American public schools proudly teach students that our system of government protects human rights, including the freedom of religion and conscience; freedom of expression; freedom from arbitrary detentions, unreasonable searches, and cruel punishments; and fair governmental procedures before curtailing any important rights. Yet in these classrooms students are subject to more direct and palpable government control than any adult who is not enlisted in the military, incarcerated, or civilly committed. They are not free to leave the room without permission. Teachers decide when students may speak or be silent and which subjects they must speak about. Rules for proper conduct go far beyond the ordinary obligations imposed by civil and criminal law, and punishments for misconduct are imposed without the protections of a civil or criminal trial.
Much of that control is necessary. Adults may choose whatever subject to discuss and when, but for an algebra class to serve its intended purpose, the teacher must instruct the students to stop talking about subjects of their choice and concentrate instead on the equations that are on the board. Government-operated schools therefore must impose at least some re-strictions on the rights of students that could never be imposed on the public at large.
As a result, court decisions considering the rights of public school students sometimes uncomfortably resemble court decisions about the rights of prisoners. The asserted right will be found to exist, but in a weakened form that must yield to the essential needs of the institution. “Prison walls do not form a barrier separating prison inmates from the protections of the Constitution,” said Turner v. Safley, 482 U.S. 78, 84 (1987), and students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” opined Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969), yet in both settings a person might face punishment for asserting those freedoms in the wrong ways.
Because students’ individual rights may be whittled to their core at school, the rights that courts will recognize in that context are strongly held indeed. It is no accident that the separate-but-equal standard of Plessy v. Ferguson met its demise in a case about public schools, Brown v. Board of Education. Because schools are designed to replicate society’s values for succeeding generations, some school cases force us to ask which values we most want to perpetuate.
Minors lack an essential freedom when it comes to schooling: they cannot refuse it. All states have compulsory education laws requiring some minimum amount of formal education because the societal benefits of universal education outweigh any purported interest of children or parents to choose ignorance.
While a state may require compulsory education, it cannot require that it occur at a state-run school. The high value American society places on religious freedom led to the first court recognition of a right to private education when Pierce v. Society of Sisters, 268 U.S. 510 (1925), held that states must allow students to attend religious schools meeting minimum educational requirements. Religious imperatives will also sometimes trump state requirements, as when Wisconsin v. Yoder, 406 U.S. 205 (1972), held that the Old Order Amish need not pursue formal education past age fourteen.
Although students are compelled to attend school, they cannot be compelled to profess belief in what they learn there. This principle was ce-mented in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), which upheld the right of a Jehovah’s Witness to remain silently seated while the class recited the Pledge of Allegiance. “If there is any fixed star in our constitutional constellation,” the Court said, “it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Id. at 627. Despite this ringing endorsement of freedom of conscience even during wartime, students who object to reciting the pledge are still sometimes suspended, expelled, or otherwise disciplined. This problem accelerated after the September 11 terrorist attacks as local educators—and in some instances state legislatures—have sought reassurance in mandatory patriotic exercises.
Freedom of Speech
The Supreme Court has decided three major cases involving school control over students’ speech on campus. While the legal standards announced in these cases have remained unchanged, schools and courts have become more restrictive in how they are applied.
The basic limitation on a public school’s authority to punish students for their on-campus speech comes from Tinker v. Des Moines Independent Community School District, supra. A group of Des Moines, Iowa, junior high and high school students opposed to the Vietnam War decided to wear black armbands to school as a silent statement of protest. Learning of the plan, the school district enacted a rule banning all armbands. The students’ families challenged this with the help of the American Civil Liberties Union. Tinker concluded that school discipline could be imposed for a student’s on-campus speech only if the speech would “materially” and “substantially” disrupt the work and discipline of the school or if the speech invaded the rights of others. An “undifferentiated fear” that speech would be disruptive is not enough, nor is the fact that many students and teachers would take offense at the protesters’ armbands.
In Bethel School District v. Fraser, 478 U.S. 675 (1986), the Court upheld a school’s five-day suspension of a high school student for delivering a sexually suggestive speech at a school assembly. The discipline was upheld in part because the speech could be viewed as a material and substantial disruption of the educational process and in part because the school has a valid interest “in teaching students the boundaries of socially appropriate behavior.” Id. at 681.
Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), ruled that a school principal did not violate the First Amendment by deleting articles about divorce and pregnancy from a school-sponsored student newspaper. The newspaper had not been designated a limited public forum, and the editorial decision was “reasonably related to legitimate pedagogical concerns.” Id. at 273.
