Student Discipline

LaMorte, M. (2012). School Law: Cases and Concepts. 10th edition. Pearson Education: London, England.

3 Students and the Law

Countless interactions between students and school officials occur in public schools, and inevitably, some students or their parents become displeased either with a school official’s actions or with school policy. The vast majority of such disputes are not litigable, however, unless school authorities have violated a student’s constitutional rights, not followed applicable federal or state statutes, or not had appropriate policies or procedures.

Prior to the 1970s, courts usually upheld school authorities who demonstrated no more than that their actions were reasonable. Public schools were perceived as enjoying parental prerogatives (in loco parentis), and it was uncertain whether any constitutional rights extended to students. However, in a 1969 landmark decision, the US Supreme Court in Tinker v. Des Moines's Independent Community School District declared that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Subsequently, in 1975 the high court held that public school students possess liberty and property interests in their education, and therefore, that constitutional principles of due process apply to school officials’ treatment of students. Several important federal statutes also emerged in the 1970s, expanding the scope of student rights. Title IX of the Education Amendments of 1972 expanded the rights of female students; the Family Educational Rights and Privacy Act of 1974 protected information concerning students; and the Education for all Handicapped Children Act of 1975 provided for a free appropriate public education for all disabled children. As a result of these many changes in students’ legal status, a period ensued when students were often successful in challenging school policies and procedures and when many school officials perceived an erosion of their authority.

In the mid 1980s, however, a shift became evident in the courts’ tendency to uphold students. In particular, several Supreme Court decisions clearly increased the authority of public school officials regarding students’ rights to free expression and several areas of conflict.

In addition to discussing students’ rights to free expression, this chapter addresses issues associated with student privacy; suspension, expulsion, and involuntary disciplinary transfer from school; corporal punishment; search of students, their lockers, and cars; student appearance; pregnancy, parenthood, and marriage; participation in extracurricular activities; and school punishment for out-of-school offenses.

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An examination of court decisions in these areas revealed that courts must often balance students' constitutional rights against the duty of public school officials to maintain an appropriate environment for learning and safety. A deceptively, simple administrative practice, emerges that produces legal confrontations, and also facilitates school operations; namely, school officials should ensure the adoption of policies that are legally and educational sound, that are clearly written, that are adequately communicated to students and their parents, and that are enforced in a fair and impartial manner.

I. FREEDOM OF EXPRESSION A. The Tinker Doctrine

Students had not been recognized as having the first amendment right of freedom of expression until 1969, when the United States Supreme Court addressed the question in Tinker v. Des Moines's Independent Community School District. Although the seven-to-two decision did not address the question of “pure speech” - the issue before the court, involves the wearing of arm bands by students protesting the Vietnam War - the Court's decision Tinker, provided the public school community with a clear message that a student has the right of political freedom of expression.

TINKER v. DES MOINES'S INDEPENDENT COMMUNITY SCHOOL DISTRICT

Supreme Court of the United States, 1969 393 U.S. 503

MR. JUSTICE FORTAS delivered the opinion of the Court. Petitioner John Fr. Tinker, 15 years old, and petitioner Christopher Eckhardt, 16 years old,

attended high schools in Des Moines, Iowa. Petitioner Mary Beth Tinker, John’s sister, was a 13-year-old student in junior high school.

In December 1965, a group of adults and students in Des Moines held a meeting at the Eckhardt home. The group determined to publicize their objectives to the hostilities in Vietnam and their support for a truce by wearing black armbands during the holiday season and by fasting on December 16 and New Year’s Eve. Petitioners and their parents had previously engaged in similar activities, and they decided to participate in the program.

The principals of the Des Moines schools became aware of the plan to wear armbands. On December 14, 1965, they met and adopted a policy that any student wearing an armband to school would be asked to remove it, and if they refused he would be suspended until he returned without the armband. Petitioners were aware of the regulation that the school authorities adopted.

On December 16, Mary Beth and Christopher wore black armbands to their schools. John Tinker wore his armband the next day. They were all sent home and suspended from school until they would come back without their armbands. They did not return to school until after the planned period for wearing armbands had expired - that is, after New Year’s Day.

This complaint was filed in the United States District Court by petitioners, through their fathers, under 1983 of Title 42 of the United States Code. It prayed for an injunction restraining the respondent school officials and the respondent members of the board of directors of the school district from

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disciplining the petitioners, and it sought nominal damages. After an evidentiary hearing the District Court dismissed the complaint. It upheld the constitutionality of the school authorities' action on the ground that it was reasonable in order to prevent

disturbance of the school discipline. * * * The court referred to but expressly declined to follow the Fifth Circuit’s holding in a similar case that the wearing of symbols like the armbands cannot be prohibited unless it “materially and substantially interfere(s) with the requirements of appropriate discipline in the operation of the school.” * * *

On appeal, the Court of Appeals for the Eighth Circuit considered the case en banc. The court was equally divided, and the District Court’s decision was accordingly affirmed, without opinion. * * * We granted certiorari. * * *

The District Court recognized that the wearing of an armband for the purpose of expressing certain views is a type of symbolic act that is within the Free Speech Clause of the First Amendment. * * * As we shall discuss, the wearing of armbands in the circumstances of this case was entirely divorced from actually or potentially disruptive conduct by those participating in it. It was closely akin to “pure speech” which, we have repeatedly held, is entitled to comprehensive protection under the First Amendment. * * *

First Amendment rights, applied in the light of the special characteristics of the school environment, are available to teachers and students. 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 this Court for almost 50 years. * * *

* * * On the other hand, the Court has repeatedly emphasized the need for affirming the comprehensive authority of the Stated and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools. * * * Our problem lies in the area where students in the exercise of the First Amendment collide with the rules of the school authorities.

The problem posed by the present case does not relate to regulation of the length of skirts or the type of clothing, to hair style, or deportment. * * * It does not concern aggressive, disruptive action or even group demonstrations. Our problem involves direct, primary First Amendment rights akin to “pure speech.”

The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder of disturbance on the part of the petitioners. There is no evidence whatever of petitioners' interference, actual or nascent, with the schools’ work or of collision with the rights of other students to be secure and to be let alone. Accordingly, this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students.

Only a few of the 18,000 students in the school system wore the black armbands. Only five students were suspended for wearing them. There is no indication that the work of the schools or any was disrupted. Outside the classrooms, a few students made hostile remarks to the children wearing armbands, but there were no threats or acts of violence on school premises.

The District Court concluded that the action of the school authorities was reasonable because it was based upon the fear of disturbance from wearing of the armbands. But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right of freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause disturbance. But our Constitution says we must take this risk, * * *; and our history says that it is this sort of hazardous freedom - this kind of openness - that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.

In order for the State in the person of the school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere

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desire to avoid the discomfort and unpleasantness that always accompany an unpopular view-point. Certainly where there is no finding and no showing that enganging in the forbidden conduct would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,” the prohibition cannot be sustained. * * *

In the present case, the District Court made no such finding, and our independent examination of the record fails to yield evidence that the school authorities had reason to anticipate that the wearing of the armbands would substantially interfere with the work of the school or impinge upon the rights of other students. Even an official memorandum prepared after the suspension that listed the reasons for the ban on wearing the armbands made no reference to the anticipation of such disruption.

On the contrary, the action of the school authorities appears to have been based upon an urgent wish to avoid the controversy which might result from the expression, even by the silent symbol of armbands, of opposition to this Nation’s part in the conflagration in Vietnam. It is revealing, in this respect, that the meeting at which the school principals decided to issue the contested regulation was called in response to a student’s statement to the journalism teacher in one of the schools that he wanted to write an article on Vietnam and have it published in the school paper.(The student was dissuaded.)

It is also relevant that the school authorities did not purport to prohibit the wearing of all symbols of political or controversial significance. The record shows that students in some of the schools wore buttons relating to the national political campaigns and some even wore the Iron Cross, traditionally a symbol of Nazism. The order prohibiting the wearing of the armbands did not extend to these. Instead, a particular symbol, black armbands worn to exhibit opposition to this Nation’s involvement in Vietnam - was singled out for prohibition. Clearly, the prohibition of expression of one particular opinion, at least without evidence that is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible.

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 out of school are “persons” under our Constitution. They are possessed of fundamental rights which the State chooses to communicate. They may be confined to the expression of the 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. * * *

* * * * * * The principal use to which the schools are dedicated is to accommodate students during prescribed hours for the purpose of certain types of activities. Among those activities is personal intercommunication among the students. This is not only an inevitable part of the process of attending school; it is also an important part of the educational process. A student’s rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without “materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school” an without colliding with the rights of others. * * * But conduct by the student, in class or out of it, which for any reason - whether it stems from time, place, or type of behavior - materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course not immunized by the constitutional guarantee of freedom of speech. * * *

Under our Constitution, free speech is not a right that is given only to be so circumscribed that it exists in principle but not in fact. Freedom of expression would not truly exist

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if the right could be exercised only in an area that a benevolent government has provided as a safe haven for crackpots. The Constitution says Congress (and the States) may not abridge the right to free speech. This provision means it says what it says. We properly read it to permit reasonable regulation of speech-connected activities, in carefully restricted circumstances. But we do not confine the permissible exercise of First Amendment rights to telephone booth or the four corners of the pamphlet, or to supervised and ordained discussion in a school classroom.

If a regulation were adopted by school officials forbidding discussion of the Vietnam conflict, or expression by any student of opposition to it anywhere on school property except as part of a prescribed classroom exercise, it would be obvious that the regulation would violate the constitutional rights of students, at least it could not be justified by showing that the students’ activities would materially and substantially disrupt the work and discipline of the school. * * * In the circumstances of the present case, the prohibition of the silent passive “witness of the armbands,” as one of the children called it, is no less offensive to the Constitution’s guarantees.

As we have discussed, the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred. These petitioners merely went about their ordained rounds in school. Their deviation consisted only in wearing on their sleeve a band of black cloth, not more than two inches wide. They wore it to exhibit their disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them. They neither interrupted school activities nor sought to intrude in the school affairs or the lives of others. They caused discussion outside of the classroom, but not interference with work and no disorder. In the circumstances, our Constitution does not permit officials to deny their form of expression.

We express no opinion as to the form of relief which should be granted, this being a matter of the lower courts to determine. We reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded. * * *

MR. JUSTICE BLACK. Dissenting.

The Court’s holding in this case ushers in what I deem to be an entirely new era in which the power to control pupils by the elected “officials of the state-supported public schools…” in the United States is in ultimate effect transferred to the Supreme Court. * * *

* * * Assuming that the Court is correct in holding that the conduct of wearing armbands for the

purpose of conveying political ideas is protected by the First Amendment * * *, the crucial remaining questions are whether students and teachers may use the schools at their whim as a platform for the exercise of free speech - “symbolic” or “pure” - and whether the courts will allocate to themselves the function of deciding how the pupils’ school day will be spent. While I have always believed that under the First and Fourteenth Amendments neither the State nor the Federal Government has any authority to regulate or censor the content of speech, I have never believed that any person has a right to give speeches or engage in demonstrations where he pleases and when he pleases. * * *

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While the record does not show that any of these armband students shouted, used profane language, or were violent in any manner, detailed testimony by some of them shows their armbands caused comments, warnings by other students, the poking of fun at them, and a warning by an older football player that other, nonprotesting students had better let them alone. There is also evidence that a teacher of mathematics had his lesson period practically “wrecked” chiefly by disputes with Mary Beth Tinker, who wore her armband for her “demonstration.” Even a casual reading of the record shows that this armband did divert students’ minds from their regular lessons, and that talk, comments, etc., made John Tinker “self-conscious” in attending school with his armband. While the absence of obscene remarks or boisterous and loud disorder perhaps justified the Court’s statement that the few armband students did not actually “disrupt” the classwork, i think the record overwhelmingly shows that the armbands did exactly what the elected school officials and principals oversaw they would, that is, took the students’ minds off their classwork and diverted them to thoughts about the highly emotional subject of the Vietnam war. And I repeat that if the time has come when pupils of state-supported schools, kindergartens, grammar schools, or high schools, can defy and flout orders of school officials to keep their minds on their own schoolwork, it is a beginning of a new revolutionary era of permissiveness in this country fostered by the judiciary. The next logical steps, it appears to me, would be to hols unconstitutional laws that bar pupils under 21 or 18 from voting or from being elected members of the boards of education.

* * * * * * But even if the record were silent as to protests against the Vietnam war distracting students

from their assigned class work, members of this Court, like all other citizens, know, without being told, that the disputes over the wisdom of the Vietnam war have disrupted and divided this country as few other issues ever have. Of course students, like other people, cannot concentrate on lesser issues when black armbands are being ostentatiously displayed in their presence to call attention to the wounded and dead of the war, some of the wounded and the dead being their friends and neighbors. It was, of course, to distract the attention of other students that some students insisted up to the very point of their own suspension from school that they were determined to sit in school with their symbolic armbands.

Change has been said to be truly the law of life but sometimes the old and the tried and true are worth holding. The schools of this Nation have undoubtedly contributed to giving us tranquility and to making us a more law-abiding people. Uncontrolled and uncontrollable liberty is an enemy to domestic peace. We cannot close our eyes to the fact that some of the country’s greatest problems are crimes committed by the youth, too many of school age. School discipline, like parental discipline, is an integral and important part of training our children to be good citizens - to be better citizens. Here a very small number of students have crisply and summarily refused to obey a school order designed to give pupils who want to know that after the Court’s holding today some students in Iowa schools and indeed in all schools will be ready, able, and willing to defy their teachers on practical all orders. This is the more unfortunate for the schools since groups of students all over the land are already running loose, conducting break-ins, sit-ins, lie-ins, and smash-ins. Many of these student groups, as is all too familiar to all who read the newspapers and watch the television news programs, have already engaged in rioting, property seizures, and destruction. They have picketed schools to force students not to cross their picket lines and have too often violently attacked earnest but frightened students who wanted an education that the pickets did not want them to get. Students engaged in such activities are apparently confident that they know far more about how to operate public school systems than do their parents, teachers, and elected school officials. It is no answer to say that the particular students here have not yet reached such high points in their demands to attend classes in order to exercise their political pressures. Turned loose with lawsuits for damages and injunctions against their teachers as they are here, it is nothing but wishful thinking to imagine that young, immature students will not soon believe it is their right to control the schools rather than the right of the States that collect the taxes to hire

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the teachers for the benefit of the pupils. This case, therefore, wholly without constitutional reasons in my judgment, subjects all the public schools in the country to the whims and caprices of their loudest-mouthed, but maybe not their brightest, students, I, for one, am not fully persuaded that school pupils are wise enough, even with this Court’s expert help from Washington, to run the 23,390 public school systems in our 50 States. I wish, therefore, wholly to disclaim any purpose on my part to hold that the Federal Constitution compels the teachers, parents, and elected school officials to surrender control of the American public school system to public school students. I dissent.

Notes and Questions

It should be kept in mind that the freedom of expression protected in Tinker pertains to the expression of social, political, and economic issues by high school and junior high school students. Not protected is such student conduct in insolence, disrespect, screaming, or cursing at staff members or fellow students.

Tinker was filed as a legal action under 1983 of Title 42 of the United States Code. This section of the Civil Rights Acts is often employed as a legal basis for bringing a suit involving students or teachers. See Chapter 8 (p. 347) for a brief discussion of this act.

According to Tinker, “undifferentiated fear or apprehension of disturbance is not enough to overcome the right of freedom of expression,” and school authorities must accept “mere disturbance” when students exercise their First Amendment rights. Only when students engage in conduct that would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school” [emphasis added] may authorities prohibit the conduct. Unfortunately, the Court did not provide a test that school authorities could employ to determine whether actual disruption or merely a forecast of “substantial disruption” was necessary before they could prohibit conduct where freedom of expression was at issue. Further complicating the picture for school administrators was the failure by the Court to provide sufficient guidance concerning the meaning of a forecast of “substantial disruption.”

There is little doubt that school officials may enforce reasonable rules to ensure the orderly operation of the school. However, Tinker proclaimed that when freedom of expression is involved, school officials may not restrict this freedom because the political viewpoint expressed displeases an official or has the potential to bring about a degree of disruption. Part of the desired political socialization of students is that they learn that a government official - a school authority in tihs instance -may not restrict certain types of freedom of expression merely because it may be annoying or somewhat disruptive. Although some school officials may feel uncomfortable with such a doctrine, its rationale is based on the notion that if students are to become full participants in a free and democratic society, they must thoroughly understand that they are free to express themselves on any social, political, or economic issue without undue restraint or reprisal from government. The Court’s contention was that the school is the proper place for a student to come to this understanding through the observance of freedom of expression in the school environment rather than through lectures or through policies that imply that freedom of expression is conferred at a specific age or upon from high school.

Do contemporary notions about being “politically correct” fly in the face of the preceding? Why, for instance, should students not be allowed to make negative comments related to another student’s religion, race, sexual orientation , ethnic background, gender, or group association

merely because it may be offensive or disagreeable? Is it because a school has a duty to teach good manners and civility? Or is it because, in addition to impending the orderly operation of the school,

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students are required by law to attend and that it would appear to be an endorsement by the school if such views were allowed to be uttered?

A middle school student’s suspension for drawing a picture of a Confederate flag on a piece of paper during a math class was upheld in West v. Derby Unified School District,206 F/ 3d 1358 (10th Cir. 2000), cert. Denied 531 U.S. 825 (2000). In this instance, the school district had a “Racial Harassment or Intimidation” policy that prohibits “any written material, either printed or in their own handwriting, that is racially divisive or creates “ill will or hatred” and specifically included confederate flags or articles. In its decision, the court held that given the past history of racial incidents between white and black students, the district had a reasonable basis to assume that this student’s conduct will lead to a substantial disruption of school activities.

However, in Bragg v Swanson, 371 F. Sup.2d 814 (W.Va. 2005), the wearing of a T-shirt and belt buckle displaying the Confederate flag was upheld. Employing in Tinker rationale, the court found that the dress code banning the display of the Confederate flag was overboard because there was no evidence of racial unrest and the likelihood of disruption had not been established. The court cautioned, though, that if the school’s environment changed “. . . this opinion should not be interpreted as offering a safe haven for those bent on using the flag in school as a tool of disruption, intimidation, or trampling upon the rights of others.”

Wearing the Confederate flag in a school where the environment had changed considerably was addressed in Barr v. Lafon, 538 F. 3d 554 (6th Circ. 2008), reh’g, en banc, denied 553 F. 3d 463 (6th Circ 2009). Cet, denied 558 U. S. __(2009). Incidents of racial unrest included: “racist graffiti that made general threats against the lives of African-Americans, graffiti containing ‘hit lists’ of specific students’ names, physical altercations between African-American and white students, and a police lockdown at the school” (p.557). Given this environment the court held that wearing the flag was a racially divisive symbol, and relying on Tinker, that its wearing could reasonably be a forecast to substantially and materially disrupt schoolwork and discipline in the school. And the court maintained that the school enforced its dress code banning the wearing of the Confederate flag in a viewpoint-neutral manner.

Tinker analysis was employed by the judge in Gillman v. School Board for Holmes County, 567 F. Supp.2d 1359 (Fla. 2008), addressing whether a public high school may prohibit students from wearing or displaying T-shirts, armbands, stickers, or buttons containing messages and symbols that advocate the acceptance of and fair treatment for persons who are homosexual. This case initially arose from events surrounding the treatment of a homosexual high school student [not Gillman] and her supporters by their principla at a public school in a rural community in Florida panhandle serving approximately four hundred students in grades six through twelve. The principal not only criticized and harassed the student for being homosexual but also vociferously expressed his own disdain for homosexuality. He told her to “stay away” from middle school students or he would suspend her. He engaged in an investigation to determine which students were homosexual and who supported them and threatened all of them with disciplinary action. Specifically, the following represents some of the conduct and actions in which Principal Davis engaged:

… He interviewed approximately thirty students, interrogated them about their sexual orientations, and questioned them about their involvement in the planned walk-out of the assembly and their activities in relation to the movement. During those meetings, Davis instructed students who were homosexual not to discuss their sexual orientations. He also prohibited

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students from wearing rainbow belts or writing “Gay Pride” or “GP” on their arms and notebooks. He required students to wash “GP” or “Gay Pride” from their arms and hands and lifted the shirts of female students to verify that no such writings were present in their bodies.

. . . Davis stated that being gay ws against the Bible and that it was not right. He expressed his hope that Gillman’s cousin would not “go down the road” of being a homosexual. Davis then instructed her not to discuss her sexual orientation with any students at the school, not to say “Gay Pride” or write it on her body or school materials, and not to wear her rainbow-colored belt. Davis warned Gillman’s cousin that if she violated his instructions, he would suspend her from school.

. . . Davis suspended eleven students, including Gillman’s cousin, for five school days each as a punishment for their involvement in teh “Gay Pride” movement. As grounds for the suspensions, Davis explained that the students belonged to a “secret society” or “illegal organization” forbidden by school board policy; had threatened to walk out of an assembly; and had disrupted the school. (p. 1363)

Given this factual situation, it may be instructive to provide excerpts from the judge’s language in his holding:

Obviously, political speech involving a controversial topic such as homosexuality is likely to spur some debate, argument, and conflict. Indeed, the issue of equal rights for citizens who are homosexual is presently a topic of fervent discussion and debate within the courts, Congress, and the legislatures of the States, including Florida. The nation’s high school students, some of whom are of voting age, should not be foreclosed from that national dialogue. (p. 1374)

* * * In light of these findings, I conclude (1) that the speech and symbols banned by the School Board

were not sufficiently connected to the students’ behaviors at [the school], to justify their prohibition; (2) that the prescribed speech did not and would not “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school” or “collid[e] with the rights of others” under Tinker, . . .; and (3) that Heather Gillman’s speech should not be silenced because of alleged disruptions caused by other students. (p.1375)

* * * Again, I emphasize that Davis’s personal and religious views about homosexuality are not issues in

this case. Indeed, Davis’s opinions and views are consistent with the beliefs of many in Holmes County, in Florida, and in the country. Like the students who participated in the gay pride movement at [the school], Davis is entitled to his opinion. In fact, the First Amendment protects his views just as it protects the beliefs of Heather Gillman. * * * Where Davis went wrong was when he endeavored to silence the opinions of his dissenters. (pp. 1376–1377)

This case reveals conduct by a public school administrator and a school board who are ei-ther unaware of or refuse to accept Tinker. To your knowledge is such conduct more prevalent than this seemingly isolated instance? Does your school system or any that you know of make concerted efforts to apprise students of their rights concerning freedom of expression? Should they? Should students be encouraged or discouraged (or neither) to discuss or wear T-shirts or other symbols regarding such issues as abortion, gun control, same-sex marriage, drug legaliza-tion, or a current war?*

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*It should be noted that Justice Thomas, in a concurring opinion in Morse v. Frederick, (see p. 98) devotes 13 pages ve-hemently decrying Tinker by stating that it “is without basis in the Constitution,” and that the Tinker standard should be dispensed with altogether.

A school system’s policy requiring students to engage in sixty hours of community service as a condition of graduation was challenged on the grounds that it compelled expression that was protected by the First Amendment. In rejecting this claim, a federal appellate court contended that participation in the program did not affirm a belief in the philosophy of altruism on the part of participating students. See Steirer v. Bethlehem Area School District, 987 F.2d 989 (3rd Cir. 1993), cert. denied, 510 U.S. 824 (1993). Other federal courts of appeals have upheld similar community service programs. See Immediato v. Rye Neck School District, 73 F.3d 454 (2nd Cir. 1996) cert. denied, 519 U.S. 813 (1996), and Herndon v. Chapel Hill-Carrboro City Board of Education, 89 F.3d 174 (4th Cir. 1996), cert. denied, 519 U.S. 1111 (1997).

Students attending private schools do not have the First Amendment protections provided by the Tinker decision, nor do such students necessarily have all of the civil rights guaranteed by other amendments through the Fourteenth Amendment. Such rights are available to public-school students because the public school operates under the “color of the state.” Because most private-school activities are not considered “state action,” a substantial linkage between a private school and the state or federal government would have to be present for a private school to be considered acting under the “color of the state.” As a result, private-school students do not have many of the rights afforded public-school students discussed in the succeeding sections of this chapter. Disagreements over “student rights” in a private-school setting are generally resolved by applying contract law to the agreement governing the student’s attendance.

B. Limiting the Tinker Doctrine

Active and lively litigation after Tinker addressed such issues as the wearing of buttons or other symbols, the use of obscenity and “fighting words,” censorship of student publications, and distri-bution of “underground” newspapers. Frequently, this litigation did little to dispel fears that the Tinker court had bestowed on students unbridled license to behave as they pleased. Several federal courts, relying on the Tinker decision, upheld forms of student expression that many parents and school authorities considered inappropriate. However, Supreme Court decisions, such as Bethel School District No. 403 v. Fraser and Hazelwood School District v. Kuhlmeier, in the late 1980s, tended to limit what many observers heretofore thought the Tinker decision allowed.

1. NONPOLITICAL SPEECH

BETHEL SCHOOL DISTRICT NO. 403 v. FRASER

Supreme Court of the United States, 1986 478 U.S. 675

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CHIEF JUSTICE BURGER delivered the opinion of the Court. We granted certiorari to decide whether the First Amendment prevents a school dis-trict from disciplining a high school student for giving a lewd speech at a school assembly.

