Student Rights in the Public Schools

The First and Fourth Amendments have had an increasing relevance on student rights in American public schools. The First Amendment is often drawn into debates on the protections and limitations of students' freedoms of speech and expression in library book selections, school publications and presentations, and clothing options. The Fourth Amendment is often cited in cases of students' privacy rights as imposed by search and seizure practices, uses of technology, and changes in federal legislation. Discussion and difficulties continue as families, school districts, and the U.S. legal system seek to balance student rights with the needs of public schools.

Keywords Due Process; First Amendment; Fourteenth Amendment, Section 1; Fourth Amendment; In Loco Parentis; Probable Cause; Reasonable Suspicion; Search; Search Warrant; Seizure

Education & the Law > Student Rights in the Public Schools

Overview

The definition of student rights in American public schools-- and the extent to which that definition may legally be applied-- has undergone significant changes in the past fifty years. Prior to the 1970s, the role of schoolteachers and administrators was viewed by courts as in loco parentis, in place of the parents. School district officials were legally empowered to determine what constituted acceptable forms of speech, expression, and privacy for students entrusted to their care. Students were expected to conform to schools' policies just as they would to parental rules.

In the 1969 case of Tinker v. Des Moines Independent Community School District, however, the Supreme Court declared that students did not lose their constitutional rights upon entering a public school facility. The judgment was a direct challenge to the traditional definition of in loco parentis. In subsequent decades, the American legal system, school districts, and families have struggled to define the exact extent to which constitutional rights apply to students. Debates between those interested in providing safe and effective learning environments and those demanding students' rights to certain freedoms and protections resulted in an unprecedented number of legal battles. The most debated issues centered on interpretations of the First Amendment and the Fourth Amendment to the United States Constitution.

Student Rights & the First Amendment

The First Amendment states:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble…."

The amendment protects the rights of citizens to speak, write, assemble, and worship without fear of government censure. But what if the demands for freedom of speech are made by children in a public school setting?

In the 1960s, several students in Des Moines, Iowa wore black armbands to school in protest of the Vietnam War. School officials forced them to remove the bands, and a lawsuit was filed claiming that the students' First Amendment rights to freedom of speech and expression had been violated. Heder (1999) explains that in Tinker v. Des Moines Independent Community School District (1969), the United States Supreme Court acknowledged the necessity for schools to maintain order and control of students' conduct, but ruled in favor of the students by declaring that children did not lose their constitutional rights when they attended school. The ruling protected the rights of the Des Moines students to political freedom of expression, but it also served as a foundation for future constitutional debates involving a variety of issues surrounding other modes of expression like school library books, publications, assembly speeches and clothing choices.

Library Books

The Court viewed the Des Moines students' armbands as reflections of individuals' opinions and ruled in favor of protecting such forms of expression. In another legal case, argued thirteen years later, the Supreme Court again ruled in favor of students' First Amendment rights by protecting their access to controversial books in school libraries. In Island Trees School District Board of Education v. Pico (1982), students sued the Island Trees Union Free School District in New York after school board members refused to permit several books, which it described as "anti-American, anti-Christian, anti-Sem[i]tic, and just plain filthy" (Island Trees School District Board of Education v. Pico, 1982, para. 1), to be placed on school library shelves for students to check out. The Supreme Court ruled that the school board could not ban library books based on its own political opinions, religious preferences, or nationalism (Island Trees School District Board of Education v. Pico, 1982). More recently, in Counts v. Cedarville School District, an Arkansas district court ruled that requiring students to obtain parental permission prior to checking particular books out of school libraries (in this case, books in the Harry Potter series) infringed on students' First Amendment rights to free speech and press (DeMitchell & Carney, 2005).

Student Publications

Does the First Amendment's protection of free speech and press also give students the right to publish, in school-sponsored forums, opinions that school officials perceive as controversial or offensive? In Hazelwood School District v. Kuhlmeier (1988), the Supreme Court said no.

