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Chapter Seven

Students’ Rights

Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Before the case law that has occurred in the last few decades, school officials sometimes answered students’ ques- tions about why they should do something by saying, “Because I said so.” That kind of dogmatic response characterizes a time when school officials performed pupil services as if students did not possess procedural or substan- tive due process rights. That time is past. The wise school administrator creates administrative policy, and follows board policy, based on the princi- ple that students have constitutional rights, perhaps not equivalent to those of adults, but still significant.

PROCEDURAL DUE PROCESS

For procedural due process to be properly followed, three procedures must be in place (see Goss v. Lopez at the end of this chapter).

1. Hearing. Before a student can be suspended or expelled, there must be a hearing where the disciplinary charges against the student are specified and explained. The administrator should make the student and the parent aware of what school policy has been violated. If more than one student was in- volved in the infraction, each individual student is entitled to a separate hearing. A student is not entitled to have legal counsel present at a discipli- nary hearing. This is a quasi-judicial procedure, not a court of law.

2. Notification. The parents of the student must be notified as to the time and place of the hearing so that it can be reasonably assumed that their attendance is assured. Such notification should be done by registered letter to avoid the question as to proper notification.

Bradley, Leo H.. School Law for Public, Private, and Parochial Educators, Rowman & Littlefield Publishers, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/franklin-ebooks/detail.action?docID=5059833. Created from franklin-ebooks on 2024-08-29 14:41:41.

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3. Impartiality. Since the school administrator is serving in both an executive (person who suspended the student) and judicial (person who hears the appeal) capacity, she should ensure that the student be allowed to speak in his or her own behalf. If new facts come to light that were not known at the time of the suspension or expulsion decision, the administrator should take that into account. Some school systems have separated the functions of sus- pending or expelling and conducting the hearing to better ensure impartiality. An administrator other than the principal, such as a director of student ser- vices, usually conducts the hearing.

Procedural due process as defined by Goss v. Lopez creates a time gap between the administrative act of suspension and the beginning of the serv- ing of the suspension. However, there are times when there would be a serious possibility of disruption if the student or students were not removed from the school environment immediately. If there is a clear and present danger, or chance of disruption to the maintenance of an orderly and peaceful learning environment, the student may be removed pending the hearing.

SUBSTANTIVE DUE PROCESS

For over two centuries, the Supreme Court has debated whether there are implicit natural law protections for citizens beyond the explicit wording of the Constitution. Advocates of natural law claim that there are moral laws beyond the specific wording of the Constitution. Among these natural laws are the substantive protection of the right to liberty, equality, and justice (Lloyd L. Weinreb, Natural Law and Justice [Cambridge, MA: Harvard University Press, 1987], 224–65).

Accordingly, proponents of natural law have argued that there is an im- plicit meaning in the Constitution that individual rights are not those merely established within the text of the document itself but also all those natural and moral rights that pertain to fairness, equity, and the pursuit of happiness (D. D. Raphael, Problems of Political Philosophy [London: MacMillan, 1989], 102–3). Justice, therefore, requires that the courts look not simply to the explicit content of the Constitution but also to the “substance” of the Constitution that is implicit in human rights of transcending moral conse- quence (Kern Alexander and M. David Alexander, American Public School Law, 5th ed. [Belmont, CA: West/Thomson Learning, 2001], 346).

Although the concept of substantive due process remains somewhat tenta- tive and ambiguous, Supreme Court interpretations and precedents have ad- vanced certain individual rights to be fundamental. Those rights that have particular relevance to education and student rights are the definitions of liberty and property.

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In Meyer v. Nebraska (see chapter 6), the Court defined liberty to include the right of individuals to contract, to engage in any of the common occupa- tions of life, to acquire useful knowledge, to marry, to establish a home and bring up children, to worship God according to the dictates of their con- science, and to generally enjoy those privileges long recognized in common law as essential to the orderly pursuit of happiness by free men. Thus, the teachers’ right to teach and the right of parents to engage them so to instruct their children, we think, are within the liberty of the Constitution.

With the Meyer decision, the Supreme Court not only acknowledged the substantive protections of due process covering life, liberty, and property but also extended them to protect a person’s right to teach and learn.

In Goss v. Lopez, the Court cautioned school officials that suspensions and expulsions could seriously damage a student’s standing with fellow stu- dents and teachers as well as interfere with later opportunities for higher education and employment. Thus, schools must be diligent in providing pro- cedural due process to ensure no infringement upon substantive due process rights.

The Court also explained property interest in this way: “Property inter- ests . . . are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits.” In this regard, the federal Constitution does not create education as a fundamental right, but rather education becomes a “property” interest when state law establishes a public educational system that all chil- dren have a right to attend. Thus, when a state creates a public school system, education is effectively established as a property right or interest for all pupils.

IN LOCO PARENTIS

This Latin term, which means in English “in place of the parent,” is meant to define the authority that school personnel are given over students in main- taining the order and discipline of the school environment. The concept does not give school personnel chastisement rights equivalent to that of a parent. The proper use of in loco parentis in governing student behavior must be administered through reasonableness and restraint. Although recent court cases and societal trends have challenged many of the aspects of in loco parentis, the concept is still viable in maintaining student health, proper surroundings, and necessary discipline and in the promotion of morality and other wholesome influences while parental authority is superseded (Richard- son v. Braham, 125 Neb. 142, 249 N. W. 557 [1933]).

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FREEDOM OF SPEECH AND EXPRESSION

Legal conflicts between students/parents and the school over free speech and/ or expression are decided by balancing the school’s interest in maintaining an orderly learning environment with the student’s First Amendment right to free speech and expression. Clearly, students’ First Amendment right to free speech/expression is limited. In fact, First Amendment rights to free speech and expression are limited for all citizens. For example, public exposure is illegal except in nudist colonies. A person cannot engage in behavior that causes a public disturbance.

If a person stands up in a public place and calls out, “Fire!” as a practical joke, he could be arrested for inciting panic. Therefore, it is legally clear that schools may impose limits upon student speech and expression. However, such rights are not unlimited. The courts have ruled differently in cases involving this controversy, depending upon the circumstances. From these precedents, school officials and personnel can base their policies and actions upon the following reasonably solid principles:

• Clear policies regarding speech, clothing, hair care, bodily attachments (such as rings, piercing, tattoos, etc.) must be in place prior to any discipli- nary action for violations.

• The policies must be legally defensible as reasonable if challenged by students and parents.

• The policies must be administered consistently so as to avoid charges of Fourteenth Amendment equal protection or civil rights violations.

• The school must be able to show that limiting or prohibiting speech or expression is necessary or desirable in order to maintain an orderly teach- ing and learning environment.

• In taking disciplinary action, the school must follow procedural due pro- cess.

• In limiting or prohibiting student speech or expression, the school must be able to show that such action was necessary to prevent a “material and substantial” disruption to the educational process.

Two landmark cases, Tinker v. Des Moines and Guzick v. Drebus, set a legal precedent that forms the basis for school policymaking concerning student free speech or expression. By comparing and contrasting these cases, school officials can draw the following conclusions:

• A clear policy must be in place before restrictions on student free speech or expression are exercised. The mere anticipation that student actions may cause a disturbance is not sufficient to sustain serious disciplinary actions such as suspension or expulsion.

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• The past history of the school with regard to student behavior can be a factor to support school policy restricting student expression.

• Student speech or expression can be limited when the school can show that such expression will cause a material and substantial disruption.

Freedom of the press has long been a cornerstone of American democracy and has been vigorously defended by the Supreme Court. The Court has been especially diligent in preventing “prior restraint,” which means censoring publications before they can reach the public. The First Amendment right to a free press is strong when the publication is meant for general use, thus creating a public forum.

However, freedom of the press for school-sponsored publications is gov- erned by a different set of rules. School publications are not necessarily a public forum. If the school wishes, it may keep school student publications a “closed forum” or a “nonpublic forum.” If the school is consistent in main- taining a nonpublic or closed forum, then it may maintain editorial rights over student publications, subject to certain restrictions. In the landmark case Hazelwood v. Kuhlmeier, the Supreme Court held that educators do not vio- late students’ First Amendment right to free press by exercising editorial control over school-sponsored newspapers so long as the educators or school board has a legitimate pedagogical reason to prohibit such expression. It is interesting to note that in dealing with the issue of freedom of the press in schools, the Court does not consider germane the Tinker precedent of “mate- rial and substantial disruption.” It is sufficient for educators to show peda- gogical reasons for their decisions.

While Tinker is still the general standard, the Supreme Court has since carved out another limited category of speech that schools may restrict even without showing actual or foreseeable substantial disruption. In Morse v. Frederick, 551 U.S. 393, 403 (2007) the court held that school officials “may restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use.”

Underground Publications

The Hazelwood precedent is clear for school-sponsored publications. Under- ground publications not produced on school facilities but distributed there must be looked at from a different perspective. If the school does not permit any nonschool material to be distributed at school, it can apply this policy to the underground newspaper and thus prevent its distribution. However, if the school allows other nonschool material to be distributed at school, the same rule would apply to the underground newspaper, and the educators could not exercise prior restraint. However if, after distribution, it were held that the underground publication contained objectionable material that caused a ma-

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terial and substantial disruption at school, the school could take disciplinary action against the perpetrators.

If the distribution of nonschool material at school is permitted, the school may place appropriate time, place, and manner restrictions on access to school grounds, but it cannot control the content, as is permitted in school publications. The school has created a limited public forum and thus must remain content-neutral in relation to its policy of distribution.

