Student Rights

Speech,
Expression, and
Privacy
Freedom of Speech &
Expression
 1943--Supreme Court states that
“freedom of press, freedom of speech,
freedom of religion are in preferred
position”
 Expression--used interchangeably with
speech, which overlaps with press
 Freedom of speech & press--not
absolutes
 Clear and Present
Danger
 Clear and present danger test--1950
 Balance
 1st--substantial interest in limiting the speech
 I.e.--overthrowing gov’t
 2nd--constitutes a “clear and present danger”
 I.e.--yelling fire in a theater
 Doesn’t fit the public schools
 School is privilege rather than right
 Can repress
Tinker v. Des Moines
Independent School
District, 1969.
 Est. the “material and substantial
disruption” test
 Students have rights
 Can’t deny b/c it makes one feel “…
discomfort and unpleasantness…”
 When & how restrain can occur is
determined on a case by case basis
Tinker v. Des Moines
Independent School
District, 1969.
 1965--3 high school students wore
black armbands to school to protest
the Vietnam War
 Didn’t disrupt school but motivated
by wish to avoid controversy
 Other forms of speech were not
censored
Tinker v. Des Moines
Independent School
District, 1969.
 Court Ruling
 Denial of freedom of expression
must be justified by a reasonable
forecast of substantial disruption
 Bethel School District
No. 403 v. Fraser, 1986.
 Matthew Fraser--a high school
student gave a speech at a
school assembly containing
profanities and sexually explicit
language
 Bethel School District
No. 403 v. Fraser, 1986.
 Courts have to balance
 right to advocate unpopular
and controversial issues
 the school’s interest in
teaching socially appropriate
behavior
 Bethel School District
No. 403 v. Fraser, 1986.
 Fraser argued violated due
process b/c he didn’t know he
would be punished
 Courts held that a school isn’t
expected to anticipate every
infraction
 Mustn’t conflict with school’s
educational mission
Chandler v. McMinnville
School District, 1992.
 3 categories of speech
 Vulgar, lewd, obscene, etc--Fraser
 Doesn’t have to be during school event
 School-sponsored speech--Fraser &
Hazelwood
 Inconsistent with ‘basic educational
mission’
 Neither or these categories
 Forecast substantial disruption
Chandler v. McMinnville
School District, 1992.
 2 students protested the use of
replacement teachers by wearing buttons
 School only tried to suppress buttons with
the word scab
 Not lewd or obscene
 Not viewed as bearing imprimatur of
school
 Nothing indicating present or future
disruption
Student Appearance
 1st, 9th,14th Amendments & Civil
Rights Act
 Hair length
 Supreme Court not important enough
 Federal & State Courts don’t agree
 School Uniforms
Canady v. Bossier
Parish School Board,
2001.
 Qualifies as protected speech but it
is not absolute
 3 Categories
 Tinker--doesn’t interfere with school
 Fraser--lewd, obscene
 Hazelwood--related to legitimate school
pedagogical concerns
Canady v. Bossier
Parish School Board,
2001.
 Weigh
 Has to further government interests
 Isn’t to suppress student expression
 If the incidental restrictions of the 1st
Amendment are no more than
necessary to further gov’t interests
Forum Analysis
 Conditions when gov’t can restrain
speech & expression
 Traditional forums--used for public
discourse--(not lewd or imprimatur)
 Limited public forum--regulation of
time, place & manner but not content.
 Reserved, closed or nonpublic forum--
gov’t has power to preserve property
Lamb’s Chapel v.
Center Moriches Union
Free School District,
1993.
 School that creates a limited public forum
cannot deny access to religious group.
 May limit in non-public forum if viewpoint
neutral
 Rule 7--all religions are treated equal
 Child rearing & family values--not fair if all
others are allowed to espouse their views
 Also doesn’t est. religion (Widmar) or
foster an unreasonable entanglement
(Lemon).
Student Publications
 Public--gov’t cannot exercise prior
restraint
 Schools--different standards
 Can have prior restraint
 Must have potential for disruption or
obscene
 Have to make a decision
Student Newspapers
 Forum analysis
 Categories of Publications
 School sponsored--can regulate
 Underground--if allow then have limited
public forum--can only regulate time,
place, & manner
 Religious--determined on whether
limited public forum or closed forum
 Hazelwood School
District v. Kuhlmeier,
1988.
 School officials deleted 2 pages
from a school newspaper.
 Closed forum
 bears the imprimatur of the school
 Doesn’t meet the school’s standards
 Violates other students’ rights
The Internet and
Free Speech
 Can regulate use in school
 Different legal questions arise when from
outside of school
 limited public forum
 can bypass school’s permission
 Can’t regulate time, place & manner
 Must demonstrate material & substantial
disruption
Beussink v. Woodland
R-IV School District,
1998.
 Student created a homepage
criticizing the school.
 District didn’t demonstrate any
foreseen disruption but was upset by
content
 Court ruled his homepage was
constitutionally protected speech
 Privacy:
Search & Seizure
 4th Amendment--must have
probable cause to get a warrant
 Cops
 probable cause & a warrant
 Schools
 Reasonable suspicion--belief & some
facts not equal to proof
 Must further school purpose
 Reasonableness of
Searches
 New Jersey v. T.L.O.
 Justified at inception
 Related to objectives of the
search and not excessively
intrusive
Special Needs & the
expansion of school
search powers
 Special Needs
 Vernonia v. Acton & Pottawatomie County
v. Earls
 Decided by schools when may be harmful
 Lower expectation of privacy
 Procedures aren’t overly intrusive
 May just be preventive
Canine Searches
 Varies
 Lockers ok
 Cars ok b/c not accessible
 Persons not ok
 Need individual suspicion & can’t come
from the dog
Strip Searches
 General Rule--the more intrusive the
search, then the more necessary it
is to show probable cause
 Must constitute a danger to school
 Searches for drugs, weapons, etc
have been upheld with reasonable
suspicion
 Metal Detector
Searches

