Questions About the Parkland Shooting (4): Lockdowns and Legalities

Here’s the fourth and final set of posts from my series on (generally) unasked questions about school shootings (here’s the first installment, the second, and the third):

In the wake of the Parkland shootings, we’ve heard lots of demands that this or that be done by this or that party. Of particular interest to me are two sets of demands–one concerning the alleged duty of care that educators are widely assumed to have for “their” students, the second concerning the supposed duty we have to comply with widely-accepted “lockdown” protocols. I’m skeptical on both counts.

“I’d Defend Those Kids with My Life!” 

1. Legally speaking, it’s unclear what duty of care, if any, educators have for “their” students against lethal threats to those students.

Are educators contractually bound to protect students against danger? In that case, I’d be curious to see the contractual terms that imply such a duty. I’ve read my contract, and see nothing in it that does.

Or is there some statutory duty to protect students? In that case, I’d be curious to read the statute, once someone told me what it was.

Or do educators, in loco parentis, somehow have the status of involuntarily-conscripted Good Samaritans bound to care for the students under their pedagogical wings? In that case, I’d like to see an argument for that conclusion.

We might also consider the possibility that the supposed “duty of care” whose existence we’ve been assuming is just a convenient bit of sentimentality conjured up from out of nowhere.  Though many K-12 teachers I know have (rather hastily) volunteered that they would die for their students–and there’s never any shortage of cheerleaders for self-sacrifice in our culture, which is cheerfully equated with courage–it’s worth pointing out that even if instructors are thought to have an ethical duty of care to their students, that duty can’t be enforced in particular cases unless it has explicit legal status. It’d be nice to know what it is.

2. Legal liabilities aside, it’s also unclear what the purely ethical argument is for the claim that instructors owe a duty of care to students in cases of lethal danger. I guess lots of people just find it “intuitively plausible” to assume the existence of such a duty, but I don’t. Putting the issue in virtue-ethical terms: if a teacher “leaves his students to die,” is he properly termed a coward? Only, it seems to me, if we have real moral knowledge that he should have put his life on the line to save them in the first place. But that’s exactly what I’m asking: do we?

I suppose that many people (including educators) assume that educators would defend their students to the death out of a generalized sense of sheer affection for them. But affection doesn’t extend to all students, and doesn’t necessarily imply the duty to throw one’s life away in the cases where it applies.

I assume that the answer will differ by age level of student taught–presumably an instructor has a stronger implied duty for younger kids than she might for adults–but it’s worth seeing explicit arguments for whatever ethical duty we’re thought to have, across all grades levels, from kindergarten to the college level.

Once we have the basic argument in hand, I assume we’d want to address complications as well: Do adjuncts at the college level have a duty of care on par with full timers? How about substitute teachers?

More to the point, duress and danger are usually thought to constitute defeaters for the obligations we bear one another, including duties of beneficence. That’s why all of the famous thought-experiments about our obligation to save drowning kids include some careful proviso about how easy and risk-free it is to save the child in question. I’ve never seen a version of the thought-experiment involving active shooters placed at water’s edge shooting at the would-be rescuer, with the intention of pushing us to the conclusion that the rescuer is obliged to dodge the bullets, jump in, and save the kid anyway. And so, the crucial question typically gets bypassed: how, exactly, does the outright fear of imminent death affect the stringency of a duty to care for someone, even if that someone happens to be a rosy-cheeked kindergartner?

It’s easy enough to laud the altruism of dead people: they can’t come back to offer their posthumous regrets. Because they can’t, we tend to assume that they wouldn’t if they could. It seems  much harder to ask why one person should be thought to have a duty not just to risk, but to trade his life for another, even if that other is a small and presumably innocent child. Personally, I don’t see why my students’ lives are all that much more important than my own–at least to me.

Having had a few close brushes with death–and having had to attend one funeral too many of friends who’ve died before their time–I can only say that I’m not a fan of the phenomenon. And I wouldn’t become one simply because I was in charge of a bunch of first-graders whose lives were on the line when mine was. With an attitude like this, maybe you should be glad that I don’t teach K-12 students, but I regret to say that the same reasoning applies to students after high school graduation. In any case, in twenty-six years of college-level teaching, I don’t ever recall agreeing to assume a duty of care over my students in cases of lethal danger, much less being explicitly told that I had one.

A change of focus might be illuminating. Consider the promises “we” make when it comes to warfare, e.g., the treaties “we” sign to defend innocent countries against foreign invasion by aggressors. Famously, the historian Niall Ferguson has argued that it was a mistake for Britain to have entered World War I, despite the facts that (a) Britain did so to defend neutral Belgium against aggressive attack by Imperial Germany, and (b) Britain had a legal obligation by treaty to do so.

