Constitutional Law: Student Rights And Their Protection

Students in the United States have the same basic constitutional rights as adults. However, the Supreme Court has repeatedly limited student rights to free speech and expression in school. The Court has also upheld censorship of school newspapers and suspensions of students for inappropriate language and behaviour. The Fourth Amendment protects students from unreasonable search and seizure, but the Supreme Court has ruled that school officials only need reasonable suspicion to search a student's belongings. Students also have the right to due process, and the right to counsel.

Students' freedom of speech and expression

The First Amendment to the U.S. Constitution protects the right to free speech, stating that "Congress shall make no law...abridging the freedom of speech...". This right is also afforded to students, as affirmed by the Supreme Court in 1969, which ruled that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate".

On-Campus Speech

Students have the right to speak out, hand out flyers and petitions, and wear expressive clothing in school. This is protected as long as it does not disrupt the functioning of the school or violate school policies unrelated to the message expressed. The definition of "disruptive" will vary depending on context, but a school disagreeing with a student's position or finding their speech controversial is not enough to qualify.

Courts have upheld students' rights to wear anti-war armbands, armbands opposing the right to abortion, and shirts supporting the LGBTQ+ community. Schools can implement dress codes, but these must be enforced equally and cannot treat students differently based on gender, force students to conform to sex stereotypes, or censor particular viewpoints.

Off-Campus Speech

Students also have the right to speak their minds on social media. Schools have the least authority to punish students for content posted off-campus and outside of school hours that does not relate to the school.

Limitations

While students' freedom of speech is protected, there are some limitations. Schools can restrict speech that is considered vulgar, lewd, or that promotes drug use. Additionally, speech that causes a "material and substantial disruption" to the school or infringes on another student's rights may be restricted.

The Supreme Court's 1988 Hazelwood v. Kuhlmeier decision established that public school students' free speech rights are not as extensive as those of adults. This case involved a school newspaper, where the Court held that the First Amendment does not require schools to "affirmatively...promote particular student speech".

Student Activism

Student organizations have played a significant role in political and social movements throughout history, including the civil rights movement and the Black Lives Matter movement. Social media has empowered students to generate support for their perspectives and mobilize collective action on a global scale.

Challenges and Misinterpretation

Regulating student speech on social media is challenging due to the potential for misinterpretation and the blurring of lines between on-campus and off-campus speech. Schools have more authority to regulate speech made on campus or while a student is under school supervision. However, the First Amendment prohibits public school officials from censoring expression made outside the school environment, even if it uses objectionable language.

Students' right to privacy

Students have the right to be free from intrusion into their personal matters, but these rights are limited when the safety of others is concerned. For example, if there is information that leads administrators to believe a student has a weapon, this would justify searching their belongings.

Search and Seizure

The Fourth Amendment protects citizens from unreasonable searches and seizures. It states that the government and police cannot search homes or belongings without a warrant or "probable cause" that a crime has been committed. However, students do not have the same level of protection. School officials only need to have a “reasonable suspicion” to search a student's belongings or their person. The Supreme Court has also ruled that random drug testing of students is permitted, even without evidence of drug use.

Data Privacy

With the increased use of technology in education, student data privacy has become a paramount concern. The Family Educational Rights and Privacy Act (FERPA) and the Children's Online Privacy Protection Act (COPPA) are two key federal laws that guide educational institutions in protecting student information. FERPA sets rules for who can access student education records, requiring parental consent for sharing personally identifiable information. COPPA, on the other hand, focuses on protecting the privacy of children under 13 by regulating data collection practices of websites and mobile applications directed at this age group.

Health and Body Privacy

Students have a right to privacy regarding their health and bodies. Schools cannot force students to be tested for HIV, and students can refuse such tests. Additionally, students have a right to access reproductive health services and information without their parents' knowledge, although some states require parental notification for abortions for minors.

School Privacy Laws

The Protection of Pupil Rights Amendment (PPRA) is another federal law that supplements FERPA and COPPA. It ensures student rights protections in surveys, evaluations, and physical exams, requiring parental consent for students to participate in surveys on sensitive topics.

Metal Detectors and Drug-Sniffing Dogs

Metal detectors are permitted in schools in many states, and their use is less invasive than other types of searches. Drug-sniffing dogs have also been used in schools to detect drugs, although this practice has raised concerns among students about their privacy rights.

While students have a right to privacy, this right is not absolute and may be limited in certain situations, especially when the safety of others is at stake.

Students' right to due process

Students have constitutional due-process rights when public schools accuse them of misconduct. They also have other rights under federal and state laws. The Due Process Clause is a guarantee of basic fairness. Fairness can have many components, including notice, the opportunity to be heard at a meaningful time, and a decision supported by substantial evidence. The more important the individual right in question, the more process that must be afforded.

