Dis 2.1

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The role of school personnel in educating children has evolved in the face of civil litigation, which has been very declarative about the individual rights afforded to children attending public schools (DeMitchell, 2002; Zirkel & Richardson, 1989). Certified school personnel acting in loco parentis have been authorized to exert reasonable control over students concerning academic expectations and conduct in public schools. Nevertheless, students enjoy many of the same constitutional rights as the adults who supervise them. For that reason, their rights must be acknowledged and valued by school personnel (Frels, 2000). Accordingly, public school personnel are tasked with providing safe and orderly school environments in which children can learn, without interfering with the personal liberties of their student populations (Donaldson, 1986; Eberwein, 2008; Reglin, 1992; Taylor, 2010).

The day-to-day operations of schools are becoming progressively influenced by legal decisions which have an overall effect on education and the legal rights afforded to all school stakeholders (Davis & Williams, 1992; Reglin, 1992). Several researchers have noted that school personnel must remain educated about the substance and depth of student rights issues in order to apply them to the day-to-day school operations (Alexander & Alexander, 2009; Dunklee & Shoop,

1986; Zirkel & Richardson, 1989). There is a need for all educators to be knowledgeable of laws surrounding public schools and the impact they have on school functions (Reglin). Sparkman (1990) emphasized that the legal landscape for school principals has changed considerably, and a year does not go by without the initiation of a legitimate federal challenges with huge implications for the day-to-day operations of public schools.

CREATURES OF THE LAW

Public education institutions are considered creatures of the law, and school principals’ decisions have legal ramifications that shape the quality of students’ educational experiences within these entities (Blokhuis, 2008; Bolmeier & Hopkins, 1956). The validity of decisions made by school personnel is dependent upon compliance with federal and state laws, and the interpretation of these statutes by state and federal courts (Bolmeier & Hopkins; Cambron-McCabe et al., 2009). Notably, the recent trends in constitutional law that uphold the interests of the students in public schools are defined by the in loco parentis doctrine, beginning with the First Amendment through the Fourteenth Amendment, which protect the students’ freedoms of expression, religion, speech, and press.

Overview of School Law: Case Law that Every Administrator

Should Know

Tanjula Petty

Abstract: Principals are faced with legal challenges due to their lack of knowledge or inappropriate applications of the law. There is a need for school personnel to be proficient and knowledgeable of education law and how it effects daily school operations and decision-making. The purpose of this literature is to provide educators with a legal summary of landmark and recent case law. Having knowledge of these cases may prevent challenges and a myriad of litigation for school administrators.

About the Author: Dr. Tanjula Petty, serves as the Quality Enhancement Plan Director of Alabama State University (ASU). Recently, the recipient of receive the 2013 Distinguished Dissertation Award presented by the Council of Historically Black Graduate Schools (CHBGS) and ProQuest/University Microfilms International (UMI).

Keywords: Principal Preparation, Education Law, School Law

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Principals have a responsibility to supervise school students and staff, and to lead them through an era of social change, which often necessitates the fundamental reorganization of how schools operationally function (Levine, 2005). Principals in public schools across the country are legally accountable for conveying and translating legal procedures to guarantee that policies are implemented during the delivery of education to children (Bishop & Miles, 2008). According to the National Policy Board for Educational Administration’s (NPBEA) Standard 5, educational leaders must have the knowledge and ability to encourage the achievement of all students by “acting fairly, with integrity, and in an ethical manner” (2008, p. 15). More specifically, educational leaders must be able to clarify and make decisions based upon ethical and legal principles. Administrators are frequently hesitant and indecisive when making decisions on a daily basis that might have legal ramifications (Cambron-McCabe et al., 2009).