From an interview with Ferguson in a British magazine:

Q: What about the moral dimension – did Britain have a duty to get involved in the First World War?

Ferguson: It had a legal obligation under the 1839 treaty to uphold Belgian neutrality, so would have had to renege on that commitment. But guess what? Realism in foreign policy has a long and distinguished tradition, not least in Britain – otherwise the French would never complain about ‘perfidious Albion’. For Britain it would ultimately have been far better to have thought in terms of the national interest rather than in terms of a dated treaty.

I totally get it. A treaty, like a contract, is or involves a kind of promise. And generally speaking, promises should be kept. But not all promises: the duty to keep a promise is strong, but defeasible. Indeed, the duty to break a certain kind of promise “has a long and distinguished tradition” even among the stiff-upper lipped of Western Civilization. Ferguson’s point is that national self-interest sometimes trumps promise-keeping. My point is that maybe individual self-interest does the same.

Can we give a nice, neat list of the cases in which it becomes legitimate to break a promise? Well, not really, but here’s a preliminary, open-ended list. We don’t have an obligation to keep…

  1. literally impossible promises;
  2. pointless or self-defeating promises;
  3. unconscionable ones, or ones that violate the principles of justice–or, more precisely, promises that violate a proper subset of the principles of justice;
  4.  promises made under conditions of coercion, fear, or duress, at least past a certain threshold (pace Hobbes’s view in Leviathan, I.14: “covenants entered into by fear…are obligatory”);
  5. promises whose satisfaction would come at too high a cost to the promisor; and/or
  6. a promise made in the distant and presumably forgotten past that hasn’t recently been renewed.

Since this doesn’t pretend to be a complete list, it allows for the possibility of adding more exception-clauses that bear some significant resemblance to the items already on the list. But even when it comes to promises that are fully obligatory, American contract law generally holds that breach of contract–the breaking of a legally binding promise–entails the payment of monetary damages rather than specific performance. In other words, you generally can’t force someone to perform a promised act when he fails to do so. Generally, you’re obliged to put up with his failure, then ask him to pay for it. There’s a long and distinguished tradition of that, as well, not just in cases of ordinary breach, but in cases where one wants to avoid conscription for military service.*

How well does Britain’s treaty obligation to Belgium stand up here? Not so well. Take defeater (1): obviously, it was impossible to defend Belgium after Germany had invaded it. So why bother fighting at all?  Or take (2): arguably, it was pointless and self-defeating to have fought World War I at all, so why enter it in the first place? Or (3): it was arguably unconscionable to waste so many lives on such a ridiculous war–think Gallipoli, the Marne, the Somme, Verdun–so why try? Re (4): though the promise to defend Belgium wasn’t entered into under duress, it would have to be effectuated under duress, which seems close enough to (4) to count as a defeater for the promise to defend Belgium. And even if it wasn’t close enough, there’s (5) and (6) to consider: the promise to defend Belgium would have exacted too high a cost if kept, and was made too long before the war to matter.

Of course, in another sense, defeater (4) is highly relevant no matter how you slice it: Britain may not have signed the treaty under duress, but its citizens had to be coercively conscripted into compliance with it. And those citizens never had a genuine say as to signing the treaty, much less explicitly consenting to its terms. So Ferguson seems to be even more right than he realizes: Britain’s reneging on its commitment to defend Belgium against Germany would have been a great idea.**

Put that way, of course, what military treaty would survive scrutiny? The preceding reasoning seems less like a listing of discrete defeaters to the promises involved than a wholesale nullification of the very idea behind treaties of mutual defense. So forget Britain. How many Americans still think we should have honored our treaty obligations to South Vietnam, or ought to honor the ones we have (or have had) to South Korea or Taiwan?  For that matter, how many would, if it came down to it, volunteer to fight for NATO, Article 5 or not?

It’s hard to take such ethico-legal obligations all that seriously, even in the face of naked aggression. No matter what anyone resolves to do before having to put his life on the line, and no matter what the superficial (or even deep) similarities between an ordinary promise and a promise to trade one’s life for another person’s, the differences between an ordinary promise and a life-trading promise are too stark for anyone to treat them as easily commensurable.