On April 26, 1983, respondent Matthew N. Fraser, a student at Bethel High School in Bethel, Washington, delivered a speech nominating a fellow student for student elective office. Approximately 600 high school students, many of whom were 14-year-olds, attended the as-sembly. Students were required to attend the assembly or to report to the study hall. The as-sembly was part of a school-sponsored educational program in self-government. Students who elected not to attend the assembly were required to report to study hall. During the entire speech, Fraser referred to his candidate in terms of an elaborate, graphic, and explicit sexual metaphor.

Two of Fraser’s teachers, with whom he discussed the contents of his speech in advance, informed him that the speech was “inappropriate and that he probably should not deliver it,” * * * and that his delivery of the speech might have “severe consequences.” * * *

During Fraser’s delivery of the speech, a school counselor observed the reaction of stu-dents to the speech. Some students hooted and yelled; some by gestures graphically simu-lated the sexual activities pointedly alluded to in the respondent’s speech. Other students appeared to be bewildered and embarrassed by the speech. One teacher reported that on the day following the speech, she found it necessary to forgo a portion of the scheduled class lesson in order to discuss the speech with the class.

A Bethel High School disciplinary rule prohibiting the use of obscene language in the school provides:

Conduct which materially and substantially interferes with the educational process is prohibited, including the use of obscene, profane language or gestures.

The morning after the assembly, the assistant principal called Fraser into her office and noti-fied him that the school considered his speech to have been a violation of this rule. Fraser was presented with copies of five letters submitted by teachers, describing his conduct at the as-sembly; he was given a chance to explain his conduct, and he admitted to having given the speech described and that he deliberately used sexual innuendo in the speech. Fraser was then informed that he would be suspended for three days, and that his name would be removed from the list of candidates for graduation speaker at the school’s commencement exercises.

Fraser sought review of this disciplinary action through the School District’s grievance procedures. The hearing officer determined that the speech given by the respondent was “indecent, lewd, and offensive to the modesty and decency of many of the students and fac-ulty in attendance at the assembly.” The examiner determined that the speech fell within the ordinary meaning of “obscene,” as used in the disruptive conduct rule, and affirmed the discipline in its entirety. Fraser served two days of his suspension, and was allowed to return to school on the third day.

Respondent, by his father as guardian ad litem, then brought this action in the United States District Court for the Western District of Washington. Respondent alleged a violation of his First Amendment right to freedom of speech and sought both injunctive relief and monetary damages under 42 U.S.C. § 1983. The District Court held that the school’s sanctions violated respondent’s right to freedom of speech under the First Amendment to the United States Constitution, that the school’s disruptive conduct rule is unconstitutionally vague and overbroad, and that the removal of respondent’s name from the graduation speaker’s list vi-olated the Due Process Clause of the Fourteenth Amendment because the disciplinary rule makes no mention of such removal as a possible sanction. The District Court awarded respondent $278 in damages, $12,750 in litigation costs and attorney’s fees, and enjoined the School District from preventing respondent from speaking at the commencement ceremonies.

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Respondent, who had been elected graduation speaker by a write-in vote of his classmates, delivered a speech at the commencement ceremonies on June 8, 1983.

The Court of Appeals for the Ninth Circuit affirmed the judgment of the District Court, * * * holding that respondent’s speech was indistinguishable from the protest armband in Tinker v. Des Moines Independent Community School Dist. The court explicitly rejected the School District’s argument that the speech, unlike the passive conduct of wearing a black armband, had a disruptive effect on the educational process. The Court of Appeals also rejected the School District’s argument that it had an interest in protecting an essentially captive audience of minors from lewd and indecent language in a setting sponsored by the school, reasoning that the school board’s “unbridled discretion” to determine what dis-course is “decent” would “increase the risk of cementing white, middle-class standards for determining what is acceptable and proper speech and behavior in our public schools.” * * * Finally, the Court of Appeals rejected the School District’s argument that, incident to its responsibility for the school curriculum, it had the power to control the language used to express ideas during a school-sponsored activity. We granted certiorari * * *. We reverse.

This Court acknowledged in Tinker v. Des Moines Independent Community School Dist. * * * that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” * * *

The Court of Appeals read that case as precluding any discipline of Fraser for indecent speech and lewd conduct in the school assembly. That court appears to have proceeded on the theory that the use of lewd and obscene speech in order to make what the speaker considered to be a point in a nominating speech for a fellow student was essentially the same as the wearing of an armband in Tinker as a form of protest or the expression of a political position.

The marked distinction between the political “message” of the armbands in Tinker and the sexual content of respondent’s speech in this case seems to have been given little weight by the Court of Appeals. In upholding the students’ right to engage in a nondisruptive, passive expression of a political viewpoint in Tinker, this Court was careful to note that the case did “not concern speech or action that intrudes upon the work of the schools or the rights of other students.” * * *

It is against this background that we turn to consider the level of First Amendment protection accorded to Fraser’s utterances and actions before an official high school assembly attended by 600 students.

The role and purpose of the American public school system was well described by two historians, saying “public education must prepare pupils for citizenship in the Republic. . . . It must inculcate the habits and manners of civility as values in themselves conducive to happiness and as indispensable to the practice of self-government in the community and the nation.” * * *

These fundamental values of “habits and manners of civility” essential to a democratic society must, of course, include tolerance of divergent political and religious views, even when the views expressed may be unpopular. But these “fundamental values” must also take into account consideration of the sensibilities of others, and, in the case of a school, the sensibilities of fellow students. 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.

* * * Surely it is a highly appropriate function of public school education to prohibit the use of vulgar

and offensive terms in public discourse. Indeed, the “fundamental values necessary to the maintenance of a democratic political system” disfavor the use of terms of debate highly offensive or highly threatening to others. Nothing in the Constitution prohibits the states from insisting that certain modes of expression are

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inappropriate and subject to sanctions. The inculcation of these values is truly the “work of the schools.” * * * The determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board.

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. Consciously or otherwise, teachers—and indeed the older students—demonstrate the appropriate form of civil discourse and political expression by their conduct and deportment in and out of class. Inescapably, like parents, they are role models. The schools, as instruments of the state, may determine that the essential lessons of civil,

mature conduct cannot be conveyed in a school that tolerates lewd, indecent, or offensive speech and conduct such as that indulged in by this confused boy.

The pervasive sexual innuendo in Fraser’s speech was plainly offensive to both teachers and students—indeed to any mature person. By glorifying male sexuality, and in its verbal content, the speech was acutely insulting to teenage girl students. * * * The speech could well be seriously damaging to its less mature audience, many of whom were only 14 years old and on the threshold of awareness of human sexuality. Some students were reported as bewildered by the speech and the reaction of mimicry it provoked.

* * * We hold that petitioner School District acted entirely within its permissible authority in imposing

sanctions upon Fraser in response to his offensively lewd and indecent speech. Unlike the sanctions imposed on the students wearing armbands in Tinker, the penalties im-posed in this case were unrelated to any political viewpoint. The First Amendment does not prevent the school officials from determining that to permit a vulgar and lewd speech such as respondent’s would undermine the school’s basic educational mission. A high school assembly or classroom is no place for a sexually explicit monologue directed toward an unsuspecting audience of teenage students. Accordingly, it was perfectly appropriate for the school to disassociate itself to make the point to the pupils that vulgar speech and lewd conduct are wholly inconsistent with the “fundamental values” of public school education. * * *

* * * Respondent contends that the circumstances of his suspension violated due process because he

had no way of knowing that the delivery of the speech in question would subject him to disciplinary sanctions. * * * Two days’ suspension from school does not rise to the level of a penal sanction calling for the full panoply of procedural due process protections applicable to a criminal prosecution. * * * The school disciplinary rule proscribing “obscene” language and the prespeech admonitions of teachers gave adequate warning to Fraser that his lewd speech could subject him to sanctions.

The judgment of the Court of Appeals for the Ninth Circuit is Reversed.

JUSTICE BRENNAN, concurring in the judgment. Respondent gave the following speech at a high school assembly in support of a candidate for

student government office:

I know a man who is firm—he’s firm in his pants, he’s firm in his shirt, his character is firm—but most . . . of all, his belief in you, the students of Bethel, is firm. Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he’ll take an issue and nail it to the wall. He doesn’t attack things in spurts—he drives hard, pushing and pushing until finally—he succeeds. Jeff is a man who will go to the very end—even

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the climax, for each and every one of you. So vote for Jeff for A. S. B. vice-president—he’ll never come between you and the best our high school can be.

The Court, referring to these remarks as “obscene,” “vulgar,” “lewd,” and “offensively lewd,” concludes that school officials properly punished respondent for uttering the speech. Having read the full text of respondent’s remarks, I find it difficult to believe that it is the same speech the Court describes. To my mind, the most that can be said about respondent’s speech—and all that need be said—is that in light of the discretion school officials have to teach high school students how to conduct civil and effective public discourse, and to prevent

disruption of school educational activities, it was not unconstitutional for school officials to conclude, under the circumstances of this case, that respondent’s remarks exceeded permissible limits. Thus, while I concur in the Court’s judgment, I write separately to express my understanding of the breadth of the Court’s holding.

Notes Chief Justice Warren E. Burger, who wrote the seven-to-two majority opinion in Fraser, was nominated by President Nixon in 1969. Prior to his nomination, he had been a judge on the U.S. Court of Appeals for the District of Columbia Circuit since 1956. Chief Justice Burger retired from the Court in 1986.

In Fraser the Court made it clear that Tinker was not to be read as recognizing that student rights are coextensive with those of adults. It is important to note that Mr. Fraser’s speech, if made by an adult in public, almost certainly would have enjoyed constitutional protection. Fraser, however, disclosed the Court’s conviction that public schools have an important role in imparting respect for civility of public discourse. The holding also revealed the majority’s view that judging the appropriateness of student speech ought to be left to school officials rather than to federal judges.

Several other courts cited Fraser as they attempted to determine the extent to which stu-dents could express themselves. A court upheld the suspension, for the use of an obscenity by a white female student, for retorting that she was not a “white ass fucking bitch” to a black female student who had called her that. The exchange of words occurred as a result of the black female cutting in line at the school cafeteria. The court opined that using these words was clearly disruptive in addition to their being “fighting words.” Both students received the same five-day suspen-sion. The court found no equal protection violation, although the instigating student had an extensive disciplinary history while the other student had no prior record of disciplinary problems. See Heller v. Hodgin, 928 F. Supp. 789 (Ind. 1996).

In a highly publicized decision, the United States Supreme Court in Morse v. Frederick, 551 U.S. 393 (2007), upheld the school principal’s sanction of a student who refused to take down a banner he had unfurled proclaiming BONG HiTS 4 JESUS. This incident occurred at a school-sanctioned and school-supervised event while he and other students viewed the Olympic torch passing through Juneau, Alaska. The principal took action against the student because she considered the banner to advocate illegal drug use in violation of school policy, which stated, “The Board specifically prohibits any assembly or public expression that . . . advocates the use of substances that are illegal to minors. . . .” In the majority opinion, Chief Justice Roberts declared:

Our cases make clear that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent Community School Dist., . . . At the same time, we have held that “the constitutional rights of students in pub-lic school are not automatically coextensive with the rights of adults in other settings,” Bethel School Dist. No. 403 v. Fraser, . . . , and that the rights of students “must be ‘applied in light of the special

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characteristics of the school environment,’” Hazelwood School Dist. v. Kuhlmeier, . . . Consistent with these principles, we hold that schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use. We conclude that the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending the student responsible for it. (pp. 396–397)

* * * School principals have a difficult job, and a vitally important one. When Frederick suddenly

and unexpectedly unfurled his banner, Morse had to decide to act—or not act—on the

spot. It was reasonable for her to conclude that the banner promoted illegal drug use—in violation of established school policy—and that failing to act would send a powerful message to the students in her charge, including Frederick, about how serious the school was about the dangers of illegal drug use. The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers. (pp. 409–410)

Some observers have viewed Morse as another nail in Tinker’s coffin following Fraser and Kuhlmeier; however, when viewed in its narrowest sense the holding sends the message that when school administrators have to deal with preventing drug use in the public schools their requisite actions may trump students’ right to freedom of expression.

A student was suspended for having created a “Top Ten” list on his home computer that contained lewd and vulgar comments about the size of the athletic director’s “gut” and penis and that “he’s not getting any.” Although the student e-mailed the list to friends, he did not bring a copy of the list to school; this was done by another student. The court, in Killion v. Franklin Regional School District, 136 F. Supp.2d 446 (Pa. 2001), held that the student’s free speech rights had been violated. In its ruling, the court agreed that although several passages from the list were lewd, abusive, and derogatory—and would not have been given protection if they had been made at school—they were made in the confines of his home. Additionally, the court reasoned that there was “no actual disruption or reasonable fear of disruption” as a result of the student’s conduct, and that the school policy was unnecessarily vague by not imposing geographic limits on speech. In another instance, a student was suspended for having created on his personal computer an Internet home page containing vulgar language that was critical of his school. In upholding the student, the court declared that his First Amendment Rights had been violated and that allowing provocative and challenging speech did not interfere with school discipline. See Beussink v. Woodland R-IV School District, 30 F. Supp.2d 1175 (Mo. 1998).

An eighth-grade student was suspended for a semester for sending an instant message on the Internet containing an icon depicting a small drawing of a pistol firing a bullet at a person’s head, above which were dots representing splattered blood. Beneath the drawing appeared the words “Kill Mr. VanderMolen,” the student’s English teacher at the time. In upholding the suspension, the court in Wisniewski v. Board of Education of Weedsport Central School District, 494 F.3d 34 (2nd Cir. 2007), cert. denied 552 U. S. 1296 (2008), concluded that the student’s action crossed the boundary of protected speech because there was a reasonable foreseeable risk that the drawing would come to the attention of school authorities and that it would materially and substantially disrupt the work and discipline of the school. Additionally the court held that the student was not insulated from school discipline because the Internet transmission occurred away from school property.

Using electronic communication technology such as cell phones and the Internet to attack fellow students is known as cyberbullying.* Cyberbullies often employ an Internet site such as Facebook to humiliate, attack, and harass fellow students. A 2009 National Center on Education Statistics study

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revealed that during the 2007 school year, almost 4 percent of students had been subjected to cyberbullying, female students are cyberbullied over two and a half times more than males, and cyberbullying is four times more prevalent in public schools than in private ones.**

___________________ *See Appendix D for a partial text of Ch. 92 of the Mass. Acts of 2010, An Act Relative to Bullying in Schools, which also defines cyberbullying. **For additional information on bullying see Chapter 8 (p. 340)

Mounting concern over the extent and harm (including suicides) caused by cyberbullying has resulted in many states enacting legislation addressing these concerns. However, these well-intentioned laws have increasingly been challenged on several grounds, requiring courts, as a result, to determine: whether freedom of expression has been abridged, whether or not Tinker’s “material and disruption” standard applies, whether the conduct is beyond the legitimate authority of school officials because the activity is often off campus, and if there are tort or criminal aspects to the alleged offense.

A student’s conduct in posting offensive comments regarding another student on YouTube was upheld in J.C. v. Beverly Hills Unified School District.* In the video, made off campus, J.C. and several of her friends make derogatory, sexual, and defamatory remarks about C.C., a thirteen-year-old classmate. In the video, J.C. specifically is shown encouraging the mean-spirited discussion in which C.C. is called “a slut,” “spoiled,” and an “ugly piece of shit,” and that C.C. talks about “boners.” It was estimated that about fifteen people saw the video the night it was posted, and the video received ninety “hits” that evening. Ten students discussed the video at school the next day. As a result of her conduct, J.C. was suspended from school for two days.

In its lengthy decision, the court discussed Tinker, Fraser, Hazelwood, and related lower court decisions. It concluded that in the absence of speech such as this causing substantial disruption, where such speech originates is not a factor. Additionally, the court stated:

* * * that no reasonable jury could conclude that J.C.’s YouTube video caused a substantial disruption to school activities, or that there was a reasonably foreseeable risk of substantial disruption as a result of the YouTube video. (p. 40)

JUSTICE WHITE delivered the opinion of the Court. This case concerns the extent to which educators may exercise editorial control over the contents

of a high school newspaper produced as part of the school’s journalism curriculum.

The task for this Court is not to assess whether the School’s intentions were noble; no one could dispute that the School was attempting to protect C.C. from psychological harm. That said, the Court is not aware of any authority * * * that extends the Tinker rights of others prong so far as to hold that a school may regulate any speech that may cause some emotional harm to a student. This Court declines to be the first. (p. 52)

Has your state or school system defined cyberbullying? Have appropriate policies been implemented? Is there an active attempt to uncover and prevent harmful mischief by students?

2. SCHOOL-SPONSORED EXPRESSIVE ACTIVITIES Another widely litigated freedom-of-expression issue dealt with school authorities’ control over school-sponsored expressive activities such as student

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publications. Although several federal appellate courts had addressed the issue prior to 1988, the United States Supreme Court had not, and the result was a complex, confusing body of case law.

In many jurisdictions school newspapers had been considered to be “public forums,” immune from attempts to regulate the viewpoints expressed therein. Student writing that was sexually suggestive, that advocated drug use, or that was potentially libelous seemingly enjoyed constitutional protection. Thus, many school authorities saw their only options as either allowing the publication of such material or ceasing altogether to publish student newspapers. Against this background the United States Supreme Court’s five-to-three decision in Hazelwood School District v. Kuhlmeier, which addressed a school principal’s censorship of student news articles, has had enormous significance.

_________________ *Unpublished opinion, U. S. District Court, Central District of California, Nov. 16, 2009. Available on Internet.

HAZELWOOD SCHOOL DISTRICT v. KUHLMEIER

Supreme Court of the United States, 1988 484 U.S. 260

JUSTICE WHITE delivered the opinion of the Court. This case concerns the extent to which educators may exercise editorial control over the contents

of a high school newspaper produced as part of the school’s journalism curriculum.

* * * Spectrum was written and edited by the Journalism II class at Hazelwood East. The newspaper

was published every three weeks or so during the 1982–1983 school year. More than 4,500 copies of the newspaper were distributed during that year to students, school personnel, and members of the community.

The Board of Education allocated funds from its annual budget for the printing of Spectrum. These funds were supplemented by proceeds from sales of the newspaper. The printing expenses during the 1982–1983 school year totaled $4,668.50; revenue from sales was $1,166.84. The other costs associated with the newspaper—such as supplies, textbooks, and a portion of the journalism teacher’s salary—were borne entirely by the Board.

* * * We deal first with the question whether Spectrum may appropriately be characterized as a forum

for public expression. The public schools do not possess all of the attributes of streets, parks, and other traditional public forums that “time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” * * * Hence, school facilities may be deemed to be public forums only if school authorities have “by policy or by practice” opened those facilities “for indiscriminate use by the general public” * * * or by some segment of the public, such as student organizations. * * * If the facilities have instead been reserved for other intended purposes, “communicative or otherwise,” then no public forum has been created, and school officials may impose reasonable restrictions on the speech of students, teachers, and other members of the school community.

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* * * “The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse.”

The policy of school officials toward Spectrum was reflected in Hazelwood School Board Policy 348.51 and the Hazelwood East Curriculum Guide. Board Policy 348.51 provided that “[s]chool sponsored publications are developed within the adopted curriculum and its educational implications in regular classroom activities.” * * * The Hazelwood East Curriculum Guide described the Journalism II course as a “laboratory situation in which the students publish the school newspaper applying skills they have learned in Journalism I.” * * * The lessons that were to be learned from the Journalism II course, according to the Curriculum Guide, included development of journalistic skills under deadline pressure, “the legal, moral, and ethical restrictions imposed upon journalists within the school community,” and “responsibility and acceptance of criticism for articles of opinion.” * * * Journalism II was taught by a faculty member during regular class hours. Students received grades and academic credit for their performance in the course.

School officials did not deviate in practice from their policy that production of Spectrum was to be part of the educational curriculum and a “regular classroom activit[y].” The District Court found that Robert Stergos, the journalism teacher during most of the

1982–1983 school year, “both had the authority to exercise and in fact exercised a great deal of control over Spectrum.“ * * * For example, Stergos selected the editors of the newspaper, scheduled publication dates, decided the number of pages for each issue, assigned story ideas to class members, advised students on the development of their stories, reviewed the use of quotations, edited stories, selected and edited the letters to the editor, and dealt with the printing company. Many of these decisions were made without consultation with the Journalism II students.

* * * * * * Board Policy 348.51, which stated in part that “[s]chool sponsored student publications will

not restrict free expression or diverse viewpoints within the rules of responsible journalism,” also stated that such publications were “developed within the adopted curriculum and its educational implications.” One might reasonably infer from the full text of Policy 348.51 that school officials retained ultimate control over what constituted “responsible journalism” in a school-sponsored newspaper. Although the Statement of Policy published in the September 14, 1982, issue of Spectrum declared that “Spectrum, as a student-press publication, accepts all rights implied by the First Amendment,” this statement, understood in the context of the paper’s role in the school’s curriculum, suggests at most that the administration will not interfere with the students’ exercise of those First Amendment rights that attend the publication of a school-sponsored newspaper. It does not reflect an intent to expand those rights by converting a curricular newspaper into a public forum. Finally, that students were permitted to exercise some authority over the contents of Spectrum was fully consistent with the Curriculum Guide objective of teaching the Journalism II students “leadership responsibilities as issue and page editors.” A decision to teach leadership skills in the context of a classroom activity hardly implies a decision to relinquish school control over that activity. * * * School officials did not evince either “by policy or by practice” * * * any intent to open the pages of Spectrum to “indiscriminate use” by its student reporters and editors, or by the student body generally. Instead, they “reserve[d] the forum for its intended purpos[e]” as a supervised learning experience for journalism students. Accordingly, school officials were entitled to regulate the contents of Spectrum in any reasonable manner. It is this standard, rather than our decision in Tinker, that governs this case.

The question whether the First Amendment requires a school to tolerate particular student speech—the question that we addressed in Tinker—is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech. The former question addresses educators’ ability to silence a student’s personal expression that happens to occur on the school premises. The latter question concerns educators’ authority over school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public

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might reasonably perceive to bear the imprimatur of the school. These activities may fairly be characterized as part of the school curriculum, whether or not they occur in a traditional classroom setting, so long as they are supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences.

Educators are entitled to exercise greater control over this second form of student expression to assure that participants learn whatever lessons the activity is designed to teach, that readers or listeners are not exposed to material that may be inappropriate for their level of maturity, and that the views of the individual speaker are not erroneously attributed to the school. Hence, a school may in its capacity as publisher of a school newspaper or producer of a school play “disassociate itself” * * * not only from speech that would “substantially interfere with [its] work . . . or impinge upon the rights of other students” * * * but also from speech that is, for example, ungrammatical, poorly written, inadequately researched, biased

or prejudiced, vulgar or profane, or unsuitable for immature audiences. A school must be able to set high standards for the student speech that is disseminated under its auspices—standards that may be higher than those demanded by some newspaper publishers or theatrical producers in the “real” world—and may refuse to disseminate student speech that does not meet those standards. In addition, a school must be able to take into account the emotional maturity of the intended audience in determining whether to disseminate student speech on potentially sensitive topics, which might range from the existence of Santa Claus in an elementary school setting to the particulars of teenage sexual activity in a high school setting. 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.” * * *

Accordingly, we conclude that the standard articulated in Tinker for determining when a school may punish student expression need not also be the standard for determining when a school may refuse to lend its name and resources to the dissemination of student expression. Instead, we hold that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.

This standard is consistent with our oft-expressed view that the education of the Nation’s youth is primarily the responsibility of parents, teachers, and state and local school officials, and not of federal judges. * * * It is only when the decision to censor a school-sponsored publication, theatrical production, or other vehicle of student expression has no valid educational purpose that the First Amendment is so “directly and sharply implicate[d]” as to require judicial intervention to protect students’ constitutional rights.

* * * In sum, we cannot reject as unreasonable Principal Reynolds’ conclusion that neither the

pregnancy article nor the divorce article was suitable for publication in Spectrum. Reynolds could reasonably have concluded that the students who had written and edited these articles had not sufficiently mastered those portions of the Journalism II curriculum that pertained to the treatment of controversial issues and personal attacks, the need to protect the privacy of individuals whose most intimate concerns are to be revealed in the newspaper, and “the legal, moral, and ethical restrictions imposed upon

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journalists within [a] school community” that includes adolescent subjects and readers. Finally, we conclude that the principal’s decision to delete two pages of Spectrum, rather than to delete only the offending articles or to require that they be modified, was reasonable under the circumstances as he understood them. Accordingly, no violation of First Amendment rights occurred.

The judgment of the Court of Appeals for the Eighth Circuit is therefore

Reversed.

Notes and Questions

Courts had looked especially skeptically at attempts to censor materials prior to their publication. Was the Supreme Court’s upholding of Principal Reynolds significant in this regard?

Has the holding in Hazelwood, a five-to-three decision, coupled with the seven-to-two decision in Fraser, had an effect on other school-sponsored expressive activities such as plays, yearbooks, program notices, and debates?

