The Bill of Rights in School
THE BILL OF RIGHTS IN SCHOOL
It “can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” (Tinker v. Des Moines, 1969).
What makes the Bill of Rights apply to public schools?
The First Amendment applies to all levels of government, including public schools. Although the courts have permitted school officials to limit the rights of students under some circumstances, the courts have also recognized that students -- like all citizens -- are guaranteed the rights protected by the First Amendment.
Earlier in our history, however, the First Amendment did not apply to the states -- and thus not to public schools. When adopted in 1791, the First Amendment applied only to Congress and the federal government ("Congress shall make no law . . ."). This meant that when public schools were founded in the mid-19th century, students could not make First Amendment claims against the actions of school officials.
The restrictions on student speech lasted into the 20th century. In 1908, for example, the Wisconsin Supreme Court ruled that school officials could suspend two students for writing a poem ridiculing their teachers that was published in a local newspaper. (What student in Wisconsin would ever do something like that?).The Wisconsin court reasoned, "such power is essential to the preservation of order, decency, decorum, and good government in the public schools." And in 1915, the California Court of Appeals ruled that school officials could suspend a student for criticizing and "slamming" school officials in a student assembly speech.
In fact, despite the passage of the 14th Amendment in 1868, which provides that "no state shall . . . deprive any person of life, liberty or property without due process of law . . . ", it was not until 1925, by way of the Supreme Court case of Gitlow v. New York, that the Supreme Court held that the freedom of speech guaranteed by the First Amendment is one of the "liberties" incorporated by the Due Process Clause of the 14th Amendment.
In later cases, the Court has applied all of the freedoms of the First Amendment to the states -- and thus to public schools -- through the 14th Amendment. But not until 1943, in the flag-salute case ofWest Virginia v. Barnette,did the U.S. Supreme Court explicitly extend First Amendment protection to students attending public schools.
TheBarnettecase began when several students who were Jehovah’s Witnesses refused to salute the flag for religious reasons. School officials punished the students and their parents. The students then sued, claiming a violation of their First Amendment rights.
At the time that the students sued, Supreme Court precedent painted a bleak picture for their chances. Just a few years earlier, the Court had ruled in favor of a similar compulsory flag-salute law inMinersville School District v. Gobitis.As the Court stated in that ruling, "national unity is the basis of national security."
However, the high court reversed itself inBarnette, holding that the free speech and free exercise of religion provisions of the First Amendment guarantee the right of students to be excused from the flag salute on grounds of conscience.
Writing for the majority, Justice Robert Jackson said that the Supreme Court must ensure "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 Court then warned of the dangers of coercion by government in oft-cited, eloquent language:
“If there is any fixed star in our Constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
First Amendment Schools: Resources for Students, Teachers, Administrators and the Community. N.p., n.d. Web. 30 Sept. 2012. <
When cases about the Bill of Rights arise in public schools, Courts have to make a determination based on a balance of scales, similar to any other case – the rights of the individual versus the rights of the community. However, in cases involving public schools, the Courts have been more restrictive of an individual’s rights, which will be balanced against an undisturbed learning environment. The decisions that the Courts make in major cases become PRECEDENTS or examples for future decisions.
Carefully read the following situations and use your knowledge of the Bill of Rights and your own opinion to respond to the focus questions. We will discuss the actual decision of the Courts in class. Keep in mind that the federal court system had JURISDICTION in all of these cases because they deal with a question about the Constitution.
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Situation #1- Tinker v. Des Moines
John and Mary Beth Tinker attended public school in Des Moines, Iowa. In December of 1965 a community group in Des Moines decided to protest American involvement in the Vietnam War by wearing black armbands. The Tinkers agreed to wear their black armbands to school. However, principals in the school district, aware of the students' plans created a rule that any student wearing an armband to school would be suspended unless the student removed the armband. Although the Tinkers knew about this rule, they decided to come to school wearing armbands anyway. After refusing to take the armbands off, John and Mary Beth Tinker were sent home by the principal. Their suspension lasted until they agreed to come back to school without the armbands.
The Tinkers filed a suit in the U.S. District Court to stop the school principals from enforcing the rule in the future. Although the District Court said that this type of protest was a form of expression protected under the First Amendment's freedom of speech clause, the Court sided with the school officials, saying that the rule was needed to "prevent the disturbance of school activities." The Tinkers appealed their case to the U.S. Eighth Circuit Court of Appeals, but they lost. The Tinkers decided to appeal the case to the Supreme Court of the United States.
FOCUS QUESTION – Did the school’s rule violate the Tinkers’ First Amendment right to freedom of expression? Why or why not?
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Situation #2 - Chambers v. Babbitt
On January 16, 2001, Elliot Chambers, a student at Woodbury High School, attended classes wearing a sweatshirt with the words "Straight Pride" and a symbol of a man and woman holding hands. Administrators were notified that certain students were offended by this message. The school had created homophobia-free areas on campus, designated by an inverted triangle and intended for LGBT students. The principal informed Chambers he was not to wear the shirt again.
Chambers sued, asking that the order by Principal Babbitt be declared unconstitutional and that he be allowed to wear his sweatshirt to school while the case was being argued. The school responded by pointing to several fights and an incident of vandalism to a gay student's car on school grounds as evidence that the shirt and its message created a substantial disruption to the educational environment.
FOCUS QUESTION – Can school officials prohibit a student from wearing a shirt with a political message that other students may find offensive?
