Making Distinctions

Any student of Talmud would know that the included in the critical apparatus of legal reasoning is the need to make distinctions. The law may remain the same but cases might be different. To be sure, the law ought to be applied equally in identical cases. But when the cases are dissimilar, the law would not be identically applied. To many outside the realm of Talmudic discourse this all seems to be legal legerdemain. Few have patience to analyze the facts related to cases under discussion and look for dissimilarities. But that is precisely what is needed.

In the aftermath of the shootings at Columbine and other violent acts in public schools, and in addressing the serious problem of child abuse, authorities have acted to institute a wide range of laws intended to minimize, if not outright eradicate, the perceived problems.   With zero tolerance for drugs or weapons, schools have moved – in columnist Nancy Gibbs’ words – “from calling parents to calling the police.” Among the most egregious examples of zero tolerance errors, middle-schoolers were being referred to drug awareness programmes for accepting breath mints. In Delaware, a six year-old was threatened with suspension for bringing a camping utensil to class. A nine year-old was questioned by police and then required to go through psychological counselling for planning to launch a spit-ball with a rubber band. A high school student was suspended for breaking the “No Cell Phone” rule when he took a call from his father who serving in the U.S. Army in Iraq.

In each of these and in many other cases, the failure is not with the children but with the adults who failed to make proper distinctions. When a Florida honour student faced felony charges for a dinner knife found on the floor of her car, the principal explained: “A knife is a knife.” But that is surely not the case. There is a world of difference between a long, razor-sharp hunting knife and a knife that could hardly cut through roasted chicken.

The failure to make distinctions results in two bad outcomes. First, it makes our children suspicious of authority and contemptuous of law. Young people who cannot make sense out of non-sense end up as poor citizens who have little use to get involved in the adult world they judge to be both silly and oppressive. They lose respect for law when they see there is no distinction in justice. Second, the failure to make distinctions can actually lead to tragedy. Nick Stuban was by all accounts a model Virginia teenager: he played football, attended church, and cared for his dying mother. He had no record of any wrong-doing. One day he bought a single capsule of a synthetic hallucinogenic – but not illegal – drug. After someone told school officials of his purchase, he confessed it was a dumb thing to do. Teenagers, even good kids, sometimes do dumb things. They suspended him anyway. That was in November 2010. He pleaded to be re-admitted but his pleas were in vain. Separated from his team and his friends, feeling isolated and abandoned, he committed suicide in January 2011.

Society has a vested interest to teach our children that the highest priority is life and keeping them safe is evidence of the commitment to that priority. But society has an equal interest in teaching our children that our laws must be wise and are wisely applied.