Student Rights While in School - Module 4 of 4




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Module 4: Student Rights While in School

While education is a significant benefit the government provides students, it imposes certain burdens, including that students at school are under school authority. Still, students do have rights that impose limits on the school’s authority over them. Public schools are arms of the government, and thus bound by the constitutional limitations the Bill of Rights imposes on any state actor when dealing with those under its power. Meanwhile, students, though children, have the rights granted to any person under the Constitution. The exact scope of those rights, however, is in some ways different than in other circumstances because of the unique relationship between school and students.

Most public-school students are minors. Though minors have rights, the extent to which they may exercise those rights is limited by their lack of maturity. The law expects them to be under the guidance of adults. The primary holders of this authority over the child are the child’s parents or legal guardians. However, the law has recognized for centuries that when parents send their children to school, they delegate some of their authority to the school under the ancient doctrine of in loco parentis (which means “in place of the parent.”)[1] This doctrine limits the scope of students’ constitutional rights.

Student Discipline

Public school students are required to be in school for several hours a day, hundreds of days a year. While they are in school, they are under the supervision, authority, and discipline of the school, so the school has the power to punish them.The school, however, as an arm of the government, must not impose disciplinary sanctions on students without providing them due process. The Fourteenth Amendment states that no government agency may deprive a person of life, liberty or property without due process of law.[2] Therefore, students who are accused of violating the school’s rules are entitled to some notice of the rules and some opportunity to be heard in their own defense.This protection might be quite informal and minimal when the punishments are minimal.

Because the right to an education is a protected property right, no student may be expelled or suspended from school without due process. For a suspension of ten days or less, the Supreme Court has ruled that the school must give effective notice of the charges to the student and give the student at least a brief informal hearing with an opportunity to present the student’s version of events.[3] There does not need to be any delay between the notice and the informal hearing.[4] When a student is forced out of school for more than ten days, the Supreme Court has indicated that a more formal process is needed, though it has not ruled on what further process is required. 

Going beyond what the Constitution requires, most states have statutes requiring formal, written notice to the student and his parents of the charges before expulsion. Most state statutes require that the notice include a list of charges; some indication of the evidence that will be introduced including a list of witnesses; information concerning the time, place and nature of the hearing; the student’s rights at the hearing; the rules of the hearing and explanation of the appeal process. Further, there must be enough time between notice and hearing to prepare a defense. That defense may include calling witnesses, presenting evidence and having the assistance of counsel.

Some schools still use corporal punishment, and the Supreme Court has stated that reasonable corporal punishment is permissible.[5] However, excessive punishment may subject the school to liability in tort or even criminal liability for assault. Currently, almost half of the states allow corporal punishment. [6]

Searches and Seizures

Though students are under school discipline while in school, they still have a right to see their reasonable expectations of privacy respected. Therefore, students have their right to be free from unreasonable search and seizure even while in school. While school authorities have greater latitude to search students and their possessions than authorities outside of school, the scope of what counts as reasonable imposes limits on school searches.

In New Jersey v. T.L.O.,[7] the Supreme Court held that the Fourth Amendment’s ban on unreasonable searches and seizures applies to school searches, but school officials do not require probable cause or a search warrant before searching students.  Instead, school officials only need “reasonable suspicion” before searching a student. Reasonable suspicion means that there are reasonable grounds, before the search begins, for suspecting that the search will reveal evidence that the student has violated school rules, or the law, and the search is reasonably related to the circumstances justifying the search[8] 

Though school officials only need reasonable suspicion to search, note that law enforcement officials, such as police officers invited onto school grounds, need probable cause just as would be required in any other situation.[9] Neither reasonable suspicion nor probable cause is required if the student consents, and school officials are not required to advise students that they may refuse to consent. Though the Supreme Court has not ruled on the issue, at least one federal appeals court has held that it is acceptable to tell the student that failure to consent will lead to disciplinary actions against the student.[10]