SCHOOL LEGAL CHALLENGES

Nationally school districts are paying between $45,000 to $400,000 annually for legal expenses incurred in the aftermath of legal challenges to the actions of their school personnel (Militello, Schimmel, & Eberwein, 2009; Petzko, 1998; Schimmel & Millitello, 2009; Underwood & Noffke, 1990). The excessive cost of education litigation is due, in part, to the decision making of school personnel who are not only unaware of the laws, but often are given misinformation about the protected rights of students and teachers. Public education has become a hyper-legalized enterprise in the United States (Hutton, 2009, p.1). Researchers have reported that, on average, there are 3,000 legal claims filed annually against teachers and school personnel (Reglin, 1990, 1992; Stover & Cook, 2009).

The environments in which law and education operate are undividable (Heubert, 1997; Littleton, 2008). As society becomes more litigious, public school personnel are coming to the realization that they are not immune from litigation (Littleton, Higman, & Styron, 2001). Education law has become complex, limitless, and ever- changing (Dillion, 2009). The “volume of education litigation did undergo a veritable explosion in the 60s and 70s” (Zirkel & Richardson, 1989, p. 789); however, the litigation has leveled off over the past 30 years (Imber & Gayler, 1988; Zirkel, 2006a; Zirkel, 2006b; Zirkel & Richardson). On the other hand, Stover and Cook (2009) argued that the dynamics associated with the intersection of education and the law are not expected to dissipate in the near future, as the list of areas affected by legal issues expands.

School personnel who are involved in education legal proceedings have maintained the attention of the public. Furthermore, litigation within public education has become so prevalent that it has been compared to a world religion (Dunklee & Shoop, 1986; Leiberman, 1981). School district personnel strive to understand and conform to the intricacy of laws and regulations that are changing rapidly (Stover & Cook, 2009). Some of the more pressing legal issues that plague school personnel include issues related to the First, Fourth, Eighth, and Fourteenth Amendments of the U.S. Constitution of 1787 (Cambron-McCabe et al., 2009). Courts have recognized that students who attend public education institutions are at liberty to have the full gratification of their constitutional rights. Likewise, the Supreme Court has held that the students cannot be denied their Fourteenth Amendment rights (Alexander & Alexander, 2008; Cambron-McCabe et al.; LaMorte, 2008).

Principals are faced with legal challenges due to their lack of knowledge or inappropriate applications of the law. There is a need for school personnel to be proficient and knowledgeable of education law and how it effects daily school operations and decision-making. The purpose of this literature is to provide educators with a legal summary of recent case law that prevent challenges in which they may face.

Religion. The authority of public school personnel to limit the influence of religion in the public education enterprise has been challenged in several religious areas, including prayers, scripture reading, religious teaching, and the use of the Bible in school settings (Murray & Evans, 2000). Religious activity in public schools has long been a primary legal issue for school personnel (Mawdsley, 1998). In an attempt to guarantee that state and church remained separate, the First Amendment of the Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The debate in the United States over religion and schools has been ongoing since the inception of public education. As society becomes more culturally diverse, the issue of religion in public schools increases in complexity (Feldman, 2007; Okun, 1996).

Murray and Evans (2000) noted that over the past 35 years, the U.S. Supreme Court ruled in several challenges that have helped define the appropriate relationship between religious activity and government- sponsored schools. Many cases that were heard in the U.S. Supreme Court relating to religious activities were decided by interpretations of the Establishment Clause, which was used to oppose the advancement of religion.

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Conversely, the First Amendment Free Exercise Clause allows American citizens to determine their beliefs. The Establishment Clause has been used as the basis for numerous legal disputes that involve prayer and religion in public schools (Cambron-McCabe et al., 2009; LaMorte, 2009; Murray & Evans, 2000).

An important controversy of state and religion was that of the Good News Club v. Milford Central School (2001), in which the Supreme Court was asked to determine two important issues: (a) whether a New York school district violated the First Amendment rights of the Good News Club by not allowing them to meet on campus after school hours; and (b) whether the violation by the school district was justified by its concern for other Establishment Clause violations. The Supreme Court overturned decisions of the United States District Court for the Northern District of New York and the United States Court of Appeals for the Second Circuit holding that the school district’s actions to prevent the Good News Club from holding group meetings was a violation of the student’s First Amendment free speech rights.

