RESEARCH MATERIAL
On this page you can find background information to use as support in your presentation. There is information as well as past cases that have been addressed by school boards or court. Citing these cases will greatly help your case look credible. Click on the issue you are interested in to jump to the information on that topic.
PRIVACY
STUDENT SEARCH
PRIVACY OF SCHOOL RECORDS
DRUG TESTING
FREEDOM OF EXPRESSION
STUDENT PRESS/FREEDOM OF SPEECH
DRESS CODE/SCHOOL UNIFORMS
FREEDOM OF RELIGION
FAIR TREATMENT
EQUAL EDUCATION
BOOK CENSORSHIP
HATE SPEECH
SUSPENSION/EXPULSION
REBELLIOUS ACTIVITY
FREE ASSEMBLEY
STUDENTS RIGHT TO CLUBS
PRIVACY
WHAT IS THE RIGHT TO PRIVACY?
The right to privacy is not mentioned in the Constitution, but the Supreme Court has said that several of the amendments create this right. One of the amendments is the Fourth Amendment, which stops the police and other government agents from searching us or our property without "probable cause" to believe that we have committed a crime. Other amendments protect our freedom to make certain decisions about our bodies and our private lives without interference from the government – which includes the public schools.
DO I HAVE A RIGHT TO PRIVACY WHEN I'M IN SCHOOL?
Yes and no. Since public schools are run by the government, they must obey the Constitution. However, you do have fewer privacy rights in school than outside of school. Some of the so-called solutions to problems like drugs and violence – such as searching us or planting undercover cops in the hallways to spy on us – can abuse students' rights. It's like, hey guys, this is school, not prison!
WHAT ABOUT METAL DETECTORS?
They're allowed in many states because the courts have ruled that a metal detector is less of an invasion of privacy than frisks or other kinds of searches. Nevertheless, some states have guidelines to protect students' rights. California, for example, allows metal detectors in its schools, but it says they can't be used selectively just on certain students – that's discrimination.
WHO HAS TO KNOW IF I HAVE AN HIV TEST?
Some states require your parents be notified before you get tested or get treatment. Ask your local ACLU about the laws in your state concerning HIV testing of minors, and where you can get tested anonymously. One last thing: your school or employer doesn't have the right to force you to be tested for HIV. You totally have the right to refuse to take an AIDS test.
STUDENT SEARCH
WHAT SHOULD I DO IF A TEACHER WANTS TO QUESTION OR SEARCH ME?
You have the right to remain silent if you're questioned by a school official. Usually there is no problem with answering a few questions to clear something up. But if you think that a teacher suspects you of having committed a crime, don't explain, don't lie and don't confess, because anything you say could be used against you. Ask to see your parents or a lawyer.
The Supreme Court ruled in 1985 in New Jersey v. T.L.O. that school officials, unlike police, may search students without a warrant when they have "reasonable grounds for suspecting that the search will turn up evidence that the student has violated... either the law or rules of the school." But school officials may not search you unless they have a good reason to believe that you in particular -- not just "someone" -- broke a law or a school rule. So, if a teacher thinks she saw you selling drugs to another student, she can ask you to empty your pockets and can search your backpack. But just because they think some students have drugs doesn't give them the authority to search all students.
And no matter what, the search must be conducted in a "reasonable" way, based on your age and what they're looking for. Strip searching is illegal in many states, and where it is allowed, there has to be a solid reason to suspect a particular student of having committed a really serious crime.
In some states, courts have ruled that a student's locker is school property, so the school can search it. But in other states, school officials must have "reasonable suspicion" that you are hiding something illegal before they can search your locker. Your local ACLU can fill you in on your state laws. But here's a word to the wise: don't keep anything in your locker that you wouldn't want other people to see.
**New Jersey v. TLO, 469 U.S. 325 (1985)
This case involves a 14 year old freshman (T.L.O.) who was seen smoking in the bathroom by her teacher at a New Jersey High School. The teacher took the student to the Principal’s Office, where they met with the Vice Principal. T.L.O. denied smoking and the Assistant Vice Principal demanded to see her purse. When he opened the purse he found a pack a cigarettes and some rolling papers commonly associated with the use of marihuana. He then proceeded to search the purse thoroughly and found some marihuana, a pipe, plastic bags, a fairly substantial amount of money, an index card of students who owed money to the freshman and two letters that implicated her in marihuana dealing. The VP notified T.L.O.’s mother and the police and turned the evidence of drug dealing over to the police. T.L.O.’s mother brought her to the police station, where she confessed to dealing drugs. Based on the confession and evidence the State brought delinquency charges and T.L.O. moved to suppress the evidence found in her purse, stating that it was tainted by an unlawful search. The Juvenile Court denied her motion, stating that the search was a reasonable one justified by well-founded suspicion.
The New Jersey Supreme Court reversed the findings of the lowers courts and suppressed the evidence. The Supreme Court reversed the judgment of the New Jersey Supreme Court, finding that the search was reasonable. The Supreme Court ruled that students in school enjoy 4th Amendment protections against unreasonable searches of their persons and property. The Court found that school authorities act as public officials, not private citizens, when they search students and such searches are, therefore, limited by the 4th Amendment. The Court did not apply the usual 4th Amendment requirements that before searching a citizen a government official must have a warrant signed by a judge or the express consent of the person being searched to student searches. They said the warrant requirement would "unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in schools."
The Court ruled that a school official can search a student "when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction." The search must pass a two part test: (1) the school official must have good reason to believe evidence of wrongdoing will be found, (2) the search must not be more intrusive than necessary to find the item the school expects to find.
**In the Interest of Isiah B. 500 N.W. 2d 637 (Wis. 1993)
This case involves the constitutionality of the random locker search under the 4th Amendment nd Article I, sec. 11 of the WI Constitution. In this case the court looked at circumstances leading up to the search, which included a series of gun-involved complaints and verified presence of guns in two of the incidents. In addition, the weekend before the search two incidents occurred which involved gun fire on the school premises. The following Monday (the day the search in question occurred), the atmosphere at the school was full of tension and fear. There were reports of guns being present at the school and rumors that a shoot out was inevitable that school day. Some staff members and students requested to leave school out of fear for their safety.
Because of the existing circumstances the principal ordered security to begin a random search of student locker as a preventive measure while investigative interviews continued, to find out who was in possession of guns Although the principal did not indicate that the search was entirely random, the testimony showed in to be extremely vague. The court also noted that the Milwaukee Public School (MPS) Handbook indicated that the lockers were the property of the school and subject to inspection as determined necessary or appropriate. The school also had pass keys for all the lockers, and students were not allowed to put their own locks on the lockers. Approximately 75-100 lockers were searched prior to the school arriving at Isiah B’s locker. The school officials had no particularized or individualized suspicion that his locker would contain evidence of a violation of the law or school rule. Isiah B. did not have a history of weapon violations nor was he suspected of being involved in the recent gun incidents.