Beyond the search itself, the manner of the search must be reasonable. A reasonable search is one that is not excessively intrusive in light of the student’s age, sex and relative seriousness of the offense. ISafford Unified School District #1 v. Redding,[11] the Supreme Court held that though a school official had a reasonable basis to search a high school girl’s backpack and outer clothing for pills they thought she was distributing, subjecting her to a full strip search was too intrusive. Considering that “adolescent vulnerability intensifies the patent intrusiveness of the exposure” and that, according to a study, strip searches can “result in serious emotional damage,”[12] the Court found that the search violated the Fourth Amendment. The Court wrote that because there were no reasons to believe that the pills that the school suspected she was selling presented a danger or were concealed in her underwear, the search was too intrusive to be justified by the “content of the suspicion.”[13]

Permitted School Searches

No justification for a search is required under the Fourth Amendment unless the person subject to the search has a reasonable expectation of privacy in the item being searched.[14]  Even when an item is issued to a student for her use, if the item belongs to the school, then the student has no expectation of privacy in the use of that item.  For example, school lockers are generally considered school property, and the student has no reasonable expectation of privacy in the locker, a fact which the Court recognized in the T.L.O. case.[15]  However, at least sixteen states provide greater privacy protection of student lockers than required by the Supreme Court.[16]

The Supreme Court has treated general searches of the entire school population more leniently than individualized searches. While a search of a particular student requires a reasonable suspicion justifying the search, the Court has allowed drug-testing without suspicion when that testing is given to all students who choose to participate in a non-mandatory activity, such as playing football on the school team. Thus, a requirement of a urine test before participating in school sports is permissible.[17] The Court also found that it was permissible to require all students who wanted to participate in extracurricular activities, such as choir or academic quiz competition, to take a urine test for drugs.[18] In both of these decisions, the schools did not have any particular suspicion of any individual student, but all students who chose to participate in the activity were subject to the search. The Court placed significant weight on the fact that the students chose to participate in these extracurricular activities and that these activities were not mandatory. If a student did not want to undergo a urine test, the student could forego these extracurricular activities.

Finally, some very general searches are considered so non-intrusive as not to require any particular suspicion to be reasonable. These are called “administrative searches.” To qualify as an administrative search, the procedure must be directed at a general danger (such as keeping weapons out of school) and be non-intrusive. [19] Though the Supreme Court has never directly addressed the administrative search doctrine’s application to schools, it appears that courts would uphold usage of metal detectors and security cameras as acceptable forms of administrative search.[20]

Freedom of Religion

In addition to the privacy rights protected by the Fourth Amendment, public school students also retain their rights under the First Amendment’s protection of free expression, including freedom of speech and freedom to express and exercise religious beliefs. Religious expression has been a particular focus of the United States Supreme Court for many decades.  After all, as a student’s religious beliefs are often the same as those of the student’s parents, any school policy that is perceived as infringing on the student’s religious beliefs probably will be perceived by the student’s parents as infringing on their rights as parents.

The First Amendment protects religious beliefs in two ways: it prohibits governments from establishing religious beliefs as officially supported and it prohibits governments from infringing on the free exercise of religion. These two rights are intertwined, as the history of prayer in school shows.

About 60 years ago, in Engel v. Vitale[21]  the Supreme Court held that reciting government-written prayers in school was a violation of the First Amendment’s “establishment” of religion clause, even where students are free to decline to participate.The sponsorship of the prayer by the school promotes and thus establishes religious beliefs. That the prayers were vaguely written so as not to be closely identified with any particular sect did not change the fact that they promoted a certain group of religions, those that recognized an “Almighty God,” and thus violated the establishment clause.   

