Chapter+Three++Students+and+the+Law

 Chapter 3: Students and the Law Prior to the 1970’s, courts usually upheld school authorities who demonstrated their actions were reasonable in dealing with issues concerning parents and students. However, in a 1969 landmark decision, the United States Supreme Court declared that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” In 1975 the high court held that public school students possess liberty and property interests in their education, and therefore, that constitutional principles of due process apply to school officials’ treatment of students. Several important federal statutes emerged in the 1970’s which expanded the scope of students’ rights: The 1980’s showed a shift in the court’s tendency to uphold students. This chapter will discuss students’ rights to free expression, expulsion, involuntary disciplinary transfer form school, corporal punishment, searches of students, lockers and cars, student appearance, pregnancy, parenthood, marriage, participation in extracurricular activities, and school punishment for out-of-school offenses. Courts must often balance students’ constitutional rights against the duty of public schools to maintain a appropriate environment for learning and safety. A common school practice to reduce legal confrontations and facilitate school operations are adoption of policies that are legally and educationally sound, clearly written, adequately communicated to parents and students, and that are enforced in a fair and impartial manner. A. The Tinker Doctrine // Tinker v. Des Moines Independent Community School District (Supreme Court 1969) // In Des Moines, Iowa, 15 year old John F. Tinker, 16 year old Christopher Eckhardt, and 13 year old Mary Beth Tinker (sister to John) were students in junior high school. In December of 1965 some adults and student had a meeting and decided to publicize their objections to the Vietnam War and show their support for a truce by wearing black armbands during the holiday season and by fasting on December 16 and New Year’s Eve. The principals of the school district became aware of the plan and on December 14 adopted a policy that any student wearing an armband to school would be asked to remove it, and if he refused he would be suspended until he returned without the armband. On December 16, Mary Beth and Christopher wore black armbands and the following day John Tinker wore his armband. All three students were suspended from school until they would come back without armbands. A complaint was filed in the United States District Court by the children’s fathers under 1983 of Title 42 of the United States Code. It asked for an injunction restraining the school officials and members of the board from disciplining the three students and sought nominal damages. District court dismissed the complaint. It upheld the constitutionality of the school authorities’ action on the ground that it was reasonable tin order to prevent disturbance of school discipline. On appeal, the District Court recognized that the wearing of an armband for the purpose of expressing certain views is the type of symbolic act that is within the Free Speech Clause of the First Amendment. The school officials banned and sought to punish petitioners for silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of the 3 students. This case does not concern speech or action that intrudes upon the work of the schools or the right of other students. In this case, the District Court made no such finding or evidence that the school authorities had reason to think the armbands would substantially interfere with the work of the school or intrude upon the rights of other students. The school in this case was looking to avoid the controversy which might result form the wearing of armbands. **But conduct by the student, in class or out of it, which for any reason, whether it stems from time, place, ort type of behavior, materially disrupts class work or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.** The decision was reversed and remanded. The schools of this Nation have undoubtedly contributed to giving us tranquility and to making us a more law-abiding people. School discipline, like parental discipline, is an integral and important part of training our children to be good citizens—to be better citizens. // Notes: // Freedom of expression protected in **//Tinker// **pertains to the expression of social, political, and economic issues by high school and junior high school students. Not protected is such student conduct as insolence, disrespect, screaming, or cursing at staff members or fellow students. According to **//Tinker//**, “undifferentiated fear or apprehension of disturbance is not enough to overcome the right of freedom of expression,” and school authorities must accept “mere disturbance” when students exercise their First Amendment right. Only when students engage in conduct that would “materially and substantially” interfere with the requirements of appropriate discipline in the operation of the school may authorities prohibit the conduct. A middle school student’s suspension for drawing a picture of a confederate flag on a piece of paper during math class was upheld in **//West v. Derby Unified School District//**. In this case the school had a Racial Harassment or Intimidation policy that prohibited such written material and the district had a reasonable basis. However, in **//Bragg v. Swanson// **the wearing of a t-shirt and belt buckle displaying the confederate flag was upheld. Employing** //Tinker// **rationale, the court found that the dress code banning the display of the confederate flag was overbroad because there was not evidence of racial unrest and the likelihood of disruption had not been established.**
 * Title IX of the Education Act of 1972 (female students)
 * Family Educational Right and Privacy Act of 1974 (protection of student information)
 * Education for all Handicapped Children Act of 1975 (free appropriate education for all disabled children)
 * I. Freedom of Expression **