It is clear that a majority on the Court perceived a major purpose of public schooling to be the inculcation of society’s values as defined by society’s elders. Does the Court’s articulation of this viewpoint represent a retreat from the educational philosophy expressed in Tinker, that a school should be a marketplace of ideas and that the proper socialization for a free people is the early exercise of freedom?

As a consequence of Fraser and Hazelwood, school authorities have been less hesitant to prohibit student expression that they heretofore may have thought was protected under the Tinker doctrine. Nevertheless, authorities may choose to establish public forums within their schools and, thus, to surrender their discretion to censor student expression. To preserve such discretion, they should clearly distinguish curricular activities from activities intended for students’ expression of their views. Hazelwood authorities prevailed partly because they retained, “by policy and practice,” the curricular identity of Spectrum, and consequently they “retained ultimate control over what constituted responsible journalism.” Written policies and curriculum coupled with consistent practices bolstered their position and may be considered a model for legally defensible behavior in school administration.

Prohibiting a marching band from performing the song “White Rabbit,” which the school superintendent thought promoted the illegal use of drugs, did not violate students’ freedom of speech. In its decision in McCann v. Fort Zumwalt School District, 50 F. Supp.2d 918 (Mo. 1999), the court contended that band activity such as playing at football games constituted school-sponsored speech and bore the imprimatur of the school; the marching band was part of the curriculum for those enrolled in symphonic band; and participating in scheduled performances was part of a student’s grade.

Allowing murals with religious words and symbols, painted by students, as part of a school beautification project was litigated in Bannon v. Palm Beach County School District, 387 F. 3d 1208 (11th Cir. 2004), cert. denied, 546 U.S. 811 (2005). Several murals were painted by students who were also members of the Fellowship of Christian Athletes. Of this group’s most notable murals, one had a crucifix in the background and paraphrased John 3:16 as “Because He Loved, He Gave”; a second mural read, “Jesus has time for you; do you have time for Him?”; and a third mural read, “God Loves You. What Part of Thou Shalt Not Didn’t You Understand? God.” No advance warning had been given to the principal or supervising teacher that the murals would contain messages, and no other student murals had verbal

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messages. The principal’s reasons for not allowing these murals were that the expression they contained caused disruption and interfered with the school’s operation. There had been commotion on campus near the murals involving vocal students and teachers; and the murals received media attention in the form of phone calls, reporters from three television stations, and newspaper reporters. The appellate court, relying on Hazelwood, held that of the three types of public fora (traditional, designated, and nonpublic), this school-sponsored expression took place in a nonpublic forum, occurred in the context of a curricular activity, and did not constitute viewpoint discrimination: “Thus, [the court stated] the murals constituted school-sponsored expression within the meaning of Hazelwood.”

Forum analysis was also employed in M.A.L. v. Kinsland, 543 F.3d 841 (6th Cir. 2008). Here the court upheld the constitutionality of a middle-school’s policy regulating the time, place, and manner on hallway speech, which it considered a nonpublic forum. Even though the student had not obtained prior approval to distribute his antiabortion leaflets, as required by the

school’s distribution policy, the school offered to allow him to post his leaflets on bulletin boards in the hallways and to distribute them from a cafeteria table during lunch hours. However, the student persisted in attempting to distribute his leaflets in school hallways between classes. Addressing the issue of hallway leaflet distribution by the student, the court held that “this case is not governed by the heightened ‘material and substantial interference’ standard articulated by the Supreme Court in Tinker.” The key difference between the cases being that in Tinker there was an attempt to silence the students because of the particular viewpoint expressed, whereas in this instance authorities merely sought to regulate the time, place, and manner of the student’s speech irrespective of its content or his viewpoint. The court recognized that not allowing the leaflet distribution was viewpoint neutral and reasonable and that there was no desire to suppress the student’s antiabortion viewpoint. Additionally, the court agreed that the school’s regulation allowed the student an ample opportunity to express his viewpoint to his fellow schoolmates. The court also offered its opinion that “Prohibiting handbilling in the hallway between classes is . . . reasonable to avoid congestion, confusion, and tardiness, to say nothing of the inevitable clutter caused when the recipient indiscriminately discards the handout.”

School newspapers often accept, and in fact solicit, advertising to defray expenses and to provide students with valuable business experience relating to the operation of a newspaper. A federal appellate court did not uphold a school board’s refusal to accept advertising from the San Diego Committee Against Registration and the Draft. The court in this instance reasoned that the school board had created a limited public forum by allowing some members of the public to use its newspapers to engage in speech that combined elements of political and commercial speech. See San Diego Committee Against Registration and the Draft v. Governing Board of Grossmont Union High School District, 790 F.2d 1471 (9th Cir. 1986). However, see Planned Parenthood v. Clark County School District, 941 F.2d 817 (9th Cir. 1991), in which the en banc court rejected Planned Parenthood advertisements in the high school papers, yearbooks, and athletic event programs. The advertisements referred to gynecological exams, birth control methods, pregnancy testing and verification, and pregnancy counseling and referral. In its decision, the court contended that all three publications constituted nonpublic forums rather than designated public forums and that these advertisements were reasonably rejected by school authorities because they would be controversial and would distract from the school’s mission.

Student editors of a school newspaper and yearbook refused to accept an advertisement promoting sexual abstinence that was submitted as part of a condoms-versus-abstinence debate taking

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place in the school. The student editors’ rejection was based on their policy of not accepting political or controversial advertising. In its en banc decision to uphold the student editors, in Yeo v. Town of Lexington, 131 F.3d 241 (1st Cir.1997), cert. denied, 524 U.S. 904 (1998), the court emphasized that the decision not to print the ad was solely a student decision and therefore did not constitute “state action.” In discussing the state action issue, the court asserted that not only had the school officials granted the students editorial autonomy, but evidence also revealed that their relationship with the students at times was close to adversarial.

School officials may find that organizing controversial student speech into three distinct legal standards may be useful: (1) vulgar, lewd, obscene, and plainly offensive speech should be governed by Fraser; (2) school-sponsored speech should be governed by Hazelwood; and (3) expression of social, political, and economic issues that may cause “material and substantial” disruption of the school should be governed by Tinker.

Does your school system have policies pertaining to school-sponsored expressive activities?

C. Participation in Patriotic Exercises

Local policies or state statutes requiring student participation in patriotic exercises have often been challenged. The most common dispute centers on participation in the Pledge of Allegiance. Sherman v. Community School District 21 upheld a student’s position not to participate in the pledge on political or religious grounds and follows the rationale of other courts that have addressed this issue. The decision also upheld the disputed constitutionality of the words “under God” in the Pledge of Allegiance.

SHERMAN v. COMMUNITY CONSOLIDATED SCHOOL DISTRICT 21 United States Court of Appeals, Seventh Circuit, 1992 980 F.2d 437

cert. denied, 508 U.S. 950 (1993)

EASTERBROOK, Circuit Judge. “[N]o 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.” West Virginia State Board of Education v. Barnette. A state therefore may not compel any person to recite the Pledge of Allegiance to the flag. On similar grounds, Wooley v. Maynard adds that a state may not compel any person to display its slogan. Does it follow that a pupil who objects to the content of the Pledge may prevent teachers and other pupils from reciting it in his presence? We conclude that schools may lead the Pledge of Allegiance daily, so long as pupils are free not to participate.

In 1979 Illinois enacted this statute: “The Pledge of Allegiance shall be recited each school day by pupils in elementary institutions supported or maintained in whole or in part by public funds.” Ill. Rev. Stat. ch 122 ¶27-3. * * *

* * * What the law requires of principals, teachers, and pupils depends on the language it contains

rather than the penalties it omits. And what ¶27-3 says is that the pledge “shall be recited each school day by pupils” in public schools. Some pupils? Willing pupils? All pupils? It does not specify. If it means “all pupils” then it is blatantly unconstitutional; if it means “willing pupils” then the most severe

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constitutional problem dissolves. When resolving statutory ambiguities, the Supreme Court of Illinois adopts readings that save rather than destroy state laws. Given Barnette, which long predated enactment of this statute, it makes far more sense to interpolate “by willing pupils” than “by all pupils.” School administrators and teachers sat-isfy the “shall” requirement by leading the Pledge and ensuring that at least some pupils re-cite. Leading the Pledge is not optional, but participating is. This makes sense of the statute without imputing a flagrantly unconstitutional act to the State of Illinois.

This understanding is consistent with the practice in the Wheeling schools. The superintendent of schools, the principal of Riley School, and his first grade teacher when this suit began, all filed affidavits stating that neither Richard nor any other pupil is compelled to recite the Pledge, to place his hand over his heart, to stand, or to leave the room while others recite. Marilyn Barden, Richard’s teacher, averred that she brooks no hazing of those who decline to participate, and that she has never noticed any. * * *

* * * A pupil who takes exception to the prescribed curriculum of the public schools—whether the

textbooks or the class discussions or the civic ceremonies such as the pledge of

Allegiance—is asserting a right to accommodation of his political or religious beliefs. Humane government often calls for accommodation; programs such as tuition vouchers serve this interest without offending other constitutional norms. * * * Government nonetheless retains the right to set the curriculum in its own schools and insist that those who cannot accept the result exercise their right under Pierce v. Society of Sisters, and select private education at their own expense. The private market supports a profusion of schools, many tailored to religious or cultural minorities, making the majoritarian curriculum of the public schools less oppressive. * * * All that remains is Barnette itself, and so long as the school does not compel pupils to espouse the content of the Pledge as their own belief, it may carry on with patriotic exercises. Objection by the few does not reduce to silence the many who want to pledge allegiance to the flag “and to the Republic for which it stands.”

All of this supposes that the Pledge is a secular rather than sectarian vow. Everything would be different if it were a prayer or other sign of religious devotion. Does “under God” make the Pledge a prayer, whose recitation violates the establishment clause of the first amendment?

* * * Our approach [by not parsing Lemon] is more direct. Must ceremonial references in civic life to a

deity be understood as prayer, or support for all monotheistic religions, to the exclusion of atheists and those who worship multiple gods? You can’t understand a phrase such as “Congress shall make no law respecting an establishment of religion” by syllogistic reasoning. Words take their meaning from social as well as textual contexts, which is why “a page of history is worth a volume of logic.” * * * Unless we are to treat the founders of the United States as unable to understand their handiwork (or, worse, hypocrites about it), we must ask whether those present at the creation deemed ceremonial invocations of God as “establishment.” They did not.

* * * We have simply interwoven the motto [In God We Trust] so deeply into the fabric of our civil polity

that its present use may well not present that type of involvement which the First Amendment prohibits. This general principle might also serve to insulate the various patriotic exercises and activities used in the public schools and elsewhere which, whatever may have been their origins, no longer have a religious purpose or meaning. The reference to divinity in the revised pledge of allegiance, for example, may

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merely recognize the historical fact that our Nation was believed to have been founded “under God.” Thus reciting the pledge may be no more of a religious exercise than the reading aloud of Lincoln’s Gettysburg Address, which contains an allusion to the same historical fact.

By the time of Marsh v. Chambers, Justice Brennan [dissenting] was equivocal: “I frankly do not know what should be the proper disposition of features of our public life such as ‘God save the United States and this Honorable Court,’ ‘In God We Trust,’ ‘One Nation Under God,’ and the like. I might well adhere to the view expressed in Schempp that such mottoes are consistent with the Establishment Clause, not because their import is de minimis, but because they have lost any true religious significance.” In Lynch, [again dissenting], Justice Brennan concluded that “the reference to God contained in the Pledge of Allegiance to the flag can best be understood . . . as a form of ‘ceremonial deism,’ protected from Establishment Clause scrutiny chiefly because [it has] lost through rote repetition any significant religious content.” This court adopted such an approach when observing in ACLU v. St. Charles that both “In God We Trust” and Christmas trees are secular, having lost their original religious significance. * * *

* * *

Notes and Questions

In an earlier decision, a student’s position was upheld for refusing to stand at respectful attention during the salute to the flag. The student in this case contended that the words of the pledge were not true. See Lipp v. Morris, 579 F.2d 834 (3rd Cir. 1978). A student’s position was also upheld in a refusal to stand during the Pledge because he believed “that there [isn’t] liberty and justice for all in the United States.” The court did not agree that the option of either leaving the room or standing quietly during the Pledge ceremony was a viable option. See Goetz v. Ansell, 477 F.2d 636 (2nd Cir. 1973).

Sherman cites the United States Supreme Court decision in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) in upholding the rights of Jehovah’s Witnesses not to participate in the pledging of the flag. This remarkable opinion was rendered while the United States was engaged in World War II, and many observers contend that the decision is a dramatic espousal of the individual’s right of freedom of expression. In often-quoted sections, the Court stated:

. . . One’s right to life, liberty and property, to free speech, a free press, freedom to worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. (p. 638)

* * *

If there is any fixed star in our 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. If there are any circumstances which permit an exception, they do not now occur to us. (p. 642)

Georgia has a statutory provision that states

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Each student in the public schools of the State of Georgia shall be afforded the opportunity to recite the Pledge of Allegiance to the flag of the United States of America during each school day. It shall be the duty of each local board of education to establish a policy setting the time and manner for recitation of the Pledge of Allegiance. Such policy shall be established in writing and shall be distributed to each teacher within the school. Ga. Code 20-2-310 (c) (1) (1976).

A provision in a Pennsylvania statute requiring the notification of parents or guardians, in writing, of students refusing to participate in state-mandated exercises such as reciting the Pledge of Allegiance or national anthem was held to be unconstitutional in Circle School v. Pappert, 381 F.3d 172 (3d Cir. 2004). In its holding the court ruled that the parental notification clause was a viewpoint-based regulation that operated to chill students’ speech and cannot survive the strict scrutiny required for such viewpoint discrimination. Additionally, the court maintained the government’s interest in notifying the parents was not sufficiently compelling to infringe on the students’ free speech rights. The court concluded its decision by declaring:

It may be useful to note our belief that most citizens of the United States willingly recite the Pledge of Allegiance and proudly sing the national anthem. But the rights embodied in the Constitution, most particularly in the First Amendment, protect the minority—those persons who march to their own drummers. It is they who need the protection afforded by the Constitution and it is the responsibility of federal judges to ensure that protection. (p. 183)

However, requiring the parental consent for students wishing to be excused from making the pledge under a Florida Pledge Statute was held to be constitutional in Frazier v. Winn, 535

F.3d 1279 (11th Cir. 2008), cert. denied sub nom. Frazier v. Smith, 558 U.S. ____ (2009). The court reasoned that the Due Process Clause protected the rights of parents to direct the education of their children, and viewed the statute as largely as a parental-rights statute. The court concluded:

. . . the State’s interest in recognizing and protecting the rights of parents on some educational issues is sufficient to justify the restriction of some students’ freedom of speech. Even if the balance of parental, student, and school rights might favor the rights of a mature high school student in a specific instance, Plaintiff has not persuaded us that the balance favors students in a substantial number of instances—particularly those instances involving elementary and middle school stu-dents–relative to the total number of students covered by the statute. (p. 1285)

Whether the words “under God” should be taken out of the Pledge of Allegiance arises periodically, as it did in Sherman.* These words were added to the Pledge by Congress in 1954 at the height of the Communist scare in America, and Congressional approval for adding these words to the Pledge was won largely as a result of efforts by the Knights of Columbus, a Roman Catholic men’s organization, to counter “Godless communism.” The issue was raised again in Newdow v. Rio Linda School District, 597 F.3d 1007 (9th Cir. 2010), which reversed a lower court decision holding that the recitation of the pledge with “under God” was unconstitutional. The U.S. Court of Appeals for the Ninth Circuit, which had been involved in earlier controversial decisions regarding this issue, held that teacher-led recitation of the Pledge with “under God” did not violate the Establishment Clause. The court stated:

. . . because Congress’ ostensible and predominant purpose was to inspire patriotism and that the context of the Pledge—its wording as a whole, the preamble to the statute, and this nation’s

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history—demonstrate that it is a predominantly patriotic exercise. For these reasons, the phrase “one Nation under God” does not turn this patriotic exercise into a religious activity. (p. 1014)

Disrespect such as burning the American flag has been the subject of political, statutory, and judicial debate. Following the United States Supreme Court decision in Texas v. Johnson, 491 U.S. 397 (1989), which held a Texas law criminalizing desecration of the flag as unconstitutional, Congress enacted the Flag Protection Act of 1989, which made it a crime for anyone who “knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon” a United States flag. In United States v. Eichman, 496 U.S. 310 (1990), a five-to-four decision invalidating this act, the Court stated:

We are aware that desecration of the flag is deeply offensive to many. But the same might be said, for example, of virulent ethnic and religious epithets, . . . vulgar repudiations of the draft, . . . and scurrilous caricatures, . . . “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Johnson, supra, . . . Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering. The judgments are Affirmed. (pp. 318–319)

Does your state have a provision addressing student participation in patriotic exercises? What is your local school system’s policy on this issue?

_________________________ *The Pledge was initially conceived in 1892, and changes were made to it in 1923, 1924, and 1954. Although recited daily by many schoolchildren since its conception, the Pledge was only given official sanction by Congress in 1942. Although they vary slightly in wording, forty-two states have statutes dealing with pledging the flag. II. FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT OF 1974 (BUCKLEY AMENDMENT)

Concern over privacy considerations entailing student records, such as their availability to parents, their accuracy, and their dissemination, resulted in the passage of the Family Educational Rights and Privacy Act of 1974 (FERPA).* Provisions of this law include an opportunity for parents to inspect and review the education records of their children, challenge the record if it is inaccurate or misleading, correct or delete any inaccurate or misleading data, and have access to the names of those persons or authorized agencies who have requested or obtained information from a student’s record. Under the law, “directory information” may be disseminated without student or parent consent by an educational institution. Such information relating to a student includes:

. . . the student’s name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous educational agency or institution attended by the student. 20 U.S.C. §1232g(a)(5)(A) (1974).

Two United States Supreme Court decisions in 2002 addressed issues involving FERPA. In Owasso Independent School District No. I-011 v. Falvo, 543 U.S. 426 (2002), the Court was asked to decide whether the practice of peer grading constituted an “education record” and therefore violated the law by allowing students to see each other’s grades. According to the Court, peer grading is the practice

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of students scoring each other’s tests, papers, and assignments as the teacher explains the correct answers to the entire class. In upholding this practice, the Court held that although peer-graded classroom work and assignments contained information directly related to a student, they were not “records” under the law because they were not “maintained by an educational agency or institution or by a person acting for such agency or institution.” Furthermore, the Court contended that because FERPA requires a record of who has had access to a pupil’s record, maintaining such records for peer grading would “be a weighty administrative burden on every teacher.” Because parents may contest the accuracy of their child’s record under FERPA, the Court doubted that “Congress would have provided parents with this elaborate procedural machinery to challenge the accuracy of the grade on every spelling test and art project the child completes.” Although the Court held that peer-graded assignments are not an “education record,” the Court chose not to decide whether a teacher’s grade book is an education record under FERPA.

Does your school system have provisions implementing FERPA? Are requirements under this law understood by parents, students, faculty, and administrators?

In Gonzaga University v. Doe, 536 U.S. 273 (2002), the Court decided a case in which a private university, when it learned of the allegations that a student had sexually assaulted a fellow student, contacted the state agency responsible for teacher certification and provided them with the student’s name and the allegations against him. Five months later, the student learned that he would not receive an affidavit of good moral character from the university, a requirement for state certification. The Court, in its seven-to-two decision, held that a student may not sue a school that improperly releases his grades or other personal information under FERPA. The Court contended that FERPA’s nondisclosure provisions failed to confer enforceable rights and

____________________ *See Appendix D for a partial text of this act.

that Congress had not provided clear provisions in FERPA creating personal rights that could be enforced under 42 U.S.C. §1983. Although the jury-ordered $450,000 to the student was not upheld, the student won approximately $600,000 under his claims of defamation, invasion of privacy, negligence, and breach of contract.

III. SUSPENSION, EXPULSION, AND DISCIPLINARY TRANSFER

Students may be excluded from school for failure to conform to legitimate rules. Exclusion from school for ten days or less—the usual practice for minor violations of school rules—is considered to be a suspension. Expulsion is an exclusion from school for the remainder of a quarter, for a semester, for an academic year, or permanently, and it occurs on repeated or major infractions of school rules or criminal conviction. Court opinions have held that because students have a valuable property interest in attending school, they must be provided due process prior to their being excluded from school. Careful reading of these opinions reveals that the degree of due process that must be afforded a student varies in direct proportion to the length of the exclusion. Nondisabled students may also be transferred, for disciplinary reasons, to another school from the one they are attending. Consequently, courts have had to determine the degree of due process required, if any, prior to such a transfer.

A. Suspension

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GOSS v. LOPEZ

Supreme Court of the United States, 1975 419 U.S. 565

MR. JUSTICE WHITE delivered the opinion of the Court. This appeal by various administrators of the Columbus, Ohio, Public School System (CPSS)

challenges the judgment of a three-judge federal court, declaring that appellees—various high school students in the CPSS—were denied due process of law contrary to the command of the Fourteenth Amendment in that they were temporarily suspended from their high schools without a hearing either prior to suspension or within a reasonable time thereafter, and enjoining the administrators to remove all references to such suspensions from the students’ records.

Ohio law, Rev. Code Ann. § 3313.64 (1972), provides for free education to all children between the ages of six and 21. Section 3313.66 of the Code empowers the principal of an Ohio public school to suspend a pupil for misconduct for up to 10 days or to expel him. In either case, he must notify the student’s parents within 24 hours and state the reasons for his action. A pupil who is expelled, or his parents, may appeal the decision to the Board of Education and in connection therewith shall be permitted to be heard at the board meeting. The Board may reinstate the pupil following the hearing. No similar procedure is provided in § 3313.66 or any other provision of state law for a suspended student. Aside from a regulation tracking the statute, at the time of the imposition of the suspensions in this case the CPSS itself had not issued any written procedure applicable to suspensions. Nor, so far as the record reflects, had any of the individual high schools involved in this case. Each, however, had formally or informally described the conduct for which suspension could be imposed.

The nine named appellees, each of whom alleged that he or she had been suspended from public high school in Columbus for up to 10 days without a hearing pursuant to § 3313.66, filed an action under 42 U.S.C. § 1983 against the Columbus Board of Education and various

administrators of the CPSS. The complaint sought a declaration that § 3313.66 was unconstitutional in that it permitted public school administrators to deprive plaintiffs of their rights to an education without a hearing of any kind, in violation of the procedural due process component of the Fourteenth Amendment. It also sought to enjoin the public school officials from issuing future suspensions pursuant to § 3313.66 and to require them to remove references to the past suspensions from the records of the students in question.

The proof below established that the suspensions arose out of a period of widespread student unrest in the CPSS during February and March 1971. Six of the named plaintiffs, Rudolph Sutton, Tyrone Washington, Susan Cooper, Deborah Fox, Clarence Byars, and Bruce Harris, were students at the Marion-Franklin High School and were each suspended for 10 days on account of disruptive or disobedient conduct committed in the presence of the school administrator who ordered the suspension. One of these, Tyrone Washington, was among a group of students demonstrating in the school auditorium while a class was being conducted there. He was ordered by the school principal to leave, refused to do so, and was suspended. Rudolph Sutton, in the presence of the principal, physically attacked a police officer who was attempting to remove Tyrone Washington from the auditorium. He was immediately suspended. The other four Marion-Franklin students were suspended for similar conduct. None was given a hearing to determine the operative facts underlying the suspension, but each, together with his or her parents, was offered the opportunity to attend a conference, subsequent to the effective date of the suspension, to discuss the student’s future.

Two named plaintiffs, Dwight Lopez and Betty Crome, were students at the Central High School and McGuffey Junior High School, respectively. The former was suspended in connection with a

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disturbance in the lunchroom which involved some physical damage to school property. Lopez testified that at least 75 other students were suspended from his school on the same day. He also testified below that he was not a party to the destructive conduct but was instead an innocent bystander. Because no one from the school testified with regard to this incident, there is no evidence in the record indicating the official basis for concluding otherwise. Lopez never had a hearing.

Betty Crome was present at a demonstration at a high school other than the one she was attending. There she was arrested together with others, taken to the police station, and released without being formally charged. Before she went to school on the following day, she was notified that she had been suspended for a 10-day period. Because no one from the school testified with respect to this incident, the record does not disclose how the McGuffey Junior High School principal went about making the decision to suspend Crome, nor does it disclose on what information the decision was based. It is clear from the record that no hearing was ever held.

* * * On the basis of this evidence, the three-judge court declared that plaintiffs were denied due

process of law because they were “suspended without hearing prior to suspension or within a reasonable time thereafter,” and that Ohio Rev. Code Ann. § 3313.66 (1972) and regulations issued pursuant thereto were unconstitutional in permitting such suspensions. It was ordered that all references to plaintiffs’ suspensions be removed from school files.

