

Zimolong said the newly-released documents counter claims made by Roos. “His claims could only be true if you ignore what the CRT documents bought and paid for by the school district say. Indeed, page eight of the documents sets forth a ‘School Transformation Plan’ using the teaching of CRT to achieve that transformation. The school district’s comments recall Orwell in ‘1984’ who wrote, ‘[t]he party told you to reject the evidence of your eyes and ears. It was their final, most essential command.'”

The judge’s decision is “a great outcome if you’re in favor of transparency and knowing what is being taught to your kids in school and you don’t like when any government agency tries to sandbag and cover up from a citizen what their tax dollars are being spent on,” said Zimolong.

The litigation is continuing. While obtaining the documents was part of the process, claims regarding how his client was treated by school officials remain to be litigated. Zimolong said officials had violated Auslander’s First Amendment rights by not permitting him to record his thoughts.

Auslander could not be reached for comment.

The next phase of the court case will require depositions from school officials, Zimolong said. After that, there may be a hearing in September or Judge Harvey Bartle III might rule based on the results of the depositions.

For his part, Roos said the district continues to believe the case should be dismissed.

Andrew McClellan, a parent whose son is a student at Conestoga High School, is very unhappy with both the racial and transgender curriculum that he says is being taught in district schools.

“To be honest with you, we’ve known this has been going on for a long time,” said McClellan. “All their transgender promotion and the grooming that they’re doing. They’re sexualizing these kids. It’s all done in secrecy, then they lie to the parents about it…The majority of their policies and curriculum, if you can even call it curriculum, the ideologies, the grooming, it’s all there and they lie to us about it. It’s horrific. How did we get here?”

“It’s been an agenda,” he said. “It’s been a takeover.”

Meanwhile, the AFL lawyers believe these PEG materials illustrate that CRT is being taught in many districts across the country.

“This should forever end all debate. Our innocent children are being viciously indoctrinated with CRT by Marxist radicals. This lawless, extremist, poisonous bigotry must be defeated,” said Stephen Miller AFL president.

AFL Vice-President and General Counsel, Gene Hamilton, said, “These documents establish–once and for all–that CRT is present in public schools across the country. And not only is it present, but it is being funded by taxpayers across this country with hundreds of thousands of dollars being spent in each individual school district.

“The American people do not want their money being spent on these toxic training materials under any circumstance, but especially not while their children attend classes that are overcrowded, their teachers are underpaid, and in school buildings that are in need of repair. Every dollar spent on this nonsense is a dollar wasted,” Hamilton said.

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