What Constitutional Rights Do Students Have?
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What Constitutional Rights Do Students Have?

August 23, 2019


(percussion music) – [Stephen] Here at Education
Week, we’ve been digging deep into how to improve K
through 12 civics education. But one thing’s really puzzled us. If the U.S. Constitution
is the core document guaranteeing American’s rights, what does that mean for students? There have been a lot of
U.S. Supreme Court cases that have taken aim at bits and pieces of this question, but it’s
still pretty complicated. – I am a Law Professor at
the University of Chicago and I’ve written a book
called the Schoolhouse Gate. Essentially, it’s about
how the Supreme Court has shaped the nation’s public schools by identifying and protecting students’ constitutional rights. – With Justin’s help, we
looked at four examples of rights that assume different contours for students when they’re in school. We also tested our colleagues
to see what they knew. – [Examiner] Do you know if
students can wear clothing or say things that other
students might view as offensive? – Yes, under freedom of speech, I believe they’d be able to do that. – I think it’s up to the
principal’s discretion. – In the famous Tinker v.
Des Moines ruling from 1969, the Supreme Court recognized that students maintain
some free speech rights. It ruled that students
who wore black armbands to protest the Vietnam War engaged in protected political speech. It famously said that
free speech didn’t stop at the schoolhouse gate. Here’s the wrinkle. Since 1969, the court has recognized various limits to student expression. In a current free speech
lawsuit in Fresno, a student sued, after
administrators told her that her MAGA hat ran afoul
of the school’s dress code which permits only school logos. We don’t know how a district
court or the Supreme Court might decide on whether
wearing this hat is protected or not, but we do
know that generally free speech for students is limited in a way it’s not, outside of school. – [Examiner] What would
you think if a student was randomly drug tested as part of participating in a student club. – I would doubt that that would be legal. – I feel like it would be legal, but they’d have to sign a form of consent. – The fourth amendment
means that the government and the police generally
can’t search your homes or your belongings, or force
you to take a drug test unless they have a
warrant or probable cause. But to a large extent, that
doesn’t include students. School officials generally
only need to have a reasonable suspicion to
search students’ belongings for evidence that they broke school rules. And it’s okay to require students to take a random drug test as part
of school sports or clubs. – That is distressing
to me because that is a dragnet search, where the
government is sweeping up all sorts of information and
the likelihood of being able to find wrongdoing by any
individual student is quite low. And so that’s really distressing. – It’s not always clear
when a search suddenly moves from permissible to excessively intrusive. – [Examiner] If police
come to school because of a supposed crime, do they
have to read Miranda Rights to students they plan to question? – I would imagine that they should always read Miranda Rights. – They have to read
Miranda Rights to everyone, so that should apply to students. – I would hope so, but
I wouldn’t put it past the police to not ask or
not be required to ask. – Pleading the Fifth, is
shorthand for your right not to give an answer that
might be self-incriminating. In a 2011 ruling, the court
said that police at school violated a seventh grade
student’s fifth amendment rights by not asking if he understood
the right to remain silent. But the court didn’t draw
a clear line in the sand about whether all minors
must receive this warning for a confession to be
admissible in court. – There are these
uniformed police officers who are patrolling the
corridors of American schools and the consequence of
that is that it turns a school sort of issue
into a police issue. And so where 30 years ago, a matter that would have been
left to school authorities to resolve, instead is being
turned into a police matter and so this is a crystal clear example of what people refer to as
the school to prison pipeline. – [Examiner] Do you know
whether paddling students is still legal in the U.S.? – Ooh, paddling students,
that’s a throwback idea. – I’m scared now that it
is, but it should not be. – I do know because I
used to live in the South and it happens all the time, so, yes. – The U.S. military
ended flogging in 1862, and all states had ended whippings as a judge ordered punishment
by the early 1970’s, but surprisingly the U.S.
Supreme Court has repeatedly upheld paddling for students. – There are 18 states
that currently permit corporal punishment, but in some respects that overstates its prevalence
because just five states account for more than 70% of the instances of corporal punishment
and those five states are all in the south and
it will come as no surprise to many that students of color receive a disproportionate share
of corporal punishment. So I hope that this issue
is able to be revisited. – We’ve looked at four
different amendments and we’ve still only
scratched the surface here. But the overall thing to
know is that while schools are supposed to educate kids
about the U.S. Constitution, they’re also permitted to curtail some of students’ Constitutional rights. Also, there’s no real road
map or checklist for educators on how to balance kids’ rights with their own teaching mission. It’s a big challenge for schools without a clear answer. We hope you’ll read more
about Civics, Civic education, students’ rights, and students’ voice as part of Education
Week’s Citizen Z project.

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  1. I have read Prof. Driver's book. Regarding the Eighth Amendment challenge he proposes in light of how norms have evolved since the days of Ingraham v. Wright, this could include the less obvious, less intrinsic cruelties that can result from school paddling as generally practiced. For example, there's generally no policy to determine if a student has a physical condition that makes corporal punishment medically risky or extra painful (e.g., already suffering a bruised backside from recent punishment at home) or is dealing with PTSD or other major psychological stresses, which not only may account for unruliness but also are apt to be aggravated by punitive blows.