Although not imposing upon the Ohio school administrators any particular disciplinary procedures and leaving them “free to adopt regulations providing for fair suspension procedures which are consonant with the educational goals of their schools and reflective of the characteristics of their school and locality,” the District Court declared that there were “minimum requirements of notice and a hearing prior to suspension, except in emergency situations.” In explication, the court stated that relevant case

authority would: (1) permit “[i]mmediate removal of a student whose conduct disrupts the academic atmosphere of the school, endangers fellow students, teachers or school officials, or damages property”; (2) require notice of suspension proceedings to be sent to the student’s parents within 24 hours of the decision to conduct them; and (3) require a hearing to be held, with the student present, within 72 hours of his removal. Finally, the court stated that, with respect to the nature of the hearing, the relevant cases required that statements in support of the charge be produced, that the student and others be permitted to make statements in defense or mitigation, and that the school need not permit attendance by counsel.

* * * Although Ohio may not be constitutionally obligated to establish and maintain a public school

system, it has nevertheless done so and has required its children to attend. * * * The authority possessed by the State to prescribe and enforce standards of conduct in its schools although concededly very broad, must be exercised consistently with constitutional safeguards. Among other things, the State is constrained to recognize a student’s legitimate entitlement to a public education as a property interest which is protected by the Due Process Clause and which may not be taken away for misconduct without adherence to the minimum procedures required by that Clause.

The Due Process Clause also forbids arbitrary deprivations of liberty. “Where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him,” the minimal requirements of the Clause must be satisfied. * * * School authorities here suspended appellees from school for periods of up to 10 days based on charges of misconduct. If sustained and recorded, those charges could seriously damage the students’ standing with their fellow pupils and their teachers as

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well as interfere with later opportunities for higher education and employment. It is apparent that the claimed right of the State to determine unilaterally and without process whether that misconduct has occurred immediately collides with the requirements of the Constitution.

Appellants proceed to argue that even if there is a right to a public education protected by the Due Process Clause generally, the Clause comes into play only when the State subjects a student to a “severe detriment or grievous loss.” The loss of 10 days, it is said, is neither severe nor grievous and the Due Process Clause is therefore of no relevance. * * * A 10-day suspension from school is not de minimis in our view and may not be imposed in complete disregard of the Due Process Clause.

A short suspension is, of course, a far milder deprivation than expulsion. But “education is perhaps the most important function of state and local governments,” * * * and the total exclusion from the educational process for more than a trivial period, and certainly if the suspension is for 10 days, is a serious event in the life of the suspended child. Neither the property interest in educational benefits temporarily denied nor the liberty interest in reputation, which is also implicated, is so insubstantial that suspensions may constitutionally be imposed by any procedure the school chooses, no matter how arbitrary.

“Once it is determined that due process applies, the question remains what process is due.” * * * * * * At the very minimum, therefore, students facing suspension and the consequent interference

with a protected property interest must be given some kind of notice and afforded some kind of hearing. “Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.” * * *

It also appears from our cases that the timing and content of the notice and the nature of the hearing will depend on appropriate accommodation of the competing interests involved. * * * The student’s interest is to avoid unfair or mistaken exclusion from the educational process, with all of its unfortunate consequences. The Due Process Clause will not

shield him from suspensions properly imposed, but it disserves both his interest and the interest of the State if his suspension is in fact unwarranted. The concern would be mostly academic if the disciplinary process were a totally accurate, unerring process, never mistaken and never unfair. Unfortunately, that is not the case, and no one suggests that it is. Disciplinarians, although proceeding in utmost good faith, frequently act on the reports and advice of others; and the controlling facts and the nature of the conduct under challenge are often disputed. The risk of error is not at all trivial, and it should be guarded against if that may be done without prohibitive cost or interference with the educational process.

The difficulty is that our schools are vast and complex. Some modicum of discipline and order is essential if the educational function is to be performed. Events calling for discipline are frequent occurrences and sometimes require immediate, effective action. Suspension is considered not only to be a necessary tool to maintain order but a valuable educational device. The prospect of imposing elaborate hearing requirements in every suspension case is viewed with great concern, and many school authorities may well prefer the untrammeled power to act unilaterally, unhampered by rules about notice and hearing. But it would be a strange disciplinary system in an educational institution if no communication was sought by the disciplinarian with the student in an effort to inform him of his dereliction and to let him tell his side of the story in order to make sure that an injustice is not done. * * *

We do not believe that school authorities must be totally free from notice and hearing requirements if their schools are to operate with acceptable efficiency. Students facing temporary suspension have interests qualifying for protection of the Due Process Clause, and due process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the

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charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story. The Clause requires at least these rudimentary precautions against unfair or mistaken find-ings of misconduct and arbitrary exclusion from school.

There need be no delay between the time “notice” is given and the time of the hearing. In the great majority of cases the disciplinarian may informally discuss the alleged misconduct with the student minutes after it has occurred. We hold only that, in being given an opportunity to explain his version of the facts at this discussion, the student first be told what he is accused of doing and what the basis of the accusation is. * * * Since the hearing may occur almost immediately following the misconduct, it follows that as a general rule notice and hearing should precede removal of the student from school. We agree with the District Court, however, that there are recurring situations in which prior notice and hearing cannot be insisted upon. Students whose presence poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process may be immediately removed from school. In such cases, the necessary notice and rudimentary hearing should follow as soon as practicable, as the District Court indicated.

In holding as we do, we do not believe that we have imposed procedures on school disciplinarians which are inappropriate in a classroom setting. Instead we have imposed requirements which are, if anything, less than a fair-minded school principal would impose upon himself in order to avoid unfair suspensions. Indeed, according to the testimony of the principal of Marion-Franklin High School, that school had an informal procedure, remarkably similar to that which we now require, applicable to suspension generally but which was not followed in this case. * * *

We stop short of construing the Due Process Clause to require, countrywide, that hearings in connection with short suspensions must afford the student the opportunity to secure counsel, to confront and cross-examine witnesses supporting the charge, or to call his own witnesses to verify his version of the incident. Brief disciplinary suspensions are almost countless. To impose in each such case even truncated trial-type procedures might well overwhelm administrative facilities in many places and, by diverting resources, cost more than it

would save in educational effectiveness. Moreover, further formalizing the suspension process and escalating its formality and adversary nature may not only make it too costly as a regular disciplinary tool but also destroy its effectiveness as part of the teaching process.

* * * We should also make it clear that we have addressed ourselves solely to the short suspension,

not exceeding 10 days. Longer suspensions or expulsions for the remainder of the school term, or permanently, may require more formal procedures. Nor do we put aside the possibility that in unusual situations, although involving only a short suspension, something more than the rudimentary procedures will be required.

The District Court found each of the suspensions involved here to have occurred without a hearing, either before or after the suspension, and that each suspension was therefore invalid and the statute unconstitutional insofar as it permits such suspensions without notice or hearing. Accordingly, the judgment is

Affirmed. MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, and MR.

JUSTICE REHNQUIST join, dissenting. The Court today invalidates an Ohio statute that permits student suspensions from school without

a hearing “for not more than ten days.” The decision unnecessarily opens avenues for judicial intervention in the operation of our public schools that may affect adversely the quality of education. The Court holds

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for the first time that the federal courts, rather than educational officials and state legislatures, have the authority to determine the rules applicable to routine classroom discipline of children and teenagers in the public schools. It justifies this unprecedented intrusion into the process of elementary and secondary education by identifying a new constitutional right: the right of a student not to be suspended for as much as a single day without notice and a due process hearing either before or promptly following the suspension. The Court’s decision rests on the premise that, under Ohio law, education is a property interest protected by the Fourteenth Amendment’s Due Process Clause and therefore that any suspension requires notice and a hearing. In my view, a student’s interest in education is not infringed by a suspension within the limited period prescribed by Ohio law. Moreover, to the extent that there may be some arguable infringement, it is too speculative, transitory, and insubstantial to justify imposition of a constitutional rule.

* * * One of the more disturbing aspects of today’s decision is its indiscriminate reliance upon the

judiciary, and the adversary process, as the means of resolving many of the most routine problems arising in the classroom. * * *

The Ohio statute, providing as it does for due notice both to parents and the Board, is compatible with the teacher-pupil relationship and the informal resolution of mistaken disciplinary action. We have relied for generations upon the experience, good faith and dedication of those who staff our public schools, and the nonadversary means of airing grievances that always have been available to pupils and their parents. One would have thought before today’s opinion that this informal method of resolving differences was more compatible with the interests of all concerned than resort to any constitutionalized procedure, however blandly it may be defined by the Court.

* * * It hardly need be said that if a student, as a result of a day’s suspension, suffers “a blow” to his

“self-esteem,” “feels powerless,” views “teachers with resentment,” or feels

“stigmatized by his teachers,” identical psychological harms will flow from many other routine and necessary school decisions. The student who is given a failing grade, who is not promoted, who is excluded from certain extracurricular activities, who is assigned to a school reserved for children of less than average ability, or who is placed in the “vocational” rather than the “college preparatory” track, is unlikely to suffer any less psychological injury than if he were suspended for a day for a relatively minor infraction.

* * * Not so long ago, state deprivations of the most significant forms of state largesse were not

thought to require due process protection on the ground that the deprivation resulted only in the loss of a state-provided “benefit.” * * * In recent years the Court, wisely in my view, has rejected the “wooden distinction between ‘rights’ and ‘privileges,’” * * * and looked instead to the significance of the state-created or state-enforced right and to the substantiality of the alleged deprivation. Today’s opinion appears to abandon this reasonable approach by holding in effect that government infringement of any interest to which a person is entitled, no matter what the interest or how inconsequential the infringement, requires constitutional protection. As it is difficult to think of any less consequential infringement than suspension of a junior high school student for a single day, it is equally difficult to perceive any principled limit to the new reach of procedural due process.

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Notes and Questions

Goss, a five-to-four decision, reveals a sharp division among the Court’s justices. Does such a division make Goss any less the supreme law of the land? Is the due process requirement established in Goss educationally sound? Would seriatim ten-day suspensions for the same offense violate the rationale established in Goss?

In Craig v. Selma City School Board, 801 F. Supp. 585 (Ala. 1992), students were suspended for fighting at a football game and again the next day in the principal’s office. The students were initially suspended for five days, and two of the students were later expelled. Although no notice or hearing was given prior to the suspension, because their presence posed a continuing danger to persons or property, a federal district court contended that this case fit within an exception to the pre-deprivation and notice hearing requirement of Goss. The court also concluded that the later expulsion hearing was fair because they were given the requisite notice informing them that they had a right to attend the hearing, legal counsel and to present witnesses, and to cross-examine the officials’ witnesses.

A high school senior who admitted to drinking on a school outing was suspended for three days at the end of the academic year. Consequently, he missed a final examination and failed to make the required grade point for graduation. His parents contended that the punishment amounted to more than a suspension. Although seeming to sympathize with the student, a federal appellate court did not agree that he was entitled to the same degree of due process as that for an expulsion. A meeting with the principal and an opportunity for the parents to present a “mitigative argument” to the principal met the due process requirement. The court stated that “it is not the role of the federal courts to set aside the decisions of school administrators that the court may view as lacking a basis in wisdom or compassion.” See Lamb v. Panhandle Community Unit School District No. 2, 826 F.2d 526 (7th Cir. 1987).

The use of a so-called timeout box, a device to temporarily isolate unruly students, has been upheld in Dickens v. Johnson County Board of Education, 661 F. Supp. 155 (Tenn. 1987). In this instance the “box” had three sides enclosing a desk at which the student could

see the teacher and hear the class but could not see other pupils. He was allowed to go to the restroom and to attend scheduled activities such as lunch, physical education, and specialty classes. It was alleged that he had spent as long as 41⁄2 hours on six consecutive days in the “box.” In explaining that the student’s due process property interest had not been violated, the court stated:

Of course, students are entitled to hearings before they are expelled or suspended since these actions totally excluded them from the educational process. But teachers should be free to impose minor forms of classroom discipline, such as admonishing students, requiring special assignments, restricting activities, and denying certain privileges, without being subjected to the strictures of due process scrutiny. (p. 157)

And the court further stated:

It appears that judicious use of behavioral modification techniques such as “timeout” should be favored over expulsion in disciplining disruptive students. This is not to say that educators may arbitrarily cage students in a corner of the classroom for an indeterminate length of time.

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Nevertheless, the Court finds the defendants’ use of timeout in this case was not unduly harsh or grossly disproportionate. (p. 158)

Does your state have statutory provisions pertaining to suspension? What are your local school system’s rules regarding suspension?

B. Expulsion

1. PUBLIC SCHOOL EXPULSION

GONZALES v. MCEUEN

United States District Court, Central District of California, 1977 435 F. Supp. 460

TAKASUGI, District Judge. Eleven high school students, by their next friends, have brought this action under the Civil Rights

Act, 42 U.S.C. § 1983, and the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. The case stems from the suspension and expulsion of the named plaintiffs from Oxnard Union High School following a period of student unrest on campus during October 14–15, 1976. The plaintiffs were charged with having committed certain acts which, it was alleged, led to a riot at Oxnard High School.

* * * Plaintiffs’ strongest and most serious challenge is to the impartiality of the Board. They contend

that they were denied their right to an impartial hearing before an independent fact-finder. The basis for this claim is, first, overfamiliarity of the Board with the case; second, the multiple role played by defendants’ counsel; and third, the involvement of the Superintendent of the District, Mr. McEuen, with the Board of Trustees during the hearings.

No one doubts that a student charged with misconduct has a right to an impartial tribunal * * *. There is doubt, however, as to what this means. Various situations have been identified in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable. Bias is presumed to exist, for example, in cases in which the adjudicator has a pecuniary interest in the outcome; * * * or in which he has been the target of personal attack or criticism from the person before him. * * * The decisionmaker may also have such prior involvement with the case as to acquire a disqualifying bias. * * * The question before the Court is not whether the Board was actually biased, but whether, under the circumstances, there existed probability that the decisionmaker would be tempted to decide the issues with partiality to one party or the other. It is with this view that the plaintiffs’ claims must be considered.

Much has been made of “The Red Book” which, it is claimed, contained information about the academic and disciplinary records of plaintiffs. It is alleged that the Board had access to this material from twenty to thirty days before the expulsion hearings. Depositions submitted to the court show that the members of the Board met with school officials prior to the hearings. Plaintiffs contend that this prior involvement by the Board deprived plaintiffs of the opportunity for a fair hearing. The court rejects this contention. Exposure to evidence presented in a nonadversary investigative procedure is insufficient in itself to impugn the fairness of the Board members at a later adversary hearing. * * * Nor is a limited combination of investigatory and adjudicatory functions in an administrative body necessarily unfair, absent a showing of other circumstances such as malice or personal interest in the outcome. * * * A school board would be amiss in its duties if it did not make some inquiry to know what was going on in the

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district for which it is responsible. Some familiarity with the facts of the case gained by an agency in the performance of its statutory role does not disqualify a decisionmaker. * * *

Turning now to the issue of the multiple roles performed by defendants’ counsel, the court notes that the board members are defendants in this pending related action and may thereby become subject to personal liability.

It is undisputed that attorneys for the District who prosecuted the charges against the plaintiffs in the expulsion proceedings, also represent the Board members in this action. Plaintiffs claim that the attorneys acted in dual roles at the expulsion hearing: as prosecutors for the Administration and as legal advisors to the Board. Counsel for defendants admit that they advised the Board prior to the hearings with respect to its obligations regarding these expulsions, but they deny that they advised the Board during the proceedings themselves.

A reading of the transcripts reveals how difficult it was to separate the two roles. Special mention should be made of the fact that the Board enjoys no legal expertise and must rely heavily upon its counsel. This places defendants’ attorneys in a position of intolerable prominence and influence.

It is the opinion of this court that the confidential relationship between the attorneys for the District and the members of the Board, reinforced by the advisory role played by the attorneys for the Board, created an unacceptable risk of bias. Bearing in mind also that the Board members are subject to personal liability in this action, the court concludes that bias can be presumed to exist.

Superintendent McEuen sat with the Board members during the expulsion hearings; he acted as Secretary of the Board on at least one occasion. By statute, Mr. McEuen is the chief advisor to the Board. The fact remains, however, that he is also the chief of the “prosecution” team, to wit, the District.

It is clear from the record that at least on one occasion, at the joint hearing of plaintiffs, Flores, Chavez and Rodriguez, Superintendent McEuen was present with the Board for approximately forty-five minutes during its deliberations on the issue of expelling these plaintiffs. The plaintiffs contend that their due process rights were violated by the involvement of Mr. McEuen with the Board. This court agrees. Defendants’ counsel maintain that Mr. McEuen did not participate in the deliberations and did no more, perhaps, than serve cookies and coffee to the Board members. Whether he did or did not participate, his presence to some extent might operate as an inhibiting restraint upon the freedom of action and expression of the Board. Defendants argue that there is no evidence that Mr. McEuen influenced or biased the Board. Proof of

subjective reasoning processes are incapable of corroboration or disproval. Plaintiffs should not be forced to rely upon the memory or sense of fairness of Superintendent McEuen or the Board as to what occurred there. Perhaps Mr. McEuen’s physical presence in deliberation becomes more offensive because of the pre-hearing comments which showed something less than impartiality.

The court concludes that the process utilized by the Board was fundamentally unfair. This raises a presumption of bias. In view of the alternatives for the selection of an impartial hearing body under California Education Code Section 10608, it would have been more reasonable to provide procedures that insured not only that justice was done, but also that it appeared to have been done.

* * *

Plaintiffs Barrington and Munden were expelled at a meeting of the Board on November 10, 1976. Neither Barrington nor Munden was present; neither was represented by either parent or counsel.

On October 29, 1976, letters had been sent to the parents advising them that the principal was recommending expulsion of the students. The letters contained a specific statement of the charges: in the

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case of Barrington, that he was involved in a riot at school at which time he had threatened physical violence against a teacher; in the case of Munden, that he was involved in a fight with another student, Wayne Berry. The letters contained no notice to the student or parent of the student’s right to be present at the hearing, to be represented by counsel, and to present evidence. This was a clear violation of § 10608 of the California Education Code. The letters to the parents stated, “If you feel that the school does not have just cause for this recommendation, you may want to attend this meeting to present your reasons why [the students] should not be expelled.”

* * *

Goss clearly anticipates that where the student is faced with the severe penalty of expulsion he shall have the right to be represented by and through counsel, to present evidence on his own behalf, and to confront and cross-examine adverse witnesses.

* * *

Notice to be adequate must communicate to the recipient the nature of the proceeding. In an expulsion hearing, the notice given to the student must include a statement not only of the specific charge, but also the basic rights to be afforded the student: to be represented by counsel, to present evidence, and to confront and cross-examine adverse witnesses. Section 10608 of the California Education Code provides, inter alia, for notice to the student and the parent of the specific charge, of the right to be represented by counsel, and of the right to present evidence. Federal due process requires no less. Defendants next argue that even if the notice was defective, the court must still determine whether the plaintiffs were given a fair and impartial hearing. Defendants misapprehend the meaning of notice. It is not “fair” if the student does not know, and is not told, that he has certain rights which he may exercise at the hearing.

* * *

The court holds that the notice given to plaintiffs Barrington and Munden was defective in that it did not adequately inform them of their constitutional rights. It follows that their expulsions were improper.

* * *

Notes and Questions

According to Gonzales, a notice of expulsion hearing, to be adequate, must communicate the nature of the proceedings to the recipient. Such a notice must also include a statement of the specific charges and basic rights available to the student, such as the right to be represented by counsel, to present evidence, and to confront and cross-examine adverse witnesses.

May a school superintendent participate, merely by being present at the expulsion deliberations, according to Gonzales? In order to avoid a conflict of interest, local school boards often delegate expulsion decisions to an impartial hearing officer.

A school district’s policy of expelling students for possession of marijuana on school grounds was upheld. The court stated that “[t]he policy of the Board as clearly set forth in its Code of Conduct is not arbitrary or capricious, but is a commendable effort in dealing with a serious, destructive problem.” See Rucker v. Colonial School District, 517 A.2d 703 (Del. Super. Ct. 1986). However, an expulsion was not

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upheld in a case dealing with possession of marijuana off the school grounds. In this instance, the authority to expel was limited by statute to possession of marijuana on school grounds or on school buses. See Labrosse v. Saint Bernard Parish School Board, 483 So. 2d 1253 (La. Ct. App. 1986).

A student was expelled after being arrested for possession of marijuana after school hours and off campus. Under the state’s expulsion statute, a student’s conduct had to be “seriously disruptive of the educational process.” The school claimed that his arrest violated school policy and thereby seriously disrupted the educational environment. In upholding the student, the Connecticut Supreme Court held that “In order to subject a student to expulsion, conduct off school grounds must not only violate school policy, it must also be ‘seriously disruptive of the educational process’ for reasons other than the fact that it violated school policy.” Additionally, the court concluded that the student was not provided constitutionally adequate notice that such an incident would subject him to expulsion from school. See Packer v. Board of Education, 717 A.2d 117 (Conn. 1998).

Permanent expulsion was upheld for a student who violated a school district’s code for student conduct by being in possession of a knife and stabbing another student. The court, in D.B. v. Clarke County Board of Education, 469 S.E.2d 438 (Ga. App. 1996), held that the student’s constitutional right to a free public education and the state’s compulsory school attendance statute had not been violated.

A federal statute entitled the Gun-Free Schools Act of 1994 mandates expulsion for students who bring weapons to school. The law provides, in part, that:

. . . each state receiving Federal funds . . . shall have in effect a State law requiring local educational agencies to expel from school for a period of not less than one year a student who is determined to have brought a weapon to a school under the jurisdiction of local educational agencies in that State, except that such State law shall allow the chief administering officer of such local educational agency to modify such expulsion requirement for a student on a case-by-case basis.

Nothing in this subchapter shall be construed to prevent a State from allowing a local educational agency that has expelled a student from such a student’s regular school setting from providing educational services to such student in an alternative setting. 20 U.S.C. § 8921 (1994).

Does your state have statutory provisions pertaining to expulsion? What are your local school system’s rules or policies regarding expulsion? If a student moved, would an expulsion in one school district automatically carry over to the new district?

A perception of increased school violence since passage of the Gun-Free Schools Act of 1994 has resulted in the growth of zero-tolerance policies by many school systems. These well-intentioned policies were originally designed as a type of “one-strike-you’re-out” antidote for such serious offenses as student on-campus drug trafficking or possession of dangerous weapons. Unfortunately, what many observers thought was a relatively tough-minded and simple panacea for school violence has become embroiled in controversy. Enforcing zero-tolerance policies has often ensnared students in activities that parents view as relatively innocuous. The policies have been attacked for attempting to exclude students for the following types of alleged infractions: bringing a nail file to school that school officials viewed as a knife; a student’s writing a story about a murderous rampage at his school in addition to promising he would “mess” with the class; a student using her thumb and index finger to simulate a gun and saying “bang” to fellow students; and bringing a ceremonial sword to a history class. There is little doubt that school systems would decrease antagonism toward zero-tolerance policies if they adopt policies that are clearly written, adequately communicated to both students and parents, fairly enforced, and perhaps most important, show that there is a need for such a policy by demonstrating the serious threat that exists to the school environment.

A state supreme court, in South Gibson School Board v. Sollman, 768 N.E.2d 437 (Ind. 2002), addressed a zero-tolerance policy under which any student found in possession of drugs was expelled

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from school for the remainder of the year. In this instance, a small amount of marijuana was found in the student’s truck when there were only three days left in the fall semester. In upholding the zero-tolerance policy, the court held that under state law the student could be expelled until the end of the spring semester but not for summer school. Additionally, the court ruled that the school board did not act arbitrarily and capriciously in depriving him of credit for course work he failed due to his receiving zeros for the fall semester course work that he missed after the expulsion. He did, however, receive credit for those courses in which he had a passing grade after the zeros were taken into account.

In another case involving a zero-tolerance policy, a seventh-grade student was expelled for filing his nails with a miniature Swiss army knife he had found in a school hallway. The student and his parents had a meeting with his principal and participated in a hearing before he was expelled for possession of a knife under the district’s zero-tolerance policy. In holding for the student, the court in, Lyons v. Penn Hills School District, 723 A.2d 1073 (Pa. Commw. Ct. 1999), held that failure to develop a written policy regarding expulsion for weapon possession and providing the school superintendent with discretionary review of the expulsion on a case-by-case basis, violated the state statute governing school weapons policies.

Does your school system have a written zero-tolerance policy that has been adequately communicated to students and their parents? Should such policies contain a case-by-case review provision? What problems, if any, would you foresee with such a provision?

2. PRIVATE SCHOOL EXPULSION Contract law, not the law of due process, generally governs the issue of expulsion from a private school. As was discussed earlier, unless a substantial linkage exists between a private school and the state or federal government, the notion of due process does not apply because the private school does not operate under the “color of the state,” and therefore, no process would be due.

ALLEN v. CASPER

Court of Appeals of Ohio, 1993 87 Ohio App. 3d 338, 622 N.E. 2d 367

PER CURIAM. * * *

Prior to enrolling their children at Bethlehem Christian, the Allens filled out an application for enrollment. As part of the application process, the Allens were provided with a copy of the school’s admission policies, which applied to parents as well as students.

Paragraph 3 of the Policies and Procedures states: “The school reserves the right to refuse admittance, suspend, or expel any student who does not

cooperate with policies established in this book. The high standard and Biblical principles that our school holds apply to after school hours as well. If any parent or student refuses to follow those standards, then they place their privilege of attending B.C.S. in jeopardy.”