In summary, school officials may exercise editorial control over school- sponsored publications so long as they have a legitimate pedagogical reason to do so. If the schools allow nonschool publications to be distributed, they have created a limited public forum and thus may control the time, place, and manner of distribution, but they relinquish their editorial rights. If the school has a policy that all nonschool publications, including those submitted by students, must be submitted to the administration before distribution, then strong procedural due process must be in place or the policy is vulnerable to prior restraint violation.

Since Hazelwood, the Supreme Court has not tackled a nonreligious free speech issue involving a public elementary or high school. Lower courts that have dealt with these issues have tended to follow Hazelwood’s ruling pretty closely: if a free speech case involves a school-sponsored activity, school officials are given wide latitude. Since all but a few student free speech cases involve a school-sponsored activity, the effect has been that most free speech cases have gone against students, with some minor exceptions.

Lower courts have also determined that school officials have broad dis- cretion at the elementary school level in controlling student speech, ruling in several cases that Tinker does not apply. However, most legal commentators believe that despite these developments, Tinker still remains in force, at least for high school students. School administrators are still required to show “material and substantial disruption” before limiting student speech in non- school-sponsored activities.

The Internet and Free Speech

Law regarding the Internet is in its infancy. The Reno case has clearly indi- cated that the Internet as a communication medium is clearly protected by the First Amendment and is more closely related to print rather than broadcast. The Internet, as it relates to instruction or curriculum, clearly comes under the Hazelwood precedent, thus making it subject to school regulations. How- ever, student use of the Internet outside the school’s curriculum and instruc- tional program may well be outside the realm of school jurisdiction.

In recent rulings, the Court has realized that the Hazelwood precedent does not answer questions concerning Internet use by students that is objec- tionable to school authorities. Prior restraint is not applicable because of the

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immediate nature of the Internet. Neither is policy regarding the time, place, and manner of distribution. Therefore, the Court has resorted to the Tinker precedent. Before applying the Tinker standard in cases involving off campus or online speech, some courts require a threshold showing of a substantial nexus between the speech and the school, typically requiring the school to prove that a student should have foreseen that his or her expression would reach the school’s campus.

Then, in determining whether the substantial-disruption standard from Tinker is met, courts inquire into the magnitude of student conversations about the school, the burden on the administration, and the violent nature of the speech. Recently in Kowalski v. Berkeley Cnty. Sch. (4th Cir. 2011), the Fourth Circuit held that a school could punish a student for online bullying, in part because bullying is a major pedagogical concern in schools, even though the disruption amounted to one student missing a day of school out of embarrassment and some student conversations. The Supreme Court may address the issue of student speech online in the near future if it accepts Kowalski’s petition for certiorari. However, Kowalski may also not be the best test case for the Court to decide such an important issue. Since the plaintiff in Kowalski is so unsympathetic, the Court will be hard-pressed to protect student First Amendment rights, if it chooses to do so, by deciding in the bullying student’s favor.

To discipline a student for Internet activity, the school must show that such activity creates a “material and substantial” disruption with school dis- cipline. Thus, it seems that until more definitive legal guidelines are drawn, school authorities cannot stop Internet communications that depicted educa- tors, students, parents, or the school in a derogatory manner that might inter- fere with the school’s disciplinary policies and procedures.

SEARCH AND SEIZURE

Search and seizure is the subject of the Fourth Amendment to the Constitu- tion. The founding fathers were thinking of the protection of citizens when it was adopted, but as the public school system arose, its application became relevant to school administrators. Due to students’ use of drugs, alcohol, tobacco and to the increasing occurrence of the use of violent weapons in schools, the proper use of policy and procedures by school authorities in search and seizure is very important. In the case New Jersey v. T.L.O., the Supreme Court established the guidelines that determine the constitutionality of searches. For the search of a student’s person or property to be deemed constitutional, the search must be reasonable at its inception and be reason- able in scope.

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Reasonable at Inception

School authorities are not held to as high a standard as police officers in relation to investigation. The police must have “probable cause” to pursue search. This is, of course, called a search warrant. School authorities are held to a standard of “reasonable suspicion,” which carries a lesser burden of proof. For example, hearsay evidence such as an informant’s tips are accept- able reasons for school authorities to pursue the search of a student’s person or property. Even suspicious behavior in the mind of the school administrator could be reasonable suspicion. The courts recognize that school authorities must be given latitude in administering disciplinary procedures in a school setting full of minors.

Also, teachers and administrators are not trained detectives. However, reasonableness at inception does contain some restrictions. For example, if a principal stops a student for no apparent reason and demands the student empty her personal belongings, reasonableness at inception is not present. If, on the other hand, a principal is walking down a hallway and a group of students immediately disperses in a disorderly and obviously panicked state upon seeing the principal, the principal has reasonable suspicion to act. If a search is initiated, and challenged, the burden of proof is on the school authority to show that reasonable suspicion created the reasonableness at inception.

Reasonable in Scope

Once the search has been initiated, the school authority must determine the breadth of the scope. For example, if the principal is following up on an informant’s tip that a certain student is selling cocaine that is stored in his locker, the reasonableness of the scope is restricted to the student’s locker. If drugs are found in the locker and further investigation reveals that the student is bringing the drugs to school through the use of his automobile, then the scope of the search can be widened to include his car. There must be a nexus between the information guiding the search and the scope of the search.

Let’s look at another example to help clarify the meaning of the reason- ableness in scope standard. If money was stolen during a physical education class and the environment was closed to intrusion by other students, the scope of the search to recover the money would be restricted to the facilities used by the students during the class—classroom (the gym), locker room (where the students dressed and undressed), and bathroom facilities—and the clothing and personal possessions of the students in the class. Reasonable- ness in scope would not be the entire school building and every student in the school.

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Strip Searches

Although they are rarely done, strip searches of students are legal. They are sometimes necessary in order to find the evidence needed to pursue discipli- nary action, especially in drug investigations. Strip searches should be done by a school authority of the same gender as the student being searched. There should be a witness of the same gender. Most importantly, assurances should be established that the search is reasonable at inception and in scope. The Williams case is an example of a search that was held proper by the courts. However, the court has ruled in Safford v. Redding (2009) that strip searches are not allowed unless there is sufficient suspicion and evidence to warrant a strip search. In Safford, the court ruled the search of a backpack and locker were reasonable in searching for ibuprofen, but there was not sufficient sus- picion to warrant a strip search.

Random Building Searches, Including Student Lockers

The foregoing discussion of the reasonableness standards might create the impression that random drug searches, using dogs and other devices to detect the presence of drugs, would not be permitted. However, they are considered proper in instances when the school can show that the sale and use of drugs within the school facilities has occurred on a regular basis and on a wide scale. This historical precedent creates reasonableness at inception. In view of the fact that the widespread sale and use of drugs by students is occurring, it is reasonable to assume that drugs could be held anywhere in the school facilities; therefore, a random search could include the entire facilities, thus meeting the reasonable-in-scope standard (see Veronica v. Acton).

WHEN TO CALL THE POLICE

The first rule for school authorities when deciding whether to call the police is straightforward: “If a crime has been committed, call the police. If discipli- nary action only is called for, skin your own skunk.” The police want to handle crimes. They do not want to discipline students for school violations.

The second rule for school authorities is to remember that once you turn the matter over to the police, you should let them handle it. You are not trained in criminal procedures, so do not interfere. Cooperate with the police in the ways that they request.

CORPORAL PUNISHMENT

Interestingly, corporal punishment does not come under the ambit of the Eighth Amendment to the Constitution (see Ingraham v. Wright). The courts

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have upheld the right of schools to administer corporal punishment as a means of preserving school discipline. The courts have dealt with the degree and reasonableness of the discipline as opposed to whether corporal punish- ment should be permitted.

In examining a controversy over the administration of corporal punish- ment, the courts have advocated two standards:

1. The punishment must be reasonable and exerted within bounds of reason and humanity.

2. The punishment must be done in good faith and without malice and not be inflicted wantonly or excessively.

More and more states have stopped permitting corporal punishment. Others give local school boards the option of deciding the issue at the community level. It is used less often in schools today than in previous eras. Although the courts seem to give educators the benefit of the doubt in these cases, administering corporal punishment puts the teacher or administrator in a vulnerable position. The inflicting of the discipline does not have the same effect or consequence, physically or psychologically. For some students it leaves no physical evidence; for others, serious bruising occurs. The act also causes different psychological reactions.

Opponents of corporal punishment are quick to point out that striking a student with a paddle and applying terms such as “humane treatment” and “good faith” is an oxymoron. In view of recent legal developments in child abuse and societal mores, from a legal perspective, it seems wise for schools to avoid this type of punishment.

SEXUAL HARASSMENT

Conflicts and controversies involving sexual harassment among teachers, students, and administrators have surfaced in recent years (see Gebser et al. v. Lago Vista). The following is a general overview of this emerging legal concept.

Harassment of Employees

Sexual harassment is a form of sexual discrimination that involves the un- welcome introduction of sexualized conduct into the workplace. The two general categories of sexual harassment are “quid pro quo” and “hostile environment.” Such conduct may violate Title VII of the Civil Rights Act of 1964, the U.S. Constitution, and state law.

Quid pro quo occurs when a supervisor or management-level person con- ditions the granting of a benefit upon the receipt of sexual favors from a

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subordinate or punishes the subordinate for rejecting the offer of such a condition.