Hobbes got this much right: ordinarily, we make and keep promises because the promise is a bilateral or multilateral affair, there is some assurance of reciprocity, doing so is mutually beneficial to both parties, and the benefits will last long enough to permit iteration of further bilateral/multilateral activity by both parties. But a promise to jump in front of a bullet to save someone else’s life has none of these features: it’s a unilateral act of self-immolation that promises the agent no benefits but a brief burst of posthumous admiration, mostly from people smart enough never to try the same thing on their own.

And yet, we somehow have a duty to defend our students against school shooters–even without a promise to do so. Go figure.

So if you’re eager to defend those kids to your death, I’d be the last to stop you. The problem is, I’d also be the last to join you.

“This Is a Lockdown!”

1. Lockdowns are much in vogue nowadays, always in response to “credible” reports of “active shooters.” But what is the legal status of a so-called “lockdown”? Lockdowns are typically issued by school administrators, not by law enforcement officers. On my campus, lockdown orders come straight from admin to our smart phones via the University’s electronic alert system, E2Campus. Here is the wording of the protocol:

In case of “lockdown” (Shelter in Place)

When a lockdown is ordered, people are told to stay inside their classrooms, offices and/or residences and lock the doors. This is designed to prevent entrance from hallways and corridors. Windows will also be shut, locked, and covered with blinds to obscure visibility, and people are to stay away from doors and windows, sheltering in an area where they cannot be seen until a pre-authorized safety message via e2Campus has been delivered or the situation warrants immediate evacuation.

The “lockdown” procedure will be initiated by a designated administrator of the University in accordance with the procedures on section 1.5. Notification will be made via the e2Campus mass notification system or in the event of a system failure a horn will sound. The “lockdown” will be initiated in the event that a dangerous and probably armed individual is on campus or when an emergency incident occurs which necessitates the need for a “lockdown”. The horn will be sounded by security personnel based upon authorization or a perceived credible threat.

NB: A lockdown is “ordered.” Do “orders” issued by school administrators under conditions of lethal danger have the force of law? I wasn’t aware that they did, and if they do, I, for one, would like to see the legal basis for it. Indeed, I’d be inclined to want to run it by my attorney.

But even if it had some “legal basis,” why should anyone obey a school administrator under the circumstances that would prompt a lockdown? If, on 9/11, the people on United Flight 93 had complied with FAA regulations (at the time) for emergency situations, they would have sat in their seats for the duration of the flight, letting the Al Qaeda hijackers do their bidding until they got official “instructions from the flight crew.” For obvious reasons, they didn’t wait that long. (For equally obvious reasons, they weren’t prosecuted, either.) To belabor the obvious: regulations sometimes have to be defied or ignored. Read any competent military history about any major military engagement: both military efficacy and sheer survival entail that regulations be flouted on the field of battle.

OK, so change the example: If a student, staff member, or faculty member perceives danger on campus, and wants to leave because of it, does a school administrator have the authority to stop her from leaving campus? Or is the student obliged, at the administrator’s behest, to “shelter in place” until the official administrative “all clear” is sounded? Not even Hobbes–a statist fanatic if ever there was onethought that we had such an obligation: “a covenant not to defend myself from force, by force, is always void,” he says (Leviathan, I.14).

It doesn’t take much license to infer that if you can’t covenant not to defend yourself from force by force, you can’t covenant not to defend yourself from force by running away. In other words, you retain your right of self-defense inalienably, whether to fight or flee, no matter what anyone says.

It only makes things worse for the champions of lockdown omnipotence that the existence of the “covenant” itself is a matter of doubt, as is the identity of the party with whom you’re supposed to have been making the covenant: I don’t ever remember agreeing to stay on campus during a lockdown. Nor has anyone ever cited chapter or verse to me from the law telling me that my employer has the right to keep me there under such circumstances. The implication, I assume, is that the sheer issuing of a lockdown protocol by the University is in and of itself a condition of employment. The tacit premise would seem to be that any prescription by the University is a condition of employment, no matter what it says, whether you agree to it or not. Agreeing to be employed is ipso facto agreeing to every prescription offered by the University, whether or not your employment contract actually prescribes that.

Never mind that even if you could dredge up such a covenant and identify the parties to it, it would, on Hobbesian grounds, be null and void precisely in the situation it’s meant to govern: according to Hobbes, we have no obligation to adhere to a contract in a “state of nature” that lacks the overarching monopoly power of the state that is a necessary condition for a binding covenant. That, at any rate, is how I read Leviathan I.14: a lockdown situation with an active shooter is a temporary, localized regression to the “state of nature” where a “common power…with right and force sufficient to compel performance” is lacking.  Where a common power is lacking, covenants are “voyd.” Or so I’d argue.

