Early U.S. educational philosophers linked the provision of common schools to the production of a healthy, well-informed citizenry. Although civics has lately taken a back seat to reading, math, and testing regimes, most parents probably share that goal today.
But it would likely come as a surprise to many of them to learn that enrolling their children in schools also means putting them in a place that’s legally permitted to curtail some of their children’s constitutional rights.
“Constitutional rights assume particular contours within the nation’s schools that are different than when minors are in the public park across from schools,” said Justin Driver, whose recent book, The Schoolhouse Gate, analyzes the complicated history of U.S. Supreme Court rulings on student rights.
1st Amendment: Free Speech
This is the amendment everyone remembers. But it wasn’t until 1969, in the famous Tinker v. Des Moines ruling, that the Supreme Court recognized that it also applies to schools. The court said students could engage in political speech at school by wearing black armbands to protest the Vietnam War.
However, other Supreme Court rulings have constrained students’ speech. Administrators have some leeway to censor student-newspaper articles, for example. And students can be restricted on speech that’s considered vulgar or lewd, promotes drug use, causes a “material and substantial disruption” to school, or infringes on another student’s rights. The last two pieces remain especially fuzzy, especially in this day and age of social media.
4th Amendment: Search & Seizure
The government and the police generally can’t search homes or belongings unless they have a warrant or “probable cause” that someone committed a crime. But the Supreme Court has ruled that students don’t get the same level of protection.
School officials generally only need to have a “reasonable suspicion” to search students’ belongings or their person, and it’s not always clear where a search suddenly moves from permissible to intrusive.
The court also ruled that it’s OK to require students to take a random drug test, even if there’s no evidence that they are using drugs.
5th Amendment: Self-Incrimination
Do students have the right to “plead the Fifth” when being questioned at school by law-enforcement officials? In light of recent concerns about the racial impact of student discipline and safety policies, it’s an increasingly pressing question.
In 2011, the Supreme Court found that the Fifth Amendment rights of a 13-year-old student interrogated by a police officer at school were violated because he wasn’t warned of his right to remain silent. But the court didn’t clarify whether this applied to all minors, or whether school resource officers must also read students their rights.
8th Amendment: Cruel & Unusual Punishment
The U.S. military outlawed corporal punishment in 1862, and all states had ended it as a judge-ordered punishment by the early 1970s. But it’s still permissible to hit students in more than a dozen states.
The Supreme Court has repeatedly upheld paddling.
14th Amendment: Due Process
When students land in hot water, they don’t get the same procedural protections as adult citizens do. Typically, they only receive minimal due-process rights. They need only be told what they did wrong and given a chance to respond; they do not need to be given anything in writing before being punished.
A version of this article appeared in the May 08, 2019 edition of Education Week as Constitution Has Limited Reach in Schools