Paragraph 7 states: “Parents of students (as set forth on the application) must have received Jesus Christ as Savior

and Lord. They must also be in agreement with our doctrinal statement, demonstrate a spirit of cooperation, and uphold the student handbook.”

After their application was accepted, the Allens signed a parents’ agreement and were sent a copy of the school handbook, which related to disciplinary procedures and parental involvement. As part of their parents’ agreement, the Allens agreed as follows:

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“We recognize that confidence in our child’s teachers and school administration is essential. Therefore, we will encourage our child to respect and obey school policies and school officials. We agree that, if our child should become involved in any difficulty at school, we will not complain to other parents, but, with a prayerful Christian spirit, will register only necessary complaints with the appropriate teacher and/or administrator.”

The school handbook, which relates to disciplinary procedures and parental involvement, provides in relevant part as follows:

“If a parent has a question or concern related to a classroom situation, he should first meet with the particular classroom teacher. If the matter is not resolved, the administrator is the proper person to contact. Thereafter, a conference with the parents, the teacher, and the administrator may be in order. “If a parent feels that he cannot accept the decision or explanation given by the administrator, his final recourse is to take the matter before the school board, with the administrator and teacher present, by submitting a written request for such a meeting to the administrator.”

A series of events involving Kristen Allen led to a dispute between the Allens and the school administrator as to how the matters should have been handled. As a result of the failure of the Allens and the school to come to any agreement, the school requested by letter dated November 27, 1990 that the Allens voluntarily withdraw their children. * * *

Sometime in September 1990, Kristen informed her mother that two male kindergarten children chased her on the playground and that one child pulled her hands behind her back while the other pulled her dress up and ran his hand across her panties. The following day, Mrs. Allen telephoned Michael Staub, the school administrator, and informed him of the incident. * * *

* * * After speaking with the boys, Staub was certain that the children, then age six, did not realize that they had done anything wrong. Staub told them that they should not touch children in the manner that they had touched Kristen and told them that if any such incident occurred in the future, he would paddle them.

In October, Kristen told her mother that one of the boys involved in the first incident touched her again in a similar way. * * *

Staub spoke with the young boy, who admitted that he had touched Kristen. Staub telephoned the boy’s parents and arranged a meeting with them. He described the parents as very concerned and cooperative. With their consent, Staub paddled the boy.

According to Staub, Mrs. Allen became angry and demanded to know what he had done to the young boy. Staub assured her that he was taking care of the matter, but that it was the school’s policy to discuss disciplinary matters only with the parents of the child involved. Unsatisfied with this response, the Allens met with Rev. Hlad, who had no responsibility for the day-to-day running of the school, to discuss the matter. At no time did the Allens seek a meeting with the school board as required by the school handbook.

* * * In November, * * * Kristen told her mother that a different young boy had spit upon her as the

children were leaving school. Mrs. Allen * * * confronted the teacher Kristen had informed of the incident on the playground. The teacher * * * explained to Mrs. Allen that the boy had a dental malformation * * * and that the boy did not intentionally spit on Kristen. * * * According to Staub, Mrs. Allen was upset and angry at the teacher’s handling of the incident and wanted to know what he was going to do about it. Staub told her he would speak with the child’s parents. * * *

At this point, Staub contacted Rev. Hlad, explained that he could reach no agreement with the Allens as to how matters involving Kristen should be handled, and felt that perhaps the withdrawal of the Allen children would be in the best interests of all parties involved. * * * After further discussion, it seemed that the parties could develop no work-ing relationship with the school administrator regarding matters involving their children, and Rev. Hlad asked the Allens to withdraw their children prior to December 3,

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1990. The Allens were given a week to locate a new school and were told that their tuition would be refunded.

* * *

On November 27, 1991, the Allens filed suit against Bethlehem Baptist Church, Michael Staub and Rev. Hlad for unlawfully dismissing their children from Bethlehem Baptist Christian School.

* * *

There is no question that the relationship between the parties here is a contractual one, that the terms of that relationship may be expressed in school policies and hand-books, and that those expressed terms may govern the circumstances under which a stu-dent may be expelled. Because contracts for private education have unique qualities, they are to be construed in a manner which leaves the school board broad discretion to meet its educational and doctrinal responsibilities. Absent a clear abuse of discretion by the school in the enforcement of its policies and regulations, courts will not interfere in these matters.

* * *

* * * The Allens have failed to adduce any evidence of a violated contractual right. They have also failed to present any facts to show a clear abuse of discretion on the part of Bethlehem Christian School, Michael Staub or Rev. Hlad.

On the contrary, the evidence suggests that the appellees acted within their proper discretion in removing the Allen children. The record demonstrates that Michael Staub, who was responsible for the day-to-day running of the school, responded promptly to the complaints by Mrs. Allen in a manner that he believed would yield fairness to all parties involved. The Allens refused to agree to his disposition of the matters, bypassed the griev-ance procedures, engaged in confrontational tactics and failed to abide by the school handbook. After Mrs. Allen called Staub unchristian and accused him of working with the devil, Staub felt that he could not work together with the Allens and that the best interest of all parties would be served by the removal of the children from the school. That the Allens understood that their children could be removed from Bethlehem Christian School based upon their failure to comply with the admission policies and the terms of the school handbook is not disputed.

* * *

Judgment affirmed.

Note

A private Catholic high school student alleged that his constitutional rights to due process had been violated when he was expelled for violating his disciplinary probation. Some of the alleged infractions leading to his expulsion included an argument with a fellow student on the school bus; “trashing” a teacher’s house, slashing the teacher’s automobile tires, and making prank calls to the teacher; using and distributing steroids; and urinating in students’ lockers. In upholding the private school, a New Jersey court in Hernandez v. Don Bosco Preparatory High, 730 A. 2d 365 (N.J. Super. Ct. App. Div. 1999),

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declared that the expulsion was not “state action” within the meaning of the Fourteenth Amendment’s Due Process clause. The court stated that “Private schools are only bound to the constitutional requirements of due process if the private school has substantial involvement with the state.” Additionally, the court noted that the school followed its procedures by notifying the student of all charges against him and allowing him an opportunity to appeal and present a defense. The court emphasized that it would only interfere when a private organization failed to follow its own procedures.

C. Disciplinary Transfer

Transfer to a so-called alternative school, designed to meet the needs of nondisabled disruptive students, is not considered to be the equivalent of an expulsion. Appropriate due process in such an instance includes: (1) written notice to both the student and his or her parents; (2) an opportunity for a meeting among school authorities, parents, and the student, at which the situation may be discussed; and (3) a meeting at which evidence may be presented and witnesses examined. See Jordan v. School District of City of Erie, 583 F.2d 91 (3d Cir. 1978), and Zamora v. Pomeroy, 639 F.2d 662 (10th Cir. 1981). A lawyer need not be present at such a conference. See Madera v. Board of Education of the City of New York, 386 F.2d 778 (2d Cir. 1967).

Would courts uphold more stringent rules pertaining to conduct, dress, search, overall discipline, and freedom of expression at such alternative schools?

IV. CORPORAL PUNISHMENT Corporal punishment in the public school setting may be defined as the use of such physical contact as striking, paddling, or spanking of a student by an educator. Although once widely used, it is a controversial practice that has received much debate. Proponents view it as a necessary and educationally sound disciplinary measure. Those opposed view the practice as archaic, cruel, inhuman, and an unjustifiable act on the part of the state.

The issue had been litigated repeatedly until the United States Supreme Court upheld the practice in Ingraham v. Wright. In its opinion, the Court addressed two major issues: whether or not the administration of corporal punishment represented cruel and unusual punishment in violation of the Eighth Amendment; and whether or not prior notice and an opportunity to be heard were required.

INGRAHAM v. WRIGHT

Supreme Court of the United States, 1977 430 U.S. 651

MR. JUSTICE POWELL delivered the opinion of the Court. This case presents questions concerning the use of corporal punishment in public schools: First,

whether the paddling of students as a means of maintaining school discipline

constitutes cruel and unusual punishment in violation of the Eighth Amendment; and, second, to the extent that paddling is constitutionally permissible, whether the Due Process Clause of the Fourteenth Amendment requires prior notice and an opportunity to be heard.

* * *

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Petitioners’ evidence may be summarized briefly. In the 1970–1971 school year, many of the 237 schools in Dade County used corporal punishment as a means of maintaining discipline pursuant to Florida legislation and a local school board regulation. The statute then in effect authorized limited corporal punishment by negative inference, proscribing punishment which was “degrading or unduly severe” or which was inflicted without prior consultation with the principal or the teacher in charge of the school. * * * The regulation * * * contained explicit directions and limitations. The authorized punishment consisted of paddling the recalcitrant student on the buttocks with a flat wooden paddle measuring less than two feet long, three to four inches wide, and about one-half inch thick. The normal punishment was limited to one to five “licks” or blows with the paddle and resulted in no apparent physical injury to the student. School authorities viewed corporal punishment as a less drastic means of discipline than suspension or expulsion. Contrary to the procedural requirements of the statute and regulation, teachers often paddled students on their own authority without first consulting the principal.

* * * Because he was slow to respond to his teacher’s instructions, Ingraham was subjected to more than 20 licks with a paddle while being held over a table in the principal’s office. The paddling was so severe that he suffered a hematoma requiring medical attention and keeping him out of school for several days. Andrews was paddled several times for minor infractions. On two occasions he was struck on his arms, once depriving him of the full use of his arm for a week.

* * *

The use of corporal punishment in this country as a means of disciplining schoolchildren dates back to the colonial period. It has survived the transformation of primary and secondary education from the colonials’ reliance on optional private arrangements to our present system of compulsory education and dependence on public schools. Despite the general abandonment of corporal punishment as a means of punishing criminal offenders, the practice continues to play a role in the public education of schoolchildren in most parts of the country. Professional and public opinion is sharply divided on the practice, and has been for more than a century. Yet we can discern no trend toward its elimination.

At common law a single principle has governed the use of corporal punishment since before the American Revolution: Teachers may impose reasonable but not excessive force to discipline a child. * * * The basic doctrine has not changed. The prevalent rule in this country today privileges such force as a teacher or administrator “reasonably believes to be necessary for [the child’s] proper control, training, or education.” * * * To the extent that the force is excessive or unreasonable, the educator in virtually all States is subject to possible civil and criminal liability.

Although the early cases viewed the authority of the teacher as deriving from the parents, the concept of parental delegation has been replaced by the view—more consonant with compulsory education laws—that the State itself may impose such corporal punishment as is reasonably necessary “for the proper education of the child and for the maintenance of group discipline.” * * * All of the circumstances are to be taken into account in determining whether the punishment is reasonable in a particular case. Among the most important considerations are the seriousness of the offense, the attitude and past behavior of the child, the nature and severity of the punishment, the age and strength of the child, and the availability of less severe but equally effective means of discipline. * * *

Of the 23 States that have addressed the problem through legislation, 21 have authorized the moderate use of corporal punishment in public schools. Of these States only a few have elaborated on the common-law test of reasonableness, typically providing for approval or notification of the child’s parents, or for infliction of punishment only by the principal or in the presence of an adult witness. Only two States, Massachusetts and New Jersey, have prohibited all corporal punishment in their public

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schools. Where the legislatures have not acted, the state courts have uniformly preserved the common-law rule permitting teachers to use reasonable force in disciplining children in their charge.

Against this background of historical and contemporary approval of reasonable corporal punishment, we turn to the constitutional questions before us. The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Bail, fines, and punishment traditionally have been associated with the criminal process, and by subjecting the three to parallel limitations the text of the Amendment suggests an intention to limit the power of those entrusted with the criminal-law function of government. An examination of the history of the Amendment and the decisions of this Court construing the proscription against cruel and unusual punishment confirms that it was designed to protect those convicted of crimes. We adhere to this long-standing limitation and hold that the Eighth Amendment does not apply to the paddling of children as a means of maintaining discipline in public schools.

* * *

“[T]he question remains what process is due.” * * * Were it not for the common-law privilege permitting teachers to inflict reasonable corporal punishment on children in their care, and the availability of the traditional remedies for abuse, the case for requiring advance procedural safeguards would be strong indeed. But here we deal with a punishment—paddling—within that tradition, and the question is whether the common-law remedies are adequate to afford due process. * * *

Whether in this case the common-law remedies for excessive corporal punishment constitute due process of law must turn on an analysis of the competing interests at stake, viewed against the background of “history, reason, [and] the past course of decisions.” The analysis requires consideration of three distinct factors: “First, the private interest that will be affected. . . .; second, the risk of an erroneous deprivation of such interest . . . and the probable value, if any, of additional or substitute procedural safeguards; and finally, the [state] interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” * * *

* * *

Florida has continued to recognize, and indeed has strengthened by statute, the common-law right of a child not to be subjected to excessive corporal punishment in school. Under Florida law the teacher and principal of the school decide in the first instance whether corporal punishment is reasonably necessary under the circumstances in order to discipline a child who has misbehaved. But they must exercise prudence and restraint. For Florida has preserved the traditional judicial proceedings for determining whether the punishment was justified. If the punishment inflicted is later found to have been excessive—not reasonably believed at the time to be necessary for the child’s discipline or training—the school authorities inflicting it may be held liable in damages to the child and, if malice is shown, they may be subject to criminal penalties.

* * *

It still may be argued, of course, that the child’s liberty interest would be better protected if the common-law remedies were supplemented by the administrative safeguards of prior

notice and a hearing. We have found frequently that some kind of prior hearing is necessary to guard against arbitrary impositions on interests protected by the Fourteenth Amendment. * * * But where the State has preserved what “has always been the law of the land,” * * * the case for administrative safeguards is significantly less compelling.

* * *

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But even if the need for advance procedural safeguards were clear, the question would remain whether the incremental benefit could justify the cost. Acceptance of petitioners’ claims would work a transformation in the law governing corporal punishment in Florida and most other States. Given the impracticability of formulating a rule of procedural due process that varies with the severity of the particular imposition, the prior hearing petitioners seek would have to precede any paddling, however moderate or trivial.

Such a universal constitutional requirement would significantly burden the use of corporal punishment as a disciplinary measure. Hearings—even informal hearings—require time, personnel, and a diversion of attention from normal school pursuits. School authorities may well choose to abandon corporal punishment rather than incur the burdens of complying with the procedural requirements. Teachers, properly concerned with maintaining authority in the classroom, may well prefer to rely on other disciplinary measures—which they may view as less effective—rather than confront the possible disruption that prior notice and a hearing may entail. Paradoxically, such an alteration of disciplinary policy is most likely to occur in the ordinary case where the contemplated punishment is well within the common-law privilege.

Elimination or curtailment of corporal punishment would be welcomed by many as a societal advance. But when such a policy choice may result from this Court’s determination of an asserted right to due process, rather than from the normal processes of community debate and legislative action, the societal costs cannot be dismissed as insubstantial. We are reviewing here a legislative judgment, rooted in history and reaffirmed in the laws of many States, that corporal punishment serves important educational interests. This judgment must be viewed in light of the disciplinary problems commonplace in the schools. * * *

* * * In view of the low incidence of abuse, the openness of our schools, and the common-law safeguards that already exist, the risk of error that may result in violation of a schoolchild’s substantive rights can only be regarded as minimal. Imposing additional administrative safeguards as a constitutional requirement might reduce that risk marginally, but would also entail an intrusion into an area of primary educational responsibility. We conclude that the Due Process Clause does not require notice and a hearing prior to the imposition of corporal punishment in the public schools, as that practice is authorized and limited by the common law.

Petitioners cannot prevail on either of the theories before us in this case. The Eighth Amendment’s prohibition against cruel and unusual punishment is inapplicable to school paddlings, and the Fourteenth Amendment’s requirement of procedural due process is satisfied by Florida’s preservation of common-law constraints and remedies. We therefore agree with the Court of Appeals that petitioners’ evidence affords no basis for injunctive relief, and that petitioners cannot recover damages on the basis of any Eighth Amendment or procedural due process violation.

Affirmed.

Notes and Questions

Ingraham was a five-to-four decision. Justice Powell, who wrote the Ingraham decision, brought a background of public school experience to the Court. He was chairman of the Richmond, Virginia, School Board during the time public schools were being desegregated in the 1950s, and

he headed the Virginia State Board of Education. Although a Democrat, he was nominated to the Court by President Nixon and took office in 1972. He retired in 1987 and was replaced by Justice Anthony Kennedy in 1988.

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Is it possible to reconcile the majority opinion in Ingraham with the majority opinion in Goss? Should the Ingraham decision have cited empirical data that establish the effectiveness of corporal punishment? Are such data necessary to support the Court’s ruling?

According to Ingraham, in the absence of state legislation or regulation or local school policy to the contrary, teachers may inflict corporal punishment. The practice has been banned by state action in Alaska, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Dakota, Ohio, Oregon, Pennsylvania, South Dakota, Utah (parents may give written permission for its use), Vermont, Virginia, Washington, West Virginia, and Wisconsin. Corporal punishment has been banned by all local school districts in Rhode Island. States that allow some form of corporal punishment include Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, and Wyoming.

The Court’s decision in Ingraham did not put the issue of corporal punishment to rest. A federal appellate court, in Garcia v. Miera, 817 F.2d 650 (10th Cir. 1987), cert. denied, 485 U.S. 959 (1988), held that excessive force used for corporal punishment is a violation of substantive due process. In Garcia, a nine-year-old girl was subjected to two excessive incidents of corporal punishment so severe that they were characterized as “beatings.” In the first beating, a teacher held the girl upside down by her ankles while the principal used a wooden paddle to strike her. The paddle was split in two pieces after hitting her. Blood was observed soaking through her clothing after the beating, and she was left with a permanent scar on her leg. In the second beating, the girl was so severely bruised that her family sought medical treatment. The examining physician stated that he had never seen such severe bruising as the result of a routine spanking. In its decision, the court declared that “the injuries were so severe that they met the high threshold for recovery on the constitutional tort for excessive corporal punishment.” Additionally, the court stated:

Although Ingraham makes clear that ordinary corporal punishment violates no substantive due process rights of school children, by acknowledging that corporal punishment implicates a fundamental liberty interest protected by the due process clause, we believe that, at some degree of excessiveness or cruelty, the meting out of such punishment violates the substantive due process rights of the pupil. (p. 654)

The court also disclosed that three categories of corporal punishment exist.

Punishments that do not exceed the traditional common law standard of reasonableness are not actionable; punishments that exceed the common law standard without adequate state remedies violate procedural due process rights; and finally, punishments that are so grossly excessive as to be shocking to the conscience violate substantive due process rights, without regard to the adequacy of state remedies. (p. 656)

Many federal courts employ the “shock the conscience” standard when the use of excessive force by public school officials is alleged. In Gottlieb v. Laurel Hills School District, 272 F.3d 168 (3rd Cir. 2001), the court upheld a lower court’s granting of summary judgment in favor of the school district. In this instance, the assistant principal told the student to “shut up” and pushed her shoulder with his hand, propelling her into a door jam and thereby injuring her lower back. The problem student had been brought to the principal’s office by a security officer for being insubordinate. In attempting to determine whether the assistant principal’s actions

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“shocked the conscience,” the court raised the following questions: the pedagogical justification for the application of force; the relationship between the need and the amount of force that was used; the extent of injury inflicted; and whether force was applied in a good faith effort to main-tain or restore discipline or maliciously and sadistically for the very purpose of causing harm. In Harris v. Robinson, 273 F.3d 927 (10th Cir. 2001), a ten-year-old mild to moderately retarded boy was made to clean out a toilet with his bare hands after he had been suspected of clogging the toilet. In applying the same test used in Garcia—namely, “whether the force applied caused injury so severe, was so disproportionate to the need presented, and was so inspired by malice or sadism rather than a merely careless or unwise excess of zeal that it amounted to a brutal and inhumane abuse of official power literally shocking to the conscience”—the court upheld the summary judgment in favor of the teacher and the school district. The court noted that school authorities had given the teacher a formal, written admonishment concerning her actions and she been warned that additional incidents of this nature could lead to her dismissal.

As mentioned in Ingraham, a remedy for what is perceived as excessive corporal punishment is a criminal lawsuit. In one such criminal case, a private-school principal was sentenced to twelve months probation, 150 hours of community service, and a $500 fine for having inflicted “extreme pain” during the administration of corporal punishment consisting of fifty to sixty swats. In that state, to sustain a simple assault conviction, it was necessary to prove that a teacher, principal, parent, or person otherwise entrusted with the care or supervision of a minor for a special purpose, inflicted not merely substantial pain, but rather extreme pain as a result of administering corporal punishment. Such a higher standard of proof was designed to shield this group of individuals from simple assault liability in instances where the degree and manner of force used and the attendant justifications are neither excessive nor unreasonable under the circumstances. See Commonwealth v. Douglass, 588 A.2d 53 (Pa. Super. Ct. 1991).

Are you familiar with the statutory provisions, if any, in your state pertaining to corporal punishment? Are practices in your school system regarding the administration of corporal punishment in conformance with state and local provisions? Are there statutory provisions designed to protect teachers and administrators from suits resulting from their administration of corporal punishment?

V. SEARCH OF STUDENTS AND LOCKERS

The desire to have the Fourth Amendment included in the Bill of Rights grew out of British practices prior to the Revolutionary War. Early Americans wanted assurance that their homes would not be invaded without just cause. They were especially fearful that without this protection, governmental authorities could intimidate the citizenry by pursuing “fishing expeditions” such as conducting searches of homes of politically nonconforming citizens until something incriminating was found. With this fear in mind, the Fourth Amendment was included in the Bill of Rights, to protect the individual from possible harassment by an unresponsive government. Originally, the protection of the Fourth Amendment applied only to the federal government, as was the case with the other first eight amendments of the Constitution; however, as a result of decisions involving the Fourteenth Amendment, this protection for the individual is now also available against the state.

Public school officials may be placed in the position of searching a student because of a suspicion that the student has stolen an article or money or has something illegal in his or her possession, such as drugs or weapons. Over the years, several important Fourth Amendment issues emerged as courts attempted to grapple with cases involving student searches. Foremost

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among these issues was establishing the proper balance between an individual student’s right to Fourth Amendment protection from unreasonable search and the duty of school officials to provide all students with a safe and secure school environment. Other more specific legal questions have also been addressed by the courts. These included (1) whether students in the school setting had the protection of the Fourth Amendment, and if so, whether their protection equaled that of adults or was a lesser protection; (2) determining if school officials were to be considered government officials, because the Fourth Amendment applies only when a government official acting under the color of the state conducts the search; (3) the degree of suspicion a school official must have to conduct an individualized search (police, for instance, must have probable cause to search someone, a considerably higher standard than reasonable suspicion); and (4) whether a search warrant is required in the school setting. Courts adjudicated these difficult legal questions (although not always similarly) as they increasingly dealt with such search-related issues as the constitutionality of searching a student suspected of having drugs on his or her person, the use of drug-detecting dogs, mass search of the entire student body, random drug testing of high school athletes or others involved in extracurricular activities, random searches with handheld metal detector wands, and strip searches.

A series of United States Supreme Court decisions, beginning in 1985, has not only provided public school educators with guidance regarding student search issues but also substantially increased their authority to conduct searches. The first of these decisions, New Jersey v. T. L.O., ruled that although the Fourth Amendment’s prohibition on unreasonable searches and seizures applied to searches conducted by public school educators, only reasonable and not probable cause was required. Subsequent decisions in Vernonia School District 47J v. Acton, 515 U.S. 646 (1995), and Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 536 U.S. 822 (2002), addressed the scope of random searches of students.

A. Student Search

NEW JERSEY v. T.L.O. Supreme Court of the United States, 1985

469 U.S. 325

JUSTICE WHITE delivered the opinion of the Court. We granted certiorari in this case to examine the appropriateness of the exclusionary rule as a

remedy for searches carried out in violation of the Fourth Amendment by public school authorities. Our consideration of the proper application of the Fourth Amendment to the public schools, however, has led us to conclude that the search that gave rise to the case now before us did not violate the Fourth Amendment. Accordingly, we here address only the questions of the proper standard for assessing the legality of searches conducted by public school officials and the application of that standard to the facts of this case.

On March 7, 1980, a teacher at Piscataway High School in Middlesex County, N.J., discovered two girls smoking in a lavatory. One of the two girls was the respondent T.L.O., who at that time was a 14-year-old high school freshman. Because smoking in the lavatory was a violation of a school rule, the teacher took the two girls to the Principal’s office, where they met with Assistant Vice Principal Theodore Choplick. In response to questioning by Mr. Choplick, T.L.O.’s companion admitted that she had violated the rule. T.L.O., however, denied that she had been smoking in the lavatory and claimed that she did not smoke at all.

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Mr. Choplick asked T.L.O. to come into his private office and demanded to see her purse. Opening the purse, he found a pack of cigarettes, which he removed from the purse and held before T.L.O. as he accused her of having lied to him. As he reached into the purse for the cigarettes, Mr. Choplick also noticed a package of cigarette rolling papers. In his experience, possession of rolling papers by high school students was closely associated with the use of marihuana. Suspecting that a closer examination of the purse might yield further evidence of drug use, Mr. Choplick proceeded to search the purse thoroughly. The search revealed a small amount of marihuana, a pipe, a number of empty plastic bags, a substantial quantity of money in one dollar bills, an index card that appeared to be a list of students who owed T.L.O. money, and two letters that implicated T.L.O. in marihuana dealing.

