STUDENTS’ RIGHTS: COMPULSORY EDUCATION AND CONSTITUTIONAL
Joyce H. Fragale
School Law, EDU 702
University of New England
March 29, 2014
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STUDENTS’ RIGHTS: COMPULSORY EDUCATION AND CONSTITUTIONAL
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STUDENT RIGHTS EXAM CASE
Exam Case: Michigan Teacher’s discipline of student for Anti-Gay Remarks [6/10/13]
Facts: On October 20, 2010, some students and staff at Howell High School recognized AntiBullying Day, a national movement aimed at raising consciousness to the bullying of individuals
based on their sexual orientation. Students in the Gay Straight Alliance Club posted a flier asking
staff and students to wear purple that day to show support for the cause. A teacher printed purple
t-shirts with “Tyler’s Army” printed on the front and “Fighting Evil with Kindness” on the back
to bring attention to the plight of Tyler Clementi, the Rutgers student who committed suicide
after his roommate allegedly lives streamed a video of him engaged in a nonsexual homosexual
encounter. Other than permitting the Gay Straight Alliance Club to post its flier, the school
administration did not participate in the Anti-Bullying Day activities. They were not aware of
the Tyler’s Army t-shirts. The court determined that the Anti-Bullying Day and its related
activities were not school sponsored.
Economics teacher Jay McDowell wore a Tyler’s Army t-shirt on Anti-Bullying Day. In each
period, prior to beginning his planned lesson, he engaged students in a brief discussion about
bullying and showed a video about an individual who committed suicide after being bullied due
to his sexual orientation. As the sixth period students entered, McDowell observed a student
wearing a confederate flag belt buckle and directed her to remove it, which she did. Class began,
and McDowell started to explain to the students about Tyler’s Army, the purple t-shirts, and
what it meant to him. At that point, based on the court’s findings, the following exchange took
place: Student Daniel (calmly raising his hand): Why can’t she wear a Confederate flag belt
buckle when students and teachers can wear purple shirts and display rainbow flags?
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McDowell: Because of the difference in symbolism between the Confederate flag and the
rainbow flag. The Confederate flag represents the hanging and slashing of African Americans, it
isn’t allowed in my classroom, and it’s discrimination against blacks.
Daniel: I don’t accept gays, and the purple shirts discriminate against Catholics.
McDowell: You cannot say that in class.
Daniel: I don’t accept gays because I’m Catholic.
McDowell: It’s fine if your religion is opposed to homosexuality but saying such things is
inappropriate in a classroom setting. You can’t say “I don’t accept gays” any more than you can
say “I don’t accept blacks.” Do you accept gays or not?
Daniel: I do not.
McDowell: Leave and go to the office. I’m writing up a referral for unacceptable behavior.
Second student: I don’t accept gays either, can I leave?
McDowell: yes
After Daniel and the other student departed, other students asked why McDowell had thrown
them out and “why didn’t they have free speech?” McDowell “explained that a student cannot
voice an opinion that creates an uncomfortable learning environment for another student.”
Daniel, his mother, and his younger brother (also a student at Howell High School) filed 1983
suit in federal district court against the school district and McDowell in his official and
individual capacities.
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Student’s Rights Case Analysis
Legal Basis for Student’s Rights
Students’ rights include Constitutional rights as well as rights surrounding Compulsory
Education. Compulsory Education includes school attendance, student records, and curricular
requirements. Below are some cases outlining students’ rights surrounding Compulsory
education. This information was derived from “New School Law, Legal Framework, Guiding
Principles and Litigated Areas” by Authors Susan J. Hillman, PH.D. and David K. Trevaskis,
Esquire.
Attendance
Pierce v. Society of Sisters, 268 U.S. 510 (1925). States may determine compulsory age of
attendance, but students have choice in which schools they attend regarding private and /or
religious based educational facilities.
Wisconsin v. Yoder, 406 US.205 (1972). Although most cases surrounding school attendance
and religious convictions are not upheld, in this case the Amish were able to prove that after
completion of the 8th grade, school attendance was detrimental to the Amish way of life, and
against their religious beliefs.
Jefferson County Board Of Education v. Fell, No. 2011-SC-000658-DGE (2012) indicated that
if the state within which the child resides does not have an “open enrollment” plan, then students
do not have a right to attend a school outside of their “attendance zone”. Plyler v. Doe, 457 U.S.
202, (1982) ruled that schools must educate illegal immigrant children. State Educational
Agencies are also mandated to ensure that homeless children have access to a “free and
appropriate public education”.
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Board of Education of the Garrison Union Free School District v. Greek Archdiocese Institute of
St. Basil, 18 N.Y.3d 355 (2012) established that the legal guardians residence is the determining
factor governing decisions surrounding which school district must pay for students requiring
residential institutionalization. Whether schools are allowed to assess educational fees depends
on state law. Some fees have been upheld and some have been disallowed depending on the
state. “Pay to Play” fees have been successfully instituted in a few Maine Schools. However
Paulson v. Minidoka County School District, 463 P.2d 935 (1970) disallowed a fee for high
school textbooks (Hillman and Trevaskis, 2014).