A security guard removed Isiah B’s coat and found it to be unusually heavy and then patted down the exterior. He felt a hard object, which he believed to be a gun, he then observed the handle of a gun in the coat by pulling open the pocket. He also noticed cocaine under the gun After this he notified the principal who brought the coat to the principal’s office and met with Isiah B. there. Isiah B. when confronted with the coat admitted that there was also cocaine in the coat.
The WI Supreme Court concluded that under the circumstances present at the school on that date the random search of the locker was permissible under the US and WI Constitutions, affirming the judgment of the circuit court.
**Cornfield by Lewis v. Consolidated High School Dist. No. 230 991 F. 2d 1316 (7th Cir. 1993)
Brian Cornfield was enrolled in a behavior disorder program at the Carl Sandburg High School. A teacher’s aide found him violating a school rule when he was outside the building. When she told others at the school about the violation, she also told them that he appeared to be too well endowed. Another teacher’s aide confirmed her observation. The following day Cornfield was taken aside while boarding the bus to go home after Cornfield’s teacher believed he may be "crotching" drugs and asked him to come to the office. When confronted Cornfield grew disturbed and began yelling obscenities. At Cornfield’s request the school called his mother, who refused to consent to a search of her son. The two staff members proceeded with the search in which they escorted Cornfield to the boys’ locker room to conduct a strip search. They had Cornfield remove his clothing while they stood away from him (one approximately 10-12 feet away, the other about 15 feet away), then they visually inspected his naked body and physically inspected his clothes. They did not conduct a body cavity search. The two staff members found no drugs or any other contraband and they took Cornfield home after the search.
The 7th Circuit upheld the constitutionality of a strip search of a male student conducted by two staff members. They found that the two staff members formed a reasonable suspicion from a combination of several corroborating statements about a significant bulge and Cornfield’s previous comments to his teacher about the usage and dealing of drugs. They noted that "as the intrusiveness of the search of a student intensifies, so too does the standard of the 4th Amendment reasonableness."
**In Interest of Angelia D.B.
Angelia D. B. was charged with carrying a concealed weapon contrary to Wis. Stat. Sect. 481.12 and 941.23 (1993-94), after a school liaison police officer found a 9 inch knife hidden in her clothing. The Circuit Court of Winnebago County suppressed the knife and all derivative evidence obtained form Angelia D.B. after concluding that the search violated her state and federal constitutional rights to be free from unreasonable searches and seizures.
On appeal the Wisconsin Supreme Court reversed and remanded the case. The WI Supreme Court held that it is permissible for school officials who have a reasonable suspicion that a student may be in possession of a dangerous weapon on school grounds to request assistance of a school liaison officer or other law enforcement officials in conducting a further investigation. They concluded that although T.L.O. did not address this specific issued, "that the application of the T.L.O. reasonable grounds standard and not probable cause, to a search conducted by a school liaison officer at the request of and in conjunction with school officials of a student reasonably suspected of carrying a dangerous weapon on school grounds in consistent with both the special needs of public school recognized in T.L.O. and with the decisions by courts in other jurisdictions." The Wisconsin Supreme Court concluded that the search was reasonable under the circumstances, and the circuit court erred in suppressing the knife and all derivative evidence.
**Bridgeman v. New Trier High School Dist. No. 203
This case is an appeal of the District Court’s granting of summary judgment to the defendants on the 4th Amendment and Invasion of privacy claims. It stems from a search of Andrew Bridgman when he was a freshman in 1995. He was attending a smoking cessation program after having been caught smoking at school a number of times. During the class him and some of the students were laughing and Dailey, the Student Assistant Program Coordinator who was supervising the program, stated he was unruly. This was denied by Bridgman. Dailey stated she noticed that Bridgman’s eyes were bloodshot and his pupils dilated, and she also thought his handwriting was erratic. Because of this, she became suspicious that he was using marijuana, took him into another room and accused him of being under the influence of drugs. He then asked to call his mother. After he spoke to his mother Dailey had the school nurse administer a "medical assessment" of Bridgman. The assessment concluded that his blood pressure and pulse were considerably higher than those on his freshman exam record and that his eyes were dilated. The nurse did not notice that his eyes were bloodshot or that he was under the influence of drugs. After the exam Dailey had him remove his outer jersey, his hat, his shoes and socks and empty his pockets and she then searched the items. Bridgman’s mother than arrived and took him to a pediatrician who determined that he had not been using marijuana. His mother filed an action against the school, alleging that the school violated his 4th Amendment rights and his right to privacy. The District Court granted the School’s motion for summary judgment.
The 7th Circuit affirmed the District Court’s ruling stating that the District Court correctly concluded that the ordering of the medical assessment and the reasonableness of the search was appropriate in light of Dailey’s experience as a certified drug addiction counselor, along with publications she produced suggesting that a respectable segment of medical opinion supports her interpretation of his systems. The Court also agreed with the District Court’s conclusion that the search was not excessively intrusive.
SCHOOL RECORDS PRIVATE
WHAT KIND OF INFORMATION IS KEPT IN STUDENT RECORDS?
We live in an information society, where important data can be sent across the globe in a matter of seconds, and where one computer CD-ROM can house as much data as an entire library. Most people in this country agree that the easy flow of information makes our lives easier – but most people also are concerned about who gets to see and use our private information. Luckily for us, there are important regulations protecting personal student records – some of the most personal information about you there is.
Think of your student record as a short chronicle of your educational life. Schools keep records of your academic and personal progress, from kindergarten through graduation. And some schools keep student files for many years after the person has graduated or left.
Student records can include quantitative information like test scores, intelligence quotients (IQs), and grades. They also can include more subjective information like progress reports, psychological and psychiatric reports, and teacher evaluations.
While your student record is obviously a useful thing – it provides important information on how you have progressed in many areas of your education and development – too often, schools like to hang your record over your head like a threat or a punishment: the famous "that's going to go in your record" line. Some schools even try to put irrelevant but extremely personal information about you in your record, such as your political or religous beliefs and practices. New Hampshire is one of the few states that prohibits schools from keeping records on student political activity.
CAN I VIEW MY OWN STUDENT RECORDS?
Thanks to the 1974 Family Educational Rights and Privacy Act (known as the Buckley amendment), schools that receive any federal funding must make student records available for viewing by parents and the students themselves if they are 18 or older. (When I say "parent" I of course also mean legal guardian.) In some states the age is less than 18: in Delaware, it's 14, and in Massachusetts it's 14, or ninth grade.
However, there is some information students can't access at all, such as psychiatric reports and other non-educational records possessed by a counselor, doctor, social worker or the like. Your parents can see these files, though.
If you are over 18, you can designate a physician or other professional to have access to your records. And your parents can request in writing that your records be released to someone else: a lawyer, relative, counselor or friend, for example. Finally, schools must respond to your request to view records within 45 days, and they may charge a reasonable fee for the copying costs.
WHO ELSE CAN ACCESS MY RECORDS?