Mr. Choplick notified T.L.O.’s mother and the police, and turned the evidence of drug dealing over to the police. At the request of the police, T.L.O.’s mother took her daughter to police headquarters, where T.L.O. confessed that she had been selling marihuana at the high school. On the basis of the confession and the evidence seized by Mr. Choplick, the State brought delinquency charges against T.L.O. in the Juvenile and Domestic Relations Court of Middlesex County. Contending that Mr. Choplick’s search of her purse violated the Fourth Amendment, T.L.O. moved to suppress the evidence found in her purse as well as her confession, which, she argued, was tainted by the allegedly unlawful search. * * *

* * *

In determining whether the search at issue in this case violated the Fourth Amendment, we are faced initially with the question whether that Amendment’s prohibition on unreasonable searches and seizures applies to searches conducted by public school officials. We hold that it does.

It is now beyond dispute that “the Federal Constitution, by virtue of the Fourteenth Amendment, prohibits unreasonable searches and seizures by state officers.” * * * Equally indisputable is the proposition that the Fourteenth Amendment protects the rights of students against encroachment by public school officials:

The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures—Boards of Education not excepted. These have, of course, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for 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. West Virginia State Board of Education v. Barnette 319 U.S. 624, 637 (1943).

These two propositions—that the Fourth Amendment applies to the States through the Fourteenth Amendment, and that the actions of public school officials are subject to the limits placed on state action by the Fourteenth Amendment—might appear sufficient to answer the suggestion that the Fourth Amendment does not proscribe unreasonable searches by school officials. On reargument, however, the State of New Jersey has argued that the history of the Fourth Amendment indicates that the Amendment was intended to regulate only searches and seizures carried out by law enforcement officers; accordingly, although public school officials are concededly state agents for purposes of the Fourteenth Amendment, the Fourth Amendment creates no rights enforceable against them. It may well be true that the evil toward which the Fourth Amendment was primarily directed was the resurrection of the pre-Revolutionary practice of using general warrants or “writs of assistance” to authorize searches for contraband by officers of the Crown. * * * But this Court has never limited the Amendment’s prohibition on unreasonable searches and seizures to operations conducted by the police. Rather, the Court has long spoken of the Fourth Amendment’s strictures as restraints imposed upon “governmental action”—that is,

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“upon the activities of sovereign authority.” * * * Accordingly, we have held the Fourth Amendment applicable to the activities of civil as well as criminal authorities: building inspectors, * * * and even firemen entering privately owned premises to battle a fire * * * are all subject to the restraints imposed by the Fourth Amendment. As we observed * * * [t]he basic purpose of this Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of Individuals against arbitrary invasions by governmental officials.” * * *

Notwithstanding the general applicability of the Fourth Amendment to the activities of civil authorities, a few courts have concluded that school officials are exempt from the dictates of the Fourth Amendment by virtue of the special nature of their authority over schoolchildren. * * * Teachers and school administrators, it is said, act in loco parentis in their dealings with students: Their authority is that of the parent, not the State, and is therefore not subject to the limits of the Fourth Amendment.

Such reasoning is in tension with contemporary reality and the teachings of this Court. * * * Today’s public school officials do not merely exercise authority voluntarily conferred on them by individual parents; rather, they act in furtherance of publicly mandated educational and disciplinary policies. * * * In carrying out searches and other disciplinary functions pursuant to such policies, school officials act as representatives of the State, not merely as surrogates for the parents, and they cannot claim the parents’ immunity from the strictures of the Fourth Amendment.

* * *

Although this Court may take notice of the difficulty of maintaining discipline in the public schools today, the situation is not so dire that students in the schools may claim no legitimate expectations of privacy. * * *

Nor does the State’s suggestion that children have no legitimate need to bring personal property into the schools seem well anchored in reality. Students at a minimum must bring to school not only the supplies needed for their studies, but also keys, money, and the necessaries of personal hygiene and grooming. In addition, students may carry on their persons or in purses or wallets such nondisruptive yet highly personal items as photographs, letters, and diaries. Finally, students may have perfectly legitimate reasons to carry with them articles of property needed in connection with extracurricular or recreational activities. In short, schoolchildren may find it necessary to carry with them a variety of legitimate, noncontraband items, and there is no reason to conclude that they have necessarily waived all rights to privacy in such items merely by bringing them onto school grounds.

Against the child’s interest in privacy must be set the substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds. Maintaining order in the classroom has never been easy, but in recent years, school disorder has often taken particularly ugly forms: drug use and violent crime in the schools have become major social problems. * * *

* * *

How, then, should we strike the balance between the schoolchild’s legitimate expectations of privacy and the school’s equally legitimate need to maintain an environment in which learning can take place? It is evident that the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject. The warrant requirement, in particular, is unsuited to the school environment: Requiring a teacher to obtain a warrant before searching a child suspected of an infraction of school rules (or of the criminal law) would unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in the schools. Just as we have in other cases dispensed with the

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warrant requirement when “the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search,” * * * we hold today that school officials need not obtain a warrant before searching a student who is under their authority.

The school setting also requires some modification of the level of suspicion of illicit activity needed to justify a search. Ordinarily, a search—even one that may permissibly be carried out without a warrant—must be based upon “probable cause” to believe that a violation of the law has occurred. * * * However, “probable cause” is not an irreducible requirement of a valid search. The fundamental command of the Fourth Amendment is that searches and seizures be reasonable, and although “both the concept of probable cause and the requirement of a warrant bear on the reasonableness of a search, . . . in certain limited circumstances neither is required.” * * * Thus, we have in a number of cases recognized the legality of searches and seizures based on suspicions that, although “reasonable,” do not rise to the level of probable cause. * * * Where a careful balancing of governmental and pri-vate interests suggests that the public interest is best served by a Fourth Amendment stan-dard of reasonableness that stops short of probable cause, we have not hesitated to adopt such a standard.

We join the majority of courts that have examined this issue in concluding that the accommodation of the privacy interests of schoolchildren with the substantial need of teachers and administrators for freedom to maintain order in the schools does not require strict adherence to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating the law. Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider “whether the . . . action was justified at its inception,” * * * second, one must determine whether the search as actually conducted “was reasonably related in scope to the circumstances which justified the interference in the first place.” Under ordinary circumstances, a search of a student by a teacher or other school official will be “justified at its inception” when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.

This standard will, we trust, neither unduly burden the efforts of school authorities to maintain order in their schools nor authorize unrestrained intrusions upon the privacy of schoolchildren. By focusing attention on the question of reasonableness, the standard will spare teachers and school administrators the necessity of schooling themselves in the niceties of probable cause and permit them to regulate their conduct according to the dictates of reason and common sense. At the same time, the reasonableness standard should ensure that the interests of students will be invaded no more than is necessary to achieve the legitimate end of preserving order in the schools. There remains the question of the legality of the search in this case. * * *

* * *

* * * It cannot be said that Mr. Choplick acted unreasonably when he examined T.L.O.’s purse to see if it contained cigarettes.

Our conclusions that Mr. Choplick’s decisions to open T.L.O.’s purse was reasonable brings us to the question of the further search for marihuana once the pack of cigarettes was located. The suspicion upon which the search for marihuana was founded was provided when Mr. Choplick observed a package of rolling papers in the purse as he removed the pack of cigarettes. Although T.L.O. does not dispute the reasonableness of Mr. Choplick’s belief that the rolling papers indicated the presence of marihuana, she does contend that the

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scope of the search Mr. Choplick conducted exceeded permissible bounds when he seized and read certain letters that implicated T.L.O. in drug dealing. This argument, too, is unpersuasive. The discovery of the rolling papers concededly gave rise to a reasonable suspicion that T.L.O. was carrying marihuana as well as cigarettes in her purse. This suspicion justified further exploration of T.L.O.’s purse, which turned up more evidence of drug-related activities: a pipe, a number of plastic bags of the type commonly used to store marihuana, a small quantity of marihuana, and a fairly substantial amount of money. Under these circumstances, it was not unreasonable to extend the search to a separate zippered compartment of the purse; and when a search of that compartment revealed an index card containing a list of “people who owe me money” as well as two letters, the inference that T.L.O. was involved in marihuana trafficking was substantial enough to justify Mr. Choplick in examining the letters to determine whether they contained any further evidence. In short, we cannot conclude that the search for marihuana was unreasonable in any respect.

Because the search resulting in the discovery of the evidence of marihuana dealing by T.L.O. was reasonable, the New Jersey Supreme Court’s decision to exclude that evidence from T.L.O.’s juvenile delinquency proceedings on Fourth Amendment grounds was erroneous. Accordingly, the judgment of the Supreme Court of New Jersey is

Reversed.

Notes and Questions

In its decision, the T. L. O. Court declared a search warrant was not needed for a school search nor did it require probable cause. Rather, the Court contended the legality of a student search should be based on the lesser standard of reasonableness and established a two-prong test to determine the reasonableness of a search. First, a court must determine whether the search was “justified at its inception.” Second, whether the search, “as actually conducted ‘was reasonably related in scope to the circumstances which justified the interference in the first place.’” In striking the balance between a student’s legitimate expectations of privacy and the school’s equally legitimate need to maintain an appropriate learning environment, this decision clearly demonstrated the Court’s resolve to foster a drug-free school. There is little doubt that this decision reduced the fear many school authorities had about possibly violating a student’s Fourth Amendment rights. Interestingly enough, the Court also ruled that educators did not act in loco parentis and were in fact representatives of the state.

A federal appellate court addressed the issue of a school official’s search of a student’s hotel room during a spring break trip, 5,000 miles from home. Citing T. L. O., the court held that the search required extraordinary justification, owing to the fact that the student had paid for the room and that the incident occurred in less than a fully educational context. Nevertheless, the court found such a justification because school officials were charged with supervisory duties in an environment requiring unusual vigilance. Relying also on the doctrine of in loco parentis, the court stated that many parents would be reluctant to allow their children on such trips if school officials did not have sufficient authority to supervise. See Webb v. McCullough, 828 F.2d 1151 (6th Cir. 1987).

B. Search for Drugs and Weapons

The prevalence of drugs and weapons in the public schools has resulted in school administrators often employing extraordinary means to control this problem. In addition to increased search of suspected students, administrators have resorted to patting down students, using drug-detecting

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dogs, drug testing as a condition for attending school or participating in extracurricular activities, the use of metal-detector wands, and not allowing pagers in the schools in order to combat drug use and selling.

Requiring random urinalysis drug tests as a condition for participation in interscholastic athletics was upheld in a six-to-three decision by the United States Supreme Court in Vernonia School District 47J v. Acton, 515 U.S. 646 (1995). Evidence in this case revealed that the drug testing was instituted because the school had experienced a sharp increase in disciplinary problems and drug use, rudeness during class increased, outbursts of profane language became common, and students boasted that the school could do nothing about their attraction to the drug culture. Not only were student athletes drug users, but they also were the leaders of the drug culture, and coaches reported an increase in the number and severity of sports-related injuries. Such an environment, the Court concluded, had “special needs” that justified suspicionless testing of athletes as a condition of their athletic participation. In its decision, the Court held that “students within the school environment have a lesser expectation of privacy than members of the population generally” (citing T. L. O.) and that student athletes have even less legitimate privacy expectations than nonathletes. The Court noted that under the drug-detection program, the collection of urine, its testing, disclosure of results, and request for medical information regarding medication information were relatively unobtrusive and well-thought-out. Last, the Court contended that the program served an important governmental interest by deterring drug use by students. The Court concluded that the search was reasonable and hence constitutional in light of “the decreased expectation of privacy, the relative unobtrusiveness of the search, and the severity of the need met by the search.” Dissenters in the decision argued forcefully that the majority decision, unfortunately, overlooks history and precedent, which requires individualized suspicion in Fourth Amendment cases.

The number of students subject to being legally searched was substantially increased by the Court’s five-to-four decision, in Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 536 U.S. 822 (2002), which upheld random drug testing of any student involved in an extracurricular activity. The school’s policy required middle and high school students to take a drug test before participating in an extracurricular activity (Academic Team, Future Farmers of America, Future Homemakers of America, band, choir, pom poms, cheerleading, and athletics), submit to random drug testing while participating in that activity, and agree to be tested at any time on reasonable suspicion. The Court, relying heavily on its decision in Vernonia, reiterated its position regarding requiring only reasonable suspicion, rather than probable cause, and that individualized suspicion may not be necessary when random drug tests are conducted in this context. Underlying the Court’s opinion, however, was the importance of the government’s interest in preventing and deterring drug use by schoolchildren and that “the nationwide drug epidemic makes the war against drugs a pressing concern in every school.” Given the Court’s desire to have drug-free schools, would the majority condone random searches of the entire student body? Dissenting justices, although agreeing with the reasonableness standard, found that the circumstances in this case did not justify the search policy. They were particularly concerned that the “special needs” enunciated in Vernonia did not exist in this instance because the drug environment was significantly different. They quoted the school superintendent’s repeated testimony that the drug problem was not major, in contrast with that described in Vernonia as an aggressive drug culture that had reached epidemic proportions. The dissenters also argued that the risks from drug use to students involved in nonathletic activities were not similar to those facing athletes. They cited the following from Vernonia: “[I]t must not be lost sight of that [the Vernonia School District] program is directed. . . . to drug use by school athletes, where the risk of immediate physical harm to the drug user or those with whom he is

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playing his sport is particularly high.” Are the dissenters’ unduly concerned with protecting students’ Fourth Amendment rights rather than having drug-free schools? Is this dispute another example of the tension that often exists when there is an attempt to curtail civil rights because of a perceived high degree of risk to the larger community?

Although Vernonia and Earls dealt with drug testing of voluntary participants in competitive athletics and extracurricular activities, the Eighth Circuit Court of Appeals addressed the broader issues of generalized and random searches in two decisions. In one instance, the court upheld a generalized search in which all male students from grades 6–12 were searched for dangerous weapons by emptying their pockets and being patted down if a metal detector sounded. In this case, there was a concern on the part of school officials that a knife or other cutting weapon was on the school grounds because there were fresh knife cuts on the seats of a school bus. The appellate court reasoned that although there was no basis for suspecting any particular student, the possibility of a dangerous weapon at school was a risk to student safety and school discipline that no “reasonable guardian and tutor” (citing Vernonia) could ignore. See Thompson v. Carthage School District, 87 F.3d 979 (8th Cir. 1996). However, in Doe v. Little Rock School District, 380 F.3d 349 (8th Cir. 2004), the same appellate court did not uphold a random, suspicionless search of a classroom in which students had been ordered to leave, after they had been instructed to place everything from their pockets and all their belongings, including backpacks and purses, on their desks. Marijuana was found in one of the purses. The court held that an insufficient need had been shown to justify such a highly intrusive search and stated:

In Thompson, as in Earls and Vernonia, random, suspicionless searches by school officials were deemed reasonable only after a specific showing was made that not engaging in the searches would have jeopardized some important governmental interest. No such showing has been made here. (p. 356)

When student use of cell phones and pagers became more prevalent, their use in schools was often banned because of their perceived use in drug sales. See, for instance, Rowell v. State, 666 So.2d 830 (Ala. 1995). In fact, some state legislatures passed laws in the late 1980s and early 1990s prohibiting students from bringing these devices to school. However, particularly in the light of September 11, these laws have been reexamined and repealed in several states. The primary concern about the use of cell phones in relation to drugs sales has largely been replaced by fear on the part of parents of the threat of terrorist acts and violence in the schools. Parents now have anxiety about not being able to communicate with their child in the event of catastrophe. Given this climate, laws or school policy banning cell phones were viewed as an infringement on the parent–child relationship. In the light of the widespread availability and use of cell phones and the frequent unavailability of phones at the school, some parents did not understand why there were state laws or school policies that did not allow them to be in communication with their child if the need arose. Presently, most school systems ban the use of cell phones during the school day; however, students may possess them by keeping them in their backpacks or lockers or registering them. Some policies allow for confiscation of a device if it causes a disturbance such as ringing during class time. To date, the small number of lawsuits challenging school policies have not been upheld.

C. Intrusive Search

In their zeal to locate stolen money, drugs, or weapons, educators occasionally engage in intrusive searches, commonly referred to as strip searches. Historically, this type of search was most often used

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with younger children; however, with the advent of drugs and weapons in the school, it has increasingly been used with older students. In this type of search, students may be asked to

strip down to their underpants, partially disrobe, remove all their clothes, or be patted down. Without Supreme Court guidance, courts in addressing the issue took several factors into consideration when determining reasonableness in intrusive search cases, including the student’s age, the student’s record and disciplinary history, the seriousness and prevalence of the problem, and the exigency requiring an immediate warrantless search. However, after the T. L. O. decision, lower courts attempted to discern how the standard enunciated in T. L. O. applied to strip searches. Unfortunately, lower courts reached divergent conclusions by applying this process and thereby leaving educators in a quandary.

The Supreme Court addressed the issue of strip searches in Safford Unified School District v. Redding, 129 S.Ct. 2633 (2009) in an eight-to-one decision. Justice Souter began the majority opinion by stating:

The issue here is whether a 13-year-old student’s Fourth Amendment right was violated when she was subjected to a search of her bra and underpants by school officials acting on reasonable suspicion that she had brought forbidden prescription and over-the-counter drugs to school. Because there were no reasons to suspect the drugs presented a danger or were concealed in her underwear, we hold that the search did violate the Constitution, . . . (p. 2637)

Facts in the case revealed that a student told the assistant principal a week before the search that “certain students were bringing drugs and weapons on campus,” and that he had been sick after taking some pills that “he got from a classmate.” On the morning of the search, the same boy handed the assistant principal a white pill (found to be a 400-mg prescription-strength ibuprofen) that he said Redding’s friend Glines had given him and revealed that students were planning to take the pills at lunch. Having been given this information, the assistant principal went to Glines’ classroom and called her out of class and took her to his office. Her teacher gave the assistant principal a day planner containing various contraband items, which she thought belonged to Glines. Glines was asked to turn out her pockets and open her wallet which produced a blue pill (found to be a 200-mg dose of naproxen), several white pills, and a razor blade. When asked where the blue pill came from, Glines answered, “I guess it slipped in when she gave me the IBU 400s.” When asked whom “she” meant, Glines replied, “Savana Redding.” Glines denied knowing anything about the day planner and its contents. No follow-up questions were asked to determine whether there was any likelihood that Redding presently had pills. Nor was Glines asked when she had received the pills from Redding nor where Redding might be hiding them. Glines was then subjected to a search of her bra and underpants by the nurse and administrative assistant (both females), which revealed no additional pills.

At this point Redding was brought to the assistant principal’s office, where she was shown the day planner, which contained several knives, lighters, a permanent marker, and a cigarette. Although agreeing the planner was hers, she stated that she had loaned the planner to Glines and that none of the items in the planner belonged to her. Redding was also shown four white prescription-strength ibuprofen 400-mg pills, and one over-the-counter blue naproxen 200-mg pill, all used for pain and inflammation but banned under school rules without advance permission. Redding denied knowing anything about the pills. She was told that it was reported that she was giving these pills to fellow students, but denied this accusation. Redding agreed to a search of her backpack and outer clothing, which yielded nothing.

The conversation in the assistant principal’s office established that Redding and Glines were friends. There were also reports that the pair were part of an unusually rowdy group at a school dance during which alcohol and cigarettes were found in the girls’ bathroom, and there was reason to connect the girls with this contraband. Additionally, the assistant principal knew

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that the principal had been told that, before the dance, alcohol was served at Redding’s house. Further Glines’ statement that the pills came from Redding was sufficiently plausible to warrant suspicion that Redding was involved in pill distribution.

Given this background, Redding was taken to the school nurse’s office to search her clothes for pills. The nurse and administrative assistant asked Redding to remove her jacket, socks, and shoes, leaving her in stretch pants and a T-shirt (both without pockets), which she was then asked to remove. She was told to pull her bra out and to the side and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree. No pills were found. Redding’s mother filed suit against the school district, the assistant principal, the ad-ministrative assistant, and the school nurse for conducting a strip search in violation of her daughter’s Fourth Amendment rights.

In its decision, the Court concluded: * * *

* * * The exact label for this final step in the intrusion is not important, though strip search is a fair way to speak of it. * * * we would not define strip search and its Fourth Amendment consequences in a way that would guarantee litigation about who was looking and how much was seen. The very fact of [Redding’s] pulling her underwear away from her body in the presence of the two officials who were able to see her necessarily expose her breasts and pelvic area to some degree, and both subjective and reasonable societal expectations of personal privacy support the treatment of such a search as categorically distinct, requiring distinct elements of justification on the part of school authorities for going beyond a search of outer clothing and belongings. (p. 2641)

* * *

[Redding’s] subjective expectation of privacy against such a search is inherent in her account of it as embarrassing, frightening, and humiliating. The reasonableness of her expectation (required by the Fourth Amendment standard) is indicated by the consistent experiences of other young people similarly searched, whose adolescent vulnerability intensifies the patent intrusiveness of the exposure. * * * The common reaction of these adolescents simply registers the obviously different meaning of a search exposing the body from the experience of nakedness or near undress in other school circumstances. Changing for gym is getting ready for play; exposing for a search is responding to an accusation reserved for suspected wrongdoers and fairly understood as so degrading that a number of communities have decided that strip searches in schools are never reasonable and have banned them no matter what the facts may be, * * * (pp. 2641–2642)

* * *

The indignity of the search does not, of course, outlaw it, but it does implicate the rule of reasonableness as stated in T. L. O., that “the search as actually conducted [be] reasonably related in scope to the circumstances which justified the interference in the first place.” The scope will be permissible, that is, when it is “not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” (p. 2642)

* * *

. . . , what was missing from the suspected facts that pointed to [Redding] was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose

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that [Redding] was carrying pills in her underwear. We think that the combination of these deficiencies was fatal to finding the search reasonable. (pp. 2642–2643)

* * *

In so holding, we mean to cast no ill reflection on the assistant principal, for the record raises no doubt that his motive throughout was to eliminate drugs from his school and protect students * * *. Parents are known to overreact to protect their children from danger, and a school official with responsibility for safety may tend to do the same. The difference is that the Fourth Amendment places limits on the official, even with the high degree of deference that courts must pay to the educator’s professional judgment. (p. 2643)

Justice Thomas, in his lone dissent, offers a far different view from that of the majority. He opines:

The majority imposes a vague and amorphous standard on school administrators. It also grants judges sweeping authority to second-guess the measures that these officials take to maintain discipline in their schools and ensure the health and safety of the students in their charge. This deep intrusion into the administration of public schools exemplifies why the Court should return to the common-law doctrine of in loco parentis under which “the judiciary was reluctant to interfere in the routine business of school administration, allowing schools and teachers to set and enforce rules and to maintain order.” (p. 2646)

Given the facts in the Redding decision, is it possible that there may have been a different outcome if the Glines family had brought suit?

The use of drug-detecting dogs to sniff students, cars, and lockers has been a contentious issue because of its alleged intrusive nature. A majority of courts have held that dogs’ sniffing of cars and lockers does not constitute a search under the Fourth Amendment, thereby not requiring a determination of reasonableness. These courts contend that dogs’ sniffing of cars and lockers represents minimal humiliation because there is a diminished expectation of privacy surrounding lockers and cars. Also noted was that such a search occurs while cars and lockers are unattended and positioned in public view, and such sniffing may be viewed as merely an extension of a human’s smelling ability (a human’s smelling of marijuana, for instance, would not be considered a search). On the other hand, a majority of courts have held that dogs’ sniffing of students does constitute a search and thereby invokes Fourth Amendment protections such as individualized reasonable suspicion; additionally, courts have recognized that using large dogs trained to attack is extremely frightening to students. One court, in describing a dog’s sniffing technique, stated, “[S]niffing around each child, putting his nose on the child and scratching and manifesting other signs of excitement in the case of an alert—is intrusive. . . . Doberman pinschers and German shepherds were used precisely because of the image maintained by the large dogs.” See Horton v. Goose Creek Independent School System, 690 F.2d 470 (5th Cir. 1982). This court also established a standard that the dogs be reasonably reliable in indicating the presence or recent presence of contraband. It should be kept in mind that it is difficult to generalize about searches by drug-detecting dogs. Determining reasonableness in such searches largely depends on the school environment (i.e., severity of a drug problem) and the intrusiveness of the specific steps taken during such a search. Parents often allege a Fourth Amendment violation in suspected child-abuse cases, claiming that school personnel should not have questioned or examined a student’s person to determine possible child abuse. The court in Picarella v. Terrizzi, 893 F. Supp. 1292 (Pa. 1995), concluded that the Fourth Amendment had not been violated as a result of school personnel questioning a student about suspected abuse. The court reasoned that under Pennsylvania’s Child Protective Services Law, enumerated persons such as

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teachers and administrators were required to determine if there was “reason to believe” that a student had been abused.

