Federal Constitutional Rights of Students - 2004

Little more than thirty years ago, students were suspended from school if they engaged in even the most non-disruptive forms of free speech in public schools. School officials suspended or expelled students even when their protests were silent and did not disrupt schools. That approach treated students as something less than a whole person endowed with rights, rights ultimately guaranteed under our Constitution, Bill of Rights, and Constitutional Amendments.

 

The Supreme Court of the United States 1 radically and abruptly changed this approach in Tinker v. Des Moines Independent School District.2 In Tinker, the Supreme Court rebuked school officials for panicking in the face of a peaceful expression of protest - the wearing of black armbands to express disapproval of America's involvement in South Vietnam - and suspending students from school. The Court explained that neither "students [nor] teachers shed their constitutional rights . . . at the schoolhouse gate."3 Tinker remains the leading case on students' constitutional rights in public schools.

 

Fundamental Rights of Students

 

Throughout the United States, state laws compel children to attend school.4 Although many families educate their children in church-affiliated schools or at home, the overwhelming majority of school-aged students attend public schools. As a result of attendance laws and the enforcement of them by truant officers and courts, students are coerced to attend public school. But the students carry constitutional and statutory rights with them on campus. Those rights protect students in what could otherwise be a highly biased and selective program of indoctrination:

 

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 [have] 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 . . . . [S]chool officials cannot suppress "expressions of feelings" with which they do not wish to contend.5

 

Tinker and Disruptions

 

Tinker removed any lingering doubt about students' rights to freedom of speech. But make no mistake about the ability of public schools to prohibit conduct that actually disrupts school order and discipline. The school officials in the Tinker case, however, had no basis for charging that the protesting students had caused a disruption of the school.

 

The students in Tinker did not disrupt the school day with their protest activity. They merely wore black armbands over their shirt-sleeves to show their disagreement with a policy of the United States government. They did not interrupt classes or walk out of them; they did not conduct a sit-in in the school's administrative offices. They did not block the hallways, allowing only those who expressed agreement with them to pass. Despite the peaceful, nonviolent nature of the activity, the school officials panicked and suspended students from school as though they had engaged in the sort of disruptive behavior mentioned above.

 

In Tinker, the Court criticized the school officials' panicked and thoughtless injury to the students' constitutional freedoms. The Court concluded that a proper respect for the constitutional rights of students serves to bar a principal from interfering with student speech on the grounds that he fears or believes that theschool day will be disrupted, without any facts to suggest that the fear is a reasonable one. The Tinker Court concluded that fear of disruption was not sufficient, that students could not be treated like they had "materially and substantially interfere[d] with the requirements of appropriate discipline" on the basis of unsupported fears or beliefs.6

 

Certainly, it is necessary to acknowledge that school officials have "important, delicate and highly discretionary functions" to perform.7 These functions, however, must be performed "within the limits of the Bill of Rights."8 "The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools."9

 

As a consequence of Tinker and the many subsequent decisions of lower federal courts, teachers and administrators cannot justifiably stop students from discussing their religious beliefs in school so long as the students are not disrupting school order and discipline. Nor should school officials interfere with students who share religious materials with other students during breaks, between classes, at lunch, on the school bus, or while on campus before and after school. This liberty of students is reflected in the Tinker decision:

 

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 [the Supreme] Court for almost 50 years.10

 

In the more than thirty years after Tinker, the Supreme Court has relied on its decision in Tinker and that case continues to be the law of the land.

 

Occasionally, school officials claim that Tinker is a special case involving a "public forum."11 But the result in Tinker did not depend on the school campus being a public forum. As the Court explained, when a student "is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions . . . ."12 So it simply does not matter whether a school campus has been made into a public forum for anyone else.13 Because students are required to attend these schools, they are entitled to enjoy the constitutional rights that they carry on campus with them.

 

Religious Speech is Constitutionally Protected Speech

 

Unfortunately, bigotry against religion is real and continues to be exhibited by some courts and some school officials. One form of that bigotry is to treat religious speech - whether discussion of religious matters or prayer, worship, or other religious expression - as different than the kinds of speech protected by the First Amendment. That bigoted view is untenable in light of several Supreme Court decisions.14 The First Amendment protects religious thoughts, ideas, religious worship, and prayer as components of free speech as well as the free exercise of religion. In fact, the right of religious persons to try to persuade others, to advocate the rightness of their beliefs, and to evangelize implicates the very purpose of the First Amendment:

 

[T]he protection [the Framers] sought was not solely for persons in intellectual pursuits. It extends to more than abstract discussion, unrelated to action. The First Amendment is state order for government, not for institutional learning. "Free trade in ideas" means free trade in the opportunity to persuade, not merely to the scrap facts.15

 

The fact that a school is owned by a state or local government does not warrant or justify the infringement of a student's constitutional rights. State and local government officials are duty-bound to respect the federal constitutional rights of students. There is no better way for a public school to teach students about the importance of the Constitution and our rights as citizens than to show respect for the constitutional rights of those students.

ENDNOTES