Do Students Give up Their Rights in Public Schools?

Out of the 27 amendments to the United States Constitution the 1^st and the 4^th are the two that Americans are most familiar. This is because these two are discussed daily in some form of news and social media. These are also the two amendments that have the most impact on our daily lives. For people living in marginalized communities the rights under the 1^st and 4^th amendments become almost like a mental mantra. Yet many parents are unaware of how these two amendments affect the rights of students when applied in public schools.

Amendment 1 – Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

“It’s my opinion and I can say what I want to say. You can’t tell me how I am supposed to feel and express myself!” (Words spoken by numerous students across the country)

In general, students may speak their mind, hand out flyers, invite classmates to sign petitions, and wear expressive clothing but not without exceptions. In Tinker v. Des Moines Independent School District (1969), a group of high school students in Des Moines, Iowa met to discuss their plans to protest the Vietnam War. They decided to wear black armbands to school in a silent protest. The principal heard about the plan and warned students that they would be suspended if they went forth with the protest. Despite the warning, some students wore armbands and were suspended. Their parents sued the school district stating that the suspension violated the students’ rights to free speech. They lost the case in district court and appealed all the way up to the U.S. Supreme Court.

In a majority opinion, the Court ruled that students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The wearing of armbands is considered symbolic speech and in order to justify the suspensions, the principal would have to prove that the conduct would materially and substantially disrupt the learning environment. In this instance there was no proof that the mere wearing of armbands would disrupt the daily functioning of the school. This was the landmark case that determined how schools are to treat freedom of speech in public schools and colleges. There have been many other cases since then to decide this issue. The basic understanding is that a school cannot punish students because they don’t agree with their beliefs or opinions. Courts have upheld student’s rights to wear armbands opposing abortion rights and the right to have an abortion as well as t-shirts that express support for the LGBTQ community. So long as these items do not violate dress codes or present speech that is hateful, lewd, or suggestive, they are considered “content neutral,” and are protected.

What about protests and walkouts?

Protests and walkouts are also protected under the first amendment. The caveat is that a school can punish students for missing class and non-attendance under their policies. However, the school cannot punish students more harshly because of the political nature or the message behind their action for protesting. For example, if a student walks out of school in protest of the genocide in the Sudan and his absence places him in a position to be suspended for up to 5 days, the principal cannot suspend for any more days above 5.

Should students decide to protest off school grounds and outside of school hours, the school has no authority to punish students, although some try. It is in every student’s best interest to check the school’s policy for absences and cutting class at the beginning of each school term.

The principal at my daughter’s school constantly trolls students’ social media. A student was suspended for creating a lewd rating system about celebrities that invited many student comments.

Student rights still apply under social media. As long as your social media posting occurs outside of school hours and does not relate to school, your school cannot punish you.

Amendment 4 – The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause…

“I did not give you permission to search my child’s backpack or his locker and without a warrant you are out of order!” (Words spoken by many parents across the country)

The landmark case that addressed the issue of unreasonable searches and seizures in schools is New Jersey v. T.L.O. (1985). In this case two students, T.L.O. and another student were caught smoking in the bathroom by a teacher. They were then escorted to a school administrator. The first student admitted to smoking, but T.L.O. denied smoking. The administrator searched her purse and found a pack of cigarettes, cigarette rolling paper, a small plastic bag containing a substance that resembled marijuana, a pipe, a wad of money and a piece of paper with names of students who owed T.L.O. money, and a letter that appeared to implicate T.L.O. in dealing marijuana. The administrator contacted the police who, in turn, contacted T.L.O.’s mother. The mother brought T.L.O. to the police station where she confessed to selling marijuana. Since she was only 14 years old, she was charged in juvenile court.

This case set precedent for whether the 4^th amendment probable cause standard is applicable to students in a school setting. Ultimately, it was determined that the search by school officials was lawful. Instead of the probable cause standard, which is applicable to people in the general population, a lesser standard of reasonable suspicion was applied, which excluded the need for a warrant to search in a school setting. This is due to the threat of imminent danger to the lives of all students and faculty under the authority of school officials. In T.L.O., the student violated school policy against smoking and the warrantless search revealed that her activity was more detrimental to the school than merely smoking cigarettes in the bathroom.

A more recent case explains why the lesser standard of reasonable suspicion is necessary in certain circumstances. In 2023, the assistant principal in an elementary school in Newport News, VA was informed that a student might be carrying a gun in his backpack. Despite this warning, the assistant principal omitted to search the child’s backpack. Later that day, the 6 year old student shot his teacher in the face. Thankfully the teacher survived the incident but not without permanent physical and emotional damage.

At the very moment the assistant principal was alerted to the child’s possible possession of a gun, gave rise to reasonable suspicion and the authoritative right to search the child’s belongings without permission from a parent first or calling the police. Had she searched the child, the teacher would not have suffered injury, the child could have received needed counseling, and social services would have been alerted to investigate the household. Instead, this child now has a juvenile record and trauma that may possibly haunt him a lifetime. Thankfully, none of the other children in the class were harmed but we cannot predict the emotional trauma that their parents have to deal with in raising them after witnessing this incident. In this case the assistant principal brushed off the unbelievable and idealized notion that a 6 year old could be harboring a weapon of destruction and allowed it to outweigh the minimal time it would have taken to actually search his bag and prevent a catastrophic event.

This is another Paige from my book.