Courts have upheld mandatory immunizations, although some exemptions have been
allowed based on religious beliefs. Children with contagious diseases may be denied public
education, however schools must provide comparable alternatives.
Parents may educate their children at home, and many “hybrid” options that include
home/school/and virtual education are becoming more the norm. States typically provide
oversight. In Maine instruction must be “equivalent” and approved by the commissioner
Whether or not home-schooled students are allowed to attend extracurricular activities is also
decided on a state by state basis. Students in Maine need superintendent approval (Hillman and
Trevaskis, p. 6-1, - 6-4).
Student Records
The Federal Family Education Rights and Privacy Act (The Buckley Amendment),
protects student rights surrounding student records. Students may waiver their rights to access
their records, which is usually the case in college recommendations. Teacher’s e-mails, or
personal notes are not mandated to be available for public prevue, however they may be
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subpoenaed. A court order must be present in order for parents to be denied permission to view
their child’s records. Schools may disclose “directory information” about students (Hillman and
Trevaskis, 2014).
Disability Law Center of Alaska v. Anchorage School District, 581 F.3d 936 (2009)
decided that schools are not in violation of FERPA by releasing guardian contact information to
social services agencies, who have “probable cause” to believe that a child is being abused or
neglected. Wyatt v. Fletcher, No. 11-41359 (2013), ruled that private student information that
parents do not know might be revealed to them without risk of breaching the student’s
constitutional rights. Finally, student records may be accessed if “the information is necessary
“to protect the health or safety of the student or other individuals”” (Hillman and Trevaskis,
2014. P. 6-7).
Owasso Independent School District v. Falvo, 534 U.S. 426 (2002), established that peer
grading does not violate FERPA since the designation of “student record” is not established until
the grade is written in the grade book (Hillman and Trevaskis, 2014, p. 6-7, 6-8).
State law determines how long records must be kept, outside of this records may be
destroyed at anytime, with the exception of those which have outstanding requests to view them.
IDEA also mandates that schools must notify the parents of special education students prior to
records being destroyed (Hillman and Trevaskis, 2014).
Curricular Requirements
“There is no United States Constitutional right to a public education. However, since all
states provide for free public schooling, this has become a state entitlement and hence a property
right under the United States Constitution” (Hillman and Trevaskis, 2014, p. 6-9).
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Meyer v Nebraska, 262 U.S. 390 (1923), set the precedent for federal court oversight of
curricular requirements by striking a Nebraska state law which prohibited foreign language
instruction. “…the teacher’s right to teach, the parents’ right to engage the teacher to instruct
their children, and the children’s right to acquire useful knowledge were protected liberties under
the Due Process Clause of the Fourteenth Amendment” (Hillman and Trevaskis, 2014, p. 6-9).
“There is a balancing principle between parents’ right to guide the upbringing of their children
(Note: especially when it involves religious freedom) and the state’s power to make and enforce
reasonable regulations for the efficient and effective conduct of the schools and to educate good
citizens” (Hillman and Trevaskis, 2014, p. 6-10).
Generally states mandate curricular requirements. States can require courses be taken as
graduation requirements, and can also prohibit courses from being offered, however “the
exclusion must not be overly broad and must be connected to legitimate pedagogical concerns”,
Acosta v. Huppenthal, No. 10-623 (2013), (Hillman and Trevaskis, p. 6-10).
Arundar v. DeKalb City, 522 F. Supp. 677 (1981), and Doe v. Silsbee Independent
School District, No. 10-40319 (2011), established that students do not have a right to be admitted
into any class or extra curricular activity. Steirer and Steirer v. Bethlehem Area School District,
987 F.2d 989 (1993), decided that schools can mandate community service as a graduation
requirement. Parents against Testing before Teaching v. Orleans Parish School Board, No. 0031267 (2001) established that students do not have a right to be promoted annually. Peter W. v.
San Francisco Unified School District, 60 Cal.App.3d 814 (1976), and Hoffman v. Board of
Education, 49 N.Y.2d 121 (1979), established that schools cannot be held liable for not
adequately teaching a student (Hillman and Trevaskis, 2014).
STUDENTS’ RIGHTS: COMPULSORY EDUCATION AND CONSTITUTIONAL
“The Fifth Circuit Court of Appeals in Debra v. Turlington, 644 F.2d 397 (1981)
identified several factors that need to be in place for a proficiency test to be upheld:
students are to be adequately prepared for the exam; students are to be advised when beginning
high school of the test requirements and the fact that the test is a prerequisite to graduate; the
disparate minority failure rate cannot be a result of prior racial discrimination or intent to
discriminate; if a student fails, he/she is entitled to remediation and the opportunity to retake the
test; and, appropriate accommodations are made for children with disabilities (Hillman and
Trevaskis, 2014, p. 6-12).
