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 to 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
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.
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.
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 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," (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 (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).
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 perceived 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).
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).
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, 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...
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