Lots of other people may want to see your student records: other teachers, social workers, employers and the police, among others. The level of protection your records have from outsiders varies from state to state. Generally, schools have the right to release information to teachers and school officials who have a 'legitimate educational interest' in your records – if you're transfering to a new school, for example.
If your school is subpeonaed by a court order, it must try to notify your parents first before releasing your records. And in some states, only school superintendents are allowed to release this information. The only time a school is allowed to release your records without getting your parents' permission is in emergency situations where the information is necessary to protect your health and safety, or that of other students.
Sometimes a school will release student information for directories: your name, address, telephone number and academic major and other such personal information – but your parents can request that you be left off such lists.
WHAT IF AN ENTRY IN MY RECORDS IS WRONG?
While much of the information in student records is quantitative stuff, like your score on a standardized test, a great deal of it may be totally subjective – such as what an educator thinks about your development or behavior. And some of it may even be totally unrelated to your academic and developmental growth – and unflattering, embarrassing or even harmful to have in your official records. Educators can be just as biased as anyone else.
If there is information you or your parents consider to be inaccurate, irrelevant or unfair, there are ways to try to get it changed or deleted. You and your parents have the right to meet with school officials to request any part of your records be changed. If they refuse to do so, you have the right to a formal hearing before an impartial third party where you can tell your side of the story.
Even if the decision is not to change the record, you and your parents have the right to place a statement in the record saying you find the entry inaccurate or unfair. This becomes a permanent attachment to the record, and must be released along with any future requests for the record itself. Some states give students and parents more opportunities to contest student record entries than others – check with your local ACLU to find out the law in your state.
Of course, the more active interest you and your parents take in the accuracy of your student records, the less likely it is that your school will be inaccurate or sloppy in its record keeping. And your parents should NEVER sign any blanket authorization to the school permitting it to release your information at its discretion. That can leave the door wide open for abuse of your privacy.
WHAT OTHER INFORMATION ABOUT ME IS OUT THERE?
Because we live in an information society, chances are lots of other organizations and entities have data on you: from insurance companies, banks and credit companies, to clubs you're in or once belonged to, and federal agencies like the IRS and others. Under the 1974 Freedom of Information Act, all people in the United States have the right to access a wide variety of information compiled by government agencies, and under the Privacy Act of 1974, you can obtain copies of files about yourself compiled by government agencies. The ACLU publishes a useful step-by-step guide to filing a request under the Freedom of Information Act which you can download from their web site at http://www.aclu.org or purchase through your local affiliate or chapter.
DRUG TESTING IN SCHOOL
WHAT'S THE DEAL WITH DRUG TESTS OR ALCOHOL TESTS?
A drug or alcohol test is a search, but whether the officials in your school have to have "reasonable suspicion" that you're a user before they can make you take a test depends on what state you live in.
A Supreme Court decision in 1995 in a case called Vernonia v. Acton said that student athletes can be tested for drugs because athletic programs are voluntary, and student athletes are role models. Students all over the country are protesting random testing programs, where officials test a few individuals or force a whole class to be tested just because they suspect that "someone" is doing drugs. Check with your local ACLU to know what the deal is in your state.
**Veronia School District 47J v. Acton (US Supreme Court 1995)
This decision gave school districts broad rights to test student athletes for drug use. It is about James Acton, a 7th grade student who tried out for the football team. He and his parents refused to consent to the drug testing. Acton was subsequently suspended from interscholastic athletics for the season and the Actons filed suit against the school district. They claimed that the drug testing policy violated James’ right to be free from unreasonable government searches.
The Supreme Court overturned the 9th Circuit ruling that held the policy of testing student athletes for drugs violated the students right to be free from unreasonable government searches under the 4th Amendment and the Oregon Constitution. The Court held that public school students enjoy diminished constitutional rights. The Court felt this was true in regard to medical examinations and procedures. It noted that students have decreased privacy rights, noting that schools are often responsible for vaccinating and screening for hearing and scoliosis.
The Supreme Court stated that student athletes have lower privacy expectation, as school locker rooms by their very nature are open. It also stated that, "In the present case, moreover, the necessity for the state to act is magnified by the fact that this evil is being visited not just upon individuals at large, but upon children for whom it has undertaken a special responsibility of care and direction." In response to the idea of suspicion based testing the court felt that this may be worse, not better. It noted that this option was fraught with difficulties and noted the practice could result in lawsuits challenging the searches and it would require untrained teachers to identify drug users.
The Court did set some guidelines, in that the schools must ensure chain of custody and confidentiality of the tests. The collection monitors should be the same sex as the students providing the urine and should not view the act of urination. If a student must provide information regarding use of prescription medication, this should also be kept confidential and it is best only to request such information from the student after a positive result. It also stated that there must be a due process procedure for a student who wishes to challenge the result of the test finding.
FREE EXPRESSION
WHAT DOES FREEDOM OF EXPRESSION ACTUALLY MEAN?
The First Amendment guarantees our right to free expression and free association, which means that the government does not have the right to forbid us from saying what we like and writing what we like; we can form clubs and organizations, and take part in demonstrations and rallies.
DO I HAVE A RIGHT TO EXPRESS MY OPINIONS AND BELIEFS IN SCHOOL?
Yes. In 1969 in Tinker v. Des Moines Independent Community School District the Supreme Court held that students in public schools – which are run by the government – do not leave their First Amendment rights at the schoolhouse gate. This means that you can express your opinions orally and in writing – in leaflets or on buttons, armbands or T-shirts.
You have a right to express your opinions as long as you do so in a way that doesn't "materially and substantially" disrupt classes or other school activities. If you hold a protest on the school steps and block the entrance to the building, school officials can stop you. They can probably also stop you from using language that they think is "vulgar or indecent," so watch out for the dirty words, OK?
Also, school officials may not censor only one side of a controversy. If they permit an article in the official school paper that says that premarital sex is bad, they may not censor an article that says premarital sex is good.
DO I HAVE TO SAY THE PLEDGE OF ALLEGIANCE?
No. The Supreme Court has held that it is just as much a violation of your First Amendment rights for the government to make you say something you don't want to say as it is for the government to prevent you from saying what you do want to say. You have a right to remain silently seated during the pledge.
FREEDOM OF SPEECH/STUDENT PRESS
**Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988)
The Supreme Court upheld a school principal’s decision to remove 2 articles from the student newspaper. One article was a story describing 3 students’ experience with pregnancy and the other was a story discussing the impact of divorce on students at the school. The principal believed that the story about pregnancy might indirectly identify the students and that its references to sexual activity and birth control were inappropriate for some of the younger students. The second article the principal saw in draft form, identified a student who blamed her father for her parents’ divorce. The article did not have a response from the father and the principal felt this unfairly denied the right of the father to respond.
The Supreme Court held that where a school sponsors an activity, in such a way, that students and others may reasonably perceive the activity as bearing on the school’s imprimatur, the school’s right to restrict student speech is much greater than in the Tinker case. Applying the "reasonable relation" test, the majority found that the principal acted reasonably, based on the facts as the principal then knew them. The suppression of the articles was reasonably related to the school objectives of protecting privacy, shielding young students from inappropriate subjects, and teaching journalistic fairness.