Students’ Constitutional Rights
First Amendment to the United States Constitution
The First Amendment to the United States Constitution prohibits the making
of any law respecting an establishment of religion, impeding the free exercise of
religion, abridging the freedom of speech, infringing on the freedom of the press,
interfering with the right to peaceably assemble or prohibiting the petitioning for a
governmental redress of grievances
(http://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution).
Fourth Amendment to the Unites States Constitution
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no warrants shall
issue, but upon probable cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized
(http://www.law.cornell.edu/constitution/fourth_amendment).
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The Fifth Amendment of the United States Constitution reads, “No person shall be deprived of
life, liberty, or property without due process of law,” so this Amendment establishes these rights
(Hillman and Trevaskis, 2014).
Section 1 of The 14th Amendment to the United States Constitution
All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein they
reside. No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws
(http://www.law.cornell.edu/constitution/amendmentxiv).
Students Constitutional Rights include free speech as well as due process rights, property
rights and rights surrounding search and seizure. The Fourteenth Amendment prohibits states
(therefore schools) from violating students’ rights.
Freedom of Expression: Personal Speech
In the case of Tinker et al. v. Des Moines Independent Community School District et al.,
393 U.S. 503 (1969), the Unites States Supreme Court found that students do not “leave their
rights at the schoolhouse gate” (Hillman and Trevaskis, p. 6-14). However, “Free speech is not
an “absolute right. The U.S. Supreme Court indicated that courts should balance speech with the
authority of the school” (Hillman and Trevaskis, 2014, p. 6-14).
The Tinker Test considers the following:
•
Does the conduct constitute expression at all?
•
Is it meant to communicate an idea?
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If the answers to the two prior questions are yes, then one follows up with these additional
questions:
•
Is the speech defamatory, obscene, vulgar or lewd?
•
Did the speech cause disruption (cannot be based on fear of disturbance)?
•
Is the school’s rule (that caused the student’s speech to be curtailed) uniformly applied, or is
there evidence of viewpoint discrimination?
•
Is the school’s action related to “legitimate pedagogical (meaning school or educational)
concerns?” (Hillman and Trevaskis, 2014, p. 6-12).
In the case Bethel School District No. 403 v. Fraser, 478 U.S. 675, (1986), the United
States Supreme Court decided that a nominating speech was lewd and vulgar, and since the
school administration’s actions were related to “legitimate pedagogical concerns,” the school
actions were upheld (Hillman and Trevaskis, 2014, p. 6-16). School officials do not need to wait
for a disruption to occur. A school official may take “reasonable” action… if there “significant
evidence” to conclude that there is “reasonable likelihood of substantial disorder. Especially
pertaining to past disruption. Evidence must be based on fact not intuition.
If a student communicates potential violence the legal test includes:
*Is the violence focused versus broad?
*Is the violence foreseeable?
*The school must ensure that discipline of a student due to his/her speech was not “arbitrary or
capricious.”
(Hillman and Trevaskis, 2014, p. 6-15)
In the case Cuff v.Valley Central School District, No. 10-2282 (2014), the Second Circuit
Court of Appeals supported the school in suspending a student who wrote a violent message
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within a school project. The violence was focused because the student threatened the school and
teachers in it, and foreseeable because the student had previous disciplinary issues and had made
previous reference pertaining to violence. In the case of Saad-El-Din v. Steiner, No. 514071
(2012), the New York Appeals Court indicated that the student’s suspension did not violate his
free speech rights. This case was also focused as the student indicated harm to the school, and
referenced a date, indicating foreseeable harm. In the Morse v. Frederick, 127 S. Ct. 2618
(2007) case, nicknamed “BONG HiTS 4 JESUS,” the United States Supreme Court ruled in
favor of the school due to the fact that the incident took place during a school-sponsored event
and the banner could be interpreted as advocating illegal drug use. Some justices stressed that
the ruling was meant to limit speech advocating illegal drug use ONLY (Hillman and Trevaskis,
2014).
The test established by the Tinker case has been used to decide many cases:
J. S. v. Blue Mountain School District, No. 08-4138 (2010). The Third Circuit Court of Appeals
indicated that the student who insulted her principal online could not be punished because the
speech was created off-campus and there was no “nexus” (connection) between the student’s
speech and a substantial disruption of the school environment.
Layshock v. Hermitage School District, No. 07-4465 (2010). The Third Circuit Court of Appeals
overturned the discipline of a high school student who wrote defamatory remarks about the
principal online. The Court did not find that the actions of the student caused a substantial
disruption in school, and three different students committed the same act and they had not been
disciplined.
Kowalski v. Berkeley County Schools, 652 F.3d 565 (2011) The Fourth Circuit Court of Appeals
upheld the school district’s discipline of a student who targeted another student online. The
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courts ruled that there was a sufficient “nexus” (connection) with the school and the school had a
“compelling interest in regulating speech that interferes with or disrupts the work and discipline
of the school, including discipline for student harassment and bullying.
