Straight Talk
on
Students' Rights
Who are we talking about?

Pre-K through 12th grade


Public school students


College students have
more protections
NOT private schools
On school property or at a schoolsponsored event
For any long-term suspension
(more than 5 days), the student
must be given notice of the
suspension and an opportunity
to present his or her side
of the story.
Students do not "shed their constitutional
rights . . . at the schoolhouse gate."
Tinker v. Des Moines
Students' fundamental rights are weighed against
the State's compelling government interests:
Education
Civic Values
Safety
In Loco Parentis
3-Way Conflict of Interests
Students
Parents
Teachers
Government?
Students have the same rights
1st Amendment
4th Amendment
“Congress shall make no law “The right of the people to
respecting an establishment be secure in their persons,
of religion, or prohibiting
houses, papers, and effects,
the free exercise thereof; or
against unreasonable
abridging the freedom of
searches and seizures, shall
speech, or of the press; or
not be violated, and no
the right of the people
Warrants shall issue, but
peaceably to assemble and
upon probable cause,
to petition the Government
supported by Oath or
for a redress of grievances.” affirmation, and particularly
describing the place to be
searched, and the persons or
things to be seized.”
5th Amendment
“No person shall be held to
answer for a capital, or
otherwise infamous crime. . .
nor shall any person be
subject for the same offense
to be twice put in jeopardy
of life or limb; nor shall be
compelled in any criminal
case to be a witness against
himself, nor be deprived of
life, liberty, or property,
without due process of law;
nor shall private property be
taken for public use, without
just compensation.”
Freedom of Speech:
Students vs. Schools


The Rule: Student speech can only be disciplined if it
substantially disrupts a school function or educational purpose
or interferes with another's rights
BUT Schools can reasonably restrict the time, manner, or
place where speech occurs
AND Schools can regulate
speech that is or appears
endorsed by the school

Free Speech Cases

High School students wear black arm bands to protest a war
Free Speech Cases

High School students wear black arm bands to protest a war


Student gives teacher the finger at a restaurant
Tinker v. Des Moines
Free Speech Cases

High School students wear black arm bands to protest a war


Tinker v. Des Moines
Student gives teacher the finger at a restaurant


Klein v. Smith
Students refuse to salute flag or recite the Pledge of Allegiance
Free Speech Cases

High School students wear black arm bands to protest a war


Tinker v. Des Moines
Student gives teacher the finger at a restaurant


Students refuse to salute flag or recite the Pledge of Allegiance


Klein v. Smith
Minersville School District v. Gobitis (1940), West Virginia v. Barnett (1943)
Student makes lewd innuendos during school assembly
Free Speech Cases

High School students wear black arm bands to protest a war


Tinker v. Des Moines
Student gives teacher the finger at a restaurant


Students refuse to salute flag or recite the Pledge of Allegiance


Minersville School District v. Gobitis (1940), West Virginia v. Barnett (1943)
Student makes lewd innuendos during school assembly


Klein v. Smith
Bethel School District v. Fraser
Student-run school newspaper runs article on teen pregnancy
Free Speech Cases

High School students wear black arm bands to protest a war


Tinker v. Des Moines
Student gives teacher the finger at a restaurant


Students refuse to salute flag or recite the Pledge of Allegiance


Minersville School District v. Gobitis (1940), West Virginia v. Barnett (1943)
Student makes lewd innuendos during school assembly


Bethel School District v. Fraser
Student-run school newspaper runs article on teen pregnancy


Klein v. Smith
Hazelwood School District v. Kuhlmeier
Student holds up “Bong Hits 4 Jesus” sign on school field trip
Free Speech Cases

High School students wear black arm bands to protest a war


Tinker v. Des Moines
Student gives teacher the finger at a restaurant


Students refuse to salute flag or recite the Pledge of Allegiance


Minersville School District v. Gobitis (1940), West Virginia v. Barnett (1943)
Student makes lewd innuendos during school assembly


Bethel School District v. Fraser
Student-run school newspaper runs article on teen pregnancy


Klein v. Smith
Hazelwood School District v. Kuhlmeier
Student holds up “Bong Hits 4 Jesus” sign on school field trip

Morse v. Frederick
Internet Speech Cases


Is there some connection between the speech and some
school function?

Was it created on campus?

Was it read/viewed on campus?

Was it directed at the school, teacher, or other
student?
Is the statement abusive?


More than just lewd or obscene
Is it likely to cause a disruption in school?

More than just hurt feelings
Religions Freedoms
Parents vs. Schools:


Parents have the right to raise their children in their own
sincerely held religious beliefs

Parents may choose not to send their students to
public schools

Parents may not dictate the curriculum used at the
public schools
Schools are allowed to expose students to religiously
objectionable material, as long as the students or parents
may opt out

What if the student chooses
not to opt out?
Teachers/Schools may not show
favoritism between religions

Search & Seizure:
Schools v. Students

Police Officers need a warrant supported
by probable cause (or a warrant exception)
to perform a search


School Administrators only need
reasonable suspicion unless done at police
officer's request


Requires objective probability of a
crime being done by this particular
suspect
Little more than a hunch or
anonymous tip that a student has
broken some school
What about School Resource Officers?

Depends on who pays the bills

Is violation of a law or school rule?
Search & Seizure:
Schools v. Students

Suspicion-less searches are
sometimes allowed


Items found can then justify
further searches based on
reasonable suspicion
There must be some “Special Need”
beyond criminal prosecution
Types of Searches allowed:
Lockers (depending on the school's
policy)
Drug dog sweeps of schools and
students
Drug tests for students in
extracurricular activities

Safety of students
Pregnancy tests (for student athlete)

Disruption of educational
process
2 Way mirrors in bathrooms
Video surveillance of locker rooms
Pat down of clothing
Nude searches by same-sex
administrators
Search of cell phone contents
Right to Remain Silent
Schools v. Students

Teachers are not required to give students
Miranda warnings, or even contact an adult
before questioning a student

Unless done at police officer's request
Miranda only applies to
police officers


Doesn't apply to
Probation Officers
Parole Officers
Teachers/Administrators
School Discipline &
Criminal Prosecution



Lower protections for students lead to higher number of
student prosecutions (as juveniles or adults)
How it works:
1)
Principal does a Reasonable Suspicion search
and/or questions student without Miranda warnings
2)
Principal hands off evidence to police officer
(sometimes stationed in the school already)
3)
Police Officer & Prosecutors use the evidence to
support criminal charges
The Problem: Prosecutors may not have had access to
that evidence if the police had done the investigation with
Probable Cause and Miranda restrictions
Questions?