Ch 3: Student Rights and Restrictions

What should be considered before a search?

the magnitude of the offense; the extent of the intrusiveness; the nature of the evidence; background of the student

In loco parentis (in place of parent):

Permits school officials to promulgate rules that allow them to exercise a reasonable degree of control over students under their supervision.

Dress and Appearance

Restricted only when evidence of material or substantial disruption of the educational process; violation of health and safety standards or unusual attention drawn to one's anatomy; justifiable to restrict certain types of dress

Controversial Slogans

T-shirts, caps, other items in direct conflict with school's mission statement ;Vulgar, lewd obscene gestures; lack of common decency; Disruption occurs or reasonable forecast disruption will occur; Mock's others based on race, gender, color, religion, language, sexual orientation, national origin

Time, place and manner of distribution of pamphlets, buttons and insignia

may be regulated by school officials;

Due Process of Law requires

procedural, substantive, Vagueness Test, Presumption Test

4th amendment:

protection of all citizens against unreasonable search and seizure; right of people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated and no warrants shall be issued, but upon probable cause

arbitrary, capricious and indefensible

when a particular form of expression is prohibited due to the desire to avoid discomfort and unpleasantness. Not justified.

justifiable or legitimate reason

when restricting student rights the burden of proof rests with school officials

vagueness doctrine

14th Amendment requirement of fundamental fairness; students must reasonably understand what behavior is expected of them by school officials

material or substantial disruption to the educational process

1st Amendment guarantees freedom of speech to U.S. Citizens. Does not give license to exercise such rights in a certain manner.

Due Process of Law

5th and 14th Amendment provide protection against arbitrary and unfair treatment of individuals by the government; Both prohibit the federal and state from unfairly depriving an individual of life, liberty or property without due process; Procedural and Substantive: applied in cases involving student suspension (minimal due process) and expulsion (full due process); involving dismissal

Intrusive Searches

Dangerous item to pose a serious threat to the health and safety of the student or others in the school; sense of urgency based on this belief; Courts: search considered reasonable; rule based on facts presented; balance the student's privacy rights and the interest of school officials to conduct the search

Expulsion

Formal hearing; school board of education is the only body with legal authority to expel students; board hold hearing; deprives right to attend school (14th Amendment) so needs to include due process and equal protection privileges

Search After the fact; no reasonable individualized suspicion; not justified at its inception

New Jersey v TLO: 4th amendment search and seizure rights

sufficient justification

Policies, rules and regulations require evidence of sufficient justification by school authorities of the need to enforce the policy, rule or regulation

Involvement of Law Enforcement Officials

Preceded by a warrant; strong evidence; reasonable suspicion does not apply; Parents notified and may wish to be present; if no contact: time of day; numbers called, witnesses; If parent not present; school official accompany police; witness; inform parent after of circumstances involving search and resulting action

Tinker Case (1960s)

US Supreme Court; students possess the same constitutional rights as adults and these rights do not end at the schoolhouse door; clear mandate that professional educators respect the civil right of students in the school; (armbands: not disruptive)

Intended to harm the student (excessive punishment)

assault and battery

Use of canines

avoided unless sufficient evidence justifies the need to employ these methods; serious incidents that pose an imminent threat to students' safety

minimal due process

before corporal punishment; rules published to students and parents; inform of rule violation; informal hearing; allow student to respond; on request parent provided written explanation and name of official witness

pat-down search

conducted by a school official of the same sex; with an adult witness of the same sex, if possible;

last resort measure; never be administered with malice or excessively

corporal punishment

Excessive Punishment

cruel and unusual; no consideration is given to the age, gender, and physical condition or the student's ability to bear the punishment

Reasonable prohibition of distributing

during regular school hours or in the corridors between classes

Substantive Due Process

ensures that a valid reason exist before an individual is deprived of life, liberty or property; means to achieve this objective are reasonable;

School officials may restrict freedom of expression

evidence of material ad substantial disruption, indecent or offensive speech, violation of school rules, destruction of school property, or disregard for authority. Students must be provided minimal due process before any punitive action is taken