Doninger v. Niehoff, 527 F.3d 41 (2008). The Second Circuit Court of Appeals ruled that the
school administrators did not violate this student’s First Amendment speech since the blog post,
which targeted a teacher, was vulgar and “created a foreseeable risk of substantial disruption.”
Bell v. Itawamba County School Board, No. 11-00056 (2012) The Federal District Court ruled
that the school district did not violate the student’s free speech since “his song”, which was sung
off campus, amounted to harassment and intimidation of school teachers and possible threats
against teachers”. (Hillman and Trevaskis, 2014).
Freedom of Expression: School Sponsored Speech
Hazelwood School District et al. v. Kuhlmeier et al., 484 U.S. 260 (1988) decided that
“educators can exercise substantial control over school-sponsored activities
such as student publications or plays that are part of the curriculum “whether or not
they occur in a traditional classroom setting.” Even if disruption does not occur, control
can be taken since the school, as publisher of a newspaper or producer of a play, may
refuse to lend its name and resources to student expression that does not meet its high
standards. But actions must always be related to legitimate pedagogical concerns
(Hillman and Trevaskis, 2014, p. 6-20, 6-21).
The emphasis on the need for potential disruption is minimized since the speech is school
sponsored, however there needs to be “ reasonable and valid educational purpose” for controlling
the speech. This adds a component to free speech cases involving school-sponsored speech. The
Tinker Test would now include a seventh component (see component 4):
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1. Does the conduct constitute expression at all?
2. Is it meant to communicate an idea?
If the answers to the two prior questions are yes, then one follows up with these additional
questions:
3. Is the speech defamatory, obscene, vulgar or lewd?
4. Is it speech that bears the school’s imprimatur (meaning school- sponsored or bearing the
stamp of the school) or is it personal student expression?
5. Did the speech cause disruption (cannot be based on fear of disturbance)?
6. Is the school’s rule (that caused the student’s speech to be curtailed) uniformly applied, or is
there evidence of viewpoint discrimination?
7. Is the school’s action related to “legitimate pedagogical (meaning school or educational)
concerns?” (Hillman and Trevaskis, 2014, p. 6-22).
Freedom of Expression – Student Appearance
Students have claimed violation the 1st Amendment rights stating that personal
preference in hair and clothes represent symbolic speech. In these cases the Tinker Test would
be used. Students have also claimed violation of their Fourteenth Amendment rights. In these
cases courts would consider the “reasonableness of school policy”. Pertaining to dress codes
schools must provide evidence of “reasonableness” related to school safety and order, and the
dress code must pass the test of not being overly broad or vague. The “Fraser” test may also be
used pertaining to dress which may constitute expression that is “lewd or vulgar” (Hillman and
Trevaskis, 2014).
In summary, a dress code, not related to speech, must not be overly broad or vague and
must be related to school order and safety. Dress regarding student personal speech, must pass
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the Tinker Test. The “Fraser” test may also be applied. Pertaining to school sponsored speech,
the school has a lot more leeway. However there must be a “ reasonable and valid educational
purpose” for controlling the speech. A disruption need not occur. Below are cases surrounding
student dress:
Dariano v. Morgan Hill Unified School District, 822 F.Supp.2d 1037 (2011). There had been
prior altercations surrounding the wearing of t-shirts with the American flag on Cinco
de Mayo Day, therefore the court ruled that the students’ speech was not protected.
Zamecnik v. Indian Prairie School District #204, 636 F.3d 874 (2011). Since there had been no
disruption surrounding the wearing of “Be happy, not gay” t-shirts, the court upheld the speech
as protected.
Defoe v. Spiva, No. 09-6080 (2010). The wearing of a T-shirt displaying the Confederate flag
sparked racial incidence, therefore the courts upheld the school’s ban.
Florida Federal District Court in Sapp v. School Bd. of Alachua County, No. 09-242 (2011). The
court ruled that an “Islam is the Devil” would not be considered protected speech due to the
concept that a schools interest in protecting students from “hateful speech at school and teaching
students the bounds of civil discourse is no less compelling,” (Hillman and Trevaskis, 2014, p. 626).
Discipline: Due Process Rights With Respect To Suspension and Expulsion
Goss v. Lopez, 419 U.S. 565 (1975) is the landmark case surrounding students’ rights in
relation to due process. When contemplating this case we must review constitutional rights. The
Fifth Amendment of the United States Constitution reads “no person shall be deprived of life,
liberty, or property without due process of law” (Hillman and Trevaskis, 2014, p. 6-29). The
Fourteenth Amendment reads, “No state shall make or enforce any law which shall abridge the
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privileges or immunities of citizens of the United States…nor shall any state deprive any person
of life, liberty, or property, without due process of law…”. Therefore “because public schools
are governmental entities, school officials cannot violate life, liberty, or property rights”
(Hillman and Trevaskis, 2014, p. 6-29).
Students have a right to education under “property rights” because states have all
established “free and public” education. However these rights are not “absolute”. If due
process is followed then an individual may forfeit their right to life, liberty or property.