In 1983, a school principal in St. Louis County, Missouri removed from a high school newspaper two stories which described students' personal experiences with pregnancy and divorce. In Hazelwood School District v. Kuhlmeier, the Supreme Court ruled that students' First Amendment rights were not violated by the actions of the school since the newspaper was not a forum for public expression. The paper's contents, declared the Court, were subject to reasonable censorship by school officials (Hazelwood School District v. Kuhlmeier, 1988).

Offensive Language & Free Speech Rights

The Supreme Court also ruled on pivotal cases involving students' freedoms of expression in speeches given on school property and on banners displayed off school property.

In Bethel School District No. 403 v. Fraser (1986), the Court was asked to decide if a student's First Amendment rights had been violated when he was suspended from school for using obscene words and sexual metaphors during a speech given at a school assembly. The Supreme Court ruled that the student's rights had not been violated and declared that his language was inappropriate and detrimental to the school's educational mission (Bethel School District No. 403 v. Fraser, 1986).

In Morse v. Frederick (2007), the Supreme Court was asked to decide if a student's First Amendment rights had been violated when he was suspended for unfurling a 14-foot banner that read "Bong Hits For Jesus" while participating in a school activity. The Court narrowly ruled in favor of the school, noting that the banner's message was inappropriate for a student in spite of the fact that it was displayed on a public sidewalk and not on school property (Morse v. Frederick, 2007).

Clothing

Nearly one in four public elementary schools and one in eight public middle and high schools in the United States have policies limiting students' clothing choices (Motsinger, 2007). In lawsuits contesting the policies, courts generally rule in favor of schools.

Many large school districts argue that dress codes, including school uniform policies, are vital to prohibiting students' physical expressions of gang membership or hate-group messages. In Jeglin v. San Jacinto Unified School District (1993), for example, a school's dress code, which prohibited clothing with sports team insignias because gang members often bullied and intimidated students who wore them, was challenged. The court ruled in favor of the school's policy, declaring that the regulations were designed to promote student safety (LaMorte, 1999).

In another case, a student was suspended for wearing sagging pants in violation of a school's dress code policy. The student sued the school district, claiming that his First Amendment rights to freedom of expression and his Fourteenth Amendment rights to due process had been violated. Attorneys for the school argued that the dress code was needed since the act of wearing such pants was a physical symbol of gang membership. In Bivens v. Albuquerque Public Schools (1997), the court ruled in favor of the school (Bivens v. Albuquerque Public Schools, 1997). According to David Hudson, a First Amendment scholar at the First Amendment Center in Nashville, Tennessee, most dress code lawsuits fail because courts view schools' clothing policies as a method to promote learning environments and not as a direct attack on freedoms of expression (as cited in Motsinger, 2007).

But the issue of school dress codes continues to draw both strong support and strong opposition throughout the country. Laura and Scott Bell, for example, recently sued the Anderson, Indiana school district over its policy requiring students to wear black, navy or khaki pants or skirts and solid-color shirts with collars. The Bells claimed that, in addition to violating their children's constitutional rights of free expression, the school's policy also denied them access to free education since purchasing the special clothing would cost their family more than $600 (Motsinger, 2007).

Charles Haynes, of the First Amendment Center, promotes ending dress-code policies altogether in American public schools for three reasons:

• Limiting students' clothing choices conflicts with America's tradition of free choice;

• Conflicts over dress codes increase the number of lawsuits in the nation's already burdened court system; and

• Uniformity limits expressions of diversity (Carroll, 2005).

Stephen Daniels of the North Carolina Family Policy Council points out, however, that in spite of any public opposition, a majority of school principals will continue to enforce dress codes because they perceive them as having positive influence on school discipline, safety, and overall student learning goals (Carroll, 2005).

