Student RightsSpeech Expression and Privacy

Unit QuestionsHow far can school officials go in

restricting student speech in the interest of school safety?

What limits can school officials place on student speech that occurs off of school grounds?

Is a student’s choice of dress protected by the 1st Amendment?

Is it constitutional for school officials to censor a school sponsored publication, such as a newspaper or a yearbook?

Student Rights v State RightsEducation is not a fundamental

rightStudents do have 1st and 14th

Amendment rightsBalancing responsibility

◦Public schools respect the rights of the student

◦Students respect their obligations to the state

Free Speech

Tinker v Des Moines SC 1969 Major Concepts• http

://www.rightsmatter.org/multimedia/ or @ http://www.aclu.org/free-speech/mary-beth-tinker-40th-anniversary-landmark-free-speech-decision

FactsQuestionDecisionRationale

Students do not shed rights at the school house door

Must have a reasonable forecast of substantial disruption

Free Speech

Bethel v Fraser SC 1986

FactsQuestionDecision Rationale

Student SpeechChandler v. McMinnville During the strike the district

hired replacement teachers. Two students wore and distributed buttons that displayed slogans, “I am not listening scab.” and “Do scabs bleed?” The students refused to remove the buttons and were suspended from school for the remainder of the school day. They filed suit claiming violation of their free speech rights under state and federal constitution.

Morse v Frederick SC 2007 http://www.aclu.org/free-speech/morse-v-frederick-in

formation-and-resources (video)

http://www.msnbc.msn.com/id/17687386/ (video)

You be the Judge! Robert was a generally disruptive

student who frequently skipped school. One day a community parade, celebrating a local war hero, was held. Part of the route went past the school. Robert, who skipped school that day, was photographed holding a sign across the street from the school during the parade that said ”Keep the Peace: Smoke Some Weed”. All of the students were allowed to leave school, to stand outside to see the hero go by. Many were encouraged to wave signs of support. His principal saw the photo in the evening newspaper, and suspended him for holding up the sign.

Areas of student speech that can be censoredObscene, lewd and vulgarSpeech which can be reasonably

forecasted to cause material and substantial disruption

School sponsored

School UniformsCanady v Bossier

5th Circuit 2001

Student Publications Hazelwood v Kuhlmeier SC

1988 Diagram

http://www.youtube.com/watch?v=aNtailTq5vA&feature=related

http://www.splc.org/legalresearch.asp?id=3

Internet and Free Speech

Concepts Cases Internet communication is

◦ Protected under the 1st Amendment

◦ More related to print than broadcast

Internet as instruction

Internet that has undesirable effect on school conduct

Beussink v Woodland R-IV US District 1998

Wisniewski v Bd of Ed 2nd Circuit 2007

Analysis of Internet lawStudent cyberspace created on campus that

is lewd, vulgar, or profane may be prohibited Bethel

Student cyberspeech created off-campus that constitutes a true threat to school safety and school operation may be prevented Tinker

Student cyberspeech cases are increasingly subject to a court’s assessment restraint was exercised or punishment meted out after an assessment of the relevant facts by a reasonable recipient (school official) of the information.

Threat of ViolenceDoe v Pulaski US Court of Appeal 2002

Seventh grade student wrote a letter at home stating how he would rape, sodomize, and murder a female classmate who had previously broken up with him. The student did not send the letter, but his best friend found the letter in his room. He allowed his friend to read the letter. The friend took the letter, and gave it to the girl at school. Her friend reported it to the SRO, who conducted an investigation and informed the principal. The student was expelled.

Did the District violate his 1st Amendment rights when they expelled him?

Privacy: Search and SeizureBalance studentright to freedomfrom reasonablesearch and seizure with school’s need to maintain orderand protect health and welfare

4th AmendmentEnunciates and protects right of people to

be secure in their person, houses, papers, and effects

Protects from unreasonable searches and seizures

Ensures that the search be specific, describing place to be searched and articles to be seized

Ensures that a search cannot be instituted by government without showing probable cause, or evidence that the search is necessary

Requires that a judge require government justification with evidence of need for the search

Reasonable SuspicionReasonable

suspicion◦ Justified at

inceptionIntrusiveness

affected by age, sex, infraction

Context - individualized suspicion

Questions: Inception of SearchCould a principal threaten to call a parent to get a

student to reluctantly, but voluntarily, empty his pockets producing a pipe and marijuana?

Could a student be searched because he had been in a room with some items which then were missing, and later found in his possession?

Could a principal search a locker because he knew the student was previously involved in drugs, and drugs were found in the locker?

Could a principal search a student’s car if the student appeared to be under the influence – glassy eyes, flushed face, slurred speech, smelling of alcohol, and the search revealed cocaine?

Questions: IntrusivenessCan a principal search a boy’s

calculator case because it had a bulge?

Can school officials force a student to remove her jeans and submit to a visual search of her brassiere because she had ducked behind a car, and given school officials a false name?

Context of the SearchA loosely articulated fact pattern,

not related to a specific violation, is too vague to support reasonable suspicion

Individualized suspicion is required- cannot do a wide search of groups of students without specific knowledge of rule violations by any particular student(s)

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CanineStripMetal Detector

SearchesCanineStripMetal DetectorLocker

LiabilityEvidence could be excluded from

criminal proceedingsStudent can bring action for damages if

officials maliciously deny student’s constitutional rights

Qualified immunity generally protects officials from liability if conduct does not violate clearly established statutory or constitutional rights that reasonable person would have known about

CasesNew Jersey v TLO SC 1985Vernonia v Acton SC 1995Pottawatomie v Earls SC 2002Cornfield v Consolidated 7th

Circuit 1993 JIowa v Jones State SC Iowa 2003Phaneuf v Fraikin 2nd Circuit 2006

You be the Judge!District conducted

searches of randomly selected classrooms by having students exit the room leaving their belongings behind. School officials then search items left behind. One day they discovered a small amount of marijuana in a girl’s purse. She brought suit saying the search violated her 4th Amendment rights.

You be the Judge!District conducted searches of

randomly selected classrooms by having students exit the room leaving their belongings behind. School officials then search items left behind. One day they discovered a small amount of marijuana in a girl’s purse. She brought suit saying the search violated her 4th Amendment rights.

Guidelines for SearchesStudents have a right to privacyCourts consider the magnitude of the

offense and the extent of the intrusionReasonable suspicion at the inception

requires some evidenceSearch supported by specificity of the

offense and particularized knowledge of location of contraband and identity of the student

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