Similarly, in Abington School District v. Schempp, [22] the Supreme Court declared school-sponsored Bible reading in public schools to be a violation of the establishment clause. In later decisions, the Court ruled that a law setting aside one minute for prayer or meditation also impermissibly promoted religion,[23] prohibited clergy-led prayer at public school graduation ceremonies[24] and later ruled that student-led prayer at organized school events (like football games) was also a violation of the establishment clause.[25] 

These issues are decided under the three-part test first stated in Lemon v. Kurtzman. [26] This test asks whether the government’s action has a secular or a religious purpose, whether the primary effect of the government action is to advance or endorse religion and whether the government action fosters an “excessive entanglement” between government and religion.[27]

The other side of the question of religious expression is the “free exercise” clause, which protects people’s rights to exercise their own religious beliefs and practices. To protect those rights, if schools make their facilities available during non-school hours to student or community groups for meetings, schools cannot exclude those groups that meet for religious activities.[28]  Furthermore, courts have recognized that students have the right to engage in personal religious activity during the school day or in school activities. These include the right to express religious belief in a school assignment without judgment as to that religious content; the right to personal, private prayer that does not interrupt or disrupt normal activities; the right to speak to peers about religious beliefs or distribute religious literature and the right to display religious messages on clothing (including wearing religious garments) in the same way that students are allowed to display secular messages.[29]

Freedom of Speech

The First Amendment also protects other forms of expression, specifically, the student’s own freedom to speak. The scope of that right, and the power of the school to regulate student speech, differs depending on whether the speech is part of a school-sponsored event, is independent student speech during school or student speech that takes place off-campus.

Students have the right to express themselves on school grounds, but schools may regulate or ban speech that is properly viewed as disruptive. Still, not all unwanted student expressions can be considered disruptive, especially when it is passive in nature.  In Tinker v. Des Moines Independent Community School District,[30] the Supreme Court held that a school improperly limited a junior high school student’s right to free speech when it suspended her for wearing a black armband to protest the Vietnam War.  The Court observed, “The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners,” which the Court found was unconstitutional.

On the other hand, when the speech is part of a school-sponsored forum, like a school newspaper, the school has greater power to regulate the speech’s content. In Hazelwood v. Kuhlmeier, the Supreme Court noted that, within the context of a school newspaper produced on campus using the school’s own resources, “a school need not tolerate student speech that is inconsistent with its basic educational mission, even though the government could not censor similar speech outside the school.” [31] This ruling allows the school the same power that the publisher of any newspaper has to control the content of its own publication.

Moreover, the school can regulate the use of language conventionally viewed as obscene or offensive in otherwise protected speech. In Bethel School District v. Fraser, the Supreme Court held that a public high school student who used sexually explicit language in a student-election speech at an assembly was not protected by the First Amendment.[32] Schools also may prohibit and punish speech viewed as promoting illegal drug use, despite the fact that this limits student expression. For example, the Supreme Court upheld a decision to suspend students who held up a banner at a school-supervised activity that read “Bong Hits 4 Jesus.”[33]

Another form of expression for many students is in the way they dress and present themselves. The Supreme Court’s decision in Tinker, which concerned a black armband worn to protest the Vietnam War, showed that the expressive content of clothing is protected under the First Amendment.[34] Still, the Court has not directly addressed school dress codes. In lower courts, dress codes intended to limit distractions and promote discipline have been upheld, just as requiring uniforms would be. In addition, dress codes that prohibit gang symbols that may be disruptive are allowed, even though the symbols are designed to express ideas.[35]  On the other hand, clothing that otherwise is acceptable under the dress code, but which bears a political message that the school doesn’t like, cannot be prohibited, as this would be an unconstitutional “viewpoint-based” restriction.[36]

Conclusion

Thank you for participating in LawShelf’s video-course on the rights of students in the context of education. We hope that you will take advantage of other available LawShelf courses and that you will contact us if you have any questions or feedback.



[4] Id.

[6] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5766273/ Alabama, Arkansas, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Missouri, Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, and Wyoming

[8]  Id.

[12] Id. at 375.

[13]  Id.

[36] Newsom v. Albemarle County School Bd., 354 F.3d 249 (4th Cir. 2003)( a T-shirt supporting the National Rifle Association with an image of guns; Barber v. Dearborn Public Schools, 286 F.Supp. 2d 847 (E.D. Mich. 2003) (a T-shirt with a picture of the U.S. president and the words “International Terrorist”).