Home Articles Reader Opinion Editorial Book Reviews Discussion Writers Guide About TCRecord
transparent 13

Civil Rights of Public School Students

by Richard M. Blankenburg - 1971

Court decisions favoring students over school districts are discussed. (Source: ERIC)

Lately student protest and activism have raised serious questions concerning the rights of public school students. Because of recent litigation by some students or their parents, the courts have been forced to delineate student rights. Certainly, educators, especially those charged with administrative responsibility, should be well informed of these newly defined civil rights.

Actually, the term "civil rights" has a legal connotation. Civil rights means the rights the individual has under the law. A brief legal definition is: "Civil rights are such that belong to every citizen of the states or the country, or in a wider sense to all its inhabitants." And that includes children. Also civil rights is "A term applied to certain rights secured to citizens by the Fourteenth Amendment and by various acts of Congress"1 (including tire Civil Rights Act of 1964 which has been cited in recent cases dealing with students excluded from school because of long hair).

In looking at the difference between the public schools and the private schools relative to civil rights, it is important to look at the legal relationship between the school and the student. In a public school the relationship is one of government. The public school is an extension of the state. The relationship is one of government and citizen. This is very important in civil rights because the antithesis of civil rights is police power. Police power is defined as "that inherent and plenary power in the state over persons and property which enables the people to prohibit all things inimical to comfort, safety, health, and welfare of society."2

Public schools, as an agency of the government, possess police power; this differentiates the relationship between school and student in a public school situation from that in a private school situation. In a legal sense the relationship between the private school and the student is one of contract. It is, however, important to realize a person cannot be deprived of his civil rights by contract; a person cannot contract away his constitutional rights. And, of course, even in a private school, students and administrators are obliged to respect the comfort, safety, health, and welfare of society.

But the public school represents a direct government-citizen relationship. There have been times when the courts have decided on the civil rights of public school students, which many parents and administrators recognize as justified in terms of the legal issues, but question whether the conclusions are in the best interest of the educational operation. For example, for years school teachers have contended, and the courts maintained, in the absence of parents that teachers become a kind of legal parent for the time the student is in school. The legal terminology is in loco parentis.

A Nefarious Doctrine A recent decision made by a Wisconsin circuit court shocked many citizens. A male student had been excluded from school because his hair was too long. The judge ruled in this case there was no evidence a male student who allows his hair to grow long is a threat to society. He refused to accept the argument that the school acting in loco parentis had a right to determine the length of the student's hair. He stated:

The argument that school authorities stand in loco parentis to the student is a tired, worn out slogan.... That nefarious doctrine, in loco parentis, has been employed to heap adult abuse against children by judges and courts as well as teachers in the schools. The prejudice and frustrations of people in power cannot be given unbridled license as practiced against children under the hypocritical disguise that the acts committed against them are for the children's own good.3

Most parents and educators would have to concede the judge was correct in stating long hair is not a real threat to society or public education. But the same individuals, arguing on educational issues rather than legal ones, would insist that civic pride in their school would be enhanced considerably if all the male students were closely and neatly trimmed. (And some would contend shorn students are better behaved.) However, those charged with making these final decisions concerning the liberty of the individual citizen must weigh the civil rights of the accused on one side of the scales of justice and the police power of the state on the other side of that scale. In this case the balance swings in favor of civil rights. It is not a matter of majority rule (that would truly be mob rule), but of the unalienable right of the individual.

Most high school classes study civil rights and the Constitution quite thoroughly, and it would be paradoxical for teachers to advocate unalienable rights and then insist that students wait until after graduation to experience them. This seems to be what the judge in Wisconsin was saying—a student is a citizen with all the rights of a citizen under the Constitution. Recently the court trend has been in favor of male students expelled for long hair.4

Black Armbands In an important Supreme Court case, Tinker v. Des Moines Independent Community School District,5 students of a school district wore black armbands to protest Vietnam war policy. The principals in the district held a meeting, after the initial wearing of the armbands, and enacted a rule prohibiting then- use. The Tinker children continued wearing the black armbands, however, and with others were suspended for disobeying the rule. The Court was called upon to rule on the reasonableness of the suspension.

The Court ruled against the school district in this case. In its decision the Court declared that the wearing of an armband was a symbolic act; its purpose was to express certain views. Wearing the armbands, the Court said, was symbolic speech, the kind of free speech protected by the Constitution. (Of course, all speech is not protected by the Constitution. Justice Oliver Wendell Holmes once said shouting "Fire" in a crowded theater would not be a form of free speech protected by the Constitution.) In this case the Court found no evidence that students wearing armbands had created any disruption of classroom activities whatsoever. And because this symbolic display had not caused any disruption, it was judged free speech, of the kind protected by the Constitution.

