It is a sign of the times that one of the most significant recent court cases regarding free speech came in a dispute about student rights.
Last summer, the U.S. Supreme Court considered the case of a student who unfurled a banner with the absurd slogan “Bong Hits 4 Jesus” during the 2002 run of the Olympics torch in Alaska. The student was not on school grounds, but nearby. The event was not sponsored by his school, but students were encouraged by teachers to attend. Moments after the banner was displayed, the school principal tore it from the student’s hands, and later suspended him for 10 days. Represented by the ACLU, the student went to court.
In almost any other setting, this would have been a gross violation of a person’s right to free speech. But in a 5-4 ruling, the Court sided with the district, saying that schools have an interest in controlling messages about illegal drugs and can censor such speech.
This case illustrates the current challenges faced by advocates for students’ rights. Since at least the 1940s, U.S. courts have recognized that the Constitution applies to students in public schools. But in recent years, technology, the ongoing war on drugs and the use of police tactics for school discipline are raising new legal questions about the boundaries of students’ rights.
Legal advocates for the rights of students believe that the future of civil liberties depends on each generation learning to cherish our nation’s heritage of freedom. In exercising rights while in school, young people come to see the Bill of Rights as a living, breathing document that affects their lives. Respecting students’ rights teaches an important civics lesson.
The Rights of Students
Though youths don’t have the full rights of adults, they still enjoy fundamental freedoms. The Constitution doesn’t have an age limit on freedom of speech or a minimum age for protections against unreasonable searches.
The great landmark decision for students’ rights came, of course, in the case of Tinker v. Des Moines Independent School District.1 A school district suspended a group of students in Iowa for wearing black armbands to protest the war in Vietnam in violation of a policy banning armbands on campus. The ACLU challenged this policy on behalf of the students.
In ringing prose, the U.S. Supreme Court ruled that “students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” It concluded that school officials may not censor student speech just because it could offend others. The Court found that schools can limit student speech on campus only if it substantially disrupts the educational process or invades the rights of others. And the disruption has to be real, not just speculation by administrators.
But how to balance the rights of students with school security and other needs of school officials remains a hotly contested issue.
The Fourth Amendment protects youth from unreasonable searches. Yet the Supreme Court has granted school officials the power to search students’ purses and backpacks without warrants or probable cause. In 1995 and in 2002, the Court even gave schools the power to search the bodies of students, upholding the use of urine tests for students without individual suspicion.
So, in Washington and elsewhere, advocates for youth have looked to state constitutions, which can have stronger and clearer guarantees for rights, to buttress the case for respecting the liberties of students.
The Landscape in Washington
Washington has been a major testing ground for student rights.
The most significant student free-speech case following the Tinker decision, for example, came from our state. In Bethel School District v. Fraser,2 the U.S. Supreme Court upheld the suspension of a student who made a sexually suggestive speech at a school assembly. Expanding on the Tinker standard, the Court ruled that the student’s speech could be censored because the school had a valid interest in “teaching students the boundaries of socially appropriate behavior.”
In the 1990s, Washington produced some of the first challenges to student speech on the Internet and precedent-setting rulings that extended free expression rights to cyberspace. The ACLU sued the Kent School District when it suspended a star basketball player for five days for posting a Web page with satirical “obituaries” of students. His English teacher had assigned mock obituaries the previous year, and the district took no action about the student’s Web site until a TV news report talked of a “hit list” on the Internet. In 2000, U.S. District Court Judge John Coughenour ruled against the district, saying that the suspension violated the student’s right to free speech.3
A test in state court ensued after a high school in Lacey suspended a student for a month for posting a Web parody lampooning his school’s assistant principal. Citing Tinker, the Thurston County Superior Court agreed with the ACLU’s position that though the satire may have been highly offensive to administrators, the school had no jurisdiction over speech that wasn’t produced at school or with school resources.
School policies that treat all students as suspects have sparked other legal battles. Hazen High School in Renton sought to bar band members from a field trip if they refused to allow officials to search their luggage for alcohol. The ACLU relied on the state constitution to support a student’s challenge to the practice. In 1985, the state Supreme Court issued a landmark ruling, saying that public schools may not search a student without individualized suspicion.4
Not all students’ rights conflicts end up in court. In 2004, the Nine Mile Falls School District in eastern Washington began using dogs to search student lockers and property. Officials would place a school in “lockdown” and dogs would be taken around the school, sniffing students’ belongings for contraband. After the ACLU and Spokane’s Center for Justice threatened to sue the district, Nine Miles Falls dropped the dog searches.
The next major ruling to affirm or limit students’ rights likely will come from policies that require students to undergo urine testing in order to participate in extracurricular activities. In May 2007, the Washington Supreme Court heard arguments in a case brought by parents and students in Wahkiakum School District in southwest Washington. A similar suit against the Cle Elum-Roslyn School District is pending in Kittitas County Superior Court.
In both suits, the ACLU contends that suspicionless testing violates the Washington Constitution’s provision that “no person shall be disturbed in his private affairs, or his home invaded, without authority of law.”
Aaron Caplan is staff attorney for the ACLU of Washington.
1 393 U.S. 503 (1969).
2 478 U.S. 675 (1986).
3 Emmett v. Kent School Dist. No. 415, 92 F. Supp. 2d 1088 (W.D. Wash. 2000).
4 Kuehn v. Renton School Dist., 103 Wn.2d 594, 694 P.2d 1078 (1985).
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