Constitutional Topic: Student Rights
The Constitutional Topics pages at the USConstitution.net site are presented
to delve deeper into topics than can be provided on the Glossary Page or in the FAQ
pages. This Topic Page concerns Student Rights.
Generally speaking, the Constitution applies
equally to everyone, regardless of age, color, race, religion, or any other
factor. However, minors are a special category of person, and in many cases,
the rights of minors can be suppressed in ways that the rights of adults simply
may not be.
The most obvious reason for this is simply age. Or perhaps better stated,
maturity. A four-year-old, or even a ten-year-old, cannot make, nor be expected
to make, the same sorts of decisions that an adult can make. Where an adult
might be perfectly free to wander the streets at night, a child seen wandering
the streets at night would be taken into some sort of protective custody, even
if against his will.
There are other violations of a minor's rights that on their face seem quite
onerous, but for which there are many legal precedents. The most common such
violations are of the rights of students. That is, of children attending
school. The rights of free speech, free press, free association, and freedom
from unwarranted search and seizure are points of contention between school
administrators and students, and have been for decades.
In loco parentis
There are several reasons why violations of student rights are upheld by the
courts. One of the most basic reasons is known as in loco parentis. This
Latin phrase basically means that while a student is in the custody of a
school, the school can and often should act as a parent. In this duty of the
school, many decisions can be made that are outside the normal governmental
purview. The other basic reason for violation of student rights has to do with
the goal of school — to educate. If an act of a student can interfere
with the educational process, that act may, in many cases, be suppressed.
A few things should be noted here. First, most of this essay applies only to
public schools. As private institutions, private schools are not subject to any
restrictions in terms of violations of the rights of students. Hence, while a
public school might have to prove that its violations are for a higher purpose
or stem from its in loco parentis responsibilities, a private school
may set limits arbitrarily.
Second, students in public schools are not stripped of their rights
completely. In Board v Barnette (319 US 624 ), for example, the
Supreme Court ruled that students could not be forced to recite the Pledge of Allegiance nor otherwise salute the flag
against their will. In Tinker v Des Moines (393 US 503 ), the
Supreme Court ruled that students wearing black arm bands to protest the
Vietnam War could not be forced to remove the arm bands by school officials. As
written in Tinker, "It can hardly be argued that either students or
teachers shed their constitutional rights to freedom of speech or expression at
the schoolhouse gate."
Finally, the Supreme Court has recognized the importance of the free flow of
ideas in schools: "The classroom is peculiarly the 'marketplace of ideas.' The
Nation's future depends upon leaders trained through wide exposure to that
robust exchange of ideas." (Keyishian v Board of Regents [385 US
Violations of Free Speech
The Supreme Court said in Tinker that "[If] conduct by the student,
in class or out of it, which for any reason — whether it stems from time,
place, or type of behavior — materially disrupts classwork or involves
substantial disorder or invasion of the rights of others is, of course, not
immunized by the constitutional guarantee of freedom of speech." This is the
hinge upon which many cases turn when a school violates a student's free speech
In Bethel School v Fraser (478 US 675 ), the Court ruled that a
school was not violating a students rights when it suspended a student for the
use of crude language in a speech to a school assembly. Said the Court: "It
does not follow ... that simply because the use of an offensive form of
expression may not be prohibited to adults making what the speaker considers a
political point, the same latitude must be permitted to children in a public
school... The determination of what manner of speech in the classroom or in
school assembly is inappropriate properly rests with the school board."
Violations of Free Press
The Supreme Court has held that schools and school administrators can censor
student publications such as student newspapers. The difference between the
tolerance of expression, as in Tinker, and in promotion of student views, is
the key. By wearing an arm band, a student is expressing his view and the
school is not taking a stand, nor endorsing the student. But in a student
newspaper, the school itself is represented in the newspaper, and by publishing
a student piece, is now no longer a passive observer but an active participant.
In Hazelwood School v Kuhlmeier (484 US 260 ), the Supreme Court
ruled that articles in the school paper that were counter to the educational
mission of the school were subject to censorship.
Though untested in court, it is probably true that students are protected in
publication of "underground" newspapers, and perhaps web pages, but the
distribution of those papers or use of school computers to view web pages could
Violations of Free Expression
Tinker was all about freedom of expression. The students in
Tinker merely wore black arm bands. They did not disrupt school
activities in any other way. The actions of the students are often used to
distinguish the right of speech and expression for students from the rules that
can govern those rights. Again the distinction hinges on the impact of the
expression on the educational process.