B. Limiting the Tinker Doctrine


 * Several federal courts, relying on the Tinker decision, upheld forms of student expression that many parents and school authorities considered inappropriate.**

1. Nonpolitical Speech

//Bethel// //School District// //v. Fraser (Supreme Court 1986)//


 * First Amendment prevents a school district from disciplining a high school student for giving a lewd speech at a school assembly. On April 26, 1983, Matthew N. Fraser, a student at Bethel High School in Bethel, Washington, delivered a speech nominating a fellow student for student elective office. Approximately 600 students many of which were 14 years old attended the assembly. During the entire speech, Fraser referred to his candidate in terms of an elaborate, graphic, and explicit sexual metaphor. Two of Fraser’s teacher discussed the contents of the speech with him and suggested he not give the speech because the content was inappropriate.

After the assembly, the assistant principal called Fraser into her office and notified him that the school considered his speech to have been a violation of the school disciplinary rule prohibiting the use of obscene language in the school. He admitted to giving the speech and deliberately using sexual innuendo in the speech. Fraser was suspended for three days, and his name would be removed from the list of candidates for graduation speaker at the school’s commencement exercises.

Fraser sought review of the disciplinary action through the school district’s grievance procedures. Fraser alleged a violation of his First Amendment right to freedom of speech and sought both injunctive relief and monetary damages under 42 U.S.C. 1983.

The district court held that the school’s sanctions violated respondent’s right to freedom of speech under the First Amendment to the U.S. Constitution, that the school’s disruptive conduct rule is unconstitutionally vague and overboard, and that the removal of Fraser from the graduation speaker’s list violated the Due Process Clause of the Fourteenth Amendment because the disciplinary rule makes no mention of such removal as a possible sanction.**

//Notes://


 * Fraser’s speech if made by an adult in public almost certainly would have enjoyed constitutional protection. Fraser, however, disclosed the Court’s conviction that public schools have an important role in imparting respect for civility of public discourse.**

2. School-Sponsored Expressive Activities


 * Another widely litigated freedom-of-expression issue dealt with school authorities’ control over school-sponsored expressive activities such as student publications. In many jurisdictions, school newspapers had been considered to be “public forums”, immune from attempts to regulate the viewpoints expressed therein.**

//Hazelwood// //School District// //v. Kuhlmeier (Supreme Court 1988)//


 * //Spectrum// was a school newspaper written and edited by the Journalism II class at Hazelwood East. The newspaper was supported financially by the school district and approximately 4500 copies were distributed to students, school personnel, and members of the community. School facilities may be deemed to be public forums only if school authorities have “by policy or by practice” opened those facilities “for indiscriminate use by the general public” or by some segment of the public as student organizations. Spectrum was to be part of the educational curriculum and a regular classroom activity and school officials did not deviate in practice form their policy.

The District Court found that Robert Stergos, the journalism teacher during most of the 1982-1983 school year, “both had the authority to exercise and in fact exercised a great deal of control over Spectrum.” Board policy 348.51 which stated in part that “school sponsored student publications will not restrict free expression or diverse view points within the rules of //__responsible journalism__//”, also state that such publications were “developed within the adopted curriculum and its educational implications.”

The //Spectrum// is viewed as reserved forum for its intended purpose “as a supervised learning experience for journalism student.” Accordingly, school officials were entitled to regulate the contents of Spectrum in any reasonable manner. A school may in its capacity as publisher of a school newspaper or producer of a school play “disassociate itself” not only from speech that would “substantially interfere with its work or impinge upon the rights of other students” but also from speech. We hold that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.