 Reasonable rationale applies

 Balance
 Degree of intrusion against the
severity of the damages posed
Exclusionary Rule

 Weeks v. United States, 1914.

 Evidence seized without a warrant
cannot be used in federal courts
 Was expanded to state courts in 1961.
 Not applied to schools
Liability for illegal
search
 Immune
 don’t violate clearly established
statutory or constitutional rights
 Do so in the good-faith fulfillment
not out of ignorance or disregard
 Not immune
 Excessively intrusive
 Not justified at inception
 No individualized suspicion
New Jersey v. T.L.O.
 Search ok
 Act in furtherance of schools not
parents
 Child does have right to privacy but
must be balanced against the need for
order
 Justified at inception--led to 2nd search
 Vernonia School
District 47J v. Acton,
1995.
 Random Urinalysis for
Interscholastic Athletes is
Constitutional
 Less expectation of privacy
 Voluntarily subject themselves to
regulation
 Limited intrusion
 Drugs are a concern
(Board of Education of Independent
School District No. 92 of)
Pottawatomie County v.
Earls

 Expanded the Acton ruling to

non-athletic extracurricular
activities.
Cornfield v. Consolidated High
School District No. 230
 Strip search was reasonable; no
violation of 4th Amendment
 Used 2 prong test--justified at inception
& permissible in scope
 Based on evidence over time
 No drugs doesn’t negate right to search
State of Iowa v. Jones, 2003.

 Annual, school-wide locker cleanout ok

 Not overly intrusive--gov’t interest
purpose of search
 Search of coat doesn’t require least
intrusive action
 Schools don’t have to wait for problem to
arise
 Evidence isn’t excluded
Isiah B. v. State of
Wisconsin, 1993.
 Atmosphere of tension & fear at
Madison High School
 Reasonable depends on context
 M.P.S.--written policy retaining
ownership
 No reasonable expectation of
privacy in his locker