In another case involving suspected child abuse, school officials were given qualified immunity from civil rights claims by parents for removing a student from her classroom and

questioning and physically examining her to determine whether she had been physically abused. The court reasoned that minor schoolchildren suspected of being victims of child abuse did not have a clearly established right to be free from visual examination of unexposed parts of their bodies to determine such suspected abuse. See Landstrom v. Illinois Department of Children and Family Services, 892 F.2d 670 (7th Cir. 1990). In this case, the first-grader removed her dress and her underpants, and her buttocks were examined by the school nurse in the presence of the child’s teacher, a school psychologist, a social worker, and the principal. Several states have en-acted laws that grant a limited immunity to those officials who have been made legally responsi-ble for investigating and reporting child abuse. Educators should be aware of their state’s statutes dealing with reporting child abuse.

D. Locker Search

Courts have tended to allow school officials to search a student’s locker without a warrant and without the student’s permission, reasoning that schools retain ultimate control over lockers and act in loco parentis. This issue was addressed four decades ago in Kansas v. Stein, 203 Kan. 638, 456 P.2d 1 (1969), cert. denied, 397 U.S. 947 (1970), which discussed the public nature of student lockers. The court held that school authorities must protect both the school’s educational functions and the students’ welfare and may, therefore, inspect lockers to prevent their illicit use.

Courts have continued to uphold locker searches by school authorities, usually applying a standard that declares students to have legitimate expectations of privacy in their lockers. However, the expectation is not absolute and must be balanced against the school’s need to maintain order and discipline. In a case involving a gun and cocaine, a random search of a school locker was upheld. In its decision, the court stressed that there was an environment of fear and tension at the school due to gun-related activities and a written policy under which the school retained ownership and control of school lockers. Having such a policy in place, the court reasoned, resulted in the student having no reasonable expectation of privacy in his locker. See Isiah B. v. State, 500 N.W.2d 637 (Wis. 1993), cert. denied, 510 U.S. 884 (1993). Also see Commonwealth v. Cass, 709 A.2d 350 (Pa. 1998), cert. denied, 525 U.S. 833 (1998), where the reasonableness of using drug-detecting dogs for the search of students’ lockers was upheld.

VI. STUDENT APPEARANCE

Student dress and grooming regulations have been challenged. In the earliest cases, essentially beginning in the 1960s, students and their parents often questioned rules, particularly those pertaining to grooming, which they believed to be unfair or anachronistic. Largely as a result of widespread opposition to a war in Vietnam, many early suits were brought during a time in our history when there were many challenges to authority at all levels of government. In their suits, parents commonly alleged that they, not schools, were responsible for the appearance of their children and that the contested rules violated their privacy rights. They contended that school authorities were warranted in imposing only those standards necessary for health, safety, or an educationally sound program. School authorities, on the other hand,

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contended that they possessed the discretion to determine which policies aided in maintaining order and discipline.

There has been a markedly reduced number of dress and grooming suits in more recent times, perhaps not only due to a dissipation of the environment that drove them in the 1960s, but also because adequate school policies were crafted, and school officials learned to deal appropriately with

these issues when they arose. Additionally, school officials often discovered that attempting to enforce dress and grooming codes was a losing battle because students often found ways, subtle or otherwise, to assert their individual identities through their hairstyles and what they wore.

In the most recent cases, school officials frequently contend that dress and grooming violations are gang related and, therefore, pose a serious threat to safety in the school. On the other hand, in addition to the privacy issue, students allege that their First Amendment rights have been violated or that they have suffered racial or gender discrimination due to their appearance. Despite the continuing controversy over the years surrounding the issue and the judiciary’s frequent involvement, the Supreme Court has not ruled substantively in a dress-and-grooming case.

A. Dress

The prevalence of gangs, hate groups, and those opposed to “political correctness” in public schools poses serious problems for school officials because the presence of such groups on a campus may contribute to substantial disruption and threats to safety. Members of such groups often wear clothing or symbols signifying their group membership. Because such dress may be in violation of dress and grooming codes, when litigated, given all the circumstances surrounding the school’s environment, courts must balance the First Amendment rights of students to express themselves against the legitimate right of school authorities to maintain a safe and disruption-free environment. Examples of controversial student expression that may involve First Amendment protection include T-shirts depicting violence, drugs (e.g., marijuana leaves), racial epithets, or characters such as Bart Simpson; ripped, baggy, or saggy pants or jeans; sneakers with lights; colored bandannas, baseball or other hats; words shaved into scalps, brightly colored hair, distinctive haircuts or hairstyles, or ponytails for males; exposed underwear; Malcolm X symbols; tattoos, unusual-colored lipstick, piercings, or earrings; and decorative dental caps. Courts generally contend that such “expression” does not have protection under the First Amendment when it is a sign of membership in a gang or hate-group whose activities have been associated with violence in the community or school such as intimidation of students and faculty, shootings or knifings, rampant drug use, or racial turmoil. Courts also tend not to grant students First Amendment rights when they have violated dress code regulations and argue that they merely want to express their individuality.

A policy prohibiting the wearing or display of any gang symbol, any act or speech showing gang affiliation, and any conduct in furtherance of gang activity was upheld by a federal district court. The court concluded that the wearing of earrings by the male plaintiff, whose conduct revealed gang membership, did not have First Amendment protection. And the court held that the policy prohibiting the “wearing of earrings by male students was directly related to the safety and well-being of its students. An equal protection argument was rejected by the court’s stating that “while girls may be gang members they symbolize their affiliation in other ways—ways that are prohibited by school policy.” See Olesen v. Board of Education, 676 F. Supp. 820 (Ill. 1987).

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Bar-Navon v. Brevard County School Board,* addressed the issue of piercings. In this instance, a student had piercings located in her tongue, nasal septum, lip, navel, and chest in violation of a dress policy, which stated:

Pierced jewelry shall be limited to the ear. Dog collars, tongue rings, wallet chains, large hair picks, chains that connect one part of the body to another, or other jewelry/accessories that pose a safety concern for the student or others shall be prohibited. (p. 274)

______________________________ *Unpublished opinion, U. S. Court of Appeals for the Eleventh Circuit, Aug. 15, 2008. Available on Internet.

The student acknowledged that “her piercings were an expression of her individuality, a way of expressing her nonconformity and wild side, an expression of her openness to new ideas and her readiness to take on challenges in life” and not done to make a religious or political statement. In its opinion upholding the dress code, the court agreed with the district court that:

. . . the Dress Code was content neutral, was narrowly tailored to achieve the School Board’s interest in maintaining a safe, studious and hygienic environment, and left open ample alternative methods of communication. Applying time, place and manner analysis, the district court rejected Plaintiff’s facial, overbreadth, vagueness and as applied constitutional challenges to the Dress Code policy.

In response to a gang problem, a dress code was adopted that prohibited the wearing of “sagging” pants. A black student who was suspended for wearing such pants alleged that his First Amendment rights of speech, expression, and association were violated because this attire is part of a style known as “hip-hop,” whose roots are African American. In rejecting the student’s contention, the court asserted that a two-part test must be met for nonverbal conduct to be protected under the First Amendment. First, there must be an intent to convey a particularized message, and, second, there must be a great likelihood that the message would be understood by those who observe the conduct. In this case, the court declared that the second part of the test had not been met. See Bivens v. Albuquerque Public Schools, 899 F. Supp. 556 (N.M. 1995). A middle school adopted a dress code whose stated purpose was to “create unity, strengthen school spirit and pride, and focus attention upon learning and away from distractions.” Additionally, school officials thought such a code would enhance school safety, improve the learning environment, promote good behavior, reduce discipline problems, improve test scores, improve children’s self-respect and self-esteem, bridge socioeconomic differences between families, help eliminate stereotypes, and produce a cost savings for families. Among other prohibitions, the dress code restricted the following:

. . . clothing that is too tight, revealing or baggy as well as tops and bottoms that do not “over-lap”; hats, caps, scarves, or sweatbands except on “special event days” such as “spirit” or “reward” days; non-jewelry chains and chain wallets; clothing that is “distressed” or has “holes in it”; visible body piercing (other than ears); unnaturally colored hair that is distracting to the educational process, including blue, green, red, purple, [or] orange hair; clothing that is too long, flip-flop sandals, or high platform shoes; pants, shorts or skirts that are not of a solid color of navy blue, black, any shade of khaki, or white; shorts, skirts, or skirts that do not reach mid-thigh or longer; bottoms made with stretch knits, flannel, or fleece such as sweat-pants, jogging pants, or any type of athletic clothing as well as baggy, sagging, or form-fitting pants; tops that are not a solid color and are not crew neck [style], polo style with buttons, ox-ford style, or turtleneck; tops with writing on them and logos larger than the size of a ‘quarter’ . . . except ‘Highlands’ logos or other

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‘Highlands Spirit Wear’; tops that are not “of an appropriate size and fit”; and form-fitting or baggy shirts or any material that is sheer or lightweight enough to be seen through. (pp. 385–386)

In upholding the dress code, the court in Blau v. Fort Thomas Public School District, 401 F.3d 381 (6th Cir. 2005), held that the code did not violate the student’s freedom of speech under the First Amendment. The court reasoned that the code was not instituted to suppress expression, but to further a substantial interest in maintaining unity and minimizing distractions. Further, the court concluded that the wearing of the clothes the student wished to wear did not convey a particularized message that could be understood by others.

A dress code prohibiting the wearing of clothing with writing, pictures, or any insignia that identified any professional or college sports team was challenged on the basis of its violating stu-

dents’ free speech rights. A court agreed that the code violated the rights of elementary and middle school students because there was little evidence of gang activity in those schools. However, evidence revealed that there was gang presence and intimidation of students and faculty at the high school, associated with the sports-oriented clothing, that could lead to disruption and disturbance of school activities. The court declared that the justification for curtailing the high school students’ rights did not “demand a certainty that disruption will occur, but only the existence of facts which might reasonably lead school officials to forecast substantial disruption.” See Jeglin v. San Jacinto Unified School District, 827 F. Supp. 1459 (Cal. 1993). Revealing the lengths to which students will go to make a statement, school authorities at a Massachusetts high school noticed that white students wore Notre Dame caps, and black students wore University of Nevada at Las Vegas caps. In time, the authorities learned that the ND caps worn by some white students were meant to send the message “Niggers Die.” Some black students retaliated by wear-ing the UNLV caps, which were meant to signify “Us Niggers Love Violence.”

Not being allowed to wear a Confederate flag jacket to school was upheld as not being violative of a student’s freedom of expression in Phillips v. Anderson County School District, 987 F. Supp. 488 (S.C. 1997). The court based its decision on prior incidents of racial tension and unrest and reasoned that the wearing of such a jacket would likely result in substantial disruption of the school’s environment. Additionally, the court asserted, the student and his parents had notice of the policy as he had been asked not to wear the jacket on previous occasions.

A “no hats” policy was upheld in Isaacs ex. rel. Isaacs v. Board of Education of Howard County, 40 F. Supp.2d 335 (Md. 1999). In this case, the school had refused to permit a high school student to wear a headwrap in celebration of her African American and Jamaican cultural heritage. School rules did make exceptions for religious headgear such as yarmulkes and Muslim hijab, including head-scarves. The court stated that the policy did not violate the student’s free speech rights, which were not absolute, and that the “no hats” rule furthered an important government interest in providing a safe, respectful school environment.

Not being permitted to attend a high school prom because they were wearing clothing of the opposite sex was held not to be violative of the students’ First Amendment rights in Harper v. Edgewood Board of Education, 655 F. Supp. 1353 (Ohio 1987). The court contended that the dress regulations were reasonably related to the valid educational purposes of teaching community values and maintaining school discipline.

A dress regulation requiring proper attire to participate in a graduation ceremony was upheld. The court maintained that receiving a diploma at a commencement program was not a property right under state law, and the student was entitled to receive his diploma separately after the program. See Fowler v. Williamson, 251 S.E.2d 889 (N.C. Ct. App. 1979).

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Some observers suggest that at one time in our history, schools, especially when serving a homogeneous community, were accepted as a socializing agency that was the arbiter of “proper” dress. If this is an accurate assessment, what factors have contributed to the demise of such a role for the school?

Does your state or school system have dress regulations?

B. Uniforms

Requiring the wearing of uniforms, as many private and parochial schools have done, has increasingly been adopted by public-school systems across the country. A 2008 study by the National Center for Education Statistics revealed that 14 percent of school principals reported that their school required students to wear uniforms. Typically, when school uniform dress codes are

adopted, they apply to students in grades K–8 and may be either voluntary or mandatory with opt-out provisions for exemptions based on philosophical or religious objections or medical reasons.

California passed dress code and school uniform legislation in 1994. It provides, in part, as follows:

(a) The legislature finds and declares each of the following:

(1) The children of this state have the right to an effective public school education. Both students and staff of the primary, elementary, junior and senior high school campuses have the constitutional right to be safe and secure in their persons at school. However, children in many of our public schools are forced to focus on the threat of violence and the messages of violence contained in many aspects our society, particularly reflected in gang regalia that disrupts the learning environment.

(2) “Gang-related apparel” is hazardous to the health and safety of the school environment.

(3) Instructing teachers and administrators on the subtleties of identifying constantly changing gang regalia and gang affiliation takes an increasing amount of time away from educating our children.

(4) Weapons including firearms and knives, have become commonplace upon even our elementary school campuses. Students often conceal weapons by wearing clothing, such as jumpsuits and overcoats, and by carrying large bags.

(5) The adoption of a schoolwide uniform policy is a reasonable way to provide some protection for students. A required uniform may protect students from being associated with any particular gang. Moreover, by requiring schoolwide uniforms teachers and administrators may not need to occupy as much of their time learning the subtleties of gang regalia.

(6) To control the environment in public schools to facilitate and maintain an effective learning environment and to keep the focus of the classroom on learning and not personal safety, schools need the authorization to implement uniform clothing requirements for our public school children.

(7) Many educators believe that school dress significantly influences pupil behavior. This influence is evident on school dressup days and color days. Schools that have adopted school uniforms experience a “coming together feeling,” greater school pride, and better behavior in and out of the classroom.

(b) The governing board of any school district may adopt or rescind a reasonable dress code policy that requires pupils to wear a schoolwide uniform or prohibits pupils from wearing “gang-related apparel” if the governing board of the school district approves a plan that may be initiated by an

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individual school’s principal, staff, and parents and determines that the policy is necessary for the health and safety of the school environment. . . .

(c) . . . If a schoolwide uniform is required, the specific uniform selected shall be determined by the principal, staff, and parents of the individual school.

(d) A dress code policy that requires pupils to wear a schoolwide uniform shall not be implemented with less than six months notice to parents and the availability of resources to assist economically disadvantaged pupils.

(e) The governing board shall provide a method whereby parents may choose not to have their children comply with an adopted school uniform policy.

(f) If a governing board chooses to adopt a policy pursuant to this section, the policy shall include a provision that no pupil shall be penalized academically or otherwise discriminated against nor denied attendance to school if the pupil’s parents chose not to have the pupil

comply with the school uniform policy. The governing board shall continue to have responsibility for the appropriate education of those pupils.

(g) A policy adopted pursuant to this section shall not preclude pupils that participate in a nationally recognized youth organization from wearing organization uniforms on days that the organization has a scheduled meeting. Cal. Educ. Code § 35183 (1994).

Courts have generally upheld mandatory school uniform policies. In one of these cases, Littlefield v. Forney Independent School District, 268 F.3d 275 (5th Cir. 2001), the following Uniform Policy was challenged:

[The] Uniform Policy requires students to wear solid color polo-type shirts with collars, oxford-type shirts, or blouses with collars in one of four colors (white, yellow, red, or navy blue). The shirts may be either short or long-sleeved but must be tucked in at all times. Students must also wear either blue or khaki colored pants, shorts, skirts, or jumpers. The shorts and skirts must be of appropriate size and length (no shorter than three inches above the knee). The Policy prohibits the wearing of denim, leather, suede, or vinyl, or any clothing that suggests gang affiliation, could conceal contraband, or could create a distraction. Certain other clothing items are also banned, such as open-heeled sandals, flip-flops, military boots, overalls, athletic pants, spandex, baggy clothing, and sleeveless shirts. The Uniform Policy also regulates the sizes of manufacturer logos permitted on clothing. (p. 280)

The Uniform Policy was adopted to promote school spirit and school values and “to promote decorum (and thereby the notion that school is a place of order and work), to promote respect for authority, to decrease socioeconomic tensions, to increase attendance, and to reduce dropout rates.” Additionally, the Policy’s purpose was “to increase student safety by reducing gang and drug related activity as well as the likelihood of students bringing weapons to school undetected and by allowing teachers to more readily distinguish . . . students from outsiders.” Some parents, on the other hand, contended that uniform policies violate students’ freedom of expression, violate the fundamental liberty interest they have in their child’s upbringing and that opt-out provisions infringe on their exercise of religion and violate the Establishment Clause.

In its decision upholding the policy, the appellate court stated that although certain choices of student clothing may at times have communicative content that is protected by the First Amendment, it does not have such content in this instance. The court employed the O’Brien test [United States v.

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O’Brien, 391 U.S. 367 (1968)] to make this decision. When this test is applied, a challenged governmental policy such as the Uniform Policy survives constitutional scrutiny if (1) it is within the constitutional power of the government, (2) it furthers an important or substantial governmental interest, (3) the interest is unrelated to the suppression of student expression, and (4) the incidental restrictions on First Amendment activities are no more than is necessary to facilitate that interest. Those parents opposed to the policy claimed that the Uniform Policy interfered with their parental rights “to teach their children to be guided by one’s own conscience in making decisions, to understand the importance of appropriate grooming and attire, to understand the importance of one’s own individuality, and to respect the individuality of others . . . [and] that implementation of mandatory uniforms presumes that parents are either incapable or unwilling to act in the best interests of their children” (p. 288).

Although the court recognized that parents have a fundamental liberty interest in the care, custody, and control of their children, this interest is not absolute and must be balanced against the state’s role in determining appropriate behavior at public schools, including the role of determining appropriate dress codes in the district. The court applied the rational-basis test in its decision and concluded that the Uniform Policy was rationally related to the state’s interest in furthering legitimate educational goals.

Under the opt-out provision, families could request an exemption under the policy if they had bona fide religious or philosophical objections to the wearing of uniforms. The court upheld this provision and found that it did not violate families’ free exercise of religion or the Establishment Clause. Parents opposed to the plan had contended that filling out the questionnaire in order to opt-out questioned the “sincerity” of their beliefs. The court agreed with the school district that this was necessary to separate fraudulent from sincere beliefs. The court also rejected the Establishment Clause argument that only families belonging to organized religions that had policies against wearing uniforms were covered under the policy. The court held that there was no religious purpose behind the opt-out policy, and it did not have the primary effect of advancing or inhibiting a religion.

Does your state have a dress code or school uniform legislation? Are school uniform policies merely the most recent fad that superficially attempt to remedy deep-seated educational problems?

C. Grooming

Grooming was also an often-litigated issue in the 1970s; however, the lack of active litigation in subsequent years reveals it is no longer a contentious issue. Perhaps this is because what was once frowned on or not allowed by school authorities such as “long” hair or ersatz hairstyles may now be commonplace. Historically, court decisions dealing with student grooming issues have not been consistent. Judicial views have ranged from upholding the right of male students to wear “long” hair, on the basis that this right is protected by the federal Constitution, to declaring the question an unworthy one for federal court attention. Federal appellate courts in the Fifth, Sixth, Ninth, and Tenth Circuits either upheld grooming regulations or contended that grooming regulations were unworthy of their attention. In contrast, the First, Third, Fourth, Seventh, and Eighth Circuits found regulations limiting the length of hair invalid. To date, the United States Supreme Court has not rendered a substantive decision in school grooming cases, denying certio-rari in cases dealing with male students’ hair length.

State courts in Oklahoma, Oregon, and Alaska have held that schools do not have the authority to regulate hairstyles. However, Supreme Courts in Texas, Missouri, and Kansas have not held similarly.

How does your school deal with students who wear hair “spiked,” brightly colored, or unusually styled? Are your school’s policies adequate to deal with this issue?

VII. PREGNANCY, PARENTHOOD, AND MARRIAGE

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Many years ago, public school policies often excluded students who were married or pregnant or who were parents. The rationale for such policies was that exclusion would serve as a deterrent and thereby discourage students from becoming pregnant or getting married. Such policies, which in practice applied disproportionately to females, were successfully attacked in the courts. Enactment of Title IX, Education Amendments of 1972 addressed the issue on the basis of prohibiting gender discrimination in any educational programs receiving federal funds.* Section 106.40, Marital or Parental Status of the implementing regulations for Title IX, states,

________________________ *See Appendix D for a partial text of the Title IX Education Amendments of 1972. Although Title IX has been renamed the Patsy Takemoto Mink Equal Opportunity in Education Act, see Pub. L. No. 107-255, 20 U.S.C. 1681 (2002), it will continue to be referred to in this text as Title IX for contextual reasons.

Marital or parental status.

(a) Status generally. A recipient shall not apply any rule concerning a student’s actual or potential parental, family, or marital status which treats students differently on the basis of sex.

(b) Pregnancy and related conditions.

(1) A recipient shall not discriminate against any student, or exclude any student from its education program or activity, including any class or extracurricular activity, on the basis of such student’s pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom, unless the student requests voluntarily to participate in a separate portion of the program or activity of the recipient.

(2) A recipient may require such a student to obtain the certification of a physician that the student is physically and emotionally able to continue participation in the normal education program or activity so long as such a certification is required of all students for other physical or emotional conditions requiring the attention of a physician.

(3) A recipient which operates a portion of its education program or activity separately for pregnant students, admittance to which is completely voluntary on the part of the student as provided in paragraph (b)(1) of this section shall ensure that the instructional program in the separate program is comparable to that offered to non-pregnant students.

(4) A recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy and recovery therefrom in the same manner and under the same policies as any other temporary disability with respect to any medical or hospital benefit, service, plan or policy which such recipient administers, operates, offers, or participates in with respect to students admit-ted to the recipient’s educational program or activity.

(5) In the case of a recipient which does not maintain a leave policy for its students, or in the case of a student who does not otherwise qualify for leave under such a policy, a recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy and recovery therefrom as a justification for a leave of absence for so long a period of time as is deemed medically nec-essary by the student’s physician, at the conclusion of which the student shall be reinstated to the status which she held when the leave began. 34 C.F.R. § 106.40 (2005).

In an alleged Title IX violation, a federal court of appeals addressed a female student’s dismissal from a chapter of the National Honor Society because of her pregnancy. In its decision to remand the case on other grounds, it affirmed the lower court’s dismissal of the gender discrimination claim. The court

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stated that premarital sex, rather than gender, and pregnancy or failure to marry could be reasons taken into account for the student’s dismissal. Faculty members had stated that failure to uphold standards of leadership and character, not the pregnancy, were the basis for dismissal. The court also concluded that not dismissing a male member from the Society who had engaged in premarital sex was relevant in determining whether members of the faculty had a double standard and, therefore, intentionally discriminated against the pregnant student. See Pfeiffer v. Marion Center Area School District, 917 F.2d 779 (3rd Cir. 1990). However, see Chipman v. Grant County School District, 30 F. Supp.2d 975 (Ky. 1998), which granted an injunction compelling a school to admit to an honor society two unmarried female students who became pregnant and had children. The court in this case applied the Pregnancy Discrimination Act* and contended that they had been discriminated against under

__________________ *See Appendix D for a partial text of the Pregnancy Discrimination Act of 1978 both a disparate impact (the policy has caused a significant adverse effect on, in this case, women who have become pregnant from premarital sex and have become visibly pregnant) and disparate treatment (member of a protected class who has been treated differently, in this case, because of pregnancy) theory and that they would likely prevail in a subsequent discrimination suit.

Should pregnant cheerleaders be allowed to continue their cheering? Should a cheerleader who has had an abortion be allowed back on the squad? Do school systems generally attempt to regulate male athletes who are fathers or responsible for pregnancies? Does a double standard continue to exist that brands sexually active girls but not their male partners?

Does your local school system or state have policies regarding students who are married or pregnant or who are parents?

VIII. PARTICIPATION IN EXTRACURRICULAR ACTIVITIES

Extracurricular activities are usually thought of as being conducted outside the classroom before or after regular school hours, usually noncredit, generally supervised by school officials, academically nonremedial, and of a voluntary nature on the part of the students. They may include activities such as athletics, drama, clubs, band, cheerleading, and debate. Two basic legal issues have surfaced when policies excluding a student from extracurricular activities are attacked. One issue raises the question of the status of extracurricular activities as a protected property interest and the requisite process due, if any. The other issue deals with the equal protection claim that an excluded student is the victim of a school’s arbitrary classification scheme.

A. Legal Status of Extracurricular Activities

In following Goss, courts have generally held that students have a property interest in the entire educational process. However, courts have not agreed whether or not participation in one aspect of the process, such as extracurricular activities, is a constitutionally protected property interest. If it is held that such a property interest does exist, courts must then decide the extent of due process that must be provided. These issues were examined in Palmer v. Merluzzi.

PALMER v. MERLUZZI

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United States Court of Appeals, Third Circuit, 1989 868 F.2d 90

STAPLETON, Circuit Judge. This is an appeal from a summary judgment in favor of the defendants, Peter Merluzzi,

Superintendent of Schools for the Hunterdon Central High School District, and the Hunterdon Central Board of Education. Plaintiff Dan Palmer, a student and football player at Hunterdon, claims that his Constitutional rights to due process and equal protection were violated when Superintendent Merluzzi suspended him from playing interscholastic football for sixty days. We will affirm.