Bethel and Hazelwood arguably represent a retreat from Tinker for speech that is school sponsored, but the basic standard of material and substantial disruption for students’ independent on-campus speech remains unchanged. What has changed in recent years is the judgment of school administrators and courts about what speech will cause substantial disruption. School shootings in the 1990s caused a great many schools to overreact to any student speech that alludes to violence, even if does not rise to the level of a “true threat” that could be criminally prosecuted. This trend has resulted in a surge of students who have been suspended or expelled from school for writing or performing rap lyrics containing violent metaphors, even though songs about murder and mayhem have been a pop culture staple for centuries.
Particularly troubling are instances of schools punishing students for their speech or writing off campus. When Tinker said that students did not shed their free speech rights at the schoolhouse gates, it assumed that rights outside the gates would be untrammeled. A series of decisions from the early 1970s agreed, holding that schools could not discipline students for writing and distributing their own underground newspapers outside of school, even if they contained speech that might be punished if uttered in class.
This principle is not respected by the growing number of schools that punish students for their Internet writings. But the push for school control over off-campus speech is not limited to cyberspace. For example, the student in Doe v. Pulaski County Special School District, 306 F.3d 616 (8th Cir. 2001) (en banc), wrote some rap lyrics at home that came to light only because a friend stole them from his room and showed them to others. Shocked at the content, the school expelled the student. A majority of the court of appeals upheld the expulsion, showing little concern about a school overstepping its jurisdiction to punish a student for off-campus speech. If this trend continues, students may find their speech and thoughts under school supervision at all times and all places.
Administrators have great leeway to impose discipline for infractions. Just as Tinker recognized a modified version of free speech protection for public school students, Goss v. Lopez, 419 U.S. 565 (1975), recognized that students’ right to a public education could not be deprived without a modified form of due process. In the school setting, due process does not require proof beyond a reasonable doubt, trial by jury, or a right to counsel. Instead, a short-term suspension of ten days or less need be ac-companied only by what Goss termed “rudimentary” due process: the student “must be told what he is accused of doing and what the basis of the accusation is,” after which he must have “an opportunity to present his side of the story.” Id . at 580.
Due process has little to say about the substance of the punishments imposed. Recently, so-called zero tolerance policies imposing mandatory suspensions or expulsions for certain violations have flourished. These have been rightly criticized for failing to match with the reality of adolescent development because teenagers typically make mistakes on their way to adulthood. However, the Supreme Court held in Ingraham v. Wright, 430 U.S. 651 (1977), that the Eighth Amendment protection from cruel and unusual punishment does not apply in a school setting. Proportion-ality in school discipline therefore depends upon the inclinations of local school authorities.
Search and Seizure
The Fourth Amendment gives less protection against unreasonable search and seizure to public school students than to others. New Jersey v. T.L.O., 469 U.S. 325 (1985), ruled that a search of a student’s purse or backpack by a school official did not require a warrant or probable cause. After Columbine, schools are increasingly requiring students to undergo more screening for weapons and drugs. Many schools now have regular visits from armed police with dogs trained to sniff out contraband.
The Supreme Court allows schools to search for drugs not just in students’ belongings, but in their bloodstreams. This began with Vernonia School District 47J v. Acton, 515 U.S. 646 (1995), which upheld random urinalysis for student athletes where the school had demonstrated a rampant drug problem centered on its athletes. Although much language in Vernonia explained that the search was justified by the scope of the drug problem in the individual school, the role of athletes in the drug culture, the physical dangers of the sports field, and the fact that athletes are accustomed to having their bodies scrutinized by the coach and in the locker room, none of these limitations were important to the Court in Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 122 S. Ct. 2559 (2002). That case upheld urine testing for students in all extracurricular activities, whether or not the activity in-volves a demonstrated past drug problem, safety concern, or shared nudity. Because the federal courts have given schools carte blanche for extracurricular drug testing, future legal challenges to the practice will rely on state constitutions.
School Law As Social Barometer
One can judge how highly society values a right by seeing how far it is extended to public school students. Current American law gives ample protection to freedom of conscience and religion and freedom from invidious discrimination, especially when the exercise of those rights does not threaten the educational process. Protection for freedom of speech varies depending upon the facts of the case and the zeitgeist. By contrast, the proliferation of zero tolerance policies, warrantless searches, and drug testing of public school students suggests that the rights to privacy and due process are not held in the same esteem.
Aaron H. Caplan is a staff attorney for the American Civil Liberties Union of Washington, in Seattle, where he frequently represents public school students and their families. He has written several recent articles about First Amendment rights in public schools.
As published in Human Rights, Fall 2005, Vol. 32, No. 4, p.8-9, cont’d p.25.