I don’t mean, of course, that we’re somehow obliged to derive our norms on contracts and promises from the letter of Hobbes’s Leviathan. I mean: not even Hobbes would accept the idea that we have a duty to obey a school administrator during an active shooter lockdown. My point is, we should be able to do better than a statist fanatic like Thomas Hobbes. If so, we shouldn’t be so quick to surrender our right to flee the scene of an active shooting simply because some administrator insists that, being safe behind a locked door and a barricade of desks and chairs, we’re duty-bound to “shelter in place”–with the further tacit assumption that if the shooter breaks through the barricade, the educator’s body will replace it.

There is good news here, though, ironic as it may be: the only recourse a University would have in case of a breach of the protocol would be to fire you. Thank God for metaphors!

2. Finally, why do school shooter protocols always seem to assume that the average shooter will start shooting in the hall of a building, then attempt to enter classrooms from the outside? It’s as though active shooters could be presumed to be following their own protocol. At my university, every classroom is pre-locked against shooters, so that if one shows up, someone (presumably the instructor) is required to pull the door closed (hence locked) and wait for help. Presumably, once you do, you’re safe against the average AR-15-wielding shooter–unless the shooter happens to know the (widely-publicized) protocol, is already in the classroom, has brought a gun in with him, and has everyone exactly where he wants them. In which case, he’s locked everyone in the classroom, and locked out the police.

The predictable everyday consequences of the “locked door” policy are three-fold: (a) people constantly get locked out of their classrooms, and have to call Campus Security to get back in; (b) if the instructor closes the door, he can be assured that his class will be disrupted at least a dozen times an hour, as late students come to the door asking to be let in, and bathroom-goers accidentally close the door behind them and lock themselves out; so that (c) most instructors avoid the first two problems by teaching with their doors wide open. I’m sure the policy has some deterrent effect on active shooters. I’m even more sure that it has a deterrent effect on active learning.

Do the authors of these protocols not remember the lyrics to Pearl Jam’s “Jeremy“? Jeremy “spoke in class today” because he was already in class, and in it with his gun. Had the door to Jeremy’s classroom been locked, he would have locked the police out rather than been deterred from coming in. As we all know, Jeremy managed only to kill himself, but it could easily have been otherwise. Funny that Pearl Jam sings, “Try to erase this.” I guess we did.


*There’s an equally distinguished tradition of promise-breaking in academia: adjuncts habitually violate promises to teach classes they’ve agreed to teach, and academic departments habitually violate promises to hire adjuncts they’ve agreed to hire. Both things go entirely taken for granted in the academic world: the idea that either side is wronging the other, much less owes acknowledgement, apology, or compensation for violating some sacred agreement, would be regarded in most quarters as laughable.

More or less the same thing is true in the market for rental housing, at least in the New York metro area. Both tenants and landlords routinely violate the terms of rental agreements to which both have agreed, treating adherence to them as a fundamentally ridiculous matter, fit only for pedants, suckers, and imbeciles. The idea of taking a Jersey landlord or New York tenant to LT court merely for violating a term of a rental agreement would literally be laughed out of court: just having an apartment or getting the rent from a tenant is considered substantial performance in these parts.

I always laugh when I read Kant’s condemnation of false promises in the Groundwork for the Metaphysics of Morals. Would he have written the Groundwork as he did if he’d lived in or owned a rent-stabilized apartment in New York, or been an adjunct or department chair at a lower-tier college?

**”Britain, which had committed itself at the outset only to providing an expeditionary force to widen the French left in Flanders, found itself assuming responsibility for ever longer stretches of the Western Front, while simultaneously finding men to fight the Turks at Gallipoli, in Egypt and in Mesopotamia, to assist the Serbs and to reduce the garrisons of Germany’s African colonies; men had also to be found to reinforce the crews of ships denying the North Sea to the German High Seas Fleet, dominating the Mediterranean, chasing the enemy’s surface commerce raiders to destruction and defending merchant shipping against U-boat attack” (John Keegan, The First World War, pp. 204-5). British involvement in World War I strikes me as the twentieth-century prototype of a gallant act of self-sacrifice that spirals out of control, with the significance for modern consciousness that the Crucifixion had for preceding ones.

2 thoughts on “Questions About the Parkland Shooting (4): Lockdowns and Legalities

  1. Pingback: Lockdowns and Liabilities: A Hobbesian Reflection on School Shootings | Modern Political Thought

  2. Pingback: World War I and School Shootings | Khawaja's PSCI 303 blog

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