The right to privacy is one of the most fundamental rights in American jurisprudence. In 1890, Samuel D. Warren and Louis D. Brandeis conceptualized the right to privacy as the right to be let alone and inspired privacy jurisprudence that tracked their initial description. Warren and Brandeis conceptualized further that this right was not exclusively meant to protect one’s body or physical property. Privacy rights were protective of “the products and the processes of the mind” and the “inviolate personality.” Privacy was further understood to protect the ability to “live one’s life as one chooses, free from assault, intrusion or invasion except as can be justified by the clear needs of community living under a government of law.” Case law supported and extended their theorization by recognizing that privacy is essentially bound up in an individual’s ability to live a self-authored and self-curated life without unnecessary intrusions and distractions. Hence, privacy may be viewed as the right of individuals to be and become themselves. This right is well-established; however, scholars have vastly undertheorized the right to privacy as it intersects with racial discrimination and childhood. Specifically, the ways in which racial discrimination strips Black people—and therefore Black children—of privacy rights and protections, and the ways in which Black people reclaim and reshape those rights and protections remain a dynamic and fertile space, ripe for exploration yet unacknowledged by privacy law scholars. The most vulnerable members of the Black population, children, rely on their parents to protect their rights until they are capable of doing so themselves. Still, the American education system exposes Black children to racial discrimination that results in life-long injuries ranging from the psychological harms of daily racial micro-aggressions and assaults, to disproportionate exclusionary discipline and juvenile incarceration. One response to these ongoing and often traumatic incursions is a growing number of Black parents have decided to remove their children from traditional school settings. Instead, these parents provide their children with home-education in order to protect their children’s right to be and become in childhood.
Najarian R. Peters,
The Right to Be and Become: Black Home-Educators as Child Privacy Protectors,
Mich. J. Race & L.
Available at: https://repository.law.umich.edu/mjrl/vol25/iss1/3