A hostile environment occurs when one or more management-level indi- viduals or coworkers creates an atmosphere that has the purpose or effect of unreasonably interfering with an individual’s work performance or of creat- ing an intimidating, hostile, or offensive work environment. The harassment must be sufficiently severe or pervasive to alter the conditions of the com- plainant’s employment. Isolated incidents generally will not support a claim. Courts look at the following:

• whether the conduct was verbal, physical, or both • how frequently the conduct was repeated • whether the conduct was hostile, threatening, and/or humiliating or wheth-

er it was merely offensive or annoying • whether the alleged harasser was a coworker or a supervisor; whether

others joined in perpetrating the harassment • whether the harassment was directed at more than one individual

Examples of types of sexual conduct that may create a hostile environment are

Nonverbal/visual: displaying sexually suggestive magazines, cartoons, pinups, posters, and so forth; obscene gestures; lip or tongue motions; sexu- ally explicit e-mail, letters, or writing on desks, books, lockers, etc.; sexual computer screensavers; graffiti of a sexual nature; leering or staring in a sexual nature; looking down someone’s blouse or up someone’s skirt; expos- ing sexual or private body parts; manipulating objects or food to create a sexual innuendo.

Verbal: sexual innuendos, rumors, or suggestive comments; comments on clothing or physical appearance; asking unwanted personal, sexual, or intimate questions; whistles, catcalls, patronizing names, or offensive lan- guage; sucking, mooing, kissing, or howling sounds; rating appearance, body parts, or sexuality; pestering or pressuring an individual for dates or asking for sex or sexual contact; telling sexual jokes, rape jokes, or demeaning, gender-based jokes; shouting sexual obscenities; teasing, taunting, or making insulting remarks about sexuality, body parts, or attractiveness; commenting about sexual activities, fantasies, sexual orientation/preferences, or the sexu- al interests of others or oneself.

Physical: unwanted sexual touching; pulling up, snapping, pulling down, or grabbing clothing; physical interference with movements such as corner- ing, blocking, following, or leaning over an individual; blowing on some- one’s neck, hair, or ear; fondling or stroking; licking someone’s skin; coerced sexual intercourse, rape, or sexual assault; intimidating physical con-

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duct directed at someone because of his or her gender; brushing up against or leaning on someone; rubbing an individual’s back or neck; kissing.

Before acting, always ask yourself the following:

• Would I want this behavior to be the subject of a news article or to appear on the evening news?

• Would I behave this way if my mother, father, sister, or brother were present?

• Would I want someone to act this way toward a loved one? • Is there equal power and authority between me and the other person? • Does this conduct further the goals of the school or the district as a whole?

Most people know in their “gut” what is inappropriate behavior. If you answer no to any of these questions, you should reconsider the conduct before acting.

Supervisor and Employee Harassment

Employers can be held liable for money damages for certain harassing acts of supervisors. When an employee is harassed by a supervisor, the employer will always be liable for the harassment. The question becomes whether or not the employee is entitled to any money damages, and the first question that must be asked is whether the employee has suffered a tangible job detriment.

Tangible job detriment: If an employee suffers a tangible job detriment, the employer is strictly liable—end of story. A tangible job detriment refers to significant changes in employment status (e.g., termination, demotion, undesirable reassignments, loss of promotion, or a significant change in job benefits).

No tangible job detriment exists: If an employee does not suffer a tangible job detriment, the employer can raise an affirmative defense to avoid monetary liability. The employer must show (1) that reasonable care was exercised “to prevent and correct promptly any sexually harassing behavior,” and (2) that the complaining employee “unreasonably failed to take advan- tage of any preventive or corrective opportunities provided by the employer.”

Coworker Harassment

The Supreme Court has not addressed the issue of an employer’s liability for coworker harassment. Lower courts have, however, held that employers may be liable for coworker harassment if the employer knew or should have known of the harassment and failed to take immediate corrective action reasonably calculated to end the harassment. The seminal question in most

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instances is whether a supervisor with authority to take corrective action had knowledge of the alleged harassment. If it is determined that a supervisor with authority to take corrective action knew of the harassment and failed to take corrective action, an employer can be held directly liable for negligently allowing the harassment.

Same-Sex/Same-Gender Harassment

In Oncale v. Sundowner Offshore Services, Inc., 118 S. Ct. 998 (1998), the Supreme Court ruled that same-sex sexual harassment is actionable under Title VII. In this case, a male who was employed as a roustabout on an eight- man platform crew alleged that he was forcibly subjected to humiliating, sex- related actions by several of his male coworkers in the presence of the crew and that a male coworker physically assaulted him in a sexual manner and threatened to rape him. After his supervisor’s failure to take any action, he quit the job based on his belief that he would have been raped. The Court emphasized that plaintiffs (male or female) “must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted ‘discrimination . . . because of sex.’”

Teacher/Faculty Harassment of Students

In Gebser v. Lago Vista Independent School District, 118 S. Ct. 1989 (1998), the Supreme Court imposed a stringent test that a student must meet to recover damages under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. against a school district for the sexual misconduct of a teacher.

Actual knowledge: The student must first show that the school system had “actual knowledge” of the harassment—“constructive knowledge” will not suffice. In order to show “actual knowledge,” an “appropriate person” employed by the school district must have been aware of the sexual harass- ment. An “appropriate person” is “an official of the recipient entity with authority to take corrective action to end the discrimination.”

Deliberate indifference: The student must also show that the school system reacted with “deliberate indifference” when faced with actual knowl- edge of the harassment (e.g., the school system took no appropriate action).

Practical advice: Administrators and teachers should monitor teachers and other staff members who spend an inordinate amount of time with one particular student, who develop an off-campus relationship with a student, who buy expensive gifts for students, or who appear overly interested in the detection of child abuse (e.g., check students for signs of abuse).

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Peer (Student-on-Student) Sexual Harassment

In Davis v. Monroe County Board of Education, 119 S. Ct. 1661 (1999), the Supreme Court broadened its ruling in Gebser v. Lago Vista by ruling that school districts can be held liable under Title IX of the Education Amend- ments of 1972, 20 U.S.C. § 1681 et seq. for peer sexual harassment if the school district had “actual” knowledge of the harassment and acted with deliberate indifference.

STUDENT RIGHTS FOR PRIVATE/PAROCHIAL EDUCATORS

As with other legal entities, private schools may sue or be sued for breach of contract. Suits or controversies involving the contract to educate fall under the following categories:

• breach of contract • tuition refunds • fraudulent misrepresentation • educational malpractice • parental/student obligations

Courts have usually held that a valid contract exists between the private school and the parents when the child is enrolled in the school. The contract terms cover tuition agreement, catalogs, brochures, and student handbooks that specify parental, student, and school obligations and regulations.

In essence, private school contracts mandate that as long as the student achieves the academic performance required by the contract, abides by the disciplinary rules, and pays tuition, any attempt by the private school to dismiss the student for any other reason may be a breach of contract.

Tuition Refunds

Courts generally enforce tuition contracts based on enrollment agreements and school handbooks. These agreements should address as precisely as pos- sible the following issues:

• tuition amount • method and time of payments • refund policy (for students who withdraw before and during school year),

which includes percentage of refund based on the date of the withdrawal; acceptable reasons for withdrawing without penalty; terms of withdrawal due to expulsion; and any penalty for late payment or nonpayment of tuition

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Note that if a school breaches its contractual obligations, the courts will award tuition refunds to parents who challenge for breach of contract.

Fraudulent Misrepresentation

Claims for fraudulent misrepresentation often accompany breach of contract claims. Whatever is promised in the official documents of the school that are a part of the information supplied to perspective clients must be implemented or the school is susceptible to a possible claim of fraudulent misrepresenta- tion. School administrators must ensure that the following requirements are met:

• The curriculum promised is the curriculum offered. • Faculty certification levels and other faculty descriptions can be verified

and defended. • The quality description of the school can be verified and defended, includ-

ing those descriptions of its textbooks and learning materials, instructional equipment, and placement services.

• Grievance procedures are prescribed and followed. • If the school is based on a religious assumption, the curriculum and in-

struction reflect that religious doctrine. (Any deviation from this religious doctrine in either curriculum or instruction could result in a parent filing a suit claiming fraudulent misrepresentation and requesting full tuition re- mission. If such a claim that the school deviated significantly from its publicized mission can be shown, such claims could be upheld.)

Educational Malpractice

As with public schools, courts have been reluctant to award claims of educa- tional malpractice against private schools. It is difficult to assign the cause of educational failure. There are too many entities involved in the education of a child. There are numerous educators involved as well as the adults in the home of the child, plus the child himself.

There are two areas where clients could charge a private school with educational malpractice. First, if the school’s curriculum followed in the classrooms was not the curriculum prescribed in the school’s documents. Second, if a misdiagnosis or the lack of diagnosis of a student disability, whether it was mental, emotional, or physical, led to the expulsion of the student, the private school could be forced to address this student issue with actions other than suspension or expulsion.

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Parental Obligations

Apart from the obvious obligation to pay tuition on the terms agreed upon and the controversies that result when such payment becomes an issue, the most common difficulty arises when parents divorce with children enrolled in the private school. No school policy can cover all the circumstances that may accompany a divorce. Therefore, the private school must abide by the agreement that the divorced parents have negotiated in court. What is imper- ative for the private school is that they carry out the dictates of such agree- ments to the letter so as to avoid charges of negligence or interference with the rights of one or both of the divorced parents.

Key to good administration is to revisit the contractual agreement that was signed between the school and the parents prior to the divorce and to restructure the contract agreement according to court mandates.