Freedom of expression. As the United States fought in the Vietnam War during the 1960s, the antagonism and hostility that the public took on about the country’s participation in the war overflowed into public education, illuminating students’ rights as they relate to the First Amendment’s provisions concerning student expression and speech. The landmark case of Tinker v. Des Moines Independent Community School District (1969), placed schools around the country in distress as the courts issued one of the most historic strikes against school personnel. The Supreme Court, in a 7 to 2 ruling, acknowledged that a student has a right to freedom of speech and to assemble peaceably, as long as the student’s behavior is not disturbing to class work. More specifically, the Supreme Court held that students were protected under the First Amendment, and that school policy preventing students from expressing their beliefs or non-beliefs is a violation of the students’ rights of free speech and freedom of expression.

Stover and Cook (2009) reported the findings of a national study with over 200 members of the National Council of School Attorney’s (COSA), who identified freedom of expression and speech and school discipline among the most pressing legal concerns faced by school personnel. In addition, discipline, including academic sanctions, suspensions, and expulsion, are also significant issues for school personnel in their daily management of school operations (Sparkman, 1990). Cambron-McCabe et al. (2009) identified student misconduct as one of the most problematic issues that school personnel have to

confront. Burdensome behaviors by students have placed school personnel on the defense (Stover & Cook, 2009).

Discipline and due process. School personnel are responsible for assisting in the development of students today, who, in turn, it is hoped, will become productive citizens in the future (Reyes, 2006; Taylor, 2009). Therefore, developing and adhering to federal and state law pertaining to student discipline has relevance to controlling the behaviors of students (Reyes). Discipline is the authority to manage the behavior and demeanor of students in schools that were created under the doctrine of in loco parentis (Gatti & Gatti, 1990). Notably, Gaustad (1992) pointed out that school discipline entails two major objectives: (a) to guarantee that schools are safe environments for all stakeholders, and (b) to establish an atmosphere that is advantageous for learning to take place. With attention to discipline, administrators commonly react to students who are disruptive and require discipline, which could include corporal punishment, suspensions, and expulsions (Osher, Bear, Sprague & Doyle, 2010). Russo (2005) noted that suspensions and expulsions are the most severe punishments that school personnel can legally inflict upon students.

Court opinions have revealed that education is a property right that belongs to students, and students must be provided due process prior to being deprived of this right (Goss v. Lopez, 1975). Due process rights are embodied in the Fifth and Fourteenth Amendments of the U. S. Constitution, which warrants that no state shall “deprive any person of life, liberty, or property without due process of law (U.S. Const. amend. V; U.S. Const. amend. XIV)”; it includes procedural protections and substantive protections. Due process warrants that if a property right is at risk, the student is entitled to notice and the chance to be heard prior to the right being restricted or taken away.

Educators must maintain safe and sound schools needed to provide a disciplined learning environment (Russo, 2006). Gaustad (1992) advised that school discipline policies must be consistent with the federal and state regulations and must be provided in written form to parents and students.

The case of Bethel School District v. Fraser (1986) re-established the viability of the in loco parentis doctrine as mechanism to protect students from sexually unambiguous and vulgar speech (Alexander & Alexander, 2009; LaMorte, 2008). The facts of the case revealed that the plaintiff, Matthew Fraser, was

