The Edmond Sun

December 13, 2013

Bringing fairness to both children and felons

Mike Hinkle
Special to The Sun

EDMOND — Let me go out on a limb here and make a statement that is categorically true in all places, at all times. Life is not fair. Any person, even the least compassionate among us, must agree it isn’t “fair” for children to be born with disabilities. Those encumbered at birth with physical or psychological burdens play absolutely no role in causing the difficulties they’ll encounter during the course of their lives. No matter how we may rage against this unfairness, it is a fact we have to face and learn to cope with. We may do our best to lighten the load, that unfairness will always be theirs to bear.

Every day, innocent people are injured by the intentional or negligent acts of others or by the heedless operation of natural forces. Each time this occurs, we may rush to the support of the injured parties and protest against the unfairness of the situation. But what’s done can’t be undone. It isn’t fair, but it happened.

Unfortunately, Americans seem to be growing more accepting of certain kinds of unfairness where our children are concerned. At the same time, we stand by while employers are forced to bend over backwards to be sure there is no unfairness where convicted felons are concerned. Recent news items illustrate what I mean.

We’re all aware that in many of our schools, there’s a “no question asked, no explanation accepted, zero-tolerance” policy where sexual harassment and violence are concerned. Under these policies, a 6-year-old boy playfully kissing the hand of a schoolmate must be singled out for extraordinary discipline. Failure to mete out this discipline might draw the wrath of the federal government who could, pursuant to non-legislatively imposed guidelines, withdraw federal funding from the whole school. This, of course, is tantamount to punishing every student in the place. Naturally, this would be grossly unfair. But when it comes to schoolchildren, this type of unfairness seems to be perfectly acceptable.

In addition, any time there’s a fight on school grounds, many districts suspend both students involved, regardless of which one was the aggressor; no explanations, no tolerance, no exceptions. Even if an innocent student is simply defending himself/herself, suspension is imposed. To punish people for defending themselves against violent aggression is patently unfair. But when it comes to schoolchildren, again, taxpayers are expected to tolerate this unfairness. Every day there are examples of schoolchildren being stigmatized and punished for profoundly innocuous behaviors like shaping a pop tart, displaying a charm-sized futuristic ray gun or pointing a finger. These oppressive, hyper-technical rules produce many examples of unfair punishments imposed on children. But unfairness of this type, when forced on children, is expected to be overlooked and endured, if not supported. You get the picture. In the view of bureaucrats and social engineers, it’s OK to be unfair to the kids.

Now consider this. Some employers are as rigid about background checks as schools are about harassment and violence. Whereas the burden of rigid school rules falls on schoolchildren, the burden of rigid application of background checks falls on convicted felons. But, unlike schoolchildren, when unfairness falls on convicted felons, the government won’t tolerate it.

Last April, the Equal Employment Opportunities Commission determined that automatic exclusion of applicants with criminal records was unfair. Consequently, employers who have a zero tolerance position concerning the hiring of convicted felons run the risk of expensive burdensome enforcement action by the EEOC.

Recently, Greg Abbott, Texas attorney general, sued the EEOC claiming the commission was overreaching its authority. According to Attorney General Abbott’s lawsuit, the EEOC went too far when it tried to bully employers into dropping the “no tolerance” policy concerning hiring convicted felons.

What is the moral, legal and rational justification for being tougher on school kids than we are on criminals? Probably, opponents of strictly enforced “zero tolerance” policies have the better argument. There are compelling exceptions to every rule and the more fair decisions are based on the facts of the case. But it’s grossly unfair to approve zero-tolerance policies applied to children and bully employers into redrafting their hiring guidelines to avoid unfairness to felons.

Let’s acknowledge there will be instances where application of “zero tolerance” concerning the hiring of felons is unfair. People can change. A convicted felon may be rehabilitated and transformed into a very capable employee. But it makes more sense to expect adult criminals to live with the consequences of their decisions than to impose lifelong stigmata on little boys and girls for school yard pranks that really don’t hurt anyone. I’d like to have someone explain. I’m Hink and I’ll see ya.

MIKE HINKLE is a retired attorney and Edmond resident.