Student Rights & the Fourth Amendment

The Fourth Amendment states:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The Fourth Amendment protects rights of ordinary citizens to privacy, but defining the extent to which it applies in a public school setting has resulted in numerous lawsuits and government legislation. Springer (2002) uses the legal case of Owasso Independent School District v. Falvo (2001) as a simple example of school-related privacy confrontations. An Oklahoma mother claimed that her children's rights to privacy were violated when a teacher required them and their classmates to exchange papers for peer grading. The Supreme Court heard the case and ruled that although students may have been embarrassed by peer access to individual grades on assignments, the use of a paper-exchange grading process in classrooms did not violate their rights of privacy (Springer, 2002).

Other student privacy issues considered by judges and government officials have included the legality of searches and seizures, surveillance systems, and access to academic records.

Search & Seizure

In 1980, a teacher at Piscataway High School in Middlesex County, New Jersey discovered two 14-year-old girls smoking in a school restroom and took them to the vice principal's office. One girl refused to confess to smoking, and the vice principal searched inside her purse. He found a package of cigarettes, cigarette-rolling papers, some marijuana, a pipe, empty plastic bags, a large amount of money, a list of students who owed money to the girl, and letters suggesting she was dealing marijuana. The girl, known as "T.L.O." in court documents, confessed to police that she had sold drugs at school, and charges were filed against her (New Jersey v. T.L.O., 1985).

In court hearings, T.L.O.'s attorney argued that the vice principal's actions had violated the girl's Fourth Amendment rights against unreasonable search and seizure because the vice principal had not obtained a search warrant prior to looking through her purse (New Jersey v. T.L.O., 1985). In the landmark case, the Supreme Court ruled in favor of the New Jersey school and declared:

• Students have less privacy rights than ordinary citizens

• School officials do not need to obtain warrants prior to conducting searches

• Searches are acceptable if school officials use methods that are not excessively intrusive for the age and sex of students involved (New Jersey v. T.L.O., 1985).

In Vernonia School District v. Acton (1995), the Supreme Court expanding its ruling on the issue of searches and seizures in public schools. Authorities at Vernonia School District in Oregon, acting on an informer's tip that student athletes were involved in the school's drug problem, conducted random urinalysis testing on all students who were participating in its athletic programs. One student refused to submit to the test, and he was not allowed to join the school's football team. The student and his parents filed a lawsuit against the school district, claiming violation of his Fourth Amendment rights due to unreasonable search. The Supreme Court ruled that in circumstances when drug use by student athletes potentially affects school safety, random drug testing is justified (Vernonia School District v. Acton, 1995). In 2002, the Court ruled to permit random drug testing of all public school students who participate in all extracurricular activities (Board of Education v. Earls, 2002).

Searches and seizures in schools have been used to promote safety and deter misbehavior, but their legality and necessity continue to be debated. Torres and Chen (2006) argue that courts have not sufficiently defined what constitutes a reasonable suspicion, who can conduct searches, or the extent to which invasion into students' privacy is legal. Political science professors Joe Blankenau and Mark Leeper contend that random school searches are not only ineffective, but teach children that a school's need for authority is more important than a student's right to privacy (cited in Carroll, 2005).

Surveillance

In the 1990s, some public schools in the United States installed video surveillance cameras in their buildings and on buses to aid in tracking students' movements and behaviors. Decisions to use monitoring devices were prompted by increases in school violence, expanded criminal activities on school campuses, and a number of sensationalized school shootings. By the year 2000, according to statistics compiled by the United States Department of Education, nearly 15% of public schools relied on surveillance equipment to enhance their safety strategies (US Dept. of Ed., 2003).

Innovations in technology led to the expansion of surveillance use in public schools throughout the early years of the 21st century. Tewksbury Memorial High School in Massachusetts, for example, installed video cameras that were linked to monitors mounted at the town's local police station and inside its police cruisers ("Caught on Camera," 2002). Other school districts invested in computer software programs designed to send parents up-to-the-minute information via e-mail if a child was absent from class or misbehaved during school hours (Pascopella, 2002).