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considered to be an exceptional student at Bethel High School in Washington. In 1983, Fraser prepared to give a speech at Bethel High School assembly for the purposes of being elected to the student government. After being cautioned by teachers that the speech was inappropriate because of its sexual content, Fraser delivered the speech anyway. Following the delivery of the speech, Fraser was suspended from school for violating the student handbook policy that prohibited the use of obscene language in speeches by students delivered to a captive audience. The student challenged the suspension in the U.S. District Court for the Western District of Washington and Ninth Circuit Court of Appeals, arguing that his First Amendment rights had been violated. The lower courts agreed that the plaintiff’s right to freedom of speech under the First Amendment of the U.S. Constitution had, in fact, been violated by the school district. The school district appealed and was granted certiorari by the Supreme Court of the United States. In a 7 to 2 decision, the high court reversed the lower court’s decision by acknowledging that school personnel may forbid student speech before a student assembly. Chief Justice Warren E. Burger (1986) wrote the majority opinion for the Court, holding that “the process of educating our youth for citizenship in public schools is not confined to books, the curriculum, and the civics class; schools must teach by example the shared values of a civilized social order” (p. 683). Additionally, the court held “under the First Amendment, the use of an offensive form of expression may not be prohibited to adults making what the speaker considers a political point, but it does not follow that the same latitude must be permitted to children in a public school” (p. 676). Chief Justice Warren justified the rational for the ruling by discerning between political expressions that are protected and obscene speech in the presence of other students at a school assembly. He enunciated that the undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior. Even the most heated political discourse in a democratic society requires consideration for the personal sensibilities of the other participants and audiences. (p. 681)

Furthermore, the courts recognized “the obvious concern on the part of parents, and school authorities acting in loco parentis, to protect children especially in a captive audience -- from exposure to sexually explicit, indecent, or lewd speech” (p. 484). Two years following Bethel, the Hazelwood School District v. Kuhlmeier (1988) case was heard in the

U.S. Supreme Court. Student writers for the Spectrum school newspaper in the Hazelwood School District wrote two articles that included sensitive subject matter about teen pregnancy and divorce. The principal raised objections about the articles and voiced concerns about the appropriateness and concern for the anonymity of the students who were incorporated into the stories. In the end, the principal made the decision to delete the articles from the publication. The plaintiff argued that the principal’s decision to delete the articles violated the student writers’ First Amendment rights to freedom of speech under the Tinker doctrine. For that reason, the students took legal action against the Hazelwood School District for allegedly violating their First Amendment rights. In a 5 to 3 decision, the U.S. Supreme Court reversed the Eight Circuit Court of Appeals when it declared that the rights of public school children are not necessarily the same as the rights afforded to adults in other settings. More specifically, the Court declared that student newspapers were not “forums for public expression” and, as a result, the students who were censored by the school principal were not entitled to traditional First Amendment guarantees. Consequently, school personnel were not compelled to follow the standard established in Tinker. In addition, the Court declared that school censorship will be allowed when its decision to do so is “reasonably related to legitimate pedagogical concerns” in their respective learning communities. The Court reaffirmed that the school personnel may demonstrate authority over student speech in school publications, as well as at school activities if it interferes with the educational process (Gatti & Gatti, 1990; Russo, 2006). Also, schools have an interest in protecting the identities of the students in the articles, as well as in upholding the integrity of student speech allowed in the school newspaper. Justice Byron White wrote the majority opinion, stating:

A school must also retain the authority to refuse to sponsor student speech that might reasonably be perceived to advocate drug or alcohol use, irresponsible sex, or conduct otherwise inconsistent with “the shared values of a civilized social order, or to associate the school with any position other than neutrality on matters of political controversy. Otherwise, the schools would be unduly constrained from fulfilling their role as a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. (p. 272)

Nearly two decades after Hazelwood, the U.S. Supreme

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Court heard another case involving student speech rights, Morse v. Frederick (2007). On January 24, 2002, the Olympic Torch Relay passed through the city of Juneau, Alaska as part of the opening ceremony for the Winter Olympic Games being hosted in Salt Lake City, Utah. Members of the Torch Relay ran past the entrance of Juneau-Douglas High School during school attendance hours. That day, students were excused from their classes, as a part of an approved field trip, to watch the relay from the sidewalk outside the school under the supervision of school personnel. When the relay team members and the television cameras covering the event passed the plantiff, he and his friends displayed a large banner that stated, “BONG HITS 4 JESUS.” Principal Deborah Morse demanded that the banner be taken down, but Frederick refused to comply. The principal eventually removed the banner and suspended Frederick for ten days for violating Juneau School Board Policy, which strictly forbade drug use. Frederick appealed his suspension to the Juneau School District Superintendent, who, in denying his claim, relied on the Supreme Court’s decision in Fraser, which rejected speech or action that is disruptive to the learning environment.

