by Alec Bauserman
"The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools." Shelton v. Tucker, 364 U.S. 479 (1960)
Lawsuits have become increasingly common in our society and many Americans act and speak out of the fear of being taken to court. In any environment, one must be conscious of how their words and actions will affect others. A thoughtless statement or inappropriate physical contact might land you in court. This is especially true in schools, where daily contact, high emotions and stressful circumstances can all come together at the wrong moment. As such, it is good to understand the rights of students trying to express themselves and the rights of teachers trying to keep a safe, orderly learning environment. Few people know their constitutional rights, and even fewer teachers & students know how their constitutional rights change once they enter the ‘semi-public/semi-private” classroom.
This paper will examine some of the rights guaranteed to all Americans and how those rights change once they enter school. It will also seek to answer some of the most common questions held by students. What is free speech? Is it protected in school? How safe am I in my possessions? Do I have any expectation of privacy when it comes to my things? A good understanding of students’ rights benefits everyone: the students who exercise them, the teachers who challenge them, and the democratic society which lives by them.
- identify and understand the basic philosophy of the courts when determining the extent of student’s rights
- recognize similarities and differences between Constitutional rights held in school and life out side it.
- recognize the major court case which set the groundwork for all future Supreme Court cases involving student’s rights
- make informed decisions in real-life situations based on the knowledge presented here
- inform colleagues and students of the information contained in this article
The founding fathers deliberated for days on end when writing the first draft of our nation’s Constitution and later the Bill of Rights. They agonized over wording; argued over semantics. It is likely they had no idea just how successful this “great experiment in democracy” would turn out to be. Equally likely is this: they never once considered how these rights would pertain to young students in the classroom. The landmark case of Tinker v. Des Moines School District clearly defined the benchmark for how rights may be exercised and when they may be curtailed:
“It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.
… On the other hand, the Court has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.
... Our problem lies in the area where students in the exercise of [their] rights collide with the rules of the school authorities."
In other words, one doesn’t surrender his or her constitutional rights by attending school. However the courts have recognized that the unique nature of the school environment requires that certain liberties be suppressed in the interest of maintaining a safe, orderly learning environment. According to the doctrine of “in loco parentis” school officials are more than government officials; they are, in a legal sense, the temporary parents of their students. Just what exactly that allows them to do and say is a matter of debate and has led to numerous legal challenges, many involving the Supreme Court. This paper will examine some of those court decisions and explore their impact on student’s rights.
Summary - The balancing act between the free expression of rights and the desire to maintain order in school serves as a good example of the struggle faced by our democratic society.
The 1st Amendment
Freedom of Speech, Expression & Religion
Perhaps the most quoted court decision on the subject, Tinker v. Des Moines was a battle over students’ 1st amendment rights, specifically the right to free speech. High school students John Tinker, 15, and Christopher Eckhardt, 16, decided to show their opposition to the Vietnam War by wearing black armbands to school. Administrators countered by banning armbands and threatened disciplinary actions for any students violating the rule. Tinker and Eckhardt wore their armbands and were suspended, not allowed back until they agreed to stop violating school rules. Tinker’s father subsequently sued and lost in District Court. The Appellate Court was unable to reach a decision and the case was passed up to the Supreme Court, who overturned the District Court’s decision and ruled in favor of the plaintiffs. The court stated that if the student’s actions did not disrupt the learning environment, or advocate or cause harm to themselves or others, it was permissible. This has been the rationale in virtually every other opinion held by the court regarding student’s constitutional rights.
While a student’s right to free speech is protected, it is not a blanket protection covering any form of protest. A recent example of this is Morse v. Frederick, also known as the “Bong Hits 4 Jesus” case. This case is particularly eye-opening in that the offense occurred off school grounds. Frederick, a high school student, displayed a banner at a local parade featuring the phrase “Bong Hits 4 Jesus,” a reference to marijuana use. Morse, a school official, noticed the banner and instructed the student to take it down. When Frederick refused, he was suspended by Morse and the decision was upheld by the school board. Frederick sued, claiming protection under his 1st amendment rights. This time the Supreme Court sided with the school board, noting “ … schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use, [therefore] the school officials in this case did not violate the First Amendment…” This fits with the consistent message of the courts – a student’s Constitutional rights will be protected only as long as their exercise does not endanger the health or academic progress of others.
Other cases regarding the Rights of Free Speech & Expression:
West Virginia v. Barnette, 1943 – The court ruled that is unconstitutional to require students to salute the American flag. The 1st amendment not only protects freedom "of" expression but also freedom "from" expression.
Bethel School District v. Fraser, 1986 - Washington high school student Matthew Fraser was suspended for using sexually explicit language in a speech given on school grounds. The court sided with the school, affirming that schools can prohibit “lewd, indecent or plainly offensive” language.
