Prior to the 1950s and 1960s, students had few, if any, legal rights within public schools. It was subsequently ruled that state governments have created a property right to public education by establishing compulsory attendance laws. Therefore, students have procedural and substantive rights to due process in situations where school officials deny attendance (i.e., suspension or expulsion). Since the 1960s, state and federal courts have begun outlining the rights of students with regard to public schools, and students and parents have used litigation successfully to broaden those rights. Students maintain their constitutional rights when they enter public schools. However, the courts tend to support limitations when balancing student rights against the needs of public school boards to effectively manage schools; maintain a safe environment for students, staff, and faculty; and meet educational goals. Federal statutes provide specific rights for students with and without disabilities. The federal government has also enacted many statutes ensuring that students’ rights are protected.
This entry looks at student rights in the areas of public education, free speech, privacy, discipline, religion, and disabilities. The rights of students are often complicated and may vary from state to state. Public School Law: Teachers’ and Students’ Rights, by Cambron-McCabe, McCarthy, and Thomas, provides a more complete discussion of these rights.
Freedom Of Speech
Tinker v. Des Moines (1969) was one of the first U.S. Supreme Court decisions affecting the rights of students. The Court ruled that students do not lose First Amendment rights to freedom of speech or expression when they enter public school. Students have the right to express their political and ideological views unless the expression interferes with school discipline.
The Supreme Court ruled in Hazelwood v. Kuhlmeier (1988) that public school administrators have the right to censor student expression in any school-sponsored publication or activity. The Tinker decision deals with a student’s right of personal expression on school property, and Hazelwood establishes the authority of public school educators over school-sponsored publications. The Court established censorship criteria for school-sponsored publications.
School officials do not have the right to censor non-school-sponsored student publications. Students have the right to distribute materials they have prepared, including religious material. Public schools can limit the distribution of student publications according to reasonable time, place, and manner restrictions. Time, place, and manner restrictions must be content neutral, must not restrict all distribution of a particular type of communication, must show a substantial state interest justifying the limitations, and must be narrowly tailored so that the state interest is furthered and no more free speech expression is limited than necessary.
Right To A Public Education
The Fourteenth Amendment of the U.S. Constitution provides that states cannot “deprive any person of life, liberty, or property, without due process of law.” States have created a property right to attend public school by mandating that children attend school between certain ages. States or public schools cannot deprive a student of the right to attend public school without due process of law. Due process of law has two parts: procedural due process and substantive due process. When the state tries to deprive an individual of a property right, such as the right to attend public school, the state must notify the individual of any charges, provide an opportunity to counter the charges, and give a fair hearing. Under substantive due process, the state must be able to show that it based its actions on a reasonable goal or purpose and that the action is needed to reach that goal.
As long as a child’s parents or legal guardians are residents in a school district (even if they are illegal aliens), the child is entitled to attend schools in the district. School districts are not required to provide an education for children who have taken up residence apart from their parents solely for educational reasons. Parents can satisfy the school attendance requirement by enrolling their children in private schools. Most states allow tutoring or home schooling to satisfy the mandate.
The McKinney-Vento Homeless Assistance Act of 2001, which is part of the No Child Left Behind Act, protects the education rights of children displaced because of disasters. Under the Act, homeless children have the right to go to school where they were enrolled before they became homeless, even if their new shelter is in another district.
Public schools must provide appropriate programs for students who have limited English proficiency (LEP). The Equal Education Opportunities Act of 1974 requires public schools to help LEP students overcome language barriers. According to Title VI of the Civil Rights Act of 1964, federally funded schools cannot prevent students from participating in any program or activity based on race, color, or national origin. Linguistic minorities are included under Title VI’s national origin category.
Students do not have a property right to participate in extracurricular activities. The courts view participation in these activities as a privilege. School officials may deny participation in these activities without providing due process.
Privacy Rights
The Family Educational Rights and Privacy Act of 1974 (FERPA) gives parents the right to see their child’s educational records. Schools cannot release this information to third parties unless the parent(s) authorize release. Students who are 18 years old or older have a right to see their school records. Schools cannot release the educational records of these students to third parties, including a student’s parents, without the student’s authorization. If schools or educational agencies violate these FERPA regulations, the school or agency will lose federal funding.
Searches And Drug Testing
Students have a Fourth Amendment right “against unreasonable search and seizures”; however, the courts weigh this right against the school’s interest in maintaining a safe campus. The need for a safe environment is viewed as an overriding state interest that may justify minimal intrusions into a student’s constitutional protection against unreasonable search and seizures. The courts have found that the use of metal detectors in public schools is a minimal intrusion into students’ rights when weighed against the school’s need to provide a safe environment.