Frederick filed suit in the District Court, alleging that the school board and Morse violated his First Amendment rights. The District Court sided with Frederick, ruling that the school district’s punishment handed down to Fredrick for the content of his speech was unconstitutional; however, the Ninth Circuit reversed the trial court’s decision and the case was granted certiori by the U. S. Supreme Court. In a 5 to 4 decision, the Supreme Court upheld the decision of the Ninth Circuit Court when it declared that public school personnel have the right to censor student speech that explicitly encourages illegal drug use. Chief Justice John G. Roberts delivered the Court’s opinion; however, Justice Clarence Thomas rendered a meticulous concurring opinion that provided an overview of the in loco parentis doctrine and of his views of Tinker. Justice Thomas explained that “the Court today decides that a public school may prohibit speech advocating illegal drug use.” In a scathing rebuke of settled case law, Justice Thomas consented that Tinker utterly ignored the history of public education, as courts (including this one) routinely find it necessary to create ad hoc exceptions to its central premise. This doctrine of exceptions creates confusion without fixing the underlying problem by returning to first principles. Just as I cannot accept Tinker’s standard, I cannot subscribe to Kuhlmeier’s alternative. (p. 408)

Justice Thomas further surmised that in light of the history of American public education, it cannot seriously be suggested that the First Amendment “freedom of

speech” encompasses a student’s right to speak in public schools. Early public schools gave total control to teachers, who expected obedience and respect from students. And courts routinely deferred to schools’ authority to make rules and to discipline students for violating those rules. Several points are clear: (1) under in loco parentis, speech rules and other school rules were treated identically; (2) the in loco parentis doctrine imposed almost no limits on the types of rules that a school could set while students were in school; and (3) schools and teachers had tremendous discretion in imposing punishments for violations of those rules. (p. 421)

Justice Thomas also commended Justice Hugo Black’s warning in his dissenting opinion in Tinker. More specifically, he asserted that Tinker has undermined the traditional authority of teachers to maintain order in public schools. Thomas also asserted that “society once respected the authority of teachers, deferred to their judgment, and trusted them to act in the best interest of school children, now society accepts defiance, disrespect, and disorder as daily occurrences in many of our public schools” (p. 423). Justice Thomas summed up his views of Morse by concluding that “if parents do not like the rules imposed by those schools, they can seek redress in school boards or legislatures; they can send their children to private schools or home school them; or they can simply move” (p. 422).

Yet, in the online age, the Supreme Court has declined to make decisions that involve free speech that involve internet speech (Serman & Smith, 2012; Walsh, 2012). A joint appeal was filed from two school districts in Pennsylvania that imparted questions pertaining to the First Amendment rights of students and school personnel’s authority to regulate student online speech. In Blue Mountain School District v. Snyder (2012), students made mockery of their principal online via the social media site, MySpace. The student accused the principal of being a sex addict and a pedophile. The federal court asserted that if there was not substantial disruption in school and if the speech occurred off campus, the school authorities could not discipline the student. In Layshock v. Hermitage School District (2011), the 3rd Circuit Court reversed the district court ruling in the discipline of a student who created a bogus MySpace profile for his principal. The fake profile identified the principal as having an interest in “big” things, such as smoking a big blunt, being a big steroid freak, having stolen a big keg, and having been drunk a big number of times. Ruling similarly as in the Blue Mountain School District case, the U.S States Court of Appeals for the Third Circuit ruled that if the profile did

