STUDENT RIGHTS: SPEECH, EXPRESSION, AND PRIVACY

Freedom of Speech and Expression The First Amendment assures freedom of both speech and expression. However, with regard to public schools, these rights are not unlimited. Where exercise of speech and expression may create a clear and present danger or material and/or substantive disruption, then constitutional rights may be curtailed. If disruption is anticipated and has not actually occurred, then school officials can only act to restrain the exercise of the right if they can reasonably forecast material and substantial disruption. A reasonable forecast is not a mere abstract apprehension of disruption. Tinker v. Des Moines Independent School District is the leading case on student First Amendment rights of speech and expression. Because Justice Fortas does not clearly indicate when and under what circumstances restraint by school officials is permissible, it is necessary to read Tinker in the context of Guzick v. Drebus. Further, the U.S. Supreme Court, in Bethel School District No. 403 v. Fraser, ruled that obscene speech can be prohibited by school officials, and that it is not necessary that they justify the prohibition by showing a reasonable forecast of material and substantial disruption as required by Tinker for the exercise of political expression. In Bethel, the Court rejected the argument that the student's freedom of expression in the school setting is equally coextensive with that of an adult outside of school.

Student Publications The law governing student publications changed dramatically in 1988 when the U.S. Supreme Court, in Hazelwood School District v. Kuhlmeier, held that school officials can reasonably restrict student speech in a school sponsored student newspaper. In an important distinction from previous lower federal court precedents, the Supreme Court held that a high school newspaper published by students in a journalism class did not qualify as a public forum. The rationale here is consistent with that of Bethel where the court held that student speech rights in schools were not equally extensive with adults beyond the school jurisdiction. As such, Kuhlmeier departs from the public forum precedents led by New York Times v. Sullivan. This decision is a most important decision evidencing a conservative trend by the current Supreme Court in redefining the rights of students.

Privacy: Search and Seizure The intent of the Fourth Amendment is to guarantee personal security against unreasonable governmental searches. The Amendment requires that the police or other governmental officials justify to a judge or magistrate the necessity for a search. A warrant cannot be issued without probable cause. Because school officials are actually government officials or employees, the question arises as to whether a search warrant is required in student searches. Does the Fourth Amendment apply to public schools and do school principals or teachers need probable cause and a warrant to search? Or is some lesser standard of protection for the student appropriate? The courts have given an almost uniform negative reply to these questions. Instead, the courts have ruled that because of their special relationship to students in the school setting, school officials need only reasonable suspicion in order to have a constitutionally valid search. The leading case is New Jersey v. T.L.O., wherein the U.S. Supreme Court held that warrantless searches of students are permissible as long as they are reasonable and not excessively intrusive. The technical aspects of the search are important in determining its reasonableness. Facts must be presented to the court regarding the inception of the search, the intrusiveness of the search, and the context of the search.

–(1) Students have a right of privacy; –(2) Reasonableness is determined by magnitude of the offense and the –intrusiveness of the search; –(3) Reasonable suspicion must be supported by evidence of the –particular situation, background of student, school rules violated, –etc.; and –(4) The search must be supported by specificity and particularized –knowledge of the whereabouts of the illegal items. Canine searches, strip searches, metal detector searches, and drug testing, all add differing elements to the requirements of necessary specificity and knowledge of the school officials.

STUDENT RIGHTS: COMMON LAW, CONSTITUTIONAL DUE PROCESS, AND STATUTORY PROTECTIONS

Student rights in public schools are defined by common law precedents, state and federal constitutional provisions that restrain government, and state and federal statutory provisions that attempt to balance individual interests with the necessity of government to provide a workable and viable system of education.

Common Law and the Student The public school pupils common law rights, as enunciated by the precedents of the courts, create an intricate balance between student rights and the powers and prerogatives of the state in maintaining an effective and efficient system of public schools.

Reasonableness This balance in common law is defined in terms of reasonableness and what is necessary to effectuate the common good. The common law of the schools seeks to attain the ever-elusive goal of the common good. In so doing, school boards, school officials and teachers must adhere to the general and sometimes ill-defined standard of reasonableness. Reasonableness is the common law fulcrum on which the school/student relationship rests, the equilibrium of which is not always readily apparent.

In Loco Parentis Throughout the years thousands of judicial precedents have created a legal balance between the scholar and the school by couching the logic in the doctrine of in loco parentis. In loco means in place or in lieu of and in loco parentis means in the place of the parent or instead of the parent. That the school stands in the place of the parent in the school environment is a concept with which the courts remain comfortable, even though at times, it may be less agreeable for parents and pupils.