The dissent, (Justices Brennan, Marshall and Blackmun), contended that the Tinker standard should be applied even when student expression occurs during the course of school sponsored activity. The dissent stated, "The mere fact of school sponsorship does not. . . license such thought control in the high school, whether through school suppression of disfavored viewpoints or through official assessment of topic sensitivity."
After the Hazelwood ruling there are few real restrictions on the administrators’ right to censor student expression that occurs during the course of a school sponsored activity. The administrator will almost always be able to establish that the censorship was reasonably related to some legitimate pedagogical interest. Some states have adopted so called Anti-Hazelwood legislation, granting students free expression rights.
**Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986)
In this case a high school student was suspended and removed as a candidate for commencement speaker after giving a speech at a high school assembly that the school authorities found to be lewd. The speech was made in support of a candidate for a student government office, and contained an elaborate sexual metaphor(e.g., "Jeff Kuhlman is man who takes his point and pounds it in. . . He doesn’t attack things in spurts-he drives hard, pushing and pushing until finally-he succeeds.") The Supreme Court upheld the disciplinary actions, "the undoubted freedom to advocate unpopular and controversial issues in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior." In this case, the school’s interest in prohibiting "vulgar and lewd speech" outweighed whatever 1st Amendment interests the student might have had, especially since the penalties were not related to any political viewpoint.
**Fujishima v. Board of Educ., 460 F2d 1355 (7th Cir. 1972)
Three students were suspended for distributing literature or leaflets without prior approval. The court said it was unconstitutional to have a rule which required administrative approval of student publications. The 7th Circuit Court of Appeals said a school could have reasonable regulations governing the time, place and manner of distributing written materials and it could discipline students who violated these rules. However, the school board would have to inform students of any rules regarding time, place and manner of distribution and it could not require the students to apply for approval of time, place and manner each time they wished to distribute something.
**UWM Post, Incorporated v, Board of Regents of the University of Wisconsin System , 774 F. Supp 1163 (E.D. Wis. 1991)
This was a challenge brought to the University system’s rule prohibiting students from directing discriminatory epithets at particular individuals with intent to demean them and create a hostile educational environment, The District Court held that the rule was overbroad and unduly vague, it did not meet requirements of fighting words doctrine and the court would not apply limiting construction urged by university. The District Court concluded that content-based prohibitions such as that in the UW Rule, however well intended, simply cannot survive the screening which our Constitution demands. The court ordered that the Board of Regents and its agents and employees are permanently enjoined from enforcing the UW Rule and is required to vacate the disciplinary action taken against plaintiff John Doe under the UW rule and to expunge from his file all records related to the action. http://www.aclu-wi.org/youth/law-library.html
DRESS CODE
IS MY SCHOOL ALLOWED TO HAVE A DRESS CODE?
It depends on what state you live in. In some states, students can wear their hair any way they want as long as it's not a safety hazard (like if your hair is very long, you have to tie it back during a science experiment). Courts in other states allow school hair codes – and where hair codes are permitted, so are dress codes. Check with your local ACLU about the laws in your state.
If you think your school's dress codes and hair codes are unfair and you want to challenge them, be aware that a court probably won't overturn the codes unless the judge finds that they're really unreasonable, or that they're discriminatory.
The Supreme Court has not ruled on the constitutionality of dress codes in relation to students 1st Amendment rights. Personal appearance and clothing may be constitutionally protected by the 1st Amendment if the clothing conveys a religious message or the clothing coveys a political message. It is generally not enough in the eyes of the court for a student to object to a dress code on the basis that it does not allow him/her to convey their individuality. The following lists includes a few of the very numerous cases out there on dress codes. Remember a court only must follow precedent in its jurisdiction. Since the Supreme Court has not specifically ruled, this is generally the District or State Supreme Court rulings.
**Moody v. Cronin, 484 F. Supp. 270 (C.D. Ill. 1979)
The US District Court ruled that students were exempt form the gym class dress code and the gym class itself due to religious beliefs. The students were members of the United Pentecostal Church which has deep religious beliefs in how one should dress.
**Domico v. Rapides Parish School Board, 75 F. 2d 100 (5th Circuit 1982)
In this case the 5th Circuit reiterated its past attitude about the importance of school boards protecting a school systems educational and disciplinary needs through the implementation of a "hairstyle regulation." This case actually involved the school board applying the student dress code to all employees as well as students. The court said that a school board has a legitimate interest in "teaching, hygiene, instilling discipline, asserting authority and compelling uniformity." It stated that person’s appearance may have an adverse impact on the educational process and, as such, barring any arbitrary or capricious acts, can be regulated.
**Olesen v. Board of Education of School Dist. No. 228, 676 F. Supp 820 (N.D. Ill 1987)
High school students brought suit against the school district, challenging the constitutionality of school anti-gang rule prohibiting the wearing of earrings by males. The court upheld the high school’s anti-gang policy, saying it did not violate the students right to free speech and expression, since the only message was on of his individuality, which was not within the protected scope of the 1st Amendment. The court found nothing wrong with not allowing males to wear earrings while allowing females to wear earrings. The court felt the gender-based difference in classification was substantially related to the legitimate objective of discouraging gang membership and activities.
**Broussard V. School Board of the City of Norfolk, 801 F. Supp. 1526 ( E.D. Virginia 1992)
A middle school student brought an action against the school board and other related parties to challenge their suspension for wearing a shirt that said "Drugs Suck!" The District Court held that a one day suspension did not violate due process and free speech rights.
**Jenglin v. San Jacinto Unified School Dist., 872 F. Supp. 1459 (C.D. Cal. 1993)
The District Court upheld the anti-gang dress code which prohibited clothing identifying professional sports teams or colleges, for the high school, stating that it did not offend the Constitution because of the threat of violence created by the gang presence in the high school. Schools are given a great deal of deference regarding clothing which promotes or shows gang affiliation because most courts view gangs to be socially problematic. If a school district can not prove a gang problem exists, the justification for such a rule will be weak in the eyes of the court. This court ruled at the same time that the code violated the free speech rights of elementary and middle school students, as no gang problems could be shown to exist at their schools.
**Colorado Indep. School Dist. v. Barber, 864 S.W. 2d 806 (Tex. App. Eastland 1993)
In this case male students successfully challenged enforcement of a school dress code which prohibited male students form having long hair or from wearing earrings. The court felt that there were several problems with the dress code, most significantly that the code prohibitions were discriminatory, as they were based on sex.
**Alabama v. Coushatta Tribes of Texas v. Big Sandy School Dist, 817 F. Supp. 1319 (E.D. Tex. 1993)
In this case the court issued a preliminary injunction enjoining the school from enforcing a hair regulation against Native American students who asserted that the maintenance of their long hair represented moral and spiritual strength. The court found this to be a symbol of their religion and thus it was protected as a matter of religious freedom.