DISCRIMINATION

Private school students have the right to be free of acts of discrimination, which come under the legal definition of torts. An act of tort is a civil wrong independent of contract. Basically, discrimination, in relation to private school students, can fall under the following categories:

• race • disability • sexual discrimination • sexual harassment

This is a legal area where the obligations of private school authorities are very similar to those of public school authorities since discrimination law is federal and largely under the auspices of Title IX.

DISMISSALS AND SUSPENSIONS

Procedural Due Process

It is safe to say that private schools have more discretion than public schools in establishing and implementing disciplinary rules and procedures. Such rules and procedures are found in the contractual relationship between the school and the student, which are found in the student handbook or catalog.

Private school students are entitled only to procedural safeguards specifi- cally provided by the handbook or catalog. However, private school students must be afforded fundamental fairness by receiving notice of the charges and

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a hearing. The hearing should allow the student to give testimony in order to provide at least a semblance of impartiality.

STATE AND FEDERAL LAWS

Family Educational Rights and Privacy Act (FERPA)

This act, also called the Buckley amendment, applies to any school receiving federal funds. The act, when supplemented by regulations applied by the U.S. Department of Education, contains explicit directions as to how schools must maintain and disclose student records.

Under this law, parents have the right to review their children’s educa- tional records. A parent’s request must be addressed within forty-five days or less. Parents must be given the right to a hearing to challenge the contents of their child’s records to ensure that the records are accurate, are not mislead- ing, and do not constitute a violation of their child’s right to privacy.

“Education records” are defined as documents that contain files and other materials directly related to the student and that are maintained by the school. Records maintained by the law-enforcement agency of a private school for the purpose of law enforcement are not protected by FERPA.

Other than directory information, schools cannot release or provide ac- cess to any educational information on a student without the written permis- sion of the parents.

Implied Contractual Privacy Rights

If a private school does not have a provision in the contract between the school and the parents that the release of student records is contingent on the parents fulfilling a tuition agreement, the private school may not be able to withhold transcripts if the student attempts to transfer to another school and the parents’ tuition payment becomes delinquent. (McKee v. Southfield School, 613 So. 2nd 659, La. App. 2nd Cir. 1993)

Gun-Free and Drug-Free School Zones

The Gun-Free School Zones Act of 1990, which made it a federal crime for any individual to knowingly possess a firearm within 1,000 feet of a school zone, includes both public and private/parochial schools.

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CASE SUMMARIES

Norval Goss, et al. v. Eileen Lopez, et al.

Appeal from the U.S. District Court for the Southern District of Ohio Supreme Court of the United States

419 U.S. 565 (1975), 73-898 Argued October 16, 1974; Decided January 22, 1975

Topic: Due process, hearing, or notice. Issue: Did the imposition of suspensions without preliminary hearings

violate students’ rights, which is guaranteed by the due process clause of the Fourteenth Amendment?

Facts: Nine students were suspended for ten days from their respective schools in Columbus, Ohio, for school misconduct. The school principals did not hold hearings before issuing the suspensions because they claimed that Ohio statute permits this type of action by school administrators without first conducting hearings or giving oral or written notice.

Dwight Lopez, a student at Central High School in Columbus, Ohio, was suspended in connection with a disturbance in the lunchroom that involved physical damage to school property. He testified that at least seventy-five other students were suspended from his school on the same day. (The princi- pal suspended seventy-five students for racial disruptions in the lunchroom and damage to school property.) Lopez also claimed that he was just an innocent bystander and was not part of the destructive conduct. He did not have a hearing and there was no evidence in the record to indicate that Lopez was guilty.

Betty Crome along with other students was arrested and taken to the police station. She was released without being charged. Following this event, Betty was suspended for ten days. Again, no hearing was held and there was no record to indicate on what basis this decision was made.

Carl Smith was suspended without a hearing, and school files did not contain any information about any evidence against him.

The principals’ actions were challenged with a class-action suit against the appellant school officials seeking a declaration that the Ohio statute per- mitting such suspensions was unconstitutional and an order enjoining the officials to remove the references to the suspensions from the students’ records.

On the basis of these facts, a three-judge federal court declared that the students (plaintiffs) were denied due process because they were “suspended without hearing prior to suspension or within a reasonable time thereafter” and that Ohio Rev. Code Section 3313.66 (1972) and regulations issued were unconstitutional in permitting such suspensions. The court also ordered that

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all references to the plaintiffs’ suspensions be removed from school files. The school disagreed and appealed the decision.

Norval Goss, along with other administrators of the Columbus, Ohio, public school system, challenged the judgment of the three-judge federal court. They argued that the Administrative Guide of the Columbus Public Schools provided that pupils may be suspended or expelled from school in accordance with the provisions of Section 3313.66 of the Revised Code.

Findings of the U.S. Supreme Court: The Court in a 5–4 decision stated that students who are suspended for ten days or less are entitled to certain rights before their suspension. These rights include oral or written notice of the charges, an explanation of the evidence against them, and an opportunity to present their side of the story. Furthermore, a student can be suspended immediately in case of an emergency but a hearing must be scheduled as soon as possible. The students were not granted the right to legal counsel or the right to call or cross-examine witnesses.

Rationale: Students facing temporary suspension from a public school have property interests as well as liberty interests that qualify for protection under the due process clause of the Fourteenth Amendment. The most appar- ent requirement of the due process clause is that states afford certain proce- dures before depriving individuals of “life, liberty, or property.” This is a guarantee of basic fairness. People will feel that the government has treated them fairly, and accurate results will follow the use of fair procedures. In this case, the justices considered the meaning of due process for these students who had been suspended for allegedly violating school rules.

In Tinker v. Des Moines School District (1969), protesting students who wore black armbands to protest the Vietnam War were protected from sus- pension. The students were free to express opinions at odds with the govern- ment and therefore could not be indoctrinated with other beliefs by educa- tors. Justice Abe Fortas wrote, “It can hardly be argued that either students or teachers shed their constitutional rights . . . at the schoolhouse gate . . . Students in school as well as out of school are ‘persons’ under our Constitu- tion.”

Justice Hugo Black, one of the Court’s strongest defenders of the First Amendment, dissented and wrote that the Goss v. Lopez decision “subjects all the public schools in the country to the whims and caprices of their loudest mouthed, but maybe not their brightest, students.”

There were four justices who dissented: Chief Justice Burger, Justice Rehnquist, Justice Blackmon, and Justice Powell. These justices, in dissent- ing, wrote that in the Court’s action to invalidate an Ohio statute that permit- ted student suspension from school without a hearing opened the door for judicial intervention in the operation of public schools that might adversely affect the quality of education. Secondly, it allowed for the right of students not to be suspended for even a single day without notice and a due process

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hearing. Finally, in their opinion, “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 consti- tutional rule.”

Justices: William O. Douglas (majority), associate justice; William J. Brennan Jr. (majority), associate justice; Potter Stewart (majority), associate justice; and Byron R. White (majority), associate justice, wrote an opinion. Thurgood Marshall (majority), associate justice; and Warren E. Burger (dis- sent), chief justice, agreed with the opinion written by Powell. Harry A. Blackmon (dissent), associate justice, agreed with the opinion written by Powell. Lewis F. Powell Jr. (dissent), associate justice, wrote an opinion. William H. Rehnquist (dissent), associate justice, agreed with the opinion written by Powell.

Reasoning: The Goss v. Lopez case and other 5–4 Supreme Court deci- sions raise the question of how the Court could be so severely divided. The answer is found in the nature of reasoning. Reasoning is explaining or jus- tifying why a justice decided to choose one side over another in a conflict. That reasoning is based upon the legal factors that support one side over another. This could include precedents (previously decided Court decisions that are supposed to guide judges in deciding present similar cases), the law (existing constitutional and statutory laws that apply to the case in question), and other factors (these include the political affiliation of the justice, his or her personal ideology, or experience, etc.).

List of Precedents

Tinker v. Des Moines (1969): Students do not shed their constitutional rights at the schoolhouse door. The Court has repeatedly emphasized the need for affirming the comprehensive authority of the states and of school officials, consistent with fundamental constitutional safeguards to prescribe and con- trol conduct in the schools.

West Virginia Board of Education v. Barnette (1943): 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.

Fuentes v. Shevin (1972): The length and consequent severity of a depri- vation is not decisive of the basic right to a hearing of some kind.

Wisconsin v. Constantineau (1971): The due process clause forbids arbi- trary deprivations of liberty.

Epperson v. Arkansas (1968): By and large, public education in our na- tion is committed to the control of state and local authorities.

Grannis v. Ordean (1914): The fundamental requisite of due process of law is the opportunity to be heard.

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San Antonio School District v. Rodriguez (1973): Education is not a right protected by the Constitution.

Tinker v. Des Moines Independent School District

Argued November 12, 1968; Decided February 24, 1969

Facts: 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 objections to the Vietnam War and their support for a truce, decided to wear black armbands during the holiday season. John Tinker, fifteen years old, his sister Mary Beth Tinker, thirteen years old, and Christopher Eck- hardt, sixteen years old, decided to wear their armbands to school. The prin- cipals of the involved schools heard about their plan and along with the school board developed a policy that stated that any student wearing the armbands would be asked to remove them and if they refused they would be suspended. When the Tinker children and Christopher Eckhardt wore the armbands to school, they were asked to remove them. The children refused and were suspended until after New Year’s Day. The parents of the students filed suit asking that the children not be disciplined and also asking for nominal damages.

