Straight Talk on Students' Rights

Who are we talking about? Pre-K through 12 th grade  College students have more protections Public school students  NOT private schools On school property or at a school- sponsored event For any long-term suspension (more than 5 days), the student must be given notice of the suspension and an opportunity to present his or her side of the story. For any long-term suspension (more than 5 days), the student must be given notice of the suspension and an opportunity to present his or her side of the story.

Students do not "shed their constitutional rights... at the schoolhouse gate." - Tinker v. Des Moines Students' fundamental rights are weighed against the State's compelling government interests: Education Civic Values Safety In Loco Parentis

3-Way Conflict of Interests Students Parents Teachers Government?

Students have the same rights 1 st Amendment “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.” 4 th Amendment “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, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” 5 th Amendment “No person shall be held to answer for a capital, or otherwise infamous crime... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Freedom of Speech: Students vs. Schools The Rule: Student speech can only be disciplined if it substantially disrupts a school function or educational purpose or interferes with another's rights BUT Schools can reasonably restrict the time, manner, or place where speech occurs AND Schools can regulate speech that is or appears endorsed by the school

Free Speech Cases High School students wear black arm bands to protest a war

Free Speech Cases High School students wear black arm bands to protest a war  Tinker v. Des Moines Student gives teacher the finger at a restaurant

Free Speech Cases High School students wear black arm bands to protest a war  Tinker v. Des Moines Student gives teacher the finger at a restaurant  Klein v. Smith Students refuse to salute flag or recite the Pledge of Allegiance

Free Speech Cases High School students wear black arm bands to protest a war  Tinker v. Des Moines Student gives teacher the finger at a restaurant  Klein v. Smith Students refuse to salute flag or recite the Pledge of Allegiance  Minersville School District v. Gobitis (1940), West Virginia v. Barnett (1943) Student makes lewd innuendos during school assembly

Free Speech Cases High School students wear black arm bands to protest a war  Tinker v. Des Moines Student gives teacher the finger at a restaurant  Klein v. Smith Students refuse to salute flag or recite the Pledge of Allegiance  Minersville School District v. Gobitis (1940), West Virginia v. Barnett (1943) Student makes lewd innuendos during school assembly  Bethel School District v. Fraser Student-run school newspaper runs article on teen pregnancy

Free Speech Cases High School students wear black arm bands to protest a war  Tinker v. Des Moines Student gives teacher the finger at a restaurant  Klein v. Smith Students refuse to salute flag or recite the Pledge of Allegiance  Minersville School District v. Gobitis (1940), West Virginia v. Barnett (1943) Student makes lewd innuendos during school assembly  Bethel School District v. Fraser Student-run school newspaper runs article on teen pregnancy  Hazelwood School District v. Kuhlmeier Student holds up “Bong Hits 4 Jesus” sign on school field trip

Free Speech Cases High School students wear black arm bands to protest a war  Tinker v. Des Moines Student gives teacher the finger at a restaurant  Klein v. Smith Students refuse to salute flag or recite the Pledge of Allegiance  Minersville School District v. Gobitis (1940), West Virginia v. Barnett (1943) Student makes lewd innuendos during school assembly  Bethel School District v. Fraser Student-run school newspaper runs article on teen pregnancy  Hazelwood School District v. Kuhlmeier Student holds up “Bong Hits 4 Jesus” sign on school field trip  Morse v. Frederick

Internet Speech Cases Is there some connection between the speech and some school function?  Was it created on campus?  Was it read/viewed on campus?  Was it directed at the school, teacher, or other student? Is the statement abusive?  More than just lewd or obscene Is it likely to cause a disruption in school?  More than just hurt feelings

Religions Freedoms Parents vs. Schools: Parents have the right to raise their children in their own sincerely held religious beliefs  Parents may choose not to send their students to public schools  Parents may not dictate the curriculum used at the public schools Schools are allowed to expose students to religiously objectionable material, as long as the students or parents may opt out  What if the student chooses not to opt out? Teachers/Schools may not show favoritism between religions

Search & Seizure: Schools v. Students Police Officers need a warrant supported by probable cause (or a warrant exception) to perform a search  Requires objective probability of a crime being done by this particular suspect School Administrators only need reasonable suspicion unless done at police officer's request  Little more than a hunch or anonymous tip that a student has broken some school What about School Resource Officers?  Depends on who pays the bills  Is violation of a law or school rule?

Search & Seizure: Schools v. Students Suspicion-less searches are sometimes allowed  Items found can then justify further searches based on reasonable suspicion There must be some “Special Need” beyond criminal prosecution  Safety of students  Disruption of educational process Types of Searches allowed: Lockers (depending on the school's policy) Drug dog sweeps of schools and students Drug tests for students in extracurricular activities Pregnancy tests (for student athlete) 2 Way mirrors in bathrooms Video surveillance of locker rooms Pat down of clothing Nude searches by same-sex administrators Search of cell phone contents

Right to Remain Silent Schools v. Students Teachers are not required to give students Miranda warnings, or even contact an adult before questioning a student  Unless done at police officer's request Miranda only applies to police officers  Doesn't apply to Probation Officers Parole Officers Teachers/Administrators

School Discipline & Criminal Prosecution Lower protections for students lead to higher number of student prosecutions (as juveniles or adults) How it works: 1) Principal does a Reasonable Suspicion search and/or questions student without Miranda warnings 2) Principal hands off evidence to police officer (sometimes stationed in the school already) 3) Police Officer & Prosecutors use the evidence to support criminal charges The Problem: Prosecutors may not have had access to that evidence if the police had done the investigation with Probable Cause and Miranda restrictions

Questions?