**McInyre v. Bethel School Indep. Dist. No. 3, 804 F. Supp 1415 (W.D. Ok. 1992)
In this case the school district applied a dress code restriction to T-shirts bearing a logo considered to be an ad for alcohol. The U.S. District Court held that the school district failed to show that wearing the restricted clothing would interfere with school work or school discipline. In this case, the court held that it was very difficult to tell if the T-shirt advertised alcohol and that the rationale for the rule would not work in this specific situation. The standard for determining whether the 1st Amendment requires the school to tolerate expression is whether or not the speech would materially and substantially interfere with the school work, school discipline or the rights of other students.
**Hines v. Caston School Corp., 651 N.E. 2d 330 (Ind. App 1995)
This case was brought when a ten year old boy was suspended for wearing an earring. The trial court ruled that the rule prohibiting the wearing of earrings by boys did not violate the constitutional rights of the boy under the due process and equal protection clauses of the 14th Amendment. The court ruled that the Hineses failed to show that the earring ban serves no purpose rationally related to the educational function of the school, and as a result their due process challenge failed. The court also affirmed the trial courts ruling that the Hineses failed to show that the prohibition of the wearing of earrings by boys violates the equal protection clause because it does not substantially relate to a legitimate government interest.
**Pyle v. South Hadley School Committee, 861 F. Supp. 157 (D. Mass. 1994)
In this case two high school students sued the school committee, challenging the school’s policy which prohibited their wearing of two T-shirts. One read "See Dick Drink. See Dick Drive. See Dick Die. Don’t be a Dick" and the other read "Coed Naked Band: Do It to the Rhythm". The District Court held that school officials could restrict vulgar expression by students regardless if their was any risk of substantial disruption, but that a dress code which prohibits apparel which harasses violates the students’ 1st Amendment rights. The U.S. Court of Appeals for the 1st Circuit denied the motion to intervene and did not disturb the district courts judgment in relation to the enjoined enforcement of the harassment provision.
**Bivens v. Albuquerque Public Schools, 899 F. Supp 556 (D. New Mexico, 1995)
In this case a student brought an action against the school board, based on a claim that the dress code prohibiting saggy pants violated students’ 1st Amendment rights, and the procedures used in imposing the long term suspension violated the student’s right to procedural due process The District Court held that the wearing of saggy pants was not speech and the dress code was not unconstitutionally vague.
TINKER v. DES MOINES SCHOOL DIST., 393 U.S. 503 (1969) is one of the most important U.S. Supreme Court cases on student rights. The following language is from the Supreme Court's opinion:
"First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years."
"The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures - Boards of Education not excepted. These have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes."
"The District Court concluded that the action of the school authorities was reasonable because it was based upon their fear of a disturbance from the wearing of the armbands. But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, and our history says that it is this sort of hazardous freedom - this kind of openness - that is the basis of our national strength and of the independence and vigor of Americans"
"In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school," the prohibition cannot be sustained."
"In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are "persons" under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views. As Judge Gewin, speaking for the Fifth Circuit, said, school officials cannot suppress ‘expressions of feelings with which they do not wish to contend.’"
"`The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.' Shelton v. Tucker, [364 U.S. 479,] at 487. 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 which discovers truth `out of a multitude of tongues, [rather] than through any kind of authoritative selection.'"
The full Supreme Court opinion in the Tinker case is here: FindLaw: United States Case Law
RELIGIOUS FREEDOM
WHAT IS RELIGIOUS FREEDOM EXACTLY?
The First Amendment to the U.S. Constitution says that everyone in the United States has the right to practice his or her own religion, or no religion at all.
Our country's founders -- who were of different religious backgrounds themselves -- knew the best way to protect religious liberty was to keep the government out of religion. So they created the First Amendment -- to guarantee the separation of church and state. This fundamental freedom is a major reason why the U.S. has managed to avoid a lot of the religious conflicts that have torn so many other nations apart.
The Establishment Clause of the First Amendment prohibits government from encouraging or promoting ("establishing") religion in any way. That's why we don't have an official religion of the United States. This means that the government may not give financial support to any religion. That's why many school voucher programs violate the Establishment Clause -- because they give taxpayers' money to schools that promote religion.
The Free Exercise Clause of the First Amendment gives you the right to worship or not as you choose. The government can't penalize you because of your religious beliefs.
IS IT CONSTITUTIONAL TO TEACH RELIGION IN PUBLIC SCHOOLS?
No. The public schools are run by the government. Therefore, they must obey the First Amendment. This means that while they can teach about the influences of religion in history, literature and philosophy -- they can't promote religious beliefs or practices as part of the curriculum. Since private and parochial schools aren't run by the government, the First Amendment doesn't apply to them.
Also, students can be excused from some school activities if they conflict with their religious beliefs.
CAN MY TEACHER START THE DAY OR A MEETING WITH PRAYER?
No. Prayers, scriptural readings and loudspeaker devotionals violate the First Amendment because they promote religion. This is true even if the prayer is "non-denominational" (not of any particular religion.) Moments of silence might be unconstitutional -- it depends on whether or not the real reason they're
CAN MY SCHOOL HAVE PRAYERS AT GRADUATION?
No. In 1992, the Supreme Court decided in Lee v. Weisman that graduation prayers are unconstitutional in public schools. Think about it: graduation prayers would give non-believers or kids of other faiths the feeling that their participation in prayer is required. It doesn't matter who leads the prayer -- a minister, a priest, a rabbi, whoever, or whether the prayer is non-denominational -- some kids would feel left out.
Student-led prayer is unconstitutional too. Just because a student or group of students leads the prayer, the graduation ceremony is still a school-sponsored event, right?
You can choose to have a private alternative event that includes prayer, like a baccalaureate. It just can't be sponsored by the school. Student, parent or church groups can organize it -- but it still must be held off of school grounds.
WHAT IF WE PUT IT TO A VOTE?
That doesn't change anything. In the United States, each individual has certain fundamental freedoms -- including freedom of religion. These can't be taken away, even by "majority rule."
Think about your friends who have different faiths or no religious beliefs at all. They'd still feel excluded from their own graduation exercises. Or worse, they'd feel like the school thought your religion was better than theirs. Put the shoe on the other foot for a second and think about how that would make you feel!
IS IT EVER OK TO PRAY IN SCHOOL?
Sure. Individual students have the right to pray whenever they want to, as long as they don't disrupt classroom instruction or other educational activities -- or try to force others to pray along with them. If a school official has told you that you can't pray at all during the school day, your right to exercise your religion is being violated. Contact your local ACLU for help.
IS IT OK TO CELEBRATE RELIGIOUS HOLIDAYS IN PUBLIC SCHOOLS?
It depends. Making Christmas stockings, Easter eggs or Hannukah dreidels is probably okay because, over the years, these have become secular customs that people of many different backgrounds enjoy. But a Nativity pageant, which is full of religious meaning, could be considered unconstitutional.