The Lower Court Decision: The district court dismissed the case on the grounds that the regulation was within the school board’s power in order to prevent a school disturbance. The court referred to but expressly declined to follow the Fifth Circuit’s holding in a similar case that the wearing of sym- bols like the armbands cannot be prohibited unless it “materially and sub- stantially interferes with the requirements of appropriate discipline in the operation of the school” (Burnside v. Byars, 1963). The court of appeals was split and offered no opinion and upheld the lower court’s decision.

The question presented to the Supreme Court was Does a prohibition against the wearing of armbands in public school as a form of symbolic protest violate the First Amendment’s freedom of speech protections?

The Supreme Court’s Decision: The Supreme Court reversed the lower court’s decision by a 7–2 majority decision against the school and in favor of the students wearing the armbands, provided their actions or speech did not interfere with school work or the rights of others in the classroom. The wearing of armbands was “closely akin to pure speech” protected by the First Amendment. School environments imply limitations on free expression, but in this case, the principals lacked justification for imposing any such limits. The principals had failed to show that the forbidden conduct would substan- tially interfere with appropriate school discipline.

First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. Students and teachers do not give up “their constitutional rights to freedom of speech or

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expression at the schoolhouse gate.” The Court also stated that the school did not show that there was any disruption involved—only that the regulation was made to avoid the chance of disruption, and the chance of disruption is not a strong enough reason to take away the right to free speech. It was also relevant that the school did not prohibit the wearing of all symbols of politi- cal controversial significance. For example, students wore buttons relating to national political campaigns without penalty. The Court said it is clearly unconstitutional to prohibit one particular opinion.

As for teachers’ rights, the Court pointed out that teachers are hired to teach a particular curriculum and may be bound by that.

The Precedents

Waugh v. Mississippi University (1915): The Court ruled that the states con- trol institutions they established and that the state can prohibit things it be- lieves detracts from the purpose which the state desired to exist.

Meyer v. Nebraska (1923): The Court ruled that laws that interfered with the liberty of teacher, student, and parent were unconstitutional.

Cox v. Louisiana (1965): The Court ruled that the right to free speech and assembly does not mean that anyone with opinions or beliefs to express may address a group at any public place and at any time.

Hammond v. South Carolina State College (1967): The Court ruled that people in public schools are protected by constitutional rights.

Thomas Guzick Jr. v. Donald L. Drebus et al.

U.S. District Court, N.D. Ohio, Eastern Division 305 F. Supp. 472, April 2, 1969

Facts: Thomas Guzick was a seventeen-year-old junior at Shaw High School in East Cleveland, Ohio. Guzick wore a button to school on March 11, 1969, that promoted an antiwar demonstration. The school principal, Mr. Drebus, ordered the plaintiff to remove the button. Guzick refused to remove the button and was suspended from school until he returned to school without the button. Guzick alleged that his right to wear this button was protected by the First Amendment to the Constitution, that his suspension deprived him of rights guaranteed by the Constitution, and that his suspension was without just cause, without a hearing, and without due process of law. Guzick also alleged that similar buttons were being worn in other high schools in the Cleveland area, and that the acts of the defendants in denying him his right to wear a similar button deprived him of the equal protection of the law as guaranteed by the Fourteenth Amendment.

The plaintiff sought a temporary restraining order enjoining the defen- dants from interfering with his right to wear the button while attending

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school and from refusing to reinstate him. He also sought a declaratory judgment that any rule or regulation of the East Cleveland Board of Educa- tion proscribing the wearing of such buttons was unconstitutional, and he sought damages in the amount of $1,000 per day for every day that he was compelled to miss school.

Findings: On February 24, 1969, the U.S. Supreme Court decided Tinker v. Des Moines, and this landmark case helped formed the basis of the Guzick litigation.

The Court found that a rule permitting the wearing of some buttons and not others would lead to disruptions of the educational process at Shaw. Similarly, a rule that permitted the wearing of any button would occasion the wearing of provocative and inciting buttons and would also disrupt the edu- cational process.

The Court found that if all buttons were permitted or if any buttons were permitted, a serious discipline problem would result, racial tension would occur, and the education process would be significantly disrupted.

The Court stated that the evidence in this case had made it abundantly clear that the school authorities had a factual basis upon which to forecast substantial disruption of school activities if student behavioral conduct re- garding the wearing of buttons was not regulated. Therefore, the Court found the issues in this case in favor of the defendants.

Guzick v. Drebus

U.S. Court of Appeals, Sixth Circuit No. 19681, September 16, 1970

Findings: The court of appeals was persuaded that the factual findings of the district judge were fully supported by the evidence and agreed with the decisions.

Rationale: “Denying Shaw High School the right to enforce this small disciplinary rule (not wearing buttons) could, and most likely would, impair the rights of its students to an education and the rights of its teachers to fulfill their responsibilities” (Weik and O’Sullivan).

Dissenting Opinion: “When a few students noticed the button which the appellant was wearing, and asked him ‘what it said’ the appellant’s explana- tion resulted only in a casual reaction and there was no indication that the wearing of the button would disrupt the work and discipline on the school. I am of the opinion that the judgment of the district court should be reversed and the case dismissed upon the authority of Tinker v. Des Moines Indepen- dent School District” (McAllister).

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Guzick v. Drebus

Supreme Court of the United States March 1, 1971

Petition for writ of certiorari to the U.S. Court of Appeals for the Sixth Circuit was denied. It was noted that Justice Douglas was of the opinion that certiorari should be granted.

Hazelwood School District v. Kuhlmeier

484 U.S. 260 (1988)

Topic: 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.

Issue: Were the First Amendment rights of the students violated? Facts: Petitioners were the Hazelwood School District in St. Louis

County, Missouri; various school officials; Robert Eugene Reynolds, the principal of Hazelwood East High School; and Howard Emerson, a teacher in the school district. Respondents were three former Hazelwood East students who had been staff members of Spectrum, the school newspaper. They con- tended that school officials violated their First Amendment rights by deleting two pages of articles from the May 13, 1983, issue of Spectrum.

Spectrum was written and edited by the Journalism 2 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 dis- tributed 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 paid entirely by the board.

The Journalism 2 course was taught by Robert Stergos for most of the 1982–1983 academic year. Stergos left Hazelwood East to take a job in private industry on April 29, 1983, when the May 13 edition of Spectrum was nearing completion, and petitioner Emerson took Stergos’s place as news- paper adviser for the remaining weeks of the term.

The practice at Hazelwood East during the spring 1983 semester was for the journalism teacher to submit page proofs of each Spectrum issue to Prin- cipal Reynolds for his review prior to publication. On May 10, Emerson delivered the proofs of the May 13 edition to Reynolds, who objected to two of the articles scheduled to appear in that edition. One of the stories described

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three Hazelwood East students’ experiences with pregnancy; the other dis- cussed the impact of divorce on students at the school.

Reynolds was concerned that although the pregnancy story used false names “to keep the identity of these girls a secret,” the pregnant students still might be identified from the text. He also believed that the article’s refer- ences to sexual activity and birth control were inappropriate for some of the younger students at the school. In addition, Reynolds was concerned that a student identified by name in the divorce story had complained that her father wasn’t spending enough time with her mom, her sister, and her prior to the divorce; was always out of town on business or out late playing cards with the guys; and “always argued about everything” with her mother. Re- ynolds believed that the student’s parents should have been given an oppor- tunity to respond to these remarks or to consent to their publication. He was unaware that Emerson had deleted the student’s name from the final version of the article.

Reynolds believed that there was no time to make the necessary changes in the stories before the scheduled press run and that the newspaper would not appear before the end of the school year if printing were delayed to any significant extent. He concluded that his only options under the circum- stances were to publish a four-page newspaper instead of the planned six- page newspaper, eliminating the two pages on which the offending stories appeared, or to publish no newspaper at all.

Findings: The U.S. District Court for the Eastern District of Missouri found that no First Amendment rights had been violated. School officials may impose restraints on students’ speech in activities that are “an integral part of the school’s educational function,” including the publication of a school-sponsored newspaper by a journalism class—so long as the restraint has “a substantial and reasonable basis.”

The Court of Appeals for the Eighth Circuit reversed: School officials had violated respondents’ First Amendment rights by deleting the two pages of the newspaper. The court held at the outset that Spectrum was not only “a part of the school adopted curriculum” but also a public forum because the newspaper was “intended to be an operated as a conduit for student view- point.”

The U.S. Supreme Court, granted certiorari, and reversed: No violation of First Amendment rights had occurred. The Court agreed with the district court that school officials may impose restraints.

Rationale: Justice White delivered the opinion of the Court in which Rehnquist, Stevens, O’Connor, and Scalia joined.

“First Amendment rights of students in the public schools are not auto- matically coextensive with the rights of adults in other settings, and must be applied in light of the special characteristics of the school environment. A school need not tolerate student speech that is inconsistent with its basic

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educational mission, even though the government could not censor similar speech outside the school.

“The school newspaper here cannot be characterized as a forum for public expression. School facilities may be deemed to be public forums only if school authorities have by policy or by practice opened the 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 commu- nity. The school officials in this case did not deviate from their policy that the newspaper’s production was to be part of the educational curriculum and a regular classroom activity under the journalism teacher’s control as to almost every aspect of publication. The officials did not evince any intent to open the paper’s pages to indiscriminate use by its student reporters and editors, or by the student body general; accordingly, school officials were entitled to regulate the paper’s contents in any reasonable manner.