    At the same time, I'm wondering to what extent the "unusual" criterion might be applied to characteristics of a punishment other than simply how commonplace it is. Paddling is certainly much less so nowadays; however, it also strikes me as unusually imprecise and unusually hazardous (i.e., liable to cause greater harm than intended) for a government-issued penalty. While I don't support capital punishment, it seems like current methods in the U.S. of administering it are at least subject to some degree of scientific rigor, with an aspiration to deprive the condemned of life without additionally inflicting physical pain. The mortal element is measured in standard units and carefully regulated. In the case of lethal injection, execution is a process governed by medical and pharmaceutical expertise. By contrast, the crude "standard unit" of school corporal punishment is a swat (or alternatively, a lick), a single instance of a paddle striking a student's backside—subject to huge, scarcely measured variables. These include the size, weight, composition and design of the paddle, the velocity of impact (which depends much on the paddler's strength, mood, temperament, and energy level), and the exact placement of the paddler's swing. 

    A certain number of swats is often prescribed as proportionate to the student's offense, yet in reality a child may sustain worse pain and injury from a single high-power swat than others will in an average three-swat session. Keep in mind, school personnel receive no professional training in how to paddle students. (No education degree course teaches it, either.) Nor are they required beforehand to demonstrate competence at doing it safely and judiciously, and lots of people simply don't know their own strength. Those who serve as a witness (that supposed, unproven safeguard) get no instruction in how exactly they should intervene if a paddling goes overboard. School paddles are generally not subject to careful inspection (to say nothing of OSHA standards, despite their being workplace equipment). There are no safety pads to protect tailbones and thighs from off-target swings. There are no secure restraints to control a student's movements during this painful ordeal. Altogether, we can reasonably expect that paddlers will often times hit harder than they intend to, in some cases, hit parts of the body they don't intend to. /1

  2. Beyond the Eighth Amendment, I believe there are several constitutional arguments against school paddling that could be brought to bear. First, there's the effective negation by "teacher immunity" laws in certain states, e.g., Texas and Alabama, of the criminal and civil remedies upon which the Supreme Court's reasoning in Ingraham was contingent. The whole equation has changed. (In 2001, teacher immunity came close to being enacted as well at the federal level.) 

    There's actually good reason to believe that even without these special laws, school paddlers would enjoy widespread de facto immunity when it comes to corporal punishment. School districts typically answer complaints of excess with impassive assertions that all relevant policy was followed (generally true). Though police and prosecutors may dutifully process and investigate reports made on the student's behalf, it's extremely rare that charges are ultimately filed. And when such cases do make it onto a court docket, judges and juries have almost invariably sided with the paddlers, no matter how hideous the injuries they inflicted. Can this virtual-zero success rate for beaten students' families who seek redress be plausibly attributed to anything other than prejudice against the punished (or perhaps resignation to such prejudice, on the part of some law enforcement officials and prosecutors), whose families moreover may be seen as having maligned a popular principal, teacher, or coach? These outcomes, in any event, seem most often to square with prevailing local sentiment, which can rise to major backlash against corporal punishment victims/parents who cry foul. 

    Whether the greater barrier is written laws or cultural attitudes, we should wonder: Of all the parents who didn't take legal action, despite being upset over a school's brutal paddling of their child for which no one so much as apologized, how many could attest that one or more attorneys declined to represent them, perhaps citing the dismal track record of similar cases? Collectively, these cases make a grim mockery of Justice Powell's tort law prescription for victims of excessive corporal punishment. /2

  3. Since recruiting actual victims to be plaintiffs is so challenging in general, I've also wondered how it would play out if the parents of a child who has not been paddled so far tried proactively to get an injunction to stop the practice in their child's school. It could be argued that he or she is at risk of injury or trauma by virtue of how demonstrably unchecked the use of physical punishment is, citing various documented cases of horribly severe school paddling meted out with impunity in places with similarly lax policies and laws (or better yet, if possible, in the very same district). There also needs to be a discussion about the extent to which the beating of errant students may cause second-hand trauma, distress or anxiety to other students who broke no rules. Corporal punishment doesn't just impact the kids who are paddled. It also can affect any who witness/overhear the paddlings, see paddle-induced bruises in the locker room, or are just sufficiently attuned to a beaten schoolmate's emotional state.

    As a side note, I struggle to understand how physical punishment harsh enough to qualify as child abuse in domestic settings could nonetheless fail to "shock the conscience" (ref: pp. 490-93 of an article in the Georgetown Law Journal by Ed Week contributor Nicole Mortorano, entitled "Protecting Children’s Rights Inside of the Schoolhouse Gates: Ending Corporal Punishment in Schools"). Does that level of one-sided pain infliction not inherently shock the conscience, regardless of whether it occurs in a school or in a house or some other building? It occurs to me that this oft-remarked double standard permitting greater severity in a teacher's punishment than in a parent's (in loco parentis-plus?) should at least be more of a double-edged sword. Namely, if a teacher who's also a parent is known to inflict big bruises on other people's children, that's enough of a red flag to warrant a CPS inquiry into how his or her own kids are treated.   /5

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