Straight Talkon

Students' Rights

Who are we talking about?

Pre-K through 12th 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 thesuspension and an opportunity

to present his or her sideof the story.

For any long-term suspension(more than 5 days), the student

must be given notice of thesuspension and an opportunity

to present his or her sideof 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

1st 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.”

4th 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.”

5th 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 regulatespeech that is or appearsendorsed 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 FreedomsParents 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 SilentSchools 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 topolice officers

Doesn't apply toProbation OfficersParole OfficersTeachers/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?