“The standard for determining when a school may punish student expres- sion that happens to occur on school premises is not the standard for deter- mining when a school may refuse to lend its name and resources to the dissemination of student expression. Tinker v. Des Moines Independent Com- munity School District, 393 U.S. 503, distinguished 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.

“The school principal acted reasonably in this case in requiring the dele- tion of the pregnancy article, the divorce article, and the other articles that were to appear on the same pages of the newspaper.

“Students in the public schools do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate’ according to Tinker v. Des Moines. They cannot be punished merely for expressing their personal views on the school premises—whether ‘in the cafeteria, or on the playing field, or on the campus during the authorized hours’—unless school author- ities have reason to believe that such expression will ‘substantially interfere with the work of the school or impinge upon the rights of other students.’

“A school need not tolerate student speech that is inconsistent with its ‘basic educational mission,’ even though, the government could not censor similar speech outside the school. Accordingly, we held in Fraser v. Bethel that a student could be disciplined for having delivered a speech that was ‘sexually explicit’ but not legally obscene at an official school assembly, because the school was entitled to ‘disassociate itself’ from the speech in a manner that would demonstrate to others that such vulgarity is ‘wholly in- consistent with the fundamental values of public school education.’

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“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 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 a ‘by policy or by practice’ opened those facilities ‘for indiscriminate use by the general public.’ ‘The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum of public discourse.’

“The policy of school officials toward Spectrum was reflected in Hazel- wood School Board Policy 348.51 and the Hazelwood East Curriculum Guide. Board Policy 348.51 provided that ‘school sponsored publications are developed within the adopted curriculum and its educational implications in regular classrooms activities.’ The Hazelwood East Curriculum Guide de- scribed the Journalism 2 course as a ‘laboratory situation in which the stu- dents publish the school newspaper applying skills they have learned in Journalism 1.’ 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 activity.’ Respondents’ assertion that they had believed that they could publish ‘practically anything’ in Spectrum was therefore dis- missed as simply ‘not credible.’

“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 con- cerns. 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 implicated, as to require judicial intervention to protect students’ constitu- tional rights.’”

The courts have always been particularly suspicious of prior restraint; that is, when a publication is censored before it can reach the street. School determinations should be based on a school rule that advances an educational purpose and is uniformly enforced. The Supreme Court has identified two evils of prior restraint. First, unbridled discretion in the hands of a govern- ment official constitutes a prior restraint and may result in censorship. Offi- cials should be content-neutral. And second, officials must decide in an expe- ditious manner and not restrain by inaction.

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Rationale for the Dissenting Opinion: Brennan filed a dissenting opinion in which Marshall and Blackmun joined, saying, “Only speech that material- ly and substantially interferes with the requirements of appropriate discipline can be found unacceptable and therefore prohibited (Tinker). In my view the principal violated the First Amendment’s prohibitions against censorship of any student expression that neither disrupts class work nor invades the rights of other, and against any censorship that is not narrowly tailored to serve its purpose. If mere incompatibility with the school’s pedagogical message were a constitutionally sufficient justification for the suppression of student speech, school officials could censor most students or student organizations, converting our public schools into ‘enclaves of totalitarianism’ that ‘strangle the free mind at its source.’ The young men and women of Hazelwood East expected a civics lesson, but not the one the Court teaches today. I dissent.”

New Jersey v. T.L.O.

469 U.S. 325 (1985) U.S. Supreme Court, No. 83-712 Argued March 28, 1984; Decided January 15, 1985

Topic: Search and seizure conducted at public schools. Issues: The case concerns the extent to which a school official can con-

duct a search of a student without infringing on her privacy and Fourth Amendment rights.

Facts: In March 1980, a teacher in a New Jersey high school discovered two girls smoking in the school lavatory. One was T.L.O., a fourteen-year- old freshman. Since this act was in violation of school rules, the two were taken to the principal’s office. The assistant vice principal questioned T.L.O., who denied smoking in the lavatory and even denied that she smoked at all. He demanded to see her purse. He opened it and found a package of cigar- ettes and a package of cigarette rolling papers. In his experience, possession of the papers was usually associated with the use of marijuana. His further search revealed “a small amount of marijuana, 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 marijuana dealing.”

She received a three-day suspension from school for smoking on campus and a seven-day suspension for possession of marijuana. The evidence was turned over to the police, who proceeded against her on a delinquency charge.

Juvenile Court (1980): T.L.O. contended that the search of her purse violated her Fourth Amendment right and that the evidence and her confes- sion were to be suppressed on the grounds of an unlawful search. The Fourth Amendment states, “The right of people to be secure in their persons, houses,

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papers and effects against unreasonable search and seizures shall not be violated, and no warrants shall issue, but upon probable cause.” The juvenile court ruled that no violation of Fourth Amendment occurred and the evi- dence should not be suppressed. The court stated that “a school official may properly conduct a search of a student’s person if the official has a reason- able suspicion that a crime has been or is in the process of being committed, or reasonable cause to believe that the search is necessary to maintain school discipline and enforce school policies.” T.L.O. appealed to the state appellate division, where they affirmed the trial court’s finding.

T.L.O. appealed the lower court ruling to the State Supreme Court of New Jersey. The court agreed with the lower courts that the Fourth Amendment applied to searches conducted by school officials. But the search of the purse was unreasonable and had no bearing on the accusation against T.L.O. The court established that “if an official’s search violated constitutional rights, the evidence is not admissible in criminal proceedings.” The court held that the evidence within the purse had no bearing on the charge of smoking in the lavatory and possession of cigarettes was not a violation of school rules.

The state supreme court granted certiorari to the U.S. Supreme Court to examine the appropriateness of the exclusionary rule (admissibility of illegal- ly seized material/evidence in a criminal proceeding). The Court reversed the ruling of the State Supreme Court of New Jersey, stating that the facts sur- rounding the search were reasonably related in scope to the circumstances that justified the interference in the first place. The decision of the assistant vice principal to open T.L.O.’s purse was reasonable under the exclusionary rule of the Fourth Amendment.

Findings: Justice White delivered the opinion of the U.S. Supreme Court (1985). The Court concluded that the search of T.L.O.’s purse did not violate the Fourth Amendment. The Court was now to question the proper standard for assessing the legality of searches conducted by public school officials.

The U.S. Supreme Court upheld that the Fourth Amendment applies to searches conducted by school authorities, but the special needs of the school environment require assessment of the legality of such searches against a standard less exacting than that of “probable cause.” These courts have, by and large, upheld unwarranted searches by school authorities provided that they are supported by reasonable suspicion that the search will uncover evi- dence of an infraction of school disciplinary roles or a violation of the law.

Do schoolchildren have legitimate expectations of privacy? Schools are faced with striking a balance between the legitimate expectations of privacy and the equally legitimate need to maintain an environment in which learning can take place. Thus, a school official does not need to obtain a warrant before searching a student who is under his or her authority. Obtaining a warrant would interfere with the maintenance of the swift and informal disci- plinary procedures needed in the school. Searches will be based not on prob-

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able cause as stated in the Fourth Amendment but will be based simply on reasonableness. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider “whether the . . . action was justified at its inception” and second, one must determine whether the search as actu- ally conducted is “reasonably related in scope to the circumstances which justified the interference in the first place,” and that the search is not exces- sively intrusive in light of the age and sex of the student and the nature of the infraction.

Sidenote: Many court cases have avoided the constraints of the Fourth Amendment by dealing with school officials conducting in-school searches of students as private parties acting in loco parentis (“in place of the parents,” and therefore charged with some of the parents’ rights, duties, and respon- sibilities).

The U.S. Supreme Court reversed the ruling of the Supreme Court of New Jersey stating that the facts surrounding the search were reasonably related in scope to the circumstances, which justified the interference in the first place. The decision of the assistant vice principal to open T.L.O.’s purse was reasonable. The discovery of the rolling papers provided reasonable suspicion to justify further exploration of the purse and the seizure of the names of people who owed T.L.O. money and the letters of interference of involvement in marijuana trafficking.

Dissenting: Justice Brennan, with whom Justice Marshall joined, concur- ring in part and dissenting in part. They agreed with the courts that school officials must conform their conduct to the Fourth Amendment’s protections of personal privacy and personal security. The dissenting opinion in the decision to allow a school official to conduct an in-school search on “reason- ableness” is not the same as “probable cause” found in the text of the Fourth Amendment. Schools must use the test for probable cause.

Justice Stevens, with Justice Marshall and Justice Brennan joined, con- curring in part and dissenting in part. Dissented was the argument that the exclusionary rule shouldn’t apply to searches conducted by school officials. Evidence collected illegally is inadmissible in a criminal proceeding.

Additional Search and Seizure Case Laws: In the case of Angela Lee Williams, a minor, by her father and next friend, William Hardy Williams v. Jerald M. Ellington et al., U.S. Court of Appeals for the Sixth Circuit, Case No. 90-5993, decided June 24, 1991, plaintiff Williams sought monetary damages and injunctive and declaratory relief for an alleged warrantless strip search of her performed by officials of Graves County High School, May- field, Kentucky.

On January 19, 1988, the principal of Graves County High School, Jerald Ellington, received a telephone call from a student’s mother who expressed concern over a situation in which her daughter, Ginger, was confronted with drugs. Although no names were disclosed, the mother reported that a student

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had offered drugs to her daughter. Later that day, Ellington called Ginger into his office to learn more about the incident. Ginger reported that during typing class on the day before, she had seen Williams and another girl, Michelle, with a clear glass vial containing a white powder. Ginger also stated that the two girls placed the powder on the tips of their fingers and sniffed it. One of the girls then offered the powder to Ginger, but she refused it. Ellington asked Ginger if she had any problems with the girls and was satisfied there was no animosity between them to provide Ginger with an ulterior motive for reporting the incident.