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not create a substantial disruption in school functions, then school personnel could not suspend students. The U.S. Supreme Court has not spoken to the First Amendment rights for student speech that occurs off school premises and/ or online. In an appeal to the Supreme Court, Kowalski v. Berkeley County Schools (2012) was denied certitori. The case involved a West Virginia student who was suspended for creating a MySpace page and making accusations that another student had herpes. The student was suspended for using speech against another student via online media, which was a violation of the school’s policies. The 4th Circuit Federal Court and the U.S. Court of Appeals in Richmond, Virginia upheld the decision of school personnel to suspend the student, thus supporting the role of the school administrator in disciplining the student and acting in loco parentis. The court acknowledged that the challenges school personnel face have become a spectacle and are concerning. Additionally, the court argued that the Constitution is not written to thwart school personnel’s’ attempts to deal with bullying and harassment problems in schools.

There have been drastic changes in the interpretation of Constitutional rights of students. In the past, school personnel acted upon the doctrine of in loco parentis while the child was under their authority; however, the Supreme Court’s decision in Goss v. Lopez, 1975, changed the stance of discipline as it was once known (Alexander & Alexander, 2009; Doverspike & Cone; Gaustad, 1992; LaMorte, 2008; Mahon; McCarthy, 1976; Permuth & Mawdsley, 2001; Stover & Cook).

Corporal Punishment. Corporal punishment is another hotly contested constitutional issue that has prevented school personnel from standing in loco parentis (Doverspike & Cone, 1992; Gatti & Gatti, 1990). Historically, corporal punishment was used frequently by school personnel, with courts using in loco parentis to justify the punishment rendered to students (Alexander & Alexander, 2009; Doverspike & Cone, 1992; Gatti & Gatti, 1990; Greenlee, 2006). Corporal punishment signifies the use of physical strength for the reason of bringing about physical pain (Gatti & Gatti; LaMorte, 2008), such as hitting, paddling, or using force to hit the buttocks of students (Greenlee, 2006). Greenlee accredited corporal punishment to the biblical scripture of, “Whoever spares the rod hates their children, but the one who loves their children is careful to discipline them” (NIV Bible, Proverbs 13:24). After decades of routine use, corporal punishment as form of discipline was challenged in the case of Ingraham v. Wright (1977). There were two central challenges in the Ingraham

case. The first challenge was whether the corporal punishment administered by the school personnel was considered cruel and unusual punishment under the U.S. Constitution. Second, the Supreme Court addressed if notice and a hearing were required for students prior to being paddled. The plaintiffs were two Florida students who were paddled in school because they were slow to respond to the instructions of school officials. The plaintiffs filed suit against the school district in Federal Court arguing that the paddling was “cruel and unusual punishment” (p. 430). According to plaintiff testimony, Ingraham received over 20 thrashings with a paddle while being held over a table in the principal’s office by the assistant principal. The paddling injured the plaintiff, leaving injuries that required him to receive medical attention and spend several days absent from school. The second plaintiff also received a paddling leaving injury to his arms, thus depriving him of the full use of his limbs for over a week.

The Supreme Court, in a 5 to 4 split decision, ruled that the U.S. Constitution’s prohibition against cruel and unusual punishment did not apply to the corporal punishment administered to children in public schools. They also concluded that students who were disciplined in school were not denied their due process rights under the Fourteenth Amendment. The Court found that the punishment administered in Ingraham was not a violation of the Eighth Amendment. Furthermore, the Supreme Court held that school personnel had the authority to maintain discipline in school, and corporal punishment is an authorized method of punishment (Gatti & Gatti, 1990). The Justices were concerned exclusively with the punishments in the context of criminal justice situations and argued that the Eighth Amendment would not be applicable to the discipline administered in public schools.