WHAT ABOUT RELIGIOUS CLUBS OR BIBLE DISTRIBUTION?
Student-organized Bible clubs are OK as long as three conditions are met:
(1) the activity must take place during non-school hours; (2) school officials can't be involved in organizing or running the club, and (3) the school must make its facilities available to all student groups on an equal basis. So your Bible club couldn't be the only group allowed access to the school grounds. Neither could your school let other student groups use the building for meetings and events and deny your Bible club the same opportunity.
The organized distribution of Bibles or any other holy book during the school day is unconstitutional, even if teachers aren't the ones actually handing out the Bibles, and even if they're not used as a part of the school's educational program. That's because the school building or grounds are still being used to spread a religious doctrine at a time when students are required to be there.
That's what religious freedom is all about -- you are free to worship as you choose -- even if that means not at all.
**Wisconsin v. Yoder, 406 US 205 (1972)
In the late 1960’s, in Green County, Wisconsin school officials took 3 Amish men to court because they refused to send their 14 and 15 year old children to local high schools. The men were convicted of violating the compulsory attendance laws and fined. The men appealed to the Wisconsin Supreme Court, arguing that their right to freedom of religion under the 1st Amendment had been violated. The men won, but the State of Wisconsin then appealed to the U.S. Supreme Court.
The Supreme Court noted that states do have a genuine responsibility for educating their citizens. The court said that the state’s interest was not totally free from a balancing process when it encroaches on another fundamental right. The Court noted that the religious convictions of the Amish affect all aspects of their lives and that these religious values would be threatened if Amish children were forced to attend public high school. The values and programs of the modern secondary schools conflict with the fundamental mode of life mandated by the Amish religion. The Court overall ruled that the enforcement of mandatory compulsory attendance law would greatly jeopardize if not destroy the free exercise of the religious beliefs of the Amish.
In this case the Court developed a three step analysis to test whether state laws or programs unconstitutionally infringe upon students’ free exercise of their religious beliefs. The three steps are: (1) Is the affected activity rooted in a legitimate and sincerely held religious belief? (2) Have the parties’ free exercise of religion been burdened by the regulation or state action? What was the impact on their religious practices? (3) Does the state have a compelling interest in the regulation which justifies restricting the free exercise of religion?
**Andrew J. Muller v. Jefferson Lighthouse School, 7th Cir. (1996)
This case came about when a 4th grade requested permission to hand out invitations to a religious meeting to be held at his family’s church and was prohibited on the grounds that the activity violated the school district’s Code of Student Responsibility. His parents then brought suit in federal court seeking declarative and injunctive relief. The district court declared the school a non-public forum and upheld the validity of all of the challenged code except a requirement that the handout contain a disclaimer stating that the handout was not endorsed by the school. The 7th Circuit reversed this ruling only on the disclaimer issue only (stating the disclaimer requirement
FAIR TREATMENT
WHAT DOES DUE PROCESS MEAN?
The Fourteenth Amendment to the Constitution guarantees everyone in the United States something called "due process of law," which means you have the right to be treated fairly by people who are in positions of authority -- teachers, school administrators, -- and the police.
Let's say a teacher or school official accuses you of having done something wrong and wants to suspend you. Well, they can't just throw you out! You have a right to a hearing so you can tell your side of the story. This right was established by the U.S. Supreme Court way back in 1975 when it decided a case called Goss v. Lopez that involved some high school students who had been suspended without a hearing.
Another thing: if you're found guilt of something, the punishment can't be more serious than the misconduct was. So your school can't suspend you for just a minor violation. Or for something other kids did and only got detention for.
If you go to a private school, your due process rights may be different, because private schools are not required to obey the Constitution. Some state laws, however, may give you some due process protection in school. Contact your local ACLU chapter or affiliate to find out the laws in your state.
HOW CAN WE MAKE OUR SCHOOL RULES FAIR?
The Michigan State Board of Education's guidelines for school rules is a good model for a fair school rule policy.
It states that:
School policies have to clearly say what is allowed and what is not
School rules can't be so complicated the average student won't understand them.
Rules have to be related to valid educational purposes.
Rules can't restrict activities that are constitutionally protected.
School policies have to tell you what the punishment is for breaking the rules.
The punishment can't be more serious than the misconduct, nor harsher than what the school district itself is authorized to do.
A copy of the rules and procedures must be made available to all students.
If you think your school's disciplinary rules are unfair, you and other students can try to create a task force with parents, teachers and school administrators to improve them.
EQUALITY in EDUCATION
DO ALL KIDS HAVE THE RIGHT TO AN EQUAL EDUCATION?
Yes! All kids living in the United States have the right to a free public education. And the Constitution requires that all kids be given equal educational opportunity no matter what their race, ethnic background, religion, or sex, or whether they are rich or poor, citizen or non-citizen. Even if you are in this country illegally, you have the right to go to public school. The ACLU is fighting hard to make sure this right isn't taken away.
In addition to this constitutional guarantee of an equal education, many federal, state and local laws also protect students against discrimination in education based on sexual orientation or disability, including pregnancy and HIV status.
In fact, even though some kids may complain about having to go to school, the right to an equal educational opportunity is one of the most valuable rights you have. The Supreme Court said this in the landmark Brown v. Board of Education case when it struck down race segregation in the public schools.
If you believe you or someone you know is being discriminated against in school, speak up! Talk to a teacher, the principal, the head of a community organization or a lawyer so they can investigate the situation and help you take legal action if necessary.
ARE TRACKING SYSTEMS LEGAL?
Yes, as long as they really do separate students on the basis of learning ability and as long as they give students the same basic education.
Many studies show, however, that the standards and tests school officials use in deciding on track placements are often based on racial and class prejudices and stereotypes instead of on real ability and learning potential. That means it's often the white, middle-class kids who end up in the college prep classes, while poor and non-white students, and kids whose first language isn't English, end up on "slow" tracks and in vocational-training classes. And often, the lower the track you're on, the less you're expected to learn – and the less you're taught.
Even if you have low grades or nobody in your family ever went to college, if you want to go to college, you should demand the type of education you need to realize your dreams. And your guidance counselor should help you get it! Your local ACLU can tell you the details of how to go about challenging your track placement.
CAN STUDENTS BE TREATED DIFFERENTLY IN PUBLIC SCHOOL BASED ON THEIR SEX?
Almost never. Public schools may not have academic courses that are just for boys – like shop – or just for girls – like home economics. Both the Constitution and federal law require that boys and girls also be provided with equal athletic opportunities. Many courts have held, however, that separate teams for boys and girls are allowed as long as the school provides students of both sexes the chance to participate in the particular sport. Some courts have also held that boys and girls may always be separated in contact sports. The law is different in different states; you can call your local ACLU affiliate
CAN GIRLS BE KICKED OUT OF SCHOOL IF THEY GET PREGNANT?