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Situation #3 - Beussink v. Woodland R-IV School District
Brandon Beussink, a high school junior in Missouri, created a personal web site on his own computer. Beussink's site was highly critical of the administration at Woodland High School. Beussink used vulgar language to convey his opinion regarding the teachers, the principal and the school's own web site. Beussink's homepage also invited readers to contact the school principal and communicate their opinions regarding Woodland High School. Beussink's site also contained a hyper-link that allowed a reader to access the school's homepage from Beussink's homepage.
Another student showed Beussink’s web site to a teacher, who then showed it to the principal. Additional students viewed the web site in school, but not when Beussink was present. The principal suspended the student for ten days because of the content of his homepage. As a result of the suspension and missed school days, Beussink failed his junior year of school. The student sued, claiming a violation of his First Amendment rights.
FOCUS QUESTION – Can school officials punish a student because they dislike the content of his personal web site that he created off-campus?
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Situation #4 - Wallace v. Jaffree
In 1981, the Alabama legislature modified a 1978 law that had allowed a moment of silence in public schools for the purpose of “meditation.” The 1981 amendment specified that the moment of silence was for the purpose of "meditation or prayer." The sponsor of the law went on record as stating that the sole purpose of this change was to bring prayer back into schools. Then, in 1982, the legislature authorized teachers to lead "willing students" in a State-written, prescribed prayer to "Almighty God...the Creator and Supreme Judge of the World." When the Jaffree family (who had three children at the school) brought this case to trial, the defense did nothing to deny this description of the legislative purpose behind the revised law.
The state of Alabama (Wallace) argued that Court must not forbid Alabama from endorsing prayer as a “favored practice.” The law allows children to pray if they wish and not pray if they wish. The school cannot tell children that they cannot pray.
The Jaffree family contended that there was a clear effort underway by the State of Alabama to “bring religion back into the public schools.” Every public statement by the author of the Alabama law had restated that idea. Jaffree felt that the law placed the force of the State of Alabama behind voluntary prayer; thus the State is no longer “neutral.
FOCUS QUESTION – Does a law that authorizes a period of silence in public schools for "meditation or voluntary prayer" is a violation the First Amendment? Why or why not?
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Situation #5Hazelwood v. Kuhlmeier
The journalism class at Hazelwood East High School wrote articles and put them together for the school paper. Their teacher showed the newspaper to the principal. He asked the principal if it was okay to make copies and hand them out to students at the school. The principal did not like what he read. There was an article that discussed pregnant students (without giving names) and mentioned sex and birth control. Another article talked about divorce, with a statement from a student about her father going out too much and not spending enough time with his family.
The principal thought the paper needed to be changed. However, it was almost the end of the school year, and he was afraid that it would take the class a long time to change it. He told Mr. Emerson to remove the pages that had the articles about pregnancy and divorce and make copies of the rest of the paper. The students were upset with the decision, as two pages (that also contained other articles) were deleted from their paper. They felt that this was a violation of their First Amendment rights. They went to the U.S. District Court. The court did not agree with them. It said that school officials may limit students' speech in the school newspaper if their decision has "a substantial and reasonable basis." In other words, if he has a good reason, it is okay for a principal to limit students' speech.
The students appealed, and the Court of Appeals reversed the decision, stating that the school paper was a "public forum”, or place where students could express their views. The judges said that the school could not censor the paper except "to avoid . . . substantial interference with school work or discipline . . . or the rights of others". They did not think that the articles about pregnancy would have interfered with schoolwork. They thought the articles should have been printed. The school appealed the decision to the Supreme Court, which accepted the case.
FOCUS QUESTION – Can school officials limit what is expressed in a school newspaper? Why or why not?
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Situation #6-New Jersey v. T.L.O.
In 1980, a teacher at a high school in New Jersey found two girls smoking in a bathroom. Students were allowed to smoke in some areas of the school, but smoking in the restrooms was against school rules. The teacher took the two girls to the principal's office. One of the girls was T.L.O. (her initials), a 14-year-old freshman. T.L.O. said she had not been smoking and said that she did not smoke at all. The second girl admitted that she had been smoking.
Assistant Principal Choplick took T.L.O. into his office. He told her to give him her purse. When he opened the purse, he found a pack of cigarettes and a package of cigarette rolling papers. In his opinion, this meant that T.L.O. might be using marijuana. In a further search of the purse, he found some marijuana, a pipe, and empty plastic bags. He also found one-dollar bills, a list of students who owed T.L.O. money, and some letters. In the letters, there was information that showed that T.L.O. was selling marijuana. Later, at the police station, T.L.O. admitted that she had been selling marijuana at school. The State of New Jersey brought charges against T.L.O. The evidence they used was T.L.O.'s admission and the items from her purse.
T.L.O. said that the search violated the Fourth Amendment protection against unreasonable search and seizure. She tried to have the evidence from her purse kept out of court. She also argued that her confession should be suppressed, because it happened as a result of the unreasonable search. The juvenile court turned down her Fourth Amendment arguments. The Court said that a school official may search a student if that official has a "reasonable suspicion that a crime has been or is in the process of being committed". A school official may also search a student if he has "reasonable cause to believe that the search is necessary to maintain school discipline or enforce school policies." According to the Court, Choplick was justified in searching the purse because of his reasonable suspicion that T.L.O. had violated school rules by smoking in the restroom. When Choplick opened the purse, evidence of marijuana use was in plain view. This justified the further search of the purse. In January 1982, T.L.O. was found delinquent and sentenced to one year of probation. T.L.O. appealed her case in the New Jersey courts. The Supreme Court of New Jersey found that Choplick's search was unreasonable. The state appealed. In 1983, the Supreme Court of the United States agreed to hear the case.
FOCUS QUESTION – Was the search of T.L.O.’s purse a violation of her 4th Amendment rights? Why or why not?
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