Pertaining to schools the United States Supreme Court indicated due process requirements for a
10-day suspension include an informal hearing. This informal hearing should include:
oral or written notice of the charges against the student; an explanation of the evidence if the
charges are denied; and an opportunity for the student to present his/her side of the incident
(Hillman and Trevaskis, 2014, p. 6-29). For a consequence of more than ten days, the United
States Supreme Court, however not specific, indicated more due process rights should be
provided. Individual state laws cover this. Maine requires an informal hearing for up to 10 days.
Beyond that it becomes an expulsion, and a procedure is specified (Hillman and Trevaskis,
2014).
Discipline: Property Rights With Respect To Suspension and Expulsion
Whether or not a suspended student has a right to an alternative education depends on
state law. Maine does not provide for this, but does dictate that those students requesting partial
access to school academic and co-curricular activities abide by the behavioral expectations set
forth by the school. Students do not have property rights pertaining to extracurricular activities
so schools may deny students access based on “off-campus” conduct. The conduct must
“materially and substantially” interfere with school operation. In the case of G.D.M. v. Board of
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Education of Ramapo Indian Hills Regional High School District, 48 A.3d 378 (2012), a policy
stating that students would not be allowed participation if involved in criminal activity, was
overly broad. Basically procedures should exist whereby students and parents are apprised of all
school rules, policies and procedures (Hillman and Trevaskis, 2014).
Discipline: Search and Seizure
In the landmark case New Jersey v. T.L.O. , 469 U.S. 325 (1985), The United States
Supreme Court decided that the case represented a “legal search” and that the level of “probable
cause” was too “arduous” for schools to comply with. Therefore schools need to use
“reasonable” cause to guide decisions of this nature. “…this is a balance between honoring
students right to privacy while allowing schools to maintain discipline” (Hillman and Trevaskis,
2014, p. 6-33).
The Balancing Test considers:
1. Whether the action was justified at its’ inception
2. Whether the search as it was conducted, was reasonably related in scope to the circumstances
(Hillman and Trevaskis, 2014, p. 6-33).
In the case Safford Unified School District v. Redding, 129 S.Ct. 2633 (2009), the
United States Supreme Court ruled that the student’s Fourth Amendment rights were violated
and found that there was no “indication of danger to the students”. Therefore there was not a
justified level of reasonableness (Hillman and Trevaskis, 2014, p. 6-35). The Fourth
Amendment states that “The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall
issue, but upon probable cause, supported by oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized”
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(http://www.law.cornell.edu/constitution/fourth_amendment). The Fourteenth Amendment
prohibits states (therefore schools) from violating students’ rights.
The cases of State v. Best, 201 N.J. 100, 987 A.2d 605 (2010) and State of Idaho v. Voss, No.
38366 (2011) decided that searches on school grounds must only meet the “reasonable grounds
test” (Hillman and Trevaskis, 2014, P.34).
Ortiz v. State, No. 10-1200 (2010) set the precedent that evidence found when school officials
search a student, can be used in a case, even though a resource officer was present, because the
officer did not conduct the search (Hillman and Trevaskis, 2014, P.34).
Doran v. Contoocook Valley School District, 616 F.Supp.2d 184 (2009) and Burleson v.
Springfield Public School, 708 F.3d 1034 (2013) ruled that using dogs to screen student property
when that property is separated from the student does not constitute an unreasonable search.
However if the dogs sniff the students it is viewed as a search (Hillman and Trevaskis, 2014).
Bellnier v. Lund, 438 F.Supp. 47 (1977), found that a strip search conducted on an entire fifth
grade class over three dollars missing from a student’s coat pocket was unreasonable.
Herrera v. Santa Fe Public School, 792 F.Supp.2d 1174 (2011), found that suspicion-less pat
down searches, violate students constitutional rights.
York v. Wahkiakum School District No. 200, 178 P.3d 995 (2008), and Brown v. Shasta Union
High School, C061972 (2010), found that suspicion-less drug testing of student-athletes violates
the state constitution. However in the case Hageman v.Brown v. Shasta Union High School,
C061972 (2010), the Wyoming Supreme Court has upheld drug testing for students who
participate in extracurricular activities.
In J.W. v. DeSoto County School District, No. 2:09-cv-00155 (2010), a Federal District Court in
Mississippi upheld a search of a student’s confiscated cell phone as well as the following
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suspension. However in Mendoza v. Klein Independent School District, No. 09-3895 (2011), the
assistant principal exceeded the scope of reasonableness when he continued to search a students’
cell phone beyond what it took to discover that school policy had been violated (Hillman and
Trevaskis, 2014).
Mark which type of case this is:
XXX Freedom of Expression—Personal
Criteria Analysis for Freedom of Expression – Personal
Students’ Constitutional Rights
First Amendment to the United States Constitution
The First Amendment to the United States Constitution prohibits the making
of any law respecting an establishment of religion, impeding the free exercise of
religion, abridging the freedom of speech, infringing on the freedom of the press,
interfering with the right to peaceably assemble or prohibiting the petitioning for a
governmental redress of grievances.