No. Federal law prohibits schools from discriminating against pregnant students or students who are married or have children. So, if you are pregnant, school officials can't keep you from attending classes, graduation ceremonies, extracurricular activities or any other school activity except maybe a strenuous sport. Some schools have special classes for pregnant girls, but they cannot make you attend these if you would prefer to be in your regular classes.
CAN SCHOOLS DISCRIMINATE AGAINST GAY STUDENTS?
School officials shouldn't be able to violate your rights just because they don't like your sexual orientation. However, even though a few states and cities have passed laws against sexual orientation discrimination, public high schools have been slow to establish their own anti-bias codes – and they're slow to respond to incidents of harassment and discrimination. So while in theory, you can take a same-sex date to the prom, join or help form a gay group at school or write an article about lesbian/gay issues for the school paper, in practice gay students often have to fight hard to have their rights respected.
WHAT ABOUT STUDENTS WITH DISABILITIES?
Although students with disabilities may not be capable of having exactly the same educational experiences as other students, federal law requires that they be provided with an education that is appropriate for them. What is an appropriate education must be worked out individually for each student. For example, a deaf student might be entitled to be provided with a sign language interpreter.
In addition to requiring that schools identify students with disabilities so that they can receive the special education they need in order to learn, federal law also provides procedures to make sure that students are not placed in special education classes when they are not disabled. If you believe you're not receiving an appropriate education, either because you are not in special classes when you need to be, or because you are in special classes when you don't need to be, call the ACLU!
And thanks to the Americans with Disabilities Act (ADA), students who are HIV positive have the same rights as every other student. People with HIV are protected against discrimination, not only in school but in many other public places such as stores, museums and hotels.
People with HIV aren't a threat to anyone else's health, because the AIDS virus can't be spread through casual contact. That's just a medical fact. Your local ACLU can provide information on how to fight discrimination against people with HIV.
CAN I GO TO PUBLIC SCHOOL IF I DON'T SPEAK ENGLISH?
Yes. It is the job of the public schools to teach you to speak English and to provide you with a good education in other subjects while you are learning. Students who do not speak English have the right to require the school district to provide them with bilingual education or English language instruction or both.
BOOK CENSORSHIP
CAN THE SCHOOL LIBRARY REFUSE TO STOCK CERTAIN BOOKS?
This is a very complicated issue. Schools certainly have the right to pick the books they think have the greatest value for their students and to reject those that they believe have little value. On the other hand, if the school refuses to stock a book for "narrowly partisan or political," reasons – i.e., they just don't agree with the authors' viewpoints – that's censorship and censorship is unconstitutional. In a 1982 case called Island Trees v. Pico, the Supreme Court ruled that school boards can't remove books from a school library just because they don't agree with their content. But in many communities around the country, school administrators and librarians are under heavy pressure from religious and other groups to censor what we read and study.
If you believe that your school is censoring books because of their viewpoints, you, your teachers and the school librarian can challenge book censorship at your school or in court. The freedom to read is the freedom to think – and that's totally worth fighting for!
**Island Trees Union Free School Dist. No. 26 v. Pico, 457 US 853
This case came about when a school board tried to remove books from the school library. The opinion was based on 3 points: (1) the student’s right to receive ideas is predicate to the student’s exercise of his/her own rights to free speech, press and political freedom; (2) that school officials can’t suppress ideas which they don’t wish to assert; and (3) that the school library is the principal point of convergence for free inquiry and study and is protected by the 1st Amendment. The Supreme Court held that school officials may not remove books from a school library or from the curriculum based upon the viewpoint expressed. It also stated that school officials must follow a policy for book challenges before any books are removed because they are inappropriate for the school level.
SPEECH CODE/HATE SPEECH
**Wisconsin v. Mitchell, 508 U.S. 476 (1993)
The defendant in Mitchell, a black teenager, was convicted of aggravated battery. This crime would generally carry a maximum sentence of 2 years in WI. However, in this case there was strong evidence that the defendant had selected his victim on the basis of race. Under the WI statute, the maximum sentence for aggravated battery was increased to 7 years. The Supreme Court unanimously held that this penalty-enhancement scheme did not violate the defendants 1st Amendment rights. The Court relied heavily on the distinction between speech and conduct when issuing its opinion. In response to the defendant’s argument that the penalty enhancement was no more constitutionally acceptable that the ban in R.A.V., the Court stated that the ordinance in the R.A.V. decision was explicitly directed at expression, whereas the statute in this case was aimed at conduct that was completely unprotected by the 1st Amendment.
**R.A.V. v. St. Paul, 505 U.S. 377 (1992)
The defendant and several other teenagers allegedly burned a homemade cross inside the fenced yard of a black family in the middle of the night. The defendant was prosecuted under the St. Paul "Bias-Motivated Crime Ordinance," which provided that "whoever places on public property a symbol, object, appellation characterization or graffiti, including but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor." Defendant contended that the ordinance violated the 1st Amendment in two respects: it was substantially overbroad; and it was impermissibly content based.
The Supreme Court unanimously concluded that the ordinance, on its face, violated the 1st Amendment. They split on the rationale for this decision.
Five Justices concluded the law was impermissibly content-based because "it prohibits otherwise permitted speech solely on the basis of the subjects speech addresses". They held that even when the government is regulating a supposedly "unprotected" category, it may not do so in a content-based manner Justice Scalia who authored the opinion, stated that the ordinance was not necessary to achieve a state interest because there were adequate content-neutral alternatives.
The concurrence written by Justice White stated that where a category is unprotected the states are not prevented from regulating on the basis of content. White’s concurrence stated that the case should have been decided on overbreadth grounds, in that the ordinance reached both protected and unprotected speech.
EXPULSION/SUSPENSION
WHAT ARE MY RIGHTS IF I'M ABOUT TO BE SUSPENDED?
No matter how long the suspension, you have a right to notice of the charges against you -- that means being told exactly what you did that was wrong. You also have the right to a hearing before a person or people who are impartial, meaning they don't have anything to do with the incident, and they don't have any attitude towards you one way or the other.
If you deny the charges, the school officials have to tell you what evidence they have, and give you the chance to tell your side of the story. And if you're facing serious punishment, like suspension for more than 10 days, you have the right to be represented by a lawyer who can call witnesses. You also have the right to question or cross-examine your accusers and the witnesses against you. And you have the right to ask that a record be made of everything that happens at the hearing. You can use this record if you decide to appeal the decision.
But you don't have the right to a hearing for a minor punishment, such as being made to sit at the back of the class or detention.
The only way you school can suspend or expel a student without notice or a hearing is if they think the student is a danger to other students or to school property. But even then, they're obligated by law to give the student notice and a hearing as soon as possible after the expulsion.
WHAT CAN MY SCHOOL SUSPEND ME FOR?
Each year, more than 1.5 million students miss a day or more of school due to being suspended. Most suspensions are for offenses such as cigarette smoking or truancy. What your school can suspend you for depends on which state you live in.