Secondly, the Court found evidence that the principals' edict against armbands was based upon viewpoints connected with the Vietnam war. The principals simply disagreed with the armband wearers' opinions and reacted by issuing the ban. As a matter of fact, the court found students were allowed to wear other political symbols, such as political badges. Some students were even allowed to wear iron crosses (which the Court felt also had some political symbolism). The Court declared:

The school officials banned and sought to punish petitioners for a silent, passive expression of opinion unaccompanied by any disorder or disturbance on the part of the petitioners. There is, here, no evidence whatever of petitioners' interference, actual or nascent, with the school's work or of collision with the rights of other students to be secure and to be let alone. Accordingly this case does not concern speech or action that intrudes upon the work of the school or the rights of other students.6

In another place, the Court said:

In our system undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear. Any word spoken in class, in the lunchroom, or on the campus that deviates from the views of another person may start an argument or cause a disturbance, but our Constitution says we must take this risk.7

The Court further stated: "In our system, state operated schools may not be enclaves of totalitarianism. School officials, do not possess absolute authority over their students. Students in school as well as out of school are persons under our Constitution."8

Free Speech Another recent Supreme Court case, Epperson v. State of Arkansas,9 also involved free speech. This case deals with the teacher's free speech which, in essence, affects students, since restriction of the teacher's freedom limits the knowledge made available to students. Arkansas had a law that prohibited teaching the theory of evolution. Because the science textbook included this theory, the teacher would be guilty if she taught from it. The teachers brought this case to court to question the constitutionality of the law.

In striking down the Arkansas statute, the Supreme Court for the first time used the term academic freedom in reference to a public elementary or secondary school. The courts previously had talked about academic freedom in regard to universities, where historically there is a precedent for academic freedom; public schools were not organized to do original research as the university was, and consequently, public schools did not warrant traditional academic freedom.

In the Epperson case the Court held: "The vigilant protection of Constitutional freedoms is nowhere more vital than in the community of American schools and this Court will be alert against invasions of academic freedom."10 Apparently, what the Court had in mind was the right of the student to information, stating farther along in its decision: "As this Court said, the First Amendment does not tolerate laws that cast a pall of orthodoxy over the classroom."

In Defense of Conscience In recent years the Supreme Court has also defended the conscience of public school children by ruling that religious services conducted in public school violated the constitutional guarantee of freedom of religion. It is of interest to note, one hundred thirty years ago, the Fourth Provincial Council of the Catholic Church was pressed to decree:

Since it is evident that in the majority of these provinces a system of public education is being so devised as to be subservient to heresies, by gradually and imperceptibly imbuing the minds of Catholic children with the false principles of the sects, we admonish pastors that with all possible zeal they provide for the Christian and Catholic education of Catholic children, and that they diligently watch lest the children use a Protestant version of the Bible, or recite the hymns or prayers of the sects.11

Yet it was not until 1963 that the Supreme Court ruled Bible reading (in the form of religious exercises) was an unconstitutional infringement of the children's religious freedom. The Supreme Court in School District of Abington Township v. Schempp12 held Bible reading ceremonies in public schools violated two clauses of the Constitution: the guarantee of the free exercise of religion and the prohibition against the governmental establishment of a religion. The Court went on to say, however, "Nothing we have said here indicates that... a study of the Bible or religion, when presented objectively as part of a secular program of education, may not be effected consistent with the First Amendment."

An earlier case, Engel v. Vitale,13 concerned a prayer which the New York State Board of Regents required be said aloud by each class at the beginning of the school day. The prayer was: Almighty God, we acknowledge our dependencies upon Thee and we beg Thy blessings upon us, our parents, our teachers, and our country.

The U.S. Supreme Court decided this statute had the effect of establishing a state religion and as such violated the First Amendment to the Constitution prohibiting the establishment of a religion by government. Justice Hugo Black, quoting James Madison, commented:

It is proper to take alarm at the first experiment on our liberties ... Who does not see that the same authority which can establish Christianity, in exclusion of all other religions, may establish with the same ease any particular sect of Christians, in exclusion of all other sects? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment may force him to conform to any other establishment in all cases whatsoever?14

Loitering In many states the legislatures have been very quick to enact statutes to control the behavior of persons on school grounds, including especially the behavior of students. California, like most other states, enacted a statute which prohibits loitering in the vicinity of the school. In the case of Huddleson v. Hill,16 the defendants challenged the constitutionality of the statute claiming the statute was too vague to enforce. To paraphrase the statute, it stated that loitering in the vicinity of the schools would be punishable by six months imprisonment or a $500 fine.

The term "loitering" is defined as to be slow moving, delay, linger, saunter, or lag behind. In the Huddleson case, the court decided: (1) If you interpreted the statute in the literal sense, it was too vague to be enforced (2) When a court can adopt a broad or restricted construction of the statute, and the restricted one would make it a valid statute, then the restricted construction of the statute is the one that the court should adopt and (3) What the statute in its entirety meant, and what the legislatures intended it to mean, was individuals should be prevented from loitering in the vicinity of schools to commit a crime.