Access to Academic Records

For three decades, the Family Educational Rights and Privacy Act of 1974 (FERPA) gave parents and students the right to privacy in matters concerning academic records. Under FERPA regulations, any school that received federal monies could not release information about a student's grades or educational progress to third parties without the permission of the student or the student's parents (Carroll, 2005).

Following the terrorist attacks on the United States in September, 2001, the federal government created the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act" (USA PATRIOT Act). The Act altered the primary rule of FERPA by allowing the nation's Attorney General, or his assistant, to obtain court orders giving access to academic records without informing students (Carroll, 2005).

Viewpoints

Some argue that courts have not done enough to protect student rights guaranteed in the United States Constitution. Journalism professor David L. Martinson promotes expansion of students' freedoms of speech and expression, claiming that such freedoms give students outlets for tensions and frustrations (Carroll, 2005). Heder (1999) believes the tendency of courts to favor schools in privacy-related lawsuits will lead to more frequent searches of students' property, increase the presence of police-liaison officers in school hallways, and broaden the use of metal detectors in school entrances. Such limitations on student rights, Nancy Murray of the American Civil Liberties Union fears, will make American public schools resemble prison facilities (cited in "Caught on Camera," 2002).

Others argue the courts have not done enough to protect schools' rights to implement policies and actions for ensuring safety. Author David L. Stader, for example, argues that the First Amendment should not give students unlimited power to conduct "verbal, written, or symbolic expression that is obscene, intimidating, or threatening" to the mission of public schools (as cited in Carroll, 2005, pp. 85-86). Concern about schools' rights even prompted the United States House of Representatives to consider legislation, called the Student and Teacher Safety Act of 2006, aimed at limiting students' freedoms on school property. The bill did not become law, but it would have allowed school officials to conduct random searches of any public school student as long as the searches were done to ensure classrooms, school buildings, school property, and students "remain[ed] free from the threat of all weapons, dangerous materials, or illegal narcotics" (Student and Teacher Safety Act, 2006, section 3B).

Student rights advocates continue to insist that freedoms and protections guaranteed in the United States Constitution should be preserved for students. School officials argue that restrictions must be imposed on students' rights in order to ensure conditions of safety and optimal learning. Determining the legal boundaries of First Amendment and Fourth Amendment applications to issues of student rights in public schools continues to challenge the nation's families, school districts, and legal system.

Terms & Concepts

Due Process: a legal requirement that protects an individual from unfair or unreasonable treatment as a result of enacted laws; formal legal proceedings based on established rules and principles.

First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble…."

Fourteenth Amendment, Section 1: "…nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

In Loco Parentis: in place of the parent; in the role of a parent with respect to the care, supervision, and discipline of a child.

Probable Cause: based on facts and circumstances that would lead a reasonable person to believe a law is being, or has been, violated.

Reasonable Suspicion: a reasonable belief based on circumstances or information, but without proof, that something wrong or illegal has occurred.

Search: the examination of a person's home, car, or other personal space, or person, in an attempt to find something that is illegal or stolen or that provides some evidence of that person's guilt of some criminal act.

Search Warrant: a written order, signed by a judge, which directs an official to look for stolen goods or unlawful possessions and bring them to court for use in criminal prosecution.

Seizure: when a person or property is forcefully taken away by legal process.

Bibliography

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Bivens v. Albuquerque Public Schools, 131 F.3d 151 (10th Cir., 1997). Retrieved August 17, 2007, from http://openjurist.org/131/f3d/151/bivens-v-albuquerque-public-schools

Board of Education v. Earls, 536 U.S. 822 (2002). Retrieved July 30, 2007, from http://www.oyez.org/cases/2000-2009/2001/2001%5F01%5F332

Carey, J. (2014). A student's right to remain silent. Journal of Law & Education, 43 , 575–580. Retrieved October 10, 2014, from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=98545954&site=ehost-live

Carroll, J. (2005). Students' rights: Opposing viewpoints. Farmington Hills, MI: Greenhaven Press.