Ellington then spoke with Williams’s typing instructor, Brenda Cobb, in whose class the alleged drug use occurred. When asked if she had noticed anything peculiar during class on the day of the purported drug use, Cobb indicated that Michelle’s behavior was strange. Cobb approached Michelle, who told the teacher she had the flu. Ellington then relayed Ginger’s report to Cobb, prompting her to remember an incident involving Williams the previ- ous semester. During the first semester, Cobb found a typed note under Williams’s desk in which Williams referred to parties involving her friends and use of the “rich man’s drug.” When Cobb questioned Williams about the letter, she passed it off as a joke.

During the next few days, Ellington also spoke with Mary Jean Young, Williams’s aunt and school guidance counselor, and Michelle’s father so that both families would be apprised of the situation. Michelle’s father expressed concern that Michelle might be using drugs and disclosed that Michelle had recently stolen $200.00 from his bureau drawer.

Also during this same week, Michelle came to Ellington and reported that another student, Kim, and Kim’s boyfriend Steve were inhaling a substance nicknamed “rush.” “Rush” was a volatile substance that could be purchased over the counter, and while possession of “rush” was legal, inhalation of it was illegal under Kentucky law. Coincidentally, Kim and Steve also came to Ellington and insisted that it was not they but other students who were using the substance. Following these reports, Ellington questioned the motives of these students in coming forward and the validity of the information.

On January 22, Ginger stopped in to see Ellington during her fifth-period geometry class to report “those girls are at it again,” or words to that effect, and indicated she had observed the two girls with the white powdery sub- stance again. Ellington sent Ginger back to class and decided to act on the information before the end of the fifth period. Ellington contacted Assistant Principal Maxine Easley and apprised her of the week’s events. Ellington and Easley then went to the geometry class and called Williams and Michelle out into the hall. Although Ellington observed that neither student appeared dis- oriented or intoxicated, the two girls were taken to the administrative offices. After he had escorted the girls into his office and confronted them with his suspicions, Michelle produced a small brown vial from her purse that con-

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tained “rush.” Michelle claimed the vial belonged to Kim, and although both girls denied possession of any drugs, Ellington decided to search the girls’ lockers because the brown vial did not match the description given by Gin- ger.

At that time, Assistant Principal Donald Jones, who was also aware of the week’s events, went to search Williams’s assigned locker. No drugs were found in this locker, nor in the locker Williams had been using to store her personal items. Likewise, a search of Williams’s books and purse conducted by Assistant Principal Easley produced no evidence of drugs. Finally, Elling- ton asked Easley to take Williams into her office and search her person in the presence of a female secretary. It should be noted at this point that the search and seizure policy in effect at the time Williams was searched was instituted by the board in 1985 and stated the following: “A pupil’s person will not be searched unless there is a reasonable suspicion that the pupil is concealing evidence of an illegal act . . . When a pupil’s person is searched, the person conducting the search shall be the same sex as the pupil; and a witness of the same sex shall be present during the search.”

Inside Easley’s office, Williams was asked to empty her pockets, which she did. Easley then asked her to remove her T-shirt. After some hesitation, Williams complied and was then asked to lower her blue jeans to her knees. Easley found no evidence of drugs as a result of this search.

In the present case, the search and seizure policy promulgated by the Graves County School Board is a facially valid, district-wide policy allowing for the search of a pupil’s person if there is a reasonable suspicion that the student is concealing evidence of an illegal activity. Moreover, the exact language of its policy reiterates the criteria set forth by the U.S. Supreme Court in the case of New Jersey v. T.L.O. (1985) that “in balancing a stu- dent’s privacy interests under the Fourth Amendment against the need for order and safety in schools, the legality of a search of a student should depend upon the reasonableness of the search, under all circumstances.”

It is well established that students do not “shed their constitutional rights . . . at the schoolhouse gate.” In New Jersey v. T.L.O., the Court, in discussing Fourth Amendment rights of school students within the confines of the educational environment, stated, “The accommodation of the privacy interests of schoolchildren with the substantial need of teachers and adminis- trators 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.”

In such cases, the courts apply a twofold inquiry to determine what con- stitutes “reasonableness, under all the circumstances.” First, the search must be “justified at its inception,” and a search will meet this requirement “when there are reasonable grounds for suspecting that the search will turn up evi- dence that the student has violated or is violating either the law or the rules of

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the school. Second, the search must be reasonable in its scope, and the search will be permissible 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.”

In this case, the Court found that in light of the established acts at the time of the search, it was not unreasonable for Principal Ellington to believe that the ordered searches were not a violation of Williams’s constitutional rights.

In Williams, the court of appeals also made note of the Supreme Court’s ruling with regard to an “informant’s tip.” In determining the threshold of reasonable suspicion, the court held that there must be an independent indicia of reliability to warrant a search. Principal Ellington’s actions were based in part on the information given to him by Ginger. Ellington felt that there was not an ulterior motive to Ginger reporting the incidents to him and felt that she was not motivated by malice. The court of appeals agreed with Ellington and stated that the informant’s tip, although unverified, was extremely help- ful in establishing reasonable suspicion. Ellington carefully questioned Gin- ger about any improper motive for making the allegations, and was satisfied none existed. Moreover, in addition to Ginger’s “tip,” other evidence was presented to Ellington during the course of the week. There was the discov- ery of Williams’s letter found in the typing class, the suspicion of Michelle’s father that his daughter was using drugs, and Michelle’s production of the vial containing “rush.” Based on the circumstances, there existed both the quality and quantity of information for Ellington to reasonably suspect Williams was concealing evidence of illegal activity on her person.

Ingraham v. Wright

Supreme Court of the United States 1977 430 U.S. 651, 97 S. CT. 1401

Topic: Compensation and punitive damages for injuries caused by corpo- ral punishment.

Issue: Is corporal punishment cruel and unusual? Does the “paddlee” have the right to seek restitution for personal injuries caused by corporal punishment?

Facts: Lemmie Deliford and Solomon Barnes were assistant principals at Drew Junior High School in 1970–1971. Deliford policed the halls wearing brass knuckles. Barnes wore the brass knuckles as well but was usually seen carrying a large wooden paddle.

One day a fourteen-year-old boy by the name of James Ingraham was moving off a stage a bit slower than what the principal had in mind, so two assistant principals held him face down over a table while the principal, Willie Wright, struck him on the buttocks at least twenty times with a paddle. This beating required immediate medical attention. The physician noted that

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the boy’s backside sustained severe hematomas that required one week of bed rest, along with an assortment of pain managers and laxatives. When Ingraham returned for his follow-up visit, the physician found that there was still bruising as well as oozing fluid. The doctor recommended an additional seventy-two hours of bed rest.

Another student, Roosevelt Adams, was paddled on at least ten different occasions during the school year. During one episode he was struck on the arm, leg, neck, and back. On another occasion he was hit across the wrist, which prevented him from being able to use his arm for one week.

Daniel Lee was a bystander who was told to bend down and “get a little piece of the board.” Solomon Barnes hit Lee on the hand four or five times, which fractured, enlarged, and disfigured his hand.

Rodney Williams was in class and stood up to wipe particles off his chair, which bought him a beating of his head and back with a paddle, and an additional whipping with a belt. Williams required surgery to remove the lump on the side of his head, resulting from paddling. As a result of another beating, Williams reportedly coughed up blood.

Findings of the U.S. Supreme Court: Mr. Justice Powell delivered the opinion of the Court.

The Supreme Court of the United States reiterated that the Eighth Amendment provides “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” It was the Court’s belief that those tenets had been traditionally interpreted to protect the right of the criminals. Further, the school child has little need for the protection of the Eighth Amendment. They stated that the openness of the public school creates natural safeguards for the students.

The Constitutional question is whether the imposition abides by the re- quirements of due process according to the Fourteenth Amendment. Three factors must be considered:

1. The private interest being affected. 2. The risk of an erroneous deprivation of such interest and the question-

ing of whether more procedural safeguards are necessary. 3. The state’s financial interest in the changing of procedure.

“Because there are few reports of abuse at the hands of the school, the Court believes that the state statute is working as intended. Imposing further safe- guards for the child would be of little, if any, benefit. The Due Process Clause does not require advance notice of disciplinary action of the student. Corporal Punishment is authorized and limited by common law, and in some instances by state statute.”

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Gebser et al. v. Lago Vista Independent School District

524 u. s. 274 (1998), No. 96-1866 Argued March 25, 1998; Decided June 22, 1998

Topic: The liability of the school district under Title IX for a teacher’s sexual harassment of a student.

Issue: What standard of liability applies to a school district under Title IX for a teacher’s sexual harassment of a student?

Facts: Frank Waldrop was a teacher at Lago Vista High School. In Jane Doe’s ninth-grade year she was assigned to Mr. Waldrop’s advanced social studies class. Mr. Waldrop often flattered the student and would sometimes spend time alone in his room with her.

In the spring of 1992, Waldrop went to Doe’s house at a time when her parents weren’t home, claiming the need to return a book to the student. Waldrop made sexual advances toward the student by fondling her breasts and unzipping her pants. The summer following this episode, the fifteen- year-old and the teacher frequently engaged in sexual encounters, but never on the school grounds.