In Cunningham v. Beavers (1989), the Supreme Court upheld a district court’s decision to dismiss the plaintiff’s action in seeking damages over a spanking administered by school officials. A Texas public school principal saw two kindergarten students snickering in the hall of the school and issued each child two smacks on the buttocks with a wooden paddle. Once the principal saw that the children continued to snicker, she removed them from their class and issued them three smacks on the buttocks with a wooden paddle. The parents of the plaintiff noticed bruises on the buttocks of the children and sought medical attention. The medical practitioner revealed that the students had been paddled too hard. The defendant, Superintendent Beavers, conducted an investigation into the incident and did not discipline school personnel for their actions. The parents sued the school district,

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arguing that their due process and Constitutional rights had been violated. The district court dismissed the case, citing that the plaintiffs had failed to demonstrate that their substantive due process had been violated.

Search and Seizure. Researchers noted that New Jersey v. T. L. O. (1985) was one the most well-known Supreme Court cases involving education law, yet maintaining the status of the in loco parentis doctrine (Alexander & Alexander, 2009; Bracy, 2010). The Constitution prohibits unreasonable search and seizure, with the exception of certain situations in which there is not a conflict with the safety of the student body of the school and a student’s privacy (Taylor, 2001a). Particularly, if school personnel had a logical suspicion or evidence that a student has violated a rule, then search and seizure becomes authorized (Alexander & Alexander; Bracy) in New Jersey v. TLO, a teacher in a New Jersey high school discovered two students smoking in the restroom on the school campus, a violation of school board policy. TLO, the plaintiff in the case, was taken to the office, where she denied that any smoking occurred in the restroom. After searching through TLO’s purse, the assistant principal discovered the following items inside the purse: a pack of cigarettes, rolling papers, a pipe, marijuana, a large wad of dollar bills, and two letters that seemed to indicate that TLO was involved in marijuana trafficking at the high school. Once TLO was taken to the police station, she admitted that she sold marijuana at the school, and the juvenile court sentenced her to a year’s probation. However, the New Jersey State Supreme Court overturned the decision, stating that TLO’s Fourth Amendment rights had been violated. Subsequently, the State of New Jersey appealed to the Supreme Court.

The issue at hand was questioned if students in school have the same rights under the Fourth Amendment as adults. New Jersey school officials argued that school officials act in loco parentis for students who attend public schools, and in light of that, school officials should not need a warrant to make searches or to seize evidence. Based on TLO’s actions, the search and seizure was warranted with reasonable cause for the search of her purse; therefore, the exclusionary rule does not apply. However, TLO’s argument was that school personnel are employees of the State and not representatives of parents. As a result, school personnel are duty-bound to respect the rights of student, including the right to privacy. In fact, TLO argued that school personnel do not have the right to act in place of the parents. The Supreme Court ruled 6 to 3 in favor of New Jersey. Justice Byron White wrote the Court’s opinion, asserting today’s decision sanctions school officials to conduct full scale searches on a “reasonableness” standard whose

only definite content is that it is not the same test as the ‘probable cause’ standard found in the text of the Fourth Amendment. In adopting this unclear, unprecedented, and unnecessary departure from generally applicable Fourth Amendment standards, the Court carves out a broad exception to standards that this Court has developed over years of considering Fourth Amendment problems. Its decision is supported neither by precedent nor even by a fair application of the “Balancing test of power” it proclaims in this very opinion. (p. 354)

In an attempt to balance the rights of students and the authority of school personnel, the decision in TLO confirmed that there is a minimum level of doubt that the decision lessened the anxiety in school personnel to act in loco parentis (LaMorte, 2008). Because the courts did not dissipate in loco parentis and school personnel relationships, the court’s ruling suggested that that school personnel were not in loco parentis, indeed, school personnel were obligated to the state and to the Constitution’s boundary against unreasonable searches (LaMorte, 2008; Lewis, 2002). Researchers have noted that the high court did not say that school personnel are never to act in the place of parents (Alexander & Alexander, 2009; DeMitchell, 2002; LaMorte).