In New Rider v Board (414 US 1097 ), a pair of male Pawnee
Indian students were suspended from school for wearing long hair in the
tradition of their ancestors. The suspension was for violation of a school rule
which forbade the wearing of hair that extended past the collar or ears. The
Court refused to hear the case, but Justices Douglas and Marshall wrote a
stinging dissent of the denial, "Petitioners were not wearing their hair in a
desired style simply because it was the fashionable or accepted style, or
because they somehow felt the need to register an inchoate discontent with the
general malaise they might have perceived in our society. They were in fact
attempting to broadcast a clear and specific message to their fellow students
and others — their pride in being Indian." Douglas wrote another dissent
in a hair-length case for Olff v East Side Union (404 US 1042 ).
No other cases appear to have been decided by the Court on this issue, and
circuit courts have made conflicting rulings.
In Cohen v California (403 US 15 ), the Court overturned a
conviction of a man who wore a jacket with the words "F___ the Draft" on it.
The Court ruled that the presence of a printed vulgarity cannot be sufficient
cause for an arrest and 30-day imprisonment. The Court said: "[A]bsent a more
particularized and compelling reason for its actions, the State may not,
consistently with the First and Fourteenth Amendments, make the simple public
display here involved of this single four-letter expletive a criminal offense."
Cohen was not a student and the jacket was not displayed in a school, however.
Dress codes that prohibit certain kinds of dress (like cut-off shorts or shirts
with obscene or commercial messages) have not been challenged at the level of
the Supreme Court, but have generally been upheld as promoting the educational
In 2007, in the widely-reported case of Morse v Frederick (06-278
), better known as the "Bong hits 4 Jesus" case, the court narrowly
decided that student speech off campus can be suppressed by school
administrators if the speech promotes illegal activity — drug use, in
this case. In the case, Joseph Frederick erected a banner along a route used to
transport the Olympic torch. The route was flanked by students from Frederick's
high school. Principal Deborah Morse, on seeing the banner, had it removed and
had Frederick suspended, on the premise that the banner ran counter to the
school's anti-drug themes and policies. Drawing on both Tinker and
Fraser, the Court decided that the message and its most reasonable
interpretations, and not the place the message was displayed, was the deciding
factor: "Student speech celebrating illegal drug use at a school event, in the
presence of school administrators and teachers, thus poses a particular
challenge for school officials working to protect those entrusted to their care
from the dangers of drug abuse."
Violations of Search and Seizure Protections
A tactic undertaken by more and more schools of late is that of searching of
student lockers, bags, and of their persons.
The most relevant case is New Jersey v TLO (469 US 325 ). Here
the Court recognized two things. First, it reaffirmed the role of the school
in loco parentis, but it also recognized that school officials are
representatives of the State. These two roles can come into conflict, but the
Court said that students in public school are not able to assert the same
rights as adults in other settings. Rules were established for searches, such
as reasonableness, not excessively intrusive, and related to the offense that
is being investigated.
In the TLO case, a search of a student's purse, the purpose for which
was to find cigarettes the student was suspected of smoking on school grounds,
Urine tests of student athletes were upheld in Vernonia School v
Acton (515 US 646 ), when the court again used in loco
parentis, a lowered expectation of privacy for athletes, and the need for
deterrence of drug use, particularly among athletes, as justifications for
forced testing. Said the Court: "Fourth Amendment rights, no less than First
and Fourteenth Amendment rights, are different in public schools than
elsewhere; the "reasonableness" inquiry cannot disregard the schools' custodial
and tutelary responsibility for children."
There have been no reviews of cases of locker searches by the Supreme Court,
most likely because the locker, while possibly containing personal property of
the student, is itself the property of the school.
A matter which has not yet been reviewed is what powers school officials
have to search students before they are on school grounds. It is clear the that
power exists on school grounds; since the power exists to provide a safe
environment for learning, it may be a short leap for some schools to make to
insist that they also have the power to prevent drugs or weapons from even
entering school grounds. Where the limits of such a power lie, or if such a
power exists at all, is subject to debate until they are taken up by the