Public school authorities may search student lockers and personal belongings if there is reason to suspect that the student possesses items that are illegal or against school policy. School personnel do not need a search warrant to conduct searches of this type; however, law enforcement officers need a search warrant if they conduct a search at a school.
Students who voluntarily participate in athletics and extracurricular activities may be subject to random drug testing. Public schools cannot require a student who does not participate in these activities to take drug tests unless there is reasonable suspicion that the individual is under the influence of drugs.
Discipline
The federal courts have long upheld a school district’s right to maintain discipline on its school campuses. Rules and regulations must be reasonable and needed to manage the school or to provide for the welfare of faculty, students, and staff. Students and their parents are entitled to a copy of school rules and regulations.
School officials may discipline students for breaking school rules and regulations, but should consider the student’s age, mental capacity, and prior behavior and be sure the punishment is appropriate. The courts have also agreed that if a student’s behavior away from school affects the welfare of the school, school administrators may discipline the student.
Suspension and expulsion are acceptable forms of punishment. It is possible for a student to lose his or her property right to an education for violating school regulations; however, students are entitled to due process procedures when faced with suspension or expulsion. Students have a right to due process before receiving punishment for violating school regulations. In the event that the school punishes a student illegally, the student has the right to have his or her status restored and his or her record expunged of all references to the punishment.
Unless prohibited by state law or school board policy, school administrators can use reasonable corporal punishment. Considerable debate surrounds the question of what is “reasonable.” It is clear that minority children, children with disabilities, and boys are more frequently physically punished than other students. In all but six of the one hundred largest school districts in the United States, students are protected from corporal punishment in the form of paddling. In terms of legal guidelines, the student’s substantive due process rights may be violated when corporal punishment reaches the level that the Fourth Circuit Court described in Hall v. Tawney (1980) as “brutal and inhumane abuse of official power literally shocking to the conscience.” It is also permissible for teachers and administrators to use reasonable academic sanctions as punishment for nonacademic purposes. Academic sanctions must also serve a recognized school purpose; for example, many courts have ruled that lowering grades for excessive absences does serve an educational purpose.
Religious Rights
The establishment clause of the First Amendment states that the federal government cannot create any law that establishes religion or prohibits an individual from freely practicing religion. The establishment clause applies to state government via the Fourteenth Amendment. Public schools cannot sponsor prayers, hold Bible readings, or encourage students to include religious messages in speeches, such as graduation addresses. Students have the right to pray or meditate silently or engage in private devotionals as long as these activities do not interfere with regular school activities. Courts have allowed teachers to provide a moment of silence in the classroom, but cannot encourage students to use that time for prayer.
The Equal Access Act requires that federally funded secondary schools allow religious clubs the right to meet during noninstructional periods if the school allows other student groups this privilege. The secondary school establishes a limited open forum for all student groups when it allows such groups to meet on campus during noninstructional periods.
Public schools may allow students release time to attend off-campus religious instruction classes, but cannot encourage students to attend these classes. The school cannot allow the use of school property for religious instruction.
Students have the right to excused absences for religious holidays and observances. Schools are not required to make allowances for such absences if doing so creates an undue hardship for the school. Students may also be exempt from any school activities that are in conflict with religious beliefs unless such an exemption interferes with academic requirements. In 1972, the Supreme Court ruled that Amish children are not required to attend school after completion of the eighth grade.
Students With Disabilities
Rights for students with disabilities are covered by the Rehabilitation Act of 1974, the Americans with Disabilities Act of 1990 (ADA), and the Individuals with Disabilities Education Act (IDEA). Titles II and III of the ADA apply to public and private schools, respectively. The ADA prohibits discrimination against disabled individuals regardless of age. The IDEA applies to children ages three through twentyone with disabilities. These children are entitled to a free and appropriate public education (FAPE).
The FAPE requires that the disabled child be educated in the least restrictive environment. The public school must pay for and supervise each FAPE. School districts may place a child in a public or private school that is able to provide an appropriate education to meet the child’s needs.
Bibliography:
- Brown et al. v. Board of Education of Topeka, 347 U.S. 483 (1954).
- Cambron-McCabe, N. H., McCarthy, M. M., & Thomas, S. B. (2004). Public school law: Teachers’ and students’ rights (5th ed.).
- Boston: Pearson Education. Hall v. Tawney, 621 F.2d 207 (1980).
- Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).
- Lau v. Nichols, 414 U.S. 563 (1974).
- Pember, D. R., & Calvert, C. (2007). Mass media law 2007–2008. Boston: McGraw-Hill.
- Tinker v. Des Moines School District, 393 U.S. 503 (1969).
- What relief agencies should know about the educational rights of children displaced by disasters. (2006).
- Greensboro, NC: National Center for Homeless Education. Wisconsin v. Yoder, 406 U.S. 205 (1972).
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