(http://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution).
Section 1 of The 14th Amendment to the United States Constitution
All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein they
reside. No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws
(http://www.law.cornell.edu/constitution/amendmentxiv).
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Students Constitutional Rights include free speech as well as due process rights, property
rights and rights surrounding search and seizure. The Fourteenth Amendment prohibits states
(therefore schools) from violating students’ rights.
Freedom of Expression: Personal Speech
In the case of Tinker et al. v. Des Moines Independent Community School District et al.,
393 U.S. 503 (1969), the Unites States Supreme Court found that students do not “leave their
rights at the schoolhouse gate” (Hillman and Trevaskis, p. 6-14). However, “Free speech is not
an “absolute right”. The U.S. Supreme Court indicated that courts should balance speech with
the authority of the school” (Hillman and Trevaskis, 2014, p. 6-14). The Tinker Test evolved
from Tinker et al. v. Des Moines Independent Community School District et al., 393 U.S. 503
(1969).
The Tinker Test considers the following:
•
Does the conduct constitute expression at all?
•
Is it meant to communicate an idea?
If the answers to the two prior questions are yes, then one follows up with these additional
questions:
•
Is the speech defamatory, obscene, vulgar or lewd?
•
Did the speech cause disruption (cannot be based on fear of disturbance)?
•
Is the school’s rule (that caused the student’s speech to be curtailed) uniformly applied, or is
there evidence of viewpoint discrimination?
•
Is the school’s action related to “legitimate pedagogical (meaning school or educational)
concerns?” (Hillman and Trevaskis, 2014, p. 6-12).
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An addition the following component applies to school sponsored speech. Is it speech that bears
the school’s imprimatur (meaning school- sponsored or bearing the stamp of the school) or is it
personal student expression?
School officials do not need to wait for a disruption to occur. A school official may take
“reasonable” action… if there “significant evidence” to conclude that there is “reasonable
likelihood of substantial disorder. Especially pertaining to past disruption. Evidence must be
based on fact not intuition.
Lawyer for the Plaintiffs: Daniel, his younger brother, and his mother
•
Does the conduct constitute expression at all?
Yes, the conduct did constitute expression. Daniel questioned the actions of the teacher, and
communicated his own beliefs.
•
Is it meant to communicate an idea?
Yes, Daniel’s communicated to the teacher that he was opposed to a student’s First Amendment
right to freedom of speech being violated by being told that she could not wear a belt buckle
displaying the confederate flag, while students and teachers were allowed to express
themselves by wearing purple t-shirts and displaying rainbow flags. Daniel also felt that his First
Amendment Rights, as guaranteed through the Fourteenth Amendment, should allow him to hold
and communicate his own beliefs. The first amendment guarantees individuals the right to “the
free exercise of religion, and the freedom of speech”.
If the answers to the two prior questions are yes, then one follows up with these additional
questions:
•
Is the speech defamatory, obscene, vulgar or lewd?
STUDENTS’ RIGHTS: COMPULSORY EDUCATION AND CONSTITUTIONAL
21
The speech was neither defamatory, obscene, vulgar, nor lewd, in its’ words, or disrespectful in
tone or volume. In the case B.H. v. Easton Area School District, No. 11-2067 (2013), the court
ruled that the students’ First Amendment free speech rights were violated. No disruption was
found and the Court distinguished between “ambiguously” lewd and “that the speech”
reasonably could be interpreted as bearing on a political or social issue or “plainly lewd.”
•
Did the speech cause disruption (cannot be based on fear of disturbance)?
The student’s actions did not cause a disruption. The student respectfully inquired as to the
reason behind the teacher’s position on the different topics, as well as the teacher’s actions
surrounding his position on those topics. The teacher’s actions however did cause a disruption in
the class as other students questioned the actions of the teacher toward Daniel, and why Daniel
did not have a right to speak his beliefs freely. Many cases have indicated the need for
substantial disruption in order for the student to be punished: In the case J. S. v. Blue Mountain
School District, No. 08-4138 (2010) the Court of Appeals indicated that the student could not be
punished because… there was no “nexus” (connection) between the student’s speech and a
substantial disruption of the school environment. In the case Layshock v. Hermitage School
District, No. 07-4465 (2010) the Court overturned the discipline of a high school student because
it did not find that the conduct caused a substantial disruption in school, and other similar
incidences had been initiated by three different students, and they had not been disciplined.
•
Is the school’s rule (that caused the student’s speech to be curtailed) uniformly
applied, or is there evidence of viewpoint discrimination?
There is evidence of viewpoint discrimination on behalf of the teacher. He asked a student to
remove a belt buckle because it displayed the confederate flag, based on his view of what the
flag represented. He asked Daniel to leave the room because of Daniel’s beliefs surrounding his
STUDENT’S RIGHTS
22
Catholic religion and pertaining to homosexuals. However, he himself wore a purple t-shirt
which allowed him expression of personal belief, the very right that he was at the same time
denying students.