The courts again used the doctrine of in loco parentis in Veronia v. Acton (1995). A public high school in Oregon, in the Veronia school district, was faced with a drug crisis. The district developed a policy in which all athletes had to be drug tested prior to participating in extracurricular activities. The Acton family opposed the policy, arguing that it violated their son’s privacy. The U.S. Supreme Court held that the drug testing policy was constitutional, and that a student willingly surrenders their privacy to become an athlete. Similarly, in 2002, the U.S. Supreme Court held that that random drug test of student athletes was constitutional because the board identified a special reason for testing students who participated in extracurricular activities in the Board of Education of Independent School District #92 of Pottawatomie County v. Earls (2002) landmark case. The Supreme Court held that the Board of Education policy constituted a reasonable search because it fulfilled the policy’s purpose to prevent drug use among the students.

According to Bishop and Miles (1998), Alabama follows the TLO decision when conducting search and seizures of students. Furthermore, Bishop and Miles provided chronological steps in which Alabama school personnel are to follow in event the reasonable cause for search and seizure occurs. The steps are as follows: (1) distribute the local board policy on search and seizure, (2) stay

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away from sweep searches of all lockers of all students, (3) document each time and the rationale for search and seizure, and (4) corporate fully if authorities are involved.

The Court’s decision would serve as a standard in future cases, such as Bethel School District v. Fraser (1986). One year following TLO, the Supreme Court concluded that school personnel officially act in loco parentis to protect and keep students safe. Ultimately, the viability of in loco parentis continues to exist, and Supreme Court decisions have enhanced the power behind the line of reasoning when in loco parentis is put to use (De Mitchell, 2002). Since the decision in TLO, school personnel have had the legal authority to search students’ outer clothing garments, but the Constitutionality of school strip searches has been in an indeterminate state (Torres, Brady, & Stefkovoich, 2011).

In a 7 to 2 decision in Safford v. Redding (2009), the Supreme Court sided with the plaintiffs and asserted that the strip search of the student was unjustified and violated a student’s Fourth Amendment rights. Parents of a student filed a suit against principal, an assistant, and a nurse in the school district, claiming that a strip search violated the student’s Fourth Amendment rights. The defendants held suspicions that the plaintiff had possession of drugs on the school premises, which the school policy prohibited. Based on the suspicion, the student’s backpack, outer clothing, and undergarments were searched. The plaintiffs argued that the search of the student’s undergarments was constitutionally unreasonable. The Supreme Court agreed that the strip search violated the plaintiffs Fourth Amendment rights.

CONCLUSION

The landmark case, Tinker et al. v. Des Moines Independent Community School District (1969), recognized students’ rights to freedom of speech and expression. Yet, the decisions in Bethel School District v. Fraser (1986), Hazelwood School District v. Kuhlmeier (1988), and Morse v. Frederick (2007) formulated legal standards that principals are required to adhere to when dealing with matters relevant to student expression and speech. Given that changing cultural and social norms will continue to serve as the foundation for more civil challenges to existing law, the need for school personnel to be knowledgeable and trained about the legal responsibilities of schools, and the rights of teachers and students, remains critical (Davis & Williams, 1992). Reglin (1992) warned that school personnel who are negligent or unprofessional with the laws that surround

schools should take notice because they could be subjected to financial penalties. Similarly, LaMorte (2008) argued “those educators who fly by the seat of their pants or who act on the basis of what they think the law states may be in difficulty if sufficient thought is not given to the legal implications and ramifications of their policies or conduct” (p. xxv). For that reason, it is imperative that school personnel remain aware of the laws that should shape their policies and decision making intended to safeguard student rights and avoid costly litigation (Schimmel & Millitello, 2009). Furthermore, Sparkman stated:

Public schools will continue to be influenced by the law. School leaders must prepare themselves by developing a basic understanding of the legal framework of public education. They also must have a working knowledge of and an appreciation for the legal rights of teachers and students. (p. 59) .

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