Guiles v. Marineau, 2004 – A 14- year old student in Vermont was suspended for repeatedly wearing a T-shirt depicting President George W Bush as an alcoholic and a cocaine addict. The shirt contained both written and visual depictions of banned substances. The court sided with the student, citing two factors: 1) the shirt did not advocate the use of illegal drugs and 2) the shirt did not cause significant disruptions to the learning environment.
Summary – A student’s exercise of speech or expression is legal and constitutionally protected so long as it doesn’t:
- endanger the public
- disrupt the learning environment
- advocate the use of illegal substances or other violations of the law
Unreasonable Search & Seizure
The student’s desire for freedom of speech can only be matched by their desire for privacy and for security of their possessions. The right of school officials to search a student’s belongings is a contentious issue, and few teachers know the limits of their authority and few students understand the extent of their rights. Just as Tinker v. Des Moines set the standard for the protection of 1st Amendment rights, so did another case set the precedent for search & seizure: New Jersey v. T. L. O., 469 U.S. 325 (1985).
Two female high school students were caught smoking in the restroom and assistant principal Theodore Choplick confronted them. One of the two admitted her wrongdoing but the other student (T.L.O.) denied it. Choplick searched T.L.O.’s purse and discovered cigarettes, drugs and drug paraphernalia, along with a large amount of money. T.L.O. was tried and convicted in court on charges of delinquency. The student countered that the school had violated her 4th amendment rights, depriving her of protection against unreasonable search and seizure (i.e. searching without a warrant) and the evidence should be inadmissible. The Supreme Court disagreed, stating: “a school official may properly conduct a search of a student's person if the official has a reasonable suspicion that a crime has been or is in the process of being committed, or reasonable cause to believe that the search is necessary to maintain school discipline or enforce school policies."
This is a departure from the court’s usual position requiring “probable cause” for government officials to search someone without a warrant. This change, although appearing slight, has enormous ramifications. School officials may search someone based solely upon a well-grounded suspicion, not iron-clad evidence of wrongdoing. This is analogous to the difference between “reasonable doubt” and “beyond a shadow of a doubt.” This threshold however applies only to school personnel and NOT to law enforcement officials on school grounds. The court has been careful not to slide down that slippery slope. In the court’s decision, they state that a teacher’s right to protect him- or herself and the safety of their students is on par with the rights of firefighters, EMS, OSHA officials, etc. The right to privacy must be balanced against the publics right to safety. In a school, the balance is tilted toward protecting safety and maintaining order, even if it is at the expense of student rights.
The issue of locker searches has not come to the Supreme Court. As the locker is school property and therefore “public space” it is not afforded the same protections as a student’s personal possessions.
State of Iowa v. Marzel Jones (2003) - A student whose locker was cleaned out by school personnel. Finding a small amount of marijuana, the student was charged. Marzel claimed 4th amendment protection against unreasonable search & seizure but was denied by the State Supreme Court who “noted that the search occurred on school grounds, ‘where the State is responsible for maintaining discipline, health, and safety.’(Bd. of Ed. of Indep. Sch. Dist. 92 v. Earls, 536 U.S. 822)”
Another issue of concern has been the constitutionality of drug screenings for student-athletes.
Vernonia School District v. Acton (1995) – 7th grade Oregon student James Acton signed up to play football but refused to take a mandatory urine test. Drug testing was administered to athletes after a recent ‘explosion’ in drug-use and the related discipline problems which arose. Citing public health concerns and noting the prevalence of student-athletes involved in drug-related incidents, the school board deemed urinalysis a necessary requirement for participation in sports. The Supreme Court agreed and upheld their decision. Once again, the desire to protect public health overrode student’s desire for privacy.
Summary – School personnel may search a student and their belongings if the health & welfare of the public is at risk or they have a ‘reasonable suspicion’ that a crime has been, is being, or will be committed
5th & 14th Amendment
The Right to Due Process
These amendments protect an individual’s right to a fair trial and must be considered whenever “a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him..." (Wisconsin v. Constantineau, 1971). This includes the enforcement of disciplinary actions such as suspension or expulsion. The expectations of a fair trial are very different however, depending on the circumstances. Disciplinary expulsion is treated differently than an ‘academic dismissal.’ Claire La Roche makes the point by citing Barnard v. Inhabitants of Shelburne: “Misconduct is a very different matter from failure to attain a standard of excellence in studies.... A public hearing may be regarded as helpful to the ascertainment of misconduct and useless or harmful in finding out the truth as to scholarship." (emphasis added)
According to La Roche’s interpretation of the courts, the following are necessary in the expulsion of a student on disciplinary grounds:
- a timely & formal hearing
- a detailed explanation of the charges
- a strict adherence to the schools stated policy
- a ‘punishment that fits the crime’
She goes on: “To ensure fundamental fairness, decisions must be based on the facts and supported by the evidence. Moreover, punishment should be commensurate with the severity of the offense. Consequently, it is important for schools to establish guidelines and be consistent with sanctions.”