We conclude that the principal’s decision to delete two pages of //Spectrum//, rather than to delete only the offending articles or to require that they be modified, was reasonable under the circumstances as he understood them. Accordingly, no violation of First Amendment right occurred.**

//Notes://


 * As a consequence of Fraser and Hazelwood, school authorities have been less hesitant to prohibit student expression that they thought was protected under the** //Tinker//** doctrine.

Hazelwood authorities prevailed partly because they retained “by policy and practice” the curricular identity of //Spectrum//, and consequently they “retained ultimate control over what constituted __responsible journalism__.”

“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 at their faith therein.” //West Virginia// //State// //Board of Education v. Barnett//. A state therefore may not compel any person to recite the Pledge of Allegiance to the flag. We conclude that schools may lead the Pledge of Allegiance daily, so long as pupils are free not to participate. All that remains is //Barnette// itself, and so long as the school does not compel pupils to espouse the content of the Pledge as their own belief, it may carry on with patriotic exercises. Objection by the few does not reduce to silence the many who want to pledge allegiance to the flag “and to the Republic for which it stands.” Notes: A provision in a Pennsylvania statute requiring the notification of parents or guardians of students refusing to participate in state-mandated exercises such as reciting the Pledge of Allegiance or nation anthem was held to be unconstitutional in //Circle School v. Pappert//. The court maintained the government’s interest in notifying the parents was not sufficiently compelling to infringe on the students’ free speech rights. Disrespect such as burning the American flag lead to the enactment of the Flag Protection Act of 1989 which made it a crime for anyone who “knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or trample upon” a United States flag. It was found that the Government my not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.

C. Participation in Patriotic Exercises Sherman v. School District 21- A state may not compel any person to recite the Pledge of Allegiance to the flag. Schools may lead the Pledge of Allegiance daily, so long as pupils are free not to participate.

II. Family Educational Rights and Privacy Act of 1974 (FERPA)—Buckley Amendment

Concern over p4rivacy considerations entailing student records, such as their availability to parents, their accuracy, anad their dissemination, resulted in the passage of FERPA. Provisions of this law include an opportunity for parents tin inspect and review the education records of their children, challenge the record if it is inaccurate or misleading, correct or delete any inaccurate or misleading data, and have access to the names of those persons or authorized agencies who have requested or obtained information from a student’s record.

Gonzaga University v. Doe

Gonzaga University learned of the allegations that a student had sexually assaulted a fellow student, contacted the state agency responsible for teacher certification and provided them with the students name and allegation against him. Five months later the student learned that he would not receive an affidavit of good moral character from the university, a requirement for the state certification. The court decided the student may not sue a school that improperly releases his grades or other personal information under FERPA.

III. Suspension, expulsion, and disciplinary transfer

Suspension—leave of school for less than 10 days Expulsion—leave of school for the remainder of a quarter, for a semester, for an academic year, or permanently. Disciplinary Transfer—Non-disabled students may also be transferred, for disciplinary reasons, to another school from the one they are attending.

A. Suspension

Goss v. Lopez

Various high school students were denied due process of law contrary to the command of the 14th Amendment in that they were temporarily suspended from their high schools without a hearing either prior to suspension or within a reasonable time.

B. Expulsion

Gonzales v. Mceuen

The plaintiffs were charged with having committed certain acts which, it was alleged, led to a riot on school grounds. They stated they were not given due process. The court concluded that the process utilized by the Board was fundamentally unfair. This raises a presumption of bias.

2. Private School Expulsion

Contract law, not the law of due process, generally governs the issue of expulsion from a private school. Unless a substantial linkage exists between a private school and the state or federal government, the notion of due process does not apply because the private school does not operate under the “color of state” and therefore no process is due.

C. Disciplinary Transfer Transfer to a so-called alternative school, designed to meet the needs of non-disabled disruptive students, is not considered to be the equivalent of expulsion.

IV. Corporal Punishment

Corporal punishment is the use of such physical contact as striking, paddling, or spanking of a student by and educator. Although once widely used, it is a controversial practice that has received much debate.