Constitutional Due Process The Due Process Clause of the Fourteenth Amendment has two basic aspects, procedural and substantive. Procedural rights protect the individual against arbitrary state action, guaranteeing a fairness of a hearing and an impartial tribunal. The procedural requirements are set out in Dixon v. Alabama State Board of Education, and in Goss v. Lopez. Substantive due process encompasses the expansive meaning of liberty and property; to generally enjoy those privileges essential to the orderly pursuit of happiness by free men.

Corporal Punishment and Substantive Due Process With Ingraham v. Wright, we find the United States Supreme Court approving of the school's power to administer corporal punishment. The Court points out that children are protected against unreasonable and flagrant abuse by both criminal statutes and tort law, but not by the cruel and unusual punishment provision of the Eighth Amendment. Ingraham v. Wright is significant in a secondary sense because, within its confines of law and fact, we see the possible application of the common law of tort, the conceivable application of state criminal law statutes, and the issues of federal constitutional law and the Eighth and Fourteenth Amendments. Yet, even though the Eighth Amendment does not place restraints on official use of corporal punishment for discipline, some courts have concluded that grossly excessive punishment may offend substantive due process of the Fourteenth Amendment.

Procedural Due Process The two basic elements of natural justice are (1) the rule against bias, and (2) the right to a hearing, Procedural due process includes, at least: (a) notice, containing statement of specific charges and grounds which, if proven, would justify expulsion; (b) the nature of the hearing should vary depending on the circumstances of the particular case; a full-dress judicial hearing with such elements as cross-examination, etc., is not necessarily required, but rudiments of an adversary proceeding should be provided; (c) the accused should have an opportunity to present a defense, produce oral testimony or written affidavits of witnesses; and (d) the record and results should be open to students inspection.

Sexual Harassment of Students Sexual harassment has become a very active new area of law that impacts the operation of school districts directly. Litigation can result in damages and substantial attorneys fees. The source for litigation is statutory, emanating from Title IX of the Education Amendments of 1972 and Title VII of the 1964 Civil Rights Act. Sexual harassment constitutes unwanted imposition of sexual requirements in the context of a relationship of unequal power. This area of litigation has become very popular to attorneys since 1992, when the U.S. Supreme Court held, in Franklin v. Gwinnett County Public Schools, that monetary damages were permitted in harassment cases. There are two basic categories of sexual harassment. The first is quid pro quo by which a person in the more powerful position attempts to compel submission to sexual demands by conditioning rewards or punishment on the weaker partys acquiescence. The second category, hostile environment encompasses adverse, offensive, unfriendly, or bellicose actions that intimidate the weaker party as a result of the harassment. Sexual harassment may occur if a teacher as the superior power is seeking sex with a student. The relationship is unequal and the student is the weaker of the two in the relationship. Similarly, a school principal may be in a superior power position relative to a teacher. Title IX addresses employee-to-employee, employee-to-student, and perhaps even student-to-student relationships. Title VII of the 1964 Civil Rights Act may be brought into play in situations of sexual harassment between employees. The student-to-student, or peer-to-peer, relationship is more tenuous, yet is an area of rapidly developing law. The U.S. Circuit Court of Appeals has held that a school district may be liable for peer-to-peer harassment, reasoning that the Title VII standards regarding employment are applicable to student harassment of other students. See Davis v. Monroe County Board of Education.

Deliberate Indifference An important question arises as to whether school districts can be held responsible for sexual misconduct of employees or students of the school district. If the school district can be held responsible, then Franklin v. Gwinnett County Public Schools, Gebser v. Lago Vista Independent School District, and Davis v. Monroe County Board of Education tell us that plaintiffs may be entitled to damages. The problem lies, of course, in the fact that many times sexual harassment is unknown to school administrators who are in a position to remedy the situation. With awareness of this, the U.S. Supreme Court has said that in order for the school district to be liable in damages, (1) the relevant official of the school district must have had actual notice of the circumstances and have acted with deliberate indifference to the situation, and (2) the situation must be such that the school had substantial control over both the harasser and the context in which the harassment occurred. Gebser best explains the rule of law regarding deliberate indifference.

Child Abuse State legislatures and the federal government have enacted child abuse and neglect legislation. The federal law, entitled The Child Abuse Prevention and Treatment Act, was passed in 1974, providing financial assistance to states in the implementation, prevention, and treatment of instances of child abuse and neglect. State legislation generally provides for definition, reporting, and penalties for failure to report. Whether school officials, teachers or others violate their respective statutes by not reporting cases of child abuse will usually be determined by the statutory provisions requiring that the reporter had "reasonable cause to believe," "cause to believe," or "reason to believe" that a child had been abused or neglected.