Caught on camera. (2002). Current Events, 101 , 3. Retrieved October 10, 2014, from EBSCO Online Database Academic Search Complete. http://search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=6010596&site=ehost-live

DeMitchell, T. A., & Carney, J. J. (2005). Harry Potter and the public school library. Phi Delta Kappan, 87 , 159–165. Retrieved September 21, 2007, from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=18581568&site=ehost-live

Epley, B. (2013). Educators' personal liability for violating student rights. Kappa Delta Pi Record, 49 , 126–130. Retrieved December 15, 2013, from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=89636992&site=ehost-live

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Island Trees School District Board of Education v. Pico, 457 U.S. 853 (1982). Retrieved August 17, 2007, from http://www.oyez.org/cases/1980-1989/1981/1981%5F80%5F2043

LaMorte, M. W. (1999). School law: Cases and concepts. Boston: Allyn and Bacon.

Lunenburg, F. C. (2011). Do constitutional rights to freedom of speech, press, and assembly extend to students in school? FOCUS on Colleges, Universities & Schools, 6 . Retrieved December 15, 2013, from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=69712960&site=ehost-live

Morse v. Frederick, 551 U.S. 393 (2007). Retrieved August 16, 2007, from http://www.oyez.org/cases/2000-2009/2006/2006%5F06%5F278

Motsinger, C. (2007, August 6). Ironing out policies on school uniforms. USA Today. Retrieved August 24, 2007, from EBSCO Online Database Regional Business News Plus.

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Springer, A. D. (2002). Do students have a right to privacy? Academe, 88 , 70. Retrieved August 14, 2007, from EBSCO Online Database Academic Search Premier. http://search.ebscohost.com/login.aspx?direct=true&db=aph&AN=7410637&site=ehost-live

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Time to restore parental rights. (2007, March 18). Chattanooga Times Free Press, p. B9.

Torres, M. S., Jr. (2012). Differentiated jurisprudence? Examining students' Fourth Amendment court decisions by region of country. Journal of School Leadership, 22 , 1087–1108. Retrieved October 10, 2014, from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=83835071&site=ehost-live

Torres, M. S., Jr., & Chen, Y. (2006). Assessing Columbine's impact on students' Fourth Amendment case outcomes: Implication for administrative discretion and decision making. NASSP Bulletin, 90 , 185–206. Retrieved July 30, 2007, from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=24911856&site=ehost-live

United States. Department of Education. National Center for Education Statistics. (2003). A brief profile of America's public schools (NCES 2003-418). Washington, DC: US Government Printing Office. Retrieved August 24, 2007, from http://nces.ed.gov/pubs2003/2003418.pdf

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Suggested Reading

Buckley, P. (2014). Subjects, citizens, or civic learners? Judicial conceptions of childhood and the speech rights of American public school students. Childhood, 21 , 226–241. Retrieved October 10, 2014, from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=95894419&site=ehost-live

Finn, K., & Willert, J. (2006). Alcohol and drugs in schools: Teachers' reactions to the problem. Phi Delta Kappan, 88 , 37–40. Retrieved July 30, 2007, from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=22295163&site=ehost-live

Hoff, D. L., & Mitchell, S. N. (2007). Should our students pay to play extracurricular activities? Education Digest, 72 , 27–34. Retrieved August 14, 2007, from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=25057131&site=ehost-live

Rathbone, C. H. (2005). A learner's bill of rights. Phi Delta Kappan, 86 , 471–473. Retrieved August 14, 2007, from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=15954390&site=ehost-live

Reutter, E. E. (1975). The courts and student conduct. Topeka, KS: National Organization on Legal Problems of Education.

Silverman, F. (2004, Nov.). Student suits. District Administration. Retrieved August 14, 2007, from http://www.districtadministration.com/article/student-suits