Rights of Public School Students in
Washington State
School Law Class
Evergreen State College
June 1, 2007
Rose Spidell
Education Equity Project Staff Attorney
Email: spidell@aclu-wa.org
What Rights Do Students Have?
 First Amendment: speech, religion, press,
association
 Fourth Amendment: search, seizure
 Fifth Amendment: self-incrimination
 Fourteenth Amendment: equal protection, due
process
Washington State Constitution: Art 9, sec 1:
 An Education!
When do these rights come
into play in the classroom?
The First Amendment: Free Speech
Tinker v. Des Moines Independent School
District (1969)
Bethel School District v. Fraser (1986)
Hazelwood v. Kulheimer (1988)
Frederick v. Morse (coming in 2007)
Tinker v. Des Moines Independent School District (1969)
“It can hardly be
argued that either
students or teachers
shed their constitutional
rights to freedom of
speech or expression at
the schoolhouse gate.”
--Justice Fortas
Principles from Tinker
 “Students in school … are ‘persons’ under
our Constitution.”
 To punish speech, school must show
 “Material” or “substantial” disruption of the
educational process
or
 Violation of rights of others.
 “Undifferentiated fear” is not enough.
Bethel School District v. Fraser (1986)
“I know a man who
is firm -- he's firm in
his pants, he's firm in
his shirt, his character
is firm -- but most . . .
of all, his belief in you,
the students of
Bethel, is firm.”
-- Matthew Fraser
Principles from Bethel
 Schools teach “shared values of a
civilized social order.”
 Schools may “make the point to the
pupils that vulgar speech and lewd
conduct” is inappropriate.
 Schools may “protect children especially
in a captive audience.”
Hazelwood School District v. Kuhlmeier, (1988).
“[A] school may in its capacity as publisher
of a school newspaper . . . ‘disassociate
itself,’ . . . from speech that is, for example,
ungrammatical, poorly written,
inadequately researched, biased or
prejudiced, vulgar or profane, or
unsuitable for immature audiences.”
Principles from Hazelwood
 The question of whether a school must tolerate
student speech is different from the question of
whether the school must affirmatively promote
particular student speech.
 Schools may exercise editorial control over
school-sponsored expressive activities “so long
as their actions are reasonably related to
legitimate pedagogical concerns.”
What’s Next in Student Speech?
Frederick v Morse, 9th Cir. (2006)
Questions Raised in Frederick v. Morse
 How broadly should Tinker, Bethel and
Hazelwood be applied?
 May schools prohibit any student speech
that is contrary to a school’s “basic
educational mission”?
Student Speech on the Internet
 First Amendment treats internet like a
public forum; Reno v. ACLU (1997).
 Internet speech done from computers
outside school is “beyond the
schoolhouse gate” and outside the
school's jurisdiction.
 Internet speech is not automatically
disruptive.
 “Acceptable Use Policies” may control
use of school computers.
First Amendment: Freedom of Religion
 Free Exercise and Government
Establishment of Religion
 Bibles in the Classroom
 Individual Student Prayer
 Holiday Celebrations
 The Equal Access Act – Student Clubs
Searches at School
 US Constitution, Fourth Amendment: No
“unreasonable searches and seizures”
 Washington Constitution, Art. I, § 7: “No
person shall be disturbed in his private
affairs…without authority of law”
School Searches
Under New Jersey v. T.L.O. (1985)
 School officials do not need “probable cause”
 School officials do need “reasonable suspicion” that
a search of a particular student will uncover
evidence
 Search must be “justified at its inception”
 Reasonable grounds to think the search will uncover
evidence.
 Search must be “reasonably related in scope”
 Connected to proper goals
 Not excessively intrusive in light of the students age and
sex and alleged infraction.
 Exception for extracurricular drug testing: Vernonia
(1995); Earls (2002)
School Searches in Washington
 No strip searches (state statute)
 School officials may search lockers without
reasonable suspicion (state statute)
 Individualized suspicion otherwise required
 Kuehn: luggage search on band trip
 B.A.S.: unauthorized visits to parking lot
 Drug tests: not yet decided in Washington
(case argued in May)
Due Process
 Due Process = Fair Procedures
 No person shall be “deprived of life,
liberty, or property, without due process
of law."
 Three steps:
 Does the case involve “life, liberty, or
property”?
 Was there a “deprivation”?
 Did the government provide a fair process?
The Test from Mathews v Eldridge
To determine what process is due, the test
balances:
(1) the importance of the interest at stake
(2) the risk of an erroneous deprivation of
the interest because of the procedures
used, and the probable value of
additional procedural safeguards
(3) the government's interest
Due Process for
Public School Discipline
 Goss v. Lopez (1975): ten-day
suspension from school implicates
students' liberty and/or property.
 Informal procedures are adequate:
 Notice
 Opportunity to be heard
 Must occur before the suspension,
except in emergency situations.
Disciplinary Procedures
in Washington
 Detailed instructions found in WAC
 Significant types of discipline:
 Short-term suspension (1 to 10 days)
 Long-term suspension (11 or more days)
 Expulsion
 Red flags
 Emergency expulsion “pending investigation”
 Zero Tolerance Policies
 “Behavior Contracts”
Privacy
- FERPA (Family Educational Rights and
Privacy Act) – protects privacy in and
access to student records
- Special protections for certain records in
state statutes
- Respecting privacy relating to sexual
orientation; gender identity
Discrimination/Harassment:
Davis v Monroe County Bd. Of Educ. (1999)
Schools can be liable for harassment by a
teacher or a student if:
(1) the school had actual knowledge of the
harassment;
(2) the harassment is sufficiently “severe,
pervasive and objectively offensive;”
(3) the harassment “deprive[s] the victims of
access to the educational benefits or
opportunities provided by the school;”
(4) the school was “deliberately indifferent” in its
response to this harassment;
Equal Protection – Equal Opportunity
What does that mean for
. . . English Language Learners?
. . . Students with disabilities?
. . . Student athletes?
. . . Others?