Taking the Fifth, Because No One Can Pledge Confidentiality any More

Teacher John Dryden was absolutely correct in counseling his students to take the fifth rather than fill out a school drug use survey.  Three cheers for him

Yesterday John Dryden, the Illinois teacher who warned his students that they did not have to answer questions about alcohol and drug use on a survey distributed by their high school, got a warning of his own. The Kane County Chronicle reports that the Batavia School Board voted to issue "a written warning of improper conduct" to Dryden, who also was docked a day's pay. Batavia School Superintendent Jack Barshinger explained Dryden's offense this way:

In this case, district teachers, social workers, guidance counselors, psychologists and others worked together for over a year to select a data-gathering instrument that could be used to determine what social or emotional issues our high school students are experiencing, and whether individual students could benefit from new or increased supportive intervention by our staff. These purposes were shared with our parents and our teachers.

The issue before the board was whether one employee has the right to mischaracterize the efforts of our teachers, counselors, social workers and others; and tell our students, in effect, that the adults are not here to help, but that they are trying to get you to "incriminate" yourselves.

Barshinger seems to think it is inconceivable that there could be anything wrong with the survey, since people with good intentions worked on it for "over a year." Yet the survey forms that Dryden picked up from his mailbox 10 minutes before his first class on April 18 not only asked about illegal behavior; they had students' names on them, thereby destroying any assurance of confidentiality.

Forget for a minute whether or not the public school employees were trustworthy (which is a heroic assumption in and of itself).  But consider local law enforcement.  They get a tip that kids have admitted drug use on these forms.  What do they do?  Well in many jurisdictions (imagine our own Joe Arpaio in action here) the police would immediately pull out every legal stop (and a few illegal ones likely) to seize these surveys.

Don't believe me?   Back in 2003 Major League Baseball asked its players to take a super-confidential drug test whose results would never be released for the purpose of assessing the extent of steroid use in baseball (almost exactly the same purpose the school is claiming).  Eventually, the FBI, Congress, and every other government agency tried, and were eventually mostly successful, in obtaining these supposedly secret confidential tests.

Several years later, Frank Mitchell was asked by MLB to investigate the steroid issue.  He asked for players to speak to him "confidentially" about steroid use.  The Players Association took better care of its members than this particular school does of its students, counseling players:

...while Senator Mitchell pledges in his memo that he will honor any player request for confidentiality in his report, he does not pledge, because he cannot pledge, that any information you provide will actually remain confidential and not be disclosed without your consent. For example, Senator Mitchell cannot promise that information you disclose will not be given to a federal or state prosecutor, a Congressional committee, or perhaps turned over in a private lawsuit in response to a request or a subpoena.

This is EXACTLY the statement that could and should have been made to students about this drug survey -- three cheers for one brave teacher willing to do so.  Shame on the rest of the school for its naivete (at best) and callous disregard for the students (at worst).


  1. Matthew Slyfield:

    The last thing you ever want to hear from any government employee or elected official is any statement that boils down to "we are the government and we are here to help"

  2. jon:

    Another reason not to put your children in government schools.

    The school called me yesterday for a fact finding survey (basically they were figuring out how to propose a bond and sell it to the people). I basically answered all the questions so that there was nothing they could say that I would vote for it. They had a couple places where they ask for actual commentary. I said, "I don't believe public schools should exist."

    It reminded me of Ernest Hancock when he tells the story about election questions put to a libertarian about software being put on public libraries computers to stop the viewing of illicit material. Of course, the libertarian position is not to be able to answer the questions, since they don't believe public libraries should exist to begin with. :)

  3. Fred_Z:

    The USA is well on its way to becoming a low trust society. Very sad.

  4. Incunabulum:

    I have personal experience with the state going back on its assurances of confidentiality.

    I got out of the Navy in 1994 and rejoined in 1996 and in the interim the military instituted a program of taking DNA samples to file for remains identification. Given that these samples were linked to personally identifying info (as they have to be to serve the purpose of remains ID) the US military was in effect compiling the largest DNA ID database in the country (opt-out wasn't allowed). To assuage the complaints of people who figured that it would be a priority target for law enforcement the military assured us that *by law* the DB could only be used for remains ID and not law enforcement - I even signed an informed "non-consent" form affirming that I knew what the DB was for and that it couldn't be used for law enforcement.

    Not even two years after my sample was taken the law was amended.

  5. rxc:

    The road to hell is paved with good intentions...

  6. herdgadfly:

    As has been the case during the Congressional Hearings on the FBI's attack on conservative groups, the use of the fifth amendment outside the courts is inappropriate. School systems have no authority to compel students to release any personal information without parental consent. Refusal to give information needs only the recognition that school administrators have limited authority outside of school curriculum and student discipline.

  7. Zach:

    I got a request to do a drug, tobacco and alcohol survey from the Reseach Triangle Institute in North Carolina. RTI was doing it on behalf of the feds. I tersely told the first surveyor to show up at my doorstep that I wasn't interested. They sent a follow up letter asking that I participate, and then sent another person to my door. I read her the riot act and she practically ran back to her car. Then I wrote my state AG complaining of harassment, and my AG made somebody at RTI write a really long letter explaining what they were doing and why.

    I will only voluntarily provide information to the government through my attorney.