The court specifically defined the meaning of the statute as follows: "As proscribed by the statute, the word loiter obviously connotes lingering in the designated places for the purpose of committing a crime as opportunity may be discovered.... Loitering as forbidden includes waiting, but mere waiting for any lawful purpose does not constitute such loitering."16

The court then concluded:

Therefore, as we construe the state statute before us, persons who merely sit on park benches, loll on public beaches, pause in the vicinity of schools, and public areas frequented by children cannot be reasonably considered as loitering within the compass of the statute. It is only when the loitering is of such a nature that from the totality of the person's actions and in the light of the prevailing circumstances, it may be reasonably concluded that it is being engaged in "for the purpose of committing a crime as opportunity may be discovered," such conduct falls within the statute.17

It would appear from this wording that if a student is excluded from school, and he returns to wait on the sidewalk after school for one of his friends, he is not guilty of loitering. The court's definition of the term "loitering" does throw a different light on the statute; the court has provided a more definitive right of a student in cases where the student is "loitering" in the mind of educators, but not within the interpretation of the statutes.

Privacy Another recent case related to the civil rights of students took place in Mount Vernon, New York. The initial case, People v. Overton,18 concerned Carlos Overton, a student in the public high school. Detectives from the police force came to the school and informed the vice-principal they had a warrant to search the boy and his locker; the vice-principal opened the locker for the police. Marijuana cigarettes were found there, and the cigarettes were used as evidence to convict the boy. It was later discovered that the search warrant of the police officers was not a valid warrant. The prosecution insisted that the validity of the search warrant was not important because the vice-principal had the authority to open the boy's locker at any time necessary. The highest court in New York supported the prosecution.

Yet in an appeal to the Supreme Court of the United States, the Court in Overton v. New York16 overturned the highest court in New York on the basis of more recent Supreme Court decisions. Basically, the Supreme Court held that a person cannot, on the basis of an invalid search warrant, obtain access to the locker of a student after the student has been assigned the locker for his own personal purposes, and obtain evidence from that search to convict the student. The Court did not say a student can grab marijuana cigarettes and run down the hall pursued by the vice-principal and the police department, throw the marijuana in his locker, slam the door, and then demand a search warrant. When there is obvious reason to believe evidence of a crime is concealed in a locker, and there is a danger involved in waiting to obtain a search warrant, a school official would be obligated to open a student's locker. What the Supreme Court does say is this: A police officer cannot lie to a student and say he has a valid search warrant when he doesn't, and by these means obtain evidence which can be used to convict the student. The Court also seems to be suggesting that a principal or vice-principal must have good cause to invade the privacy of a locker assigned to a student for personal use.

Due Process of Law Another aspect of student civil rights, which the courts have been concerned with recently, is the constitutional guarantee that an accused person has "due process of law." The Fifth and Fourteenth Amendments state a person cannot be deprived of life, liberty, or property without "due process of law"; however, due process has not been specifically defined in the Constitution, and the courts have had to determine what actually constitutes due process. A recent case involving students and the due process clause of the Constitution is In the Matter of Gault.20

In this case, a young man on the basis of his own testimony was declared a juvenile delinquent in a juvenile proceeding and was committed to a state institution. Neither he nor his parents were adequately notified of the charges, nor was he adequately represented by legal counsel. The juvenile authorities contended that cases dealing with juveniles were of such a sensitive nature that some elements of due process cannot always prevail.

The Court held that juvenile proceedings which may lead to commitment to a state institution must be regarded as "criminal proceedings" for purposes of applying the privilege against self-incrimination. Unless a confession meets all the requirements of "due process" (notification of the right to attorney and the consequences of confession), commitment of a juvenile to a state institution cannot be sustained in the absence of sworn testimony and the opportunity for cross-examination.

The Court refused to accept the contention of the authorities that juvenile proceedings, because of their sensitivity, did not require procedure consistent with judicial due process. The Court declared: "Neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.... Due process requirements do not interfere with provisions for the processing and treatment of juveniles separately from adults."

A hearing in connection with a juvenile court adjudication of delinquency need not conform to all the requirements of a criminal trial, the Court stated, but it must have all the essentials of due process and fair treatment. The Court declared, "Under the United States Constitution, the condition of being a boy does not justify a kangaroo court."

Madera v. Board of Education of the City of New York21 involved a suspended public school student who was the subject of a school "Guidance Conference." The meeting was attended by the child, the parents, the principal, the superintendent, the assistant superintendent, the guidance counselor, and the school-court coordinator assigned to the district. The conference is not a criminal proceeding, no record is kept, nor is any statement from the conference used in any subsequent criminal proceedings. As a result of such a conference, the student could be reinstated, transferred to another school, or with parents' consent, transferred to a special school for socially maladjusted children. The student contended he had been denied due process because he had been refused the right to be represented by attorney.