The U.S. Supreme Court has held that students are entitled to due process when they are barred from public school for more than a trivial period. This means that they have the right to defend themselves in a fair hearing. When the suspension is for less than 10 days, the minimum due process requirements are that the student is entitled to:

• Notice of the specific charges and the proposed punishment
• An explanation of the evidence against them
• An opportunity to challenge the charges in front of an objective person, usually in an informal conference or hearing

School officials can immediately suspend a student who poses a danger, but they must schedule a hearing as soon as possible afterward. Some states give students stronger rights in short-term suspensions.

When public school students are expelled or suspended for 10 days or longer, most courts and schools agree that they should have the opportunity to participate in a more formal disciplinary hearing, where they can present evidence and witnesses. Before the hearing, the school should give the student a list of its witnesses and the events they will testify about. Other requirements vary among states, such as whether the student has the right to question the school's witnesses, whether school officials can refer to statements made by someone who isn't at the hearing, and the process for appealing the hearing officer's decision.

A federal appellate court has held that secondary school students do not have the right to a lawyer at school disciplinary proceedings if criminal charges are not pending. However, several states provide this right at formal hearings for long-term suspension or expulsion, as long as the student or parents pay for the attorney.

The Individuals with Disabilities Education Act (IDEA) provides a formal way to resolve disputes with the school, called "due process". Due process starts when a complaint is filed against the school, and ends with a decision. After the complaint is filed, both sides attend a resolution session, where they try to reach an agreement before going further. If no agreement is reached, there is a due process hearing, similar to a courtroom trial, where evidence is presented and witnesses speak in front of a hearing officer who acts as a judge. The hearing officer's decision can be challenged in court.

Students' right to equal protection

The Equal Protection Clause, part of the Fourteenth Amendment to the US Constitution, mandates that individuals in similar situations be treated equally by the law. This clause was intended to validate the equality provisions of the Civil Rights Act of 1866, which guaranteed that all citizens had the right to equal protection by law.

The Fourteenth Amendment states that:

> 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.

The Supreme Court has interpreted the Equal Protection Clause to prohibit discrimination on bases other than race, including gender, immigration status, and wedlock status at birth.

Students' Rights

Students do not "shed their constitutional rights" when they enter school. However, school administrators may legally restrict some rights within schools. This includes the right to free speech, which may be censored if it causes "substantial interference with school discipline or the rights of others". For example, students can be restricted from speech that promotes drug use, causes a "material and substantial disruption" to school, or infringes on another student's rights.

Despite this, the Supreme Court has held that students cannot be treated differently based on their gender when it comes to dress codes. Schools also cannot discriminate against students on the basis of race, colour, or national origin.

In addition, public schools are prohibited by federal law from discriminating against people with disabilities and must make necessary academic and medical accommodations.

Students' right to freedom of religion

The First Amendment protects students' right to freedom of religion in two ways. Firstly, it ensures that students are free to practice the religion of their choice without interference from the government or school authorities. Secondly, it prohibits the government and schools from establishing or endorsing a religion, thus preventing any religion from being imposed on students.

The Establishment Clause

The Establishment Clause of the First Amendment states that "Congress shall make no law respecting an establishment of religion". This clause prohibits public schools from endorsing or encouraging any religious activities or beliefs. In other words, schools are not allowed to impose their religious views on students or require their participation in religious practices. This includes school-sponsored prayer, even if it is nonsectarian and students are not required to participate. For example, in the case of Engel v. Vitale (1962), the Supreme Court ruled that a simple and seemingly nonsectarian prayer composed for use in New York's public schools violated the Establishment Clause as it amounted to the government creating and sponsoring a religious activity.

The Free Exercise Clause

The Free Exercise Clause of the First Amendment states that "Congress shall make no law... prohibiting the free exercise [of religion]". This clause ensures that students are free to practice and express their religious beliefs without interference from school authorities. Students can pray alone or in groups, either silently or aloud, as long as they do not disturb others. They are also allowed to bring religious texts to school and discuss their faith with others, as well as wear religious clothing or symbols.

Limitations and Conflicts

While students have the right to freedom of religion, there are certain limitations and conflicts that may arise. Schools can restrict religious expression if it causes a "substantial interference with school discipline or the rights of others". For instance, in the case of ACLU v. Black Horse Pike Regional Board of Education (1996), the court ruled that a school could not permit religious content in a student's commencement speech as it would coerce other students to acquiesce to a religious activity, thus infringing on their rights.

Additionally, there may be conflicts between the rights of students to express their religious beliefs and the rights of other students to be educated in a non-hostile environment. For example, in Harper v. Poway Unified School District (2006), a student wore a t-shirt with a religious message condemning homosexuality, which was deemed to violate the school's policies against harassment based on sexual orientation.

Guidelines for Religious Expression in Schools

To address these complexities and provide clarity to school officials, organisations like the American Civil Liberties Union (ACLU) have published guidelines on religious freedom in schools. These guidelines outline the rights of students to engage in religious activities and discussions, assemble for religious purposes, and express their religious views within certain boundaries. They also emphasise the importance of schools neither favouring nor disfavouring students based on their religious identities.

Frequently asked questions