This matter has come before the Supreme Court as well, who ruled that the rights of due process vary depending on the reason for expulsion. An academic dismissal does not have the same requirements as the stricter guidelines set down for a disciplinary expulsion. This is illustrated by the case of University of Missouri v. Horowitz (1977). A student was expelled for poor academics and lack of good hygiene after being notified in writing and in person. The student countered with the fact that she had never been given a hearing to dispute the charges. The Supreme Court denied her appeal. As La Roche reiterates, “Ultimately, the Supreme Court of the United States held that procedural due process did not require a formal hearing when the school dismisses a student for academic reasons.”
Summary – students are guaranteed the right to a fair trial and due process, although their rights are dependent upon the nature of their dismissal.
How are college students affected by these decisions?
- "Since 1970, officers on the Seattle campus have regularly patrolled the hallways of dormitories of the University of Washington."
- "[T]he state's Court of Appeals ruled that students have the same right to privacy in dormitory hallways as they do in their rooms."
- "Therefore ... campus police officers lack the legal authority to randomly patrol residence halls."
"Although the closely watched ruling bears on only one state, it reveals the tension between privacy and security in dormitories everywhere. Residence halls are legally complex spaces, where crime often creeps in and where residents, perhaps more than ever, expect administrators and police officers to ensure their safety."
Hoover, Eric. (July, 2008). Police in the Dorms: Student Safety or Privacy Infringement? Chronicle of Higher Education, v54 n46 pA15. (link)
Other Miscellaneous Cases
The following are other judgements handed down by the Supreme Court:
- School uniforms and dress codes are intended to stop disruptions to the learning process by banning lewd, obscene or offensive clothing. As such, the courts have ruled them constitutional despite students pleading for “the freedom of expression” and the lesser-known “freedom to see skin.”
- Corporal punishment (physically disciplining a student) barely passed a constitutional challenge in 1977 with a divided court ruling 5-4 that it is neither “cruel and unusual punishment” nor a denial of due process. (Ingraham v. Wright, 430 U.S. 651)
- The censorship of school newspapers was upheld with the understanding that the school is not a “forum of public expression.” Further, the justices declared that a school “need not tolerate student speech that is inconsistent with its basic educational mission.” (Hazelwood v. Kuhlmeier, 484 U.S. 260 )
The Supreme Court has changed greatly through the years, sometimes leaning left, sometimes right. Throughout it all, it has remained remarkably consistent on the issue of student’s constitutional rights in school. In summary, the opinion held by the court might best be summarized by the following: “An ye harm none, do what ye will.” If a student’s speech or actions do not cause physical, emotional or academic harm to others, they will receive the fullest protection offered by the Constitution. By extending these rights to students, teachers offer them the greatest benefit of our democracy and in doing so, invite them to become full members of society.
- Hoover, Eric. (July, 2008). Police in the Dorms: Student Safety or Privacy Infringement? Chronicle of Higher Education, v54 n46 pA15.
- La Roche, C. (2005). Student rights associated with disciplinary and academic hearings and sanctions. College Student Journal. Retrieved from FindArticles.com. 23 Sep. 2008. http://findarticles.com/p/articles/mi_m0FCR/is_1_39/ai_n13620069
- Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986) - LINK
- Guiles v. Marineau, 461 F.3d 320, 324-25 (2d. Cir. 2006) - LINK
- Hazelwood School District et al. v. Kuhlmeier et al., 484 U.S. 260 (1988) - LINK
- Ingraham v. Wright, 430 U.S. 651 (1977) - LINK
- Morse v. Frederick, 127 S. Ct. 2618 (2007) - LINK
- New Jersey v. T. L. O., 469 U.S. 325 (1985) - LINK
- Shelton v. Tucker, 364 U.S. 479 (1960) - LINK
- State of Iowa vs. Marzel Jones, Appellee 02-505 (2003) - LINK
- Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) - LINK
- University of Missouri v. Horowitz, 435 U.S. 78 (1978) - www.law.umkc.edu/faculty/projects/ftrials/conlaw/horowitz.html
- Vernonia School District 47J v. Acton, 515 U.S. 646 (1995) - LINK
- West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) - LINK
- Wisconsin v. Constantineau, 400 U.S. 433 (1971) - LINK
- http://legal-explanations.com/definitions/in-loco-parentis.htm - in loco parentis
- www.legis.state.ia.us/lsadocs/Legal_Update/2003/LUKBH000.PDF - locker search
Hello! This article was originally going to be written about "Students' Rights & Responsibilities" but I chose to focus solely on the legal aspect for several reasons, but mainly because its so important. Lawsuits are a real possibility and knowing your rights as teachers, and the students rights as well, can only be a good thing. I think the deserves its own article so more information can be presented on the topic. I certainly learned a lot by writing this. The knowledge I gained has made me more confident in what I can and cannot do in my role as a teacher. While the risk of a lawsuit is still there (and very likely always will be) having a good understanding of teacher's and student's rights has made me more relaxed in the hallways where discipline is the number-one concern. I hope you found this article as helpful as I did.