The wearing of the t-shirts did not constitute a school sponsored activity, as the school, outside
of allowing the GSA club to post its’ flier, did not participate it the Anti-Bullying Day activities,
and knew nothing of the t-shirts.
The Plaintiff denies that the school’s rule is uniformly applied. Although another student was
dismissed upon revealing that he held the same convictions as Daniel, there is not likely a school
rule against an individual respectfully stating their beliefs, and the same circumstance would
most probably have been dealt with differently in other classrooms.
Above this Daniel’s religious freedoms were impinged upon. In the landmark case Lemon v.
Kurtzman, 403 U.S. 602 (1971), a three-part test was established by which the constitutionality of
state laws were considered. Eventually the “endorsement” and “coercion” portions of the test
were added.
1. Does the teacher have a secular purpose in disallowing the student to speak freely of his
religious beliefs. The lawyer for the plaintiff would say no, the teacher was obviously
overtly upset, and his actions were tied to his personal beliefs being contrary to the
religious beliefs of the student.
2. Did the actions of the teacher have a primary effect of advancing or impeding religion?
The lawyer for the Plaintiff would say yes, the teacher’s actions violated Daniel’s rights to
freedom of speech and religion by prohibiting the student from expressing his beliefs.
STUDENT’S RIGHTS
23
3. Did the actions of the teacher avoid excessive entanglement with religion? The lawyer for
the plaintiff would say No. The student, as well as the class, will view the action as being
taken due to the student’s religious beliefs
4. Does the teacher’s actions endorse religion. It could be viewed that depending on the
teacher’s religious beliefs, one religion was being favored over another.
5. Did the teacher’s actions coerce individuals to profess a faith? Not on its’ face, however,
depending on the influence that the teacher has over the students, the students perceived
need to please the teacher, the size of the community and therefore the general knowledge
of the teacher’s faith, it could be construed that the action, although unintentional, may
have an effect of coercing students to profess one faith over another.
Is the school’s action related to “legitimate pedagogical (meaning school or educational)
concerns?” The teacher’s action negated the opportunity to address legitimate pedagogical
concerns. Instead of providing an opportunity for the class to openly and respectfully discuss
their individual beliefs which may have led to discussions surrounding actions that represent
respect for one’s beliefs regardless of their own, the issue was suppressed by the teacher asking
the students to leave the room. The student’s expression of personal belief was regarded, and
displayed to the other students, as being worthy of punishment.
The “Dear Colleague Letter” issued by the Department of Educations Office of Civil Rights,
dicuscussed bullying and discriminatory harassment under the civil rights laws it enforced.
However, these laws do not apply to bullying when it does not rise to the level of
harassment based on race, color, national origin, sex (including gender stereotyping), or
disability (Hillman and Trevaskis, 2014).
STUDENT’S RIGHTS
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Is it speech that bears the school’s imprimatur (meaning school- sponsored or bearing the
stamp of the school) or is it personal student expression? Although the student’s expression
was personal, the student’s expression was in light of what he viewed as “school sponsored”
speech since the teacher wore a purple t-shirt, and began each class with a commentary on what
the shirt represented. Given the number of individuals wearing the shirts, and the fact that it was
Anti-Bullying day, the student had no way of knowing that this was not part of a school
sponsored event.
Lawyer for the Defendants: The school district, and McDowell in his official and individual
capacities
•
Does the conduct constitute expression at all?
Yes, the conduct did communicate expression. Daniel questioned the actions of the teacher.
•
Is it meant to communicate an idea?
The communication was inappropriate in that it made students in the classroom, as well as the
teachers, feel uncomfortable. The student stated that “I don’t accept Gays” which is a personal
affront to individuals, and creates a hostile learning environment.
If the answers to the two prior questions are yes, then one follows up with these additional
questions:
•
Is the speech defamatory, obscene, vulgar or lewd?
The speech does fit the definition of being vulgar: lacking sophistication or good taste;
unrefined. The speech was in bad taste considering that Daniel was stating that he did not accept
a faction of society that may have in fact been present within the classroom. In the case Bethel
School District No. 403 v. Fraser, 478 U.S. 675, (1986), the Court decided that a nominating
speech was lewd and vulgar, and since the school administration’s actions were related to
STUDENT’S RIGHTS
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“legitimate pedagogical concerns,” the school actions were upheld (Hillman and Trevaskis,
2014, p. 6-16).
•
Did the speech cause disruption (cannot be based on fear of disturbance)?
Daniels comments caused substantial disruption to the classroom. When he left the classroom
other students asked why McDowell had thrown Daniel out. The learning experience was turned
into chaos by Daniels hateful remarks, and blatant disrespect. If a “student’s speech “materially”
disrupts class work or involves a substantial disorder of invasion of the rights of others than it
can legally be limited” (Hillman and Trevaskis, 2014, p. 6-15). In the case of Kowalski v.