The next school year, parents complained to Michael Riggs, the principal, claiming Mr. Waldrop was making sexually inappropriate comments around female students. Riggs responded to the complaints with a cursory investiga- tion in which Waldrop denied the accusation and the investigation ceased. The superintendent was never apprised of the complaints.

In January 1993, the affair between Waldrop and Doe ended when a Lago Vista police officer happened upon the teacher and student having sex.

Findings of the U.S. Supreme Court: Justice O’Connor delivered the opinion of the Court. The Court held that school districts are not liable under Title IX for teacher-student sexual harassment unless an employee with supervisory power over the offending employee actually knew of the abuse, had the power to end it, and failed to do so. They ruled that petitioners could not satisfy that standard.

Judge O’Connor acknowledged that this affirmation of the judgment of the court of appeals did not affect any right of the recovery that any individu- al may have against a school district or the teacher in his or her capacity under state law.

Vernonia School District 41 v. Wayne Acton

Supreme Court of the United States 515 U.S. 646; 115 S. Ct. 2386 Argued March 28, 1995; Decided June 26, 1995

Topic: Random drug testing as a requirement for participation in school athletics.

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Issue: Do random urinalysis drug tests of student athletes constitute “un- reasonable searches” and an invasion of privacy by public school officials, which are prohibited by the Fourth and Fourteenth Amendments of the U.S. Constitution?

Facts: The school district is located in the logging community of Verno- nia, Oregon, and consists of one high school and three grade schools. As in many school districts across the nation, school athletics play a prominent role in the community.

In the mid- to late 1980s, district teachers and administrators observed a sharp increase in drug use. Not only were student athletes included among the drug users, but athletes were leaders of the drug culture because as athletes, they were considered role models. District officials began consider- ing a drug-testing program and proposed a Student Athlete Drug Policy. The school board approved the policy for implementation in the fall of 1989 after unanimous approval was given by parents who attended a parent “input night.” The policy’s express purpose was to prevent student athletes from using drugs, to protect their health and safety, and to provide drug users with assistance programs.

The policy applied to all students participating in interscholastic athletics. Each student who wished to participate in sports was required to sign a form consenting to random urinalysis drug testing and to obtain the written copy sent to his or her parents. Athletes were tested at the beginning of the season for their sport. In addition, once a week during the season, the names of the athletes were placed in a “pool.” A student, under the supervision of two adults, blindly drew the names of 10 percent of the athletes for random testing. Those selected were notified and tested the same day if possible.

To obtain the sample, the student and an adult monitor of the same sex entered an empty locker room. Each boy produced a sample at a urinal, remaining fully clothed and with his back to the monitor, who stood twelve to fifteen feet behind the student. Although they did not always, monitors could watch the student while he produced the sample and listen for normal sounds of urination. Girls produced samples in an enclosed bathroom stall so that they could be heard but not observed. The samples were sent to an independent laboratory, which tested them for amphetamines, cocaine, and marijuana.

In the fall of 1991, James Acton, a seventh-grader, signed up to play football at one of the district’s grade schools. He and his parents refused to sign the drug-testing consent forms and thus the district would not allow him to participate in the football program. The Actons filed a lawsuit against the district seeking declaratory and injunctive relief from enforcement of the policy on the grounds that it violated the Fourth and Fourteenth Amendments of the U.S. Constitution.

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Findings of the U.S. Supreme Court: According to the Supreme Court, Vernonia’s Student Athlete Drug Policy did not violate the Fourth and Four- teenth Amendments of the U.S. Constitution.

Rationale: The Court concluded that school children are not entitled to full Fourth Amendment protections. The basic premise is that when a child is in school, his or her parents have delegated their “custodial and tutelary” parental powers to the school officials. Such delegated power permits school officials to display a “degree of supervision and control that could not be exercised over free adults.”

The Court further concluded that the urinalysis testing and related disclo- sure statements about current medications constituted only a “negligible” invasion of privacy. Athletes voluntarily subject themselves to regulations that are not imposed on nonathletes. For example, athletes undergo preseason physical examinations; they undress and shower in a “communal” setting each day in the locker room; they must acquire insurance coverage or sign an insurance waiver; and they must maintain minimum grade point averages. As a result, the Court concluded that “athletes have an introduced expectation of privacy” and thus, if there were any invasion of privacy, it was negligible.

Morse et al. v. Frederick

Supreme Court of the United States 515 U.S. 393; certiorari to the U.S. Court of Appeals for the Ninth Circuit Argued March 19, 2007; Decided June 25, 2007

Primary Holding: The First Amendment permits schools to ban students from showing messages promoting the use of illegal drugs at school events.

Facts: At a school-sanctioned and school-supervised event, petitioner Morse, the high school principal, saw students unfurl a banner reading “Bong Hits 4 Jesus,” which she regarded as promoting illegal drug use. Consistent with established school policy prohibiting such messages at school events, Morse directed the students to take down the banner. When one of the stu- dents who had brought the banner to the event—respondent Frederick— refused, Morse confiscated the banner and later suspended him. The school superintendent upheld the suspension, explaining, inter alia, that Frederick was disciplined because his banner appeared to advocate illegal drug use in violation of school policy.

Petitioner school board also upheld the suspension. Frederick filed suit under 42 U.S.C. § 1983, alleging that the school board and Morse had violat- ed his First Amendment rights. The district court granted petitioners’ sum- mary judgment, ruling that they were entitled to qualified immunity and that they had not infringed Frederick’s speech rights. The Ninth Circuit reversed. Accepting that Frederick acted during a school-authorized activity and that the banner expressed a positive sentiment about marijuana use, the court

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nonetheless found a First Amendment violation because the school punished Frederick without demonstrating that his speech threatened substantial dis- ruption. It also concluded that Morse was not entitled to qualified immunity because Frederick’s right to display the banner was so clearly established that a reasonable principal in Morse’s position would have understood that her actions were unconstitutional.

“Held: Because schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use, the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending Frederick. Pp. 5–15.

“Frederick’s argument that this is not a school speech case is rejected. The event in question occurred during normal school hours and was sanc- tioned by Morse as an approved social event at which the district’s student- conduct rules expressly applied. Teachers and administrators were among the students and were charged with supervising them. Frederick stood among other students across the street from the school and directed his banner to- ward the school, making it plainly visible to most students. Under these circumstances, Frederick cannot claim he was not at school. Pp. 5–6.

“The Court agrees with Morse that those who viewed the banner would interpret it as advocating or promoting illegal drug use, in violation of school policy. At least two interpretations of the banner’s words—that they consti- tute an imperative encouraging viewers to smoke marijuana or, alternatively, that they celebrate drug use—demonstrate that the sign promoted such use. This pro-drug interpretation gains further plausibility from the paucity of alternative meanings the banner might bear. Pp. 6–8.

“A principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promot- ing illegal drug use. In Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, the Court declared, in holding that a policy prohibiting high school students from wearing antiwar armbands violated the First Amendment, id., at 504, that student expression may not be suppressed un- less school officials reasonably conclude that it will ‘materially and substan- tially disrupt the work and discipline of the school,’ id., at 513. The Court in Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, however, upheld the suspension of a student who delivered a high school assembly speech em- ploying ‘an elaborate, graphic, and explicit sexual metaphor,’ id., at 678. Analyzing the case under Tinker, the lower courts had found no disruption, and therefore no basis for discipline. 478 U.S., at 679–680. This Court re- versed, holding that the school was ‘within its permissible authority in im- posing sanctions . . . in response to [the student’s] offensively lewd and indecent speech.’ Id., at 685. Two basic principles may be distilled from Fraser. First, it demonstrates that ‘the constitutional rights of students in public school are not automatically coextensive with the rights of adults in

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other settings,’ id., at 682. Had Fraser delivered the same speech in a public forum outside the school context, he would have been protected. See id., at 682–83.

“In school, however, his First Amendment rights were circumscribed ‘in light of the special characteristics of the school environment.’ Tinker, supra, at 506. Second, Fraser established that Tinker’s mode of analysis is not absolute since the Fraser Court did not conduct the ‘substantial disruption’ analysis. Subsequently, the Court has held in the Fourth Amendment context that ‘while children assuredly do not “shed their constitutional rights . . . at the schoolhouse gate” . . . the nature of those rights is what is appropriate for children in school,’ Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 655–56, and has recognized that deterring drug use by schoolchildren is an ‘important—indeed, perhaps compelling’ interest, id., at 661. Drug abuse by the Nation’s youth is a serious problem. For example, Congress has declared that part of a school’s job is educating students about the dangers of drug abuse, see, e.g., the Safe and Drug-Free Schools and Communities Act of 1994, and petitioners and many other schools have adopted policies aimed at implementing this message.

“Student speech celebrating illegal drug use at a school event, in the presence of school administrators and teachers, poses a particular challenge for school officials working to protect those entrusted to their care. The ‘special characteristics of the school environment,’ Tinker, 393 U.S., at 506, and the governmental interest in stopping student drug abuse allow schools to restrict student expression that they reasonably regard as promoting such abuse. Id., at 508, 509, distinguished. Pp. 8–15.

“439 F. 3d 1114, reversed and remanded.” Roberts delivered the opinion of the Court, in which Scalia, Kennedy,

Thomas, and Alito joined. Thomas filed a concurring opinion. Alito filed a concurring opinion in which Kennedy joined. Breyer filed an opinion, con- curring in the judgment in part and dissenting in part. Stevens filed a dissent- ing opinion in which Souter and Ginsburg joined.

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