Most people at one time or another have heard stories about students’ lockers being searched unfairly, student newspaper articles being censored or students sent home from school because of something offensive printed on their T-shirt, but few actually understand students’ rights in the public school system.
In short, students’ rights are no different than anyone else’s, but they may be justly compromised from time to time. While students do have the right to free speech and protection from illegal searches, those rights are balanced against the educational mission of the schools. The litmus generally is whether the students’ actions disrupt that mission.
That’s why schools may censor student articles or enforce dress codes. Courts often say that the educational process is in some ways about learning and studying controversial issues. The question is not so much if the action upsets other students but whether it would tend to provoke a disturbance. For example, a racist T-shirt would not pass any test; it is highly likely to provoke violent reactions.
A Supreme Court case during the Vietnam war demonstrates this point. It began when students wore black armbands to school in protest of the war. Consequently, the students were expelled. But the Court said the students’ actions were accepted in the school context because they weren’t intended to disrupt education, and you can’t ban speech based on other students’ reactions.
As for lockers, Wisconsin statutes say student lockers are school property. Ordinarily, the law would say that because schools are public property, there’s no reasonable expectation of privacy, but Wisconsin also has a statute that says locker searches can only be done without a warrant if it’s reasonable.
Wisconsin has several other statutes regarding students, including
- uniforms are OK in public schools so long as there’s a process where parents can exempt their children;
- public schools may not employ corporal punishment or subject students to strip searches;
- parents of students under age 18 are the only people with the right to see their child’s school records. Once students turn 18, they — and no one else, not even parents — are the only people entitled to see their school records.
State statutes cannot impinge on federal constitutional rights. For example, all Wisconsin public schools are required to start the day with the pledge of allegiance, but federal statutes dictate that no students can be required to say it or punished for not saying it. Likewise, you may discuss religion in schools and even sing Christmas carols, but you cannot force any students to be involved in observing religious holidays or participate in prayer.
When schools do attempt to stifle speech or other students’ rights, courts will consider "time, place and manner" restrictions. In other words, any restrictions on speech must be content neutral. That means you can’t allow students to wear armbands protesting a war while not allowing students protesting anti-war movements to wear similar symbols.
Time, place and manner restrictions also require schools who open their facilities to private groups to do so equally and to all groups who so request. Once you allow any group to use your public facilities, you cannot censor it because of content.
If as a parent you’re unhappy with what’s happening at your child’s school, try to work with the school. All these esoteric rights can be meaningless at the micro-level, and much can be accomplished through mutually respectful, open communication with teachers and administrators. While you are your child’s best advocate, be reasonable about it — remembering your child is watching you.
Reprinted with permission from Holmen Courier and Onalaska Community Life, September 29, 2006.