Ingraham v. Wright

This case presents questions concerning the use of corporal punishment in public schools: Frist, whether the paddling of students as a means of maintaining school discipline constitutes cruel and unusual punishment in violation of the 8th amendment and second, to the extend that the paddling is constitutionally permissible.

V. Search of students and lockers

Public school officials may be placed in the position of searching a student because of a suspicion that the student has stolen an article or money or has something illegal in his or her possession, such as drugs or weapons.

A. Student Search

New Jersey v. T.L.O.

Two females were caught smoking in lavatory. One said she was not smoking and never did. The principal searched her purse and found a pack of cigarettes and rolling papers. The rolling papers urged him to continue searching and he found marijuana, baggies, one dollar bills and notes listing drug interactions student has had.

B. Search for drugs and weapons

The prevalence of drugs and weapons in the public schools has resulted in school administrators often employing extraordinary means to control this problem. In addition to increased search of suspected students, administrators have resorted to patting down students, using drug-detecting dogs, drug testing as a condition for attending school or participating in extracurricular activities.

C. Intrusive Search

In their zeal to locate stolen money, drugs, or weapons, educators occasionally engage in intrusive seardches commonly referred to as strip searches. Historically, this type of search has most often been used with younger children, however, with the advent of drugs and weapons in the school it has increasingly been used with older students.

D. Locker Search

Courts have tended to allow school officials to search a student’s locker without a warrant and without the student’s permission, reasoning that schools retain ultimate control over lockers and act //in loco parentis//.

VI. Student Appearance

There have been many challenges to dress and grooming regulation over the years. In the earliest cases, essentially beginning in the 1960’s, students and their parents often questioned rules, particularly those pertaining to grooming, which they believed to be unfair or anachronistic.

A. Dress

The prevalence of gangs, hate groups, and those opposed to political correctness in public schools poses serious problems for school officials, because the presence of such groups on a campus may contribute to substantial disruption and threats to safety.

B. Uniforms

Requiring the wearing of uniforms, as many private and parochial schools have done over the years, has increasingly been adopted by public school systems across the country.

C. Grooming

Grooming, as an issue brought before the courts, has largely subsided. Perhaps this is because what wa once frowned upon or not allowed by school authorities such as long hair or booming hairstyles may now be commonplace. Historically, court decisions dealing with student grooming issues have not been consistent.

VII. Pregnancy, Parenthood, and Marriage

Many years ago, public school policies often excluded students who were married or pregnant or who were parents. The rationale for such policies was that exclusion would serve as a deterrent and thereby discourage students from becoming pregnant or getting married. Title IX prohibited gender discrimination.

VIII. Participation in Extracurricular Activities

Two basic legal issues have surfaced when policies excluding a student from extracurricular activities are attacked. One of the issues raises the question of the status of extracurricular activities as a protected property interest and the requisite process due. The other issue deals with the equal protection claim that an excluded student is the victim of schools arbitrary classification scheme.

Palmer v. Merluzzi

A student admitted to smoking marijuana on school grounds and was suspended for 10 days. He was then issued a 60 day suspension of any extracurricular activities. He and his parents contended this decision as football was needed to further his educational goals. Football would entitle him to additional scholarships. 60 day suspension was adhered to.

B. Athletics

Exclusion or suspension from participation in athletics makes up the vast majority of court cased dealing with extracurricular activities.

1. Married Students

Cases dealing with married students barred from participating in athletics have often involved “star” athletes who claim they will be deprived of an opportunity to be considered for athletic scholarships.

2. Gender Equity

Both males and female athletes need to be offered the same provisions in their sporting arenas. They both should be allowed equal use of time of the schools provisions.

IX. School Punishment for Out-Of-School Offenses

Out-of-school conduct of students may have an impact on the overall well being of the school. When there is a problem with out of school conduct, school authorities must reconcile their control of student conduct necessary of the orderly operations of the school with their obligation to comply with the standards of constitutionality and reasonableness required by the judiciary to ensure that students received just treatment.