In September of 1986, Dan Palmer was a senior at Hunterdon Central High School and a starting wide receiver on the high school’s football team. He was also enrolled in a high school course called “Careers in Broadcasting Technology.” On the evening of September 28, 1986, in order to fill a course requirement, Palmer and three other students were assigned, without faculty supervision, to the school radio station which is located on the school premises.

The next morning, beer stains and a marijuana pipe were discovered at the radio station. Later that day, Palmer, school disciplinarian Dr. Grimm, and Mr. Buckley, Palmer’s former football coach, met in Mr. Buckley’s office and Palmer was questioned about this discovery. During that meeting, Palmer admitted that the evening before he had smoked marijuana and consumed beer at the radio station.

On September 30, 1986, Dr. Grimm sent Mr. and Mrs. Palmer a letter advising them that their son had been assigned a ten-day out-of-school suspension effective from September 30, 1986 to October 13, 1986. The letter asked the Palmers to call Dr. Grimm if they had additional questions and suggested that they and their son consider counseling. The Palmers took no action to contest the ten-day suspension.

* * *

On October 13, the eve of the expiration of the ten-day suspension, the Board of Education met. Palmer’s father, James Palmer, hearing “rumors” concerning the possible imposition of additional sanctions on his son, attended the meeting and spoke with Merluzzi shortly before it started. Merluzzi confirmed that he was inclined to impose a sixty-day extracurricular suspension, but told James Palmer that he could raise the issue with the Board. James Palmer was accorded half an hour in closed session to present his views; he argued that the additional suspension would adversely affect his son’s chances of playing football in college and would also reduce his chances of being awarded college scholarships. The Board declined to intervene and, after the meeting, Merluzzi informed all concerned parents that he was definitely going to impose the sixty-day extracurricular suspension.

* * *

The threshold issue is whether the interests that could be adversely affected in the proceeding against Palmer were such that the due process clause was implicated. The answer seems clear. In Goss vs. Lopez, * * * the Supreme Court concluded that due process was required when a student faced a ten-day scholastic suspension. A fortiori, due process is required when a student faces a ten-day academic suspension and a sixty-day athletic suspension.

Having concluded that “some process” was due, we turn to the issue of how much was due. We know from Goss what process would have been due if only a ten-day academic suspension had been at stake. After balancing the competing interests involved, the Court decided that the student must be given “oral or written notice of the charges against him and, if he denies them, an explanation of the evidence

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the authorities have and an opportunity to present his side of the story.” The Court continued, stating that “[t]here need be no delay between the time ‘notice’ is given and the time of the hearing. . . . We hold only that . . . the student first be told what he is accused of doing and what the basis of the accusation is.” * * * The Court also stopped short of requiring that the student be given “the opportunity to secure counsel, to confront and cross-examine witnesses supporting the charge, or to call his own witnesses to verify his version of the incident.” As long as the student “at least ha[s] the opportunity to characterize his conduct and put it in what he deems the proper context,” due process has been satisfied.

Palmer received the process required by Goss. The day after the incident at the radio station, in an informal hearing with Dr. Grimm and Mr. Buckley, he was advised of what had been found in the radio station and thus of the character of the offense being investigated. He then admitted his participation in the smoking of marijuana and the drinking of beer at the station. Palmer’s involvement in the activities of that evening has never been disputed. During the conference, Palmer had the opportunity to put the events of the prior evening into what he perceived to be their proper context and could have argued for leniency had he so chosen.

* * *

In this case, Palmer was advised at the outset that he was suspected of consuming alcohol and a drug on school property. The Student Handbook, which was applicable to all students, specified that “alcohol and/or drug use” would, if a first offense, result in “10 days suspension” from school. The Interscholastic Athletic Program policy statement, which was applicable to Palmer and other students participating in that program, warned that “no student may participate who has not demonstrated good citizenship and responsibility.” Based on these provisions, the nature of the offense, and common sense, we, like the New Jersey Commissioner of Education, are confident that Palmer must have realized from the outset that his football eligibility, as well as his status as a student, was at stake. Accordingly, we hold that Palmer’s interview with Dr. Grimm and Mr. Buckley provided just as meaningful an opportunity to argue against the athletic suspension as against the scholastic suspension.

* * *

Due process is a flexible concept and the process due in any situation is to be determined by weighing (1) the private interests at stake, (2) the governmental interests at stake, and (3) the fairness and reliability of the existing procedures and the probable value, if any, of additional procedural safeguards. * * *

* * *

We accept for present purposes Palmer’s contention that, while called an extracurricular activity, the school’s football program is an integral part of its educational program. Nevertheless, it is but one part of that program and in terms of lost educational benefit, the loss occasioned by a football suspension is far less than that occasioned by a suspension from school for a comparable period of time. In terms of the student’s standing with teachers and peers, we believe the potential loss is likely to be a function of the nature of the offense rather than the penalty; it is therefore unlikely to be affected by the fact that the sanction includes an athletic as well as a school suspension. As a general proposition, we believe the same can be said for the potential for interference with later opportunities for higher education and employment. Indeed, Palmer does not argue otherwise. The loss that he emphasizes is the possible loss of the opportunity to play college football. Although we acknowledge that the loss of the opportunity to impress college scouts with one’s senior year play can have a significant adverse effect on one’s chances for a college football career, we believe it would be unduly dis-uptive of a school’s educational process to

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require one disciplinary process for football players and similarly situated athletes and another disciplinary process for other students.

* * *

Palmer also contends that his suspension violated his right to equal protection under the Fourteenth Amendment. Since participation in extracurricular activities is not a fundamental right under the Constitution and since Palmer’s suspension was not based on a suspect classification, * * * we must examine Palmer’s argument under the “rational relationship test.” * * * We conclude that the disciplinary actions taken by the school were rationally related to a valid state interest. The State has very strong interests in preserving a drug-free environment in its schools and in discouraging drug use by its students. We are unwilling to say that the sanctions imposed on Palmer were not reasonably designed to serve those legitimate interests. Since Palmer’s suspensions from school and participation in interscholastic football did not violate any right secured by the Constitution, we will affirm the judgment of the district court.

Notes and Questions Many courts have addressed similar issues over the years. In one instance, students who had allegedly violated a school’s alcohol policy were suspended from such extracurricular activities as sports, clubs, and the National Honor Society. In denying the students’ request for a preliminary injunction, the court in Farver v. Board of Education, 40 F. Supp.2d 323 (Md. 1999), held that there was no constitutionally protected right to participate in extracurricular activities. The court recognized that although the harshness of the penalty could be questioned, it was a matter for state law to address and not a federal court.

In an earlier decision, Dallam v. Cumberland Valley School District, 391 F. Supp. 358 (Pa. 1975) the court stated:

. . . [T]he property interest in education created by the state is participation in the entire process. The myriad activities which combine to form that educational process cannot be dissected to create hundreds of separate property rights, each cognizable under the Constitution. Otherwise, removal from an athletic team, a club or any extracurricular activity, would each require ultimate satisfaction of procedural due process. (p. 361)

In Pegram v. Nelson, 469 F. Supp.1134 (N.C. 1979), the court declared:

Since there is not a property interest in each separate component of the “educational process,” denial of the opportunity to participate in merely one of several extracurricular activities would not give rise to a right to due process. However, Total exclusion from participation in that part of the educational process designated as extracurricular activities for a Lengthy period of time could, depending upon the particular circumstances, be a sufficient deprivation to implicate due process. (p. 1140)

And in Albach v. Olde, 531 F.2d 983 (10th Cir. 1976), the court maintained that:

The educational process is a broad and comprehensive concept with a variable and indefinite meaning. It is not limited to classroom attendance but includes innumerable separate components, such as participation in athletic activity and membership in school clubs and social groups, which combine to provide an atmosphere of intellectual and moral advancement. We do not read Goss to establish a property interest subject to constitutional protection in each of these separate components. (p. 985)

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Similar views were expressed in Mazevski v. Horseheads Central School District, 950 F. Supp. 69 (N.Y. 1997), which upheld the dismissal of a student from the marching band for missing a competition performance without permission, to participate in a Macedonian music festival in Canada. The court held that although the student had a protectible property interest in the entire educational process, exclusion from a particular course, event, or activity was not constitutionally protected.

School authorities were also upheld in declaring a champion high school wrestler ineligible for the state wrestling championship. The school board’s decision resulted from the wrestler’s participation with three other students in having multiple acts of sexual intercourse with a sixteen-year-old female student. In responding to the issue of the loss of a scholarship, the court stated:

When scholarships are awarded at the discretion of a college coach, and such discretion has not yet been exercised, no property interest in the receipt of a scholarship can exist, and the plaintiff cannot invoke his expectation that he would earn a scholarship at the state tournament in order to claim a property interest in wrestling there. (p. 631)

See Brands v. Sheldon Community School, 671 F. Supp. 627 (Iowa 1987). Courts have addressed the issue of academic requirements for participation in extracurricular

activities. These requirements, often referred to as “no pass, no play” rules, generally require that a student maintain a passing grade C or 70 percent) in all academic classes to be eligible to participate in extracurricular activities. Courts have not upheld contentions that such rules violate the Equal Protection Clause of the Fourteenth Amendment. See Montana v. Board of Trustees of School District No. 1, 726 P.2d 801 (Mont. 1986); Spring Branch Independent School District v. Stamos, 695 S.W.2d 556 (Tex. 1985); and Bailey v. Truby, 321 S.E.2d 302 (W. Va. 1984).

What is your school system’s policy regarding the restriction of students from participating in extracurricular activities?

B. Athletics

Exclusion or suspension from participation in athletics makes up the vast majority of court cases dealing with extracurricular activities. Rules barring married students, females, and students with disabilities from participating in athletics have been frequently challenged. Those barred generally allege that they have not received equal protection guaranteed under the Fourteenth Amendment or that the school’s conduct violates a federal statute.

1. MARRIED STUDENTS Cases dealing with married students barred from participating in athletics have often involved “star” athletes who claim they will be deprived of an opportunity to be considered for athletic scholarships. Those barred have also alleged that such rules infringe on the fundamental right of marriage. Historically, courts had upheld rules barring married students from participating in athletics. However, beginning in the early 1970s, courts have uniformly and consistently invalidated such rules.

BEESON v. KIOWA COUNTY SCHOOL DISTRICT RE-1

Colorado Court of Appeals, 1977 567 P.2d 801

RULAND, Judge * * *

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Plaintiff was a senior in high school, married, and the mother of a child at the time she initiated this action seeking to enjoin the school board from enforcing its policy so that she could participate on the girl’s varsity basketball team. * * *

* * *

The facts pertinent to this review are not disputed. Plaintiff was a “star player” on the girl’s varsity basketball team during her freshman year in high school. However, she married the following summer and a child was born to the married couple during her sophomore year. Plaintiff was aware of the policy at the time she married. Plaintiff did not seek to participate on the varsity team during either her sophomore or junior years. Plaintiff sought, however, to rejoin the team for her senior year, but was precluded by the school policy from doing so. While she was allowed to practice with the team, she was not allowed to participate in interscholastic competition. Plaintiff testified that by reason of her inability to compete on the varsity team during her senior year, she lost any opportunity for a college athletic scholarship. She expressed the belief that she would have been offered an athletic scholarship based on her previously demonstrated ability and on the fact that her sister had been offered such a scholarship at some time in the past.

* * *

We first emphasize that the issue on appeal is whether the school board’s policy is valid in the context of plaintiff being a married student. Therefore, we do not consider the validity of a policy which would preclude plaintiff from participating in extracurric-lar activities because she was the mother of a young child, or whether a policy would be valid if it required married women to meet certain requirements in order to assure the board that no injuries would result from an undetected pregnancy. The additional considerations inherent in such policies are irrelevant here because the policy at issue excluded plaintiff from participating in extracurricular activities based solely on the fact that she was married.

According to § 14-12-101, C.R.S. 1973, “[i]t is the declared public policy of this state . . . to promote and foster the marriage relationship. . . . We are therefore compelled to hold that the creation of a “marriage relationship” is a fundamental right in this jurisdiction. * * * Nor is this fundamental right vitiated by the fact that plaintiff needed parental consent to enter her marriage. Plaintiff’s marriage was entered into in compliance with § 14-2-106, C.R.S. 1973, of the Uniform Marriage Act. That Act has as one of its purposes “to strengthen and preserve the integrity of marriage and to safeguard meaningful family relationships.” * * * [T]he General Assembly has obviously determined that this purpose is fulfilled, if as here, parental consent for plaintiff’s marriage is first obtained. Hence, it is clear that a board policy which discriminates against those who exercise that right violates the Equal Protection Clause of the Fourteenth Amendment, unless there exists a compelling interest which justifies that discrimination. * * *

* * *

Looking then to the reasons offered by the school board, we conclude that the acknowledged intent to discourage eligible persons from marrying obviously contravenes the declared public policy of this State “to promote and foster the marriage relationship.” * * * Illustrative of the inhibiting effect of the policy is evidence in the record indicating that another star basketball player in the same school district who had fathered a child during his senior year remained eligible for interscholastic competition because he did not marry the mother until after his graduation.

This impact of the policy upon the marriage relationship requires us to consider whether the discrimination created by the board’s policy is justified by the need to require married students to focus on their basic education and their family responsibilities by excluding them from extracurricular activities. We

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find no support for the discrimination here. The focus on basic education can be supplied by a board policy which establishes academic requirements for both married and unmarried students to be eligible for extracurricular activities. On the other hand, the fulfillment of family responsibilities may, in many cases, depend upon further education at the college level, and depriving students of the opportunity to earn a college athletic scholarship, or to participate in extracurricular activities to broaden their general background, could close the door to any opportunity to obtain that education. * * *

Finally, we must evaluate the board’s contention that married students who participate in extracurricular activities may tend to promote a lack of discipline among the other students and may not be dependable because of their family responsibility. Since the policy has been in effect for approximately 20 years, we understand why no incidents were cited by the board where these problems have arisen. On the other hand, we are unable to perceive why the same policies which govern the discipline and dependability of unmarried students who participate in extracurricular activities would not serve to resolve any such problems. At least we cannot characterize this potential problem, standing alone, as sufficient justification for discrimination against the fundamen-tal right to marry. * * *

Accordingly, the judgment of the district court is reversed and the cause remanded with directions to enter judgment declaring the board’s policy invalid as a denial of equal protection under the Fourteenth Amendment.

Notes and Questions May a divorced student be barred from engaging in extracurricular activities? See Romans v. Crenshaw, 354 F. Supp. 868 (Tex. 1972), which upheld a divorced student’s right to engage in such activities.

Does your state have a statutory provision pertaining to married students participating in extracurricular activities? What are your local school system’s rules or policies regarding married students engaging in such activities?

2. GENDER EQUITY Historically, there have been both de facto and de jure segregation of male and female public school students. In some school systems, entire schools have been segregated on the basis of gender. More common, however, had been the separation of the sexes in certain classes and in interscholastic athletic participation. A flagrant example had been the routine assignment of girls to home economics classes and boys to “shop” courses. Opportunities for females in athletic competition were limited, and the stereotypic role for a female was often that of cheerleader, flag girl, or pom-pom girl.

Many female students and their parents considered such treatment, especially in the limited opportunity for athletic competition, to be in violation of the equal protection provision of the Fourteenth Amendment and a form of sex discrimination. Many courts agreed with this con-tention, and although Title IX* addressed this issue, neither political controversy nor litigation pertaining to female participation in athletic programs has abated. Although Title IX has been primarily associated with increasing female participation in heretofore male-dominated activities, it provides gender equity for both males and females.

Section 106.41, Athletics, of the implementing regulations for Title IX stipulates

(a) General. No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from one another or otherwise be discriminated against in any

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interscholastic, intercollegiate, club or intermural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis. (b) Separate teams. Notwithstanding the requirements of paragraph (a) of this section, a recipient may operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport. However, where a recipient operates or sponsors a team in a particular sport for members of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try out for the team offered unless the sport involved is a contact sport. For the purposes of this part, contact sports include boxing, wrestling, rugby, ice hockey, football, basketball, and other sports the purpose or major activity of which involves bodily contact. (c) Equal opportunity. A recipient which operates or sponsors interscholastic, intercollegiate, club or intermural athletics shall provide equal athletic opportunity for members

_____________________ *See Appendix D for a partial text of Title IX, Education Amendments of 1972.

of both sexes. In determining whether equal opportunities are available the Director will consider, among other factors: (1) Whether the selection of sports and levels of competition effectively accomm-date the interests and abilities of members of both sexes; (2) The provision of equipment and supplies; (3) Scheduling of games and practice time; (4) Travel and per diem allowance; (5) Opportunity to receive coaching and academic tutoring; (6) Assignment and compensation of coaches and tutors; (7) Provision of locker rooms, practice and competitive facilities; (8) Provision of medical and training facilities and services; (9) Provision of housing and dining facilities and services; (10) Publicity. Unequal aggregate expenditures for members of each sex or unequal expenditures for male and female teams if a recipient operates or sponsors separate teams will not constitute noncompliance with this section, but the Director may consider the failure to provide necessary funds for teams for one sex in assessing equality of opportunity for members of each sex. 34 C.F.R. § 106.41 (2005

There has been considerable litigation involving Title IX implementation, especially involving higher education. Examination of case law reveals that although and identical treatment is not required and schools have flexibility in complying with Title IX , the overall effect of differences in treatment should be negligible. Courts hold that compliance should be measured by “program-wide” opportunities and not “sport-specific” comparisons, but note that a court of appeals decision has held against a school scheduling girls’ soccer in the spring when they could not compete for regional or state titles while scheduling boys’ soccer in the fall when they could compete for such titles. See McCormick v. School District of Mamaroneck, 370 F.3d 275 (2nd Cir. 2004), which also contains an excellent legislative history of Title IX and review of Title IX decisions.

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In Ollier v. Sweetwater Union High School District, 604 F. Supp. 2d 1264 (Cal. 2009), students alleged that the school district had failed to provide equal opportunities for women’s participation in athletic programs in violation of Title IX. Discrimination was alleged in “practice and competitive facilities; locker rooms; training facilities; equipment and supplies; travel and transportation, coaches and coaching facilities; scheduling of games and practice times; publicity; and funding.” Additionally, it was alleged that there was a failure “to provide female students with equal athletic participation opportunities, despite their demonstrated athletic interest and abilities to participate in athletics.” As a consequence of these failures on the part of the district, the students maintained girls’ participation in athletics was limited, and interested girls were discouraged from going out for sports. In its decision the court found that the district was not in compliance with Title IX and stated:

As a matter of law, the Court finds defendants have allowed significant gender-based disparity, i.e., not substantially proportionate, with respect to female athletic opportunities; failed . . . to show a history and continuing practice of expansion of opportunities for females; and failed . . . to demonstrate that female interest and abilities have been fully and effective accommodated. (p. 1275)

Title IX’s passage four decades ago has greatly enhanced opportunities for female athletes at both the public school and collegiate levels, although it has had a particularly dramatic effect at the collegiate level. This may be seen by increased emphasis, at the collegiate level, in such sports as gymnastics, volleyball, basketball, swimming, soccer, track, golf, tennis, and softball.

IX. SCHOOL PUNISHMENT FOR OUT-OF-SCHOOL OFFENSES

Out-of-school conduct of students may have an impact on the overall well-being of the school. When there is a problem with out-of-school conduct, school authorities must reconcile their control of student conduct necessary for the orderly operation of the school with their obligation to comply with the standards of constitutionality and reasonableness required by the judiciary to ensure that students receive just treatment.

Several court decisions have addressed issues dealing with noncriminal, off-campus student activity. In one case, it was alleged that two students were assaulted by a group of others while they were all walking home after school. Although the court agreed that school authorities may punish students for out-of-school physical abuse directed at other students, punishment such as expulsion may not be based on unsigned and unidentified statements by student witnesses. See Tibbs v. Board of Education of the Township of Franklin, 276 A.2d 165 ( N.J. Super. Ct. 1971).

Parking an automobile off campus contrary to school rules was an issue in McLean Independent School District v. Andrews, 333 S.W.2d 886 (Tex. Civ. App. 1960). A student’s suspension for breaking the school rules was upheld, primarily on the basis of promoting the safety of student pedestrians on the streets adjacent to the school during noon recess. The court noted, however, that the rule in question might provide future complications as students parked at more remote distances from the campus.

An Ohio appellate court, in McNaughton v. Circleville Board of Education, 345 N.E.2d 649 (Ohio Comm. Pleas 1974), upheld the suspension from school and from participation in athletic activities of students who held an out-of-school initiation and hazing of new members of an officially recognized high school club. The club’s advisor had not been notified nor was he present at the initiation, which occurred at the home of one of the offending students. Initiates were struck with belts, forced to eat onions, and required to rub Tabasco sauce on the faces of fellow initiates.

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Cases have addressed the dismissal of students from high school chapters of the National Honor Society for off-campus drinking. In one of these cases, Warren v. National Association of Secondary School Principals, 375 F. Supp. 1043 (Tex. 1974), a student who had been observed drinking off campus was reinstated and had the incident expunged from his record. In its decision, the court showed great concern that dismissal from an honor society for drinking would be a serious blot on his record, especially because he had not received appropriate due process. Dismissal procedures under provisions of the society’s constitution had not been followed by school authorities.

Courts have held that public-school students’ out-of-school criminal conduct may be subject to school disciplinary hearings, although as a practical matter the particular kind of school response will be influenced by the nature and seriousness of the criminal charges. A non-school-related speeding charge, for instance, might be ignored by authorities, whereas a murder or rape charge would not be.

R.R. v. Board of Education of the Shore Regional High School District, 263 A.2d 180 (N.J. Sup. Ct. Ch. Div. 1970), addressed the question of whether public-school officials can deprive a student of his or her right to attend school because of criminal acts committed off school grounds. In this instance, a fifteen-year-old boy stabbed a girl during an altercation in a neighbor’s house after the boy had returned home at the end of a school day. This court concluded that officials do have the right to expel or suspend students for out-of-school activities when it is reasonably necessary either for the transgressing student’s physical or emotional safety and well-being or for the safety and well-being of other students, teachers, or public school property. Despite this conclusion, the court ordered the school to readmit the student because of due process violations.

A California court upheld the suspension of students involved in such offenses as kidnapping, rape, assault with a bumper jack, assault resulting in the death of a boy whose head struck a sidewalk curb, carrying a concealed weapon, and disturbing the peace. The California court made no attempt to distinguish between offenses that occurred on campus and those that occurred off campus. See S. v. Board of Education, San Francisco Unified School District, 97 Cal. Rptr. 422 (Cal. Ct. App. 1971).

A federal district court in Caldwell v. Cannady, 340 F. Supp. 835 (Tex. 1972), upheld the reasonableness of a local school board policy mandating the expulsion of any student possessing, using, or selling dangerous or narcotic drugs. In this instance students were disciplined after they were arrested when marijuana was found in their automobile in a series of incidents at night and away from school.

Authority of school officials to discipline a student acquitted of out-of-school reckless driving charges was addressed by the Supreme Court of Wyoming in Clements v. Board of Trustees of the Sheridan County School District No. 2, 585 P.2d 197 (Wyo. 1978). The student had been charged with reckless driving for purposely impeding the progress of a school bus. The court held that school authorities may discipline pupils for out-of-school conduct having a direct and immediate effect on the discipline or general welfare of the school.

Constitutional questions regarding double jeopardy and self-incrimination have been raised in the cases ruling on the legality of actions taken by public-school officials in response to charges of out-of-school criminal violations against students. Courts have consistently held that both school sanctions and judicial sanctions are permitted without violating the Fifth Amendment prohibition against double jeopardy. They maintain that school hearings and crimi-nal proceedings have different purposes, with school responses being civil or remedial, whereas judicial responses are punitive. Although acknowledging that school discipline has punitive effects, the courts contend that its underlying purpose is the protection of the school environment.

Courts have also held that public-school students’ out-of-school criminal conduct properly may be the subject of school disciplinary hearings without violating Fifth Amendment rights against compulsory self-incrimination. Students may not be required to testify in these proceedings, and if students’ rights are

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infringed upon in the hearings, courts reason, the students may then ask for a judicial review of the proceedings.

Analysis reveals that the judiciary supports the rationale that students may be subject to school discipline, including suspension or expulsion, if their out-of-school conduct threatens the efficient operation of the school. Generally, the courts recognize that the authority to make and enforce policies designed to protect the safety and welfare of students is a reasonable and necessary exercise of the power invested in local school boards. Nevertheless, courts will support the use of that authority over out-of-school criminal conduct only when they perceive the conduct as having a direct and substantial impact on the school and its programs.

When the out-of-school conduct has involved physical violence or otherwise threatened the safety or well-being of students, the judiciary has not been concerned with whether the conduct occurred out of school or in school. Decisions indicate that the test of the public school’s authority to control student conduct is not the time or place of the conduct, but rather its effect on the morale and efficiency of the school. It may be concluded that the nature and seriousness of the conduct and its potential impact on the public school and its programs are more important than where the conduct occurred.

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