The court decided that a "Guidance Conference" did not represent a hearing which required ordinary legal procedure. The purpose of the hearing, the court reasoned, was to consider only educational matters; its consequences, therefore, were not sufficiently serious to require the adversary system ordinarily utilized in court proceedings.

In juvenile hearings which could have serious consequences to the student, it would appear that every care should be taken to guarantee him "due process of law." Boards of education hearings on expulsion would certainly be considered a case of serious consequences to the student. Yet many such hearings do not contain the elements of due process. For example, in many hearings, especially those involving young witnesses, the opportunity for cross-examination is not allowed. Obviously, the effect of an attorney interrogating a young child under the rules of adversary procedure would be difficult to defend. However, there is always the possibility of indirect cross-examination; questions to be directed to the witness could be submitted to the hearing officer by the defense, and then directed to the witness by the less aggressive hearing officer (who could also rule on the relevance of the questions). In this manner the individual could be provided with due process, and the due process could be adapted to juvenile proceedings.

Another aspect of due process relates to how a school handles police investigations of students in the school building. A booklet, Academic Freedom in the Secondary Schools, published by the American Civil Liberties Union, outlines the procedure advocated by the A. C. L. U. The booklet states:

Where disciplinary problems involving breaches of law are rampant, schools cannot be considered sacrosanct against police and the proper function of law officers cannot be impeded in crime detection. Whenever police are involved in the schools, their activities should not consist of harassment or intimidation. If a student is to be questioned by the police, it is the responsibility of the school administration to see that the interrogation takes place privately in the office of a school official, in the presence of the principal or his representative. Every effort should be made to give a parent the opportunity to be present. All procedural safeguards prescribed by law must be strictly observed. When the interrogation takes place in school, as elsewhere, the student is entitled to be advised of his rights, which should include the right to counsel and the right to remain silent.22

Summary Laws relating to the civil rights of public school students have developed quite rapidly during the past few years, eroding, perhaps even eliminating, the traditional authoritarian stereotype of the public school educator. In addition, a reaction seems to be developing to the compulsory school attendance statutes. Perhaps the trend could be called a democratization of the public schools.

Schools possibly will be called upon to make adjustments to these new decisions by the courts, although some of the adjustment would simply be to provide for constitutional liberty. The best posture for American educators would be to exemplify the constitutional Bill of Rights in their relationships with students. If liberty works, it must be made to work at all age levels. In any real concept of education, this is what schools are for.


1 Henry Campbell Black. Law Dictionary, 4th edition. St. Paul, Minn.: West Pub. Co., 1951.

2 Ibid.

3 Wisconsin ex rel. Koconis v. Fochs, Circuit Court, Milwaukee County, 372-043 (October 14,1969).

4 For a decision favoring the student, in addition to footnote 3, see Breen v. Kahl, 296 F. Supp. 702 (D. C. Wis. 1969). For contrary decisions, see Ferrell v. Dallas Independent School District, 392 F. 2d 697 (5 Cir. 1968) and Davis v. firment, 269 F. Supp. 524 (D.C.La. 1967).

5 Tinker v. Des Moines Independent Community School District, 393 U. S. 503 (1969).

6 Ibid.

7 Ibid.

8 Ibid.

9 Epperson v. State of Arkansas, 393 U. S. 97, 89 S. Ct. 266 (1968).

10 Ibid.

11 Sister Mary Salome, "The American Hierarchy and Education" (Doctoral dissertation, Marquette University, Milwaukee, Wisconsin, 1934), p. 165.

12 School District of Abington Township, Pa. v. Schempp, 374 U.S. 203 (1963).

13 Engel v. Vitale, 370 U.S. 421, 82 S. Ct. 1261 (1962).

14 Ibid.

15 Huddleson v. Hill, 40 Cal. Rep. 581 (1964).

16 Ibid.

17 Ibid.

18 People v. Overton, 283 NYS 2d 22 (1967).

19 Overton v. New York, 393 U.S. 85 (1968).

20 In the Matter of Gault, 387 U. S. 1, 87 S. Ct. 1428 (1967).

21 Madera v. Board of Education of City of New York, 386 F. 2d 778 (2 Cir. 1967)

22 Academic Freedom in the Secondary Schools. American Civil Liberties Union, 156 Fifth Avenue, New York, September 1968.

Cite This Article as: Teachers College Record Volume 72 Number 4, 1971, p. 495-504
https://www.tcrecord.org ID Number: 1642, Date Accessed: 12/2/2021 10:58:54 PM

Purchase Reprint Rights for this article or review
Member Center
In Print
This Month's Issue