Berkeley County Schools, 652 F.3d 565 (2011) the Court upheld the discipline of a student who
targeted another student saying there was a sufficient “nexus” with the school and the school had
a “compelling interest in regulating speech that interferes with or disrupts the work and discipline
of the school, including discipline for student harassment and bullying.” In the case Doninger v.
Niehoff, 527 F.3d 41 (2008) the court ruled that the school administrators did not violate this
student’s First Amendment speech since the blog post was vulgar and “created a foreseeable risk
of substantial disruption.” The lawyer for the defendant would cite the Paul D. Coverdell
Teacher Protection Act which is part of No Child Left Behind legislation. This act protects
education professionals from being sued for undertaking “reasonable actions to maintain order,
discipline, and an appropriate educational environment.” (Hillman and Trevaskis, 2014, p. 2-16).
•
Is the school’s rule (that caused the student’s speech to be curtailed) uniformly
applied, or is there evidence of viewpoint discrimination?
The lawyer for the defendant would say that the school’s rule is uniformly applied because
another student who maintained that he too held the same beliefs as Daniel, was also asked to
leave the classroom.
STUDENT’S RIGHTS
•
Is the school’s action related to “legitimate pedagogical (meaning school or
educational) concerns?”
The lawyer for the defendant would say Yes. It is the teacher’s duty to maintain a
welcoming and safe learning environment. Allowing this type of blatant disregard for
other student’s feelings would be inappropriate on the part of the teacher as it creates a
hostile environment, and causes disruption to the learning process. Students must be
taught to respect other’s feelings and that it is inappropriate to speak what is on one’s
mind when it has the potential to be offensive to others.
In the case Sapp v. School Bd. of Alachua County, No. 09-242 (2011) the court decided that
a school dress code disallowing the “Islam is the Devil” T-shirt protected employees from
harassment. “ It concluded that the school district's interest in protecting students from
“hateful speech at school and teaching students the bounds of civil discourse is no less
compelling,” so the speech was not protected (Hillman and Trevaskis, 2014).
The “Dear Colleague Letter” issued by the Department of Educations Office of Civil Rights,
clarified the relationship between bullying and discriminatory harassment under the civil
rights laws it enforced, including Title VI (race, color and national origin), Title IX (sex), and
Section 504 and Title II of the Americans with Disabilities Act (disability). The letter
reminded schools that failure to recognize discriminatory harassment when addressing
student misconduct may lead to inadequate or inappropriate responses that fail to remedy
violations of students’ civil rights (Hillman and Trevaskis, 2014).
Is it speech that bears the school’s imprimatur (meaning school- sponsored or bearing the
stamp of the school) or is it personal student expression? The lawyer for the defendants
26
STUDENT’S RIGHTS
27
would argue that the speech was school sponsored. Although the school had no knowledge
of the t-shirts and did not officially take part in Anti-bullying day, the teacher is a
representative of the school. The lawyer would ask the court to not that schools are
allowed to have greater control and therefore censorship over speech that bears the
schools “imprimatur”, and disruption in these cases has not been a factor in considering the
case.
Your overall assessment—Who will win the case, do you believe?
I think that the plaintiffs will win this case. The same case under different circumstances may
have a different outcome, however given the events and the manner in which they occurred, the
teacher reacted inappropriately. The student was not responding to the events in a hateful,
harassing manner. It was not the student’s intent to intimidate or harass. Whether the student’s
actions were discriminatory must be balanced with the student’s rights to freedom of religion,
and speech. I think in this case the student’s rights win out simply due to the manner in which he
represented himself, and his level of (or lack of ) maturity. Teacher’s duties do not stop at the
teaching of academics. Teachers must also work to build character, and citizenship. The teacher
is a paid professional who should have been able to take this “perfect storm” and use the events
to further his goals for “Tyler’s Army”, and toward advancing understanding of how differing
viewpoints, expressed respectfully in a manner that protects everyone, is one of the elements that
makes living in a democratic society such as the United States of America, so appealing.
28
STUDENT’S RIGHTS
REFERENCES
First Amendment to the United States Constitution. Retrieved from
http://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution
Fourth Amendment. Retrieved from http://www.law.cornell.edu/constitution/fourth_amendment
U.S. Constitution
14th Amendment. Retrieved from http://www.law.cornell.edu/constitution/amendmentxiv
Hillman, S., & Trevaskis, D. (2014). school law: Legal framework, guiding principles, and
litigated areas. Pennsylvania Council for the Social Studies. Retrieved from
http://pcssonline.org/products-page/textbooks/digital-books
Statement of Academic Honesty: I have read and understand that plagiarism policy as
outlined in the “Student Plagiarism and Academic Misconduct” document relating to the
Honesty/Cheating Policy. By attaching this statement to the title page of my paper, I certify that
the work submitted is my original work developed specifically for this course and to the MSED
program. If it is found that cheating and/or plagiarism did take place in the writing of this paper,
I acknowledge the possible consequences of the act/s, which could include expulsion from the
University of New England