Most school officials consider that suspension is an extreme punishment, and they use it only as a last resort. Often, they don't suspend unless a student does something illegal, dangerous, or disruptive. The same thing goes for expulsion, although in a lot of states, expelling someone is illegal because everyone has the right to an education.
And schools don't have the right to punish you if you broke a rule you had no reason to know even existed.
CAN I BE PUNISHED FOR WHAT I DO OUTSIDE OF SCHOOL?
It mostly depends on whether the behavior impacts your conduct in school. In some states, schools have authority over students' activities on school grounds, at school-sponsored events, and during recess and on the way to and from the school or school activities. While in some states, the courts have given schools authority to suspend students who commit serious criminal acts off school grounds, your school would be violating your due process rights if it automatically suspended you without giving you a hearing.
DO SCHOOLS EVER DISCIPLINE STUDENTS DISCRIMINATORILY?
Students of color have been suspended at much higher rates than white students, according to Federal Office of Civil Rights statistics, and students have been discriminated against based on their religion, national origins, gender, and other factors. THIS IS ILLEGAL.
If you think your school's rules discriminate, you should contact local civil rights groups to get your school to adopt fairer procedures. The National Coalition of Advocates for Students (100 Boylston Street, Suite 737, Boston, MA 02216) can give you your school district's recent suspension data. Your local ACLU also can help you find other groups.
**Goss v. Lopez, 419 U.S. 565 (1975)
The Supreme Court held that students must be afforded some due process before their suspension from school, even for short periods of time. The Court reasoned that even a short suspension took away the student’s property right to attend school and the liberty right to maintain one’s good name. Therefore the Court sought to reduce the likelihood of faulty suspensions by ensuring that the right party was expelled. The Supreme Court held that the principal or suspending officer shall provide the student with written or oral notice of the charges, the basis or evidence for the charges, and a minimum of an opportunity to deny them.
Note that if expelled or suspended for more than 3 days Wisconsin law requires an optional hearing in front of the school board where the suspended or expelled student can be represented by a lawyer, confront and questions his accusers and present witnesses of their own. In addition they are entitled to a full copy of the required transcript should they wish to appeal the decision of the board.
SUBVERSIVE (REBELLIOUS) ADVOCACY
**Schenck v. US, 249 US 652 (1919)
The defendants were prosecuted for violating the 1917 Espionage Act when they conspired to have printed and circulated to men who had been called to military service a document that argued the draft violated the 13th Amendment. The Supreme Court upheld the prosecutions by applying a clear and present danger test. The Court admitted that in many places and in ordinary times the defendants actions would have been constitutionally protected. The court felt the appropriate measure was looking at the proximity and degree of the actions when deciding if they created a clear and present danger. If they did, prosecution could be upheld, if they did not the defendant was exercising their free speech rights.
**Gitlow v. NY, 268 US 652 (1925)
Gitlow was arrested for the crime of criminal anarchy under NY penal law for advocating the overthrow of the government in writings called "the Left Wing Manifesto" and "The Revolutionary Age". The Supreme Court upheld the arrest, although there was no clear and present danger.
**Whitney v. CA, 274 US 357(1927)
The Supreme Court held that the Criminal Syndicalism Act of CA did not violate the 1st Amendment and therefore upheld the conviction of Whitney who was found in violation of the Act for being a member of the Communist Labor Party and attending a convention at which a resolution was adopted advocating militant action. The majority opinion held that mere knowing membership in an organization advocating criminal syndicalism was substantively dangerous and must be given great weight. The case was later overruled by Brandenburg v. Ohio.
**Brandenburg v. Ohio, 395 US 444 (1969)
Clarence Brandenburg was convicted of violating the Ohio criminal syndicalism statute for advocating racial strife during a Ku Klux Klan rally. The statute was identical to the one upheld in Whitney. However, here the Supreme Court overturned the statute, and created a new heightened clear and present danger test in which speech could be punished ONLY if such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action. By requiring an actual empirical finding of imminent harm, this test protected the advocacy of lawlessness except in unusual circumstances.
**Hess v. Indiana, 414 US 105 (1973)-war protester
A campus war protester was arrested for saying, "we’ll take the fucking street later," when dispersed by police. The State Court relied on a finding that the statement was intended to incite lawless action and was likely to produce such action. The Supreme Court reversed: "at worst, the statement amounted to nothing more than advocacy of illegal action at some indefinite future time… since there was no evidence, or rational inference from the import of the language, that his words were intended to produce, and likely to produce, imminent disorder, those words could not be punished by the state. . ."
FREEDOM OF ASSOCIATION & ASSEMBLY
**Lawrence University Bicentennial Commission v. City of Appleton, 409 F. Supp. 1319 (E.D. Wis. 1976)
This case involved a group of students who applied for permission to rent the Appleton High School West gym to host a public lecture by Angela Davis. Their application was not approved by the Board of Education (4 to 2 vote), as the school policy stated that school buildings were not to be used for religious or political activities unless the activity is nonpartisan or nondenominational. The group argued that Davis’ lecture was to be nonpartisan and nondenominational in nature and that the school board had allowed other groups like the League of Women voters to assemble in the building and have candidates give political speeches. There was no evidence presented to the board that Davis’ lectures had in the past resulted in violence and disruption or that this speech would cause such a reaction.
The District Court ordered that the student association be permitted to use the school’s gym for the lecture and found fault with the use of the words political and religious in the board’s policy, saying it was regulating speech on the basis of content, which the school is not allowed to do. The District Court did not remove the ability of the school to control the use of the building by groups but clarified the limits to this right. The opinion held that once a school opens its doors it can not regulate admission through form of conviction and affiliation.
**Fricke v. Lynch, 491 F. Supp. 381 (D.R.I. 1980)
This case resulted from a complaint of a male homosexual student (Fricke) who had asked for and was denied the principal’s permission to bring a male date to the senior dance. His second request took place at a meeting where he explained to the principal that he was committed to homosexuality. The principal denied his request in writing, stating his prime concern to be a fear of disruption. The principal’s fear was not unfounded as Fricke had previously been attacked and in the past a male student who brought a male escort to the dance was harassed verbally and physically. The District Court focused on Fricke’s 1st Amendment claims when deciding this case, recognizing the balance necessary in situations where the 1st Amendment rights of the students and the need to avoid conduct materially and substantially disruptive to the school. The Court concluded that a violent reaction is not adequate reason to suppress such speech in advance. In this case the court could not see where any disturbance would hinder the main business of the school, as no classes would be disrupted the court felt that Fricke’s conduct was peaceful and that any disturbance would be caused by other students who resort to violence. The court also stated that school have an obligation to take measures to protect and nurture free speech.
STUDENT RIGHT TO CLUB ACCESS
**Board of Education of Westside Community School v. Mergens, 496 US 226
The Court ruled that when a public high school allows student religious groups to meet outside of school hours on the same basis that non-religious extracurricular groups are allowed to meet, it does not violate the Establishment Clause.
[ Intro | Presentation | Links | Research | Politeens Main ]