Strip searches avoided

except where imminent danger exists; justified only in cases of extreme emergency where there is an immediate threat to health and safety of students and school personnel;

corporal punishment

federal courts ruled that excessive corporal punishment violates the substantive due process clause of the 14th Amendment;

due process clause 5th amendment

federal government

School-sponsored newspaper

final decision for printed material rests with student editors

suspensions more than 10 days or expulsions

full protection of due process; notice of charges; prior notice of hearing; right to legal counsel at all appropriate stages; hearing before impartial party; right to compel supportive witnesses to attend; right to confront and cross-examine adverse witnesses and/or to view and inspect adverse-evidence prior to hearing; right to testify on one's own behalf; right to have a transcript of proceedings for use of appeal

Procedural Due Process

guarantees that a prescribed set of steps be followed that allows students and school personnel an opportunity to seek redress for alleged violations before any action is taken against them; procedural fairness; individual's right to be adequately notified of pending charges or proceedings and the opportunity to be heard during these proceedings; designed to prohibit arbitrary and capricious action by school officials

restriction of student rights

if the exercise of those rights infringe on the rights of others; necessary to maintain order and proper decorum in the school

sweep search

illegal

Strip Searches

immediate threat to health, safety or order; most intrusive; probable cause requirement; student in possession of something illegal, against school regulations, or harmful to health and safety of other students;

Prudence

implies that school authorities actions must be consistent with those of the average parent under the same or similar circumstances;

Where should a search take place?

in private setting; minimize embarrassment

Indiscriminate search

indefensible and illegal

Expulsion and Standards of due process and fundamental fairness

informed of 14th Amendment rights (substantive and procedural due process): Stud and Par informed specific infractions; serious misconduct: student entitled to written notice of charges and right to a fair hearing; written notice to Stud/Par in advance of actual hearing;

Suspension record

infraction allegedly committed; time, place, person(s) who witnessed; previous efforts made to remedy the alleged misbehavior

Unsubstantiated fear and apprehension of disturbance

insufficient grounds for restricting the right to freedom of expression

Substantive Due Process public school

involve health, safety, and welfare of faculty and students in public schools; SDP protects individual rights (freedom of speech, assembly and religion); guarantees students' freedoms and property cannot be taken without appropriate justification irrespective of the procedures used i the process

No Pass, No Play

involve parents, students in policies; policies need to be fair, reasonable, and legally defensible; provide remedial support for students who experience academic difficulty in classes;

rudimentary due process

involves oral or written notice of the charges against the student and a fair opportunity to be heard; process is informal and typically occurs directly after the misconduct. Generally, the Administrator, or designee, meets with the student, informs him of the allegations and, literally, asks the student to respond with his/her story of the events.

Hazelwood

leading opinions, provoking student dialogue, and providing a forum for a variety of student opinions; reasonable grounds to censor newspaper (pregnancy, divorce)

US Supreme Court

limits how people are placed on trial (procedural) and what kind of control officials can have over individuals (substantive)

searches to person v locker or desk

locker or desk is school property

School-sponsored newspaper limits to free speech

material that is libelous, vulgar, obscene, or mocks others on the basis of race, origin, sex, color, or religion is impermissible; reasonable control

disciplinary action supported by courts with nonschool sponsored student publications

material that is vulgar, obscene, or mocks others on the basis of race, origin, sex, color, or religion, violates policies on time, place, and conditions of distribution

Buttons, pamphlets, other insignia

may be banned if the message is vulgar, obscene, mocks others based on race, origin, color, sex, or religion. Banned if inconsistent with the basic mission of the school. School Policies must be communicated to students and parents.

searches involving law enforcement officials

must be accompanied by probable cause and a search warrant

searches

must be both "justified at its inception" and "reasonably related in scope to the circumstances which justified the interference in the first place; (school) provide pertinent proof that the student violated a particular policy, rule or law; limited to the incident; cannot search all student with hope of turning up evidence;

Automobile search non-school property

need probable cause; involves law enforcement; present warrant prior to initiation of a search; parents informed to allow them to initiate any steps they deem necessary in a court of law. Ex: student slurred speech, glassy eyed, smell of alcohol; court ruled ok for admin to search car

arbitrary searches or mass shakedowns

not justified as reasonable and are illegal

suspension of up to 10 days

notice of misconduct; opportunity for hearing; hearing may occur immediately after the infraction; rudimentary procedures;

reasonable search

one that clearly does not violate the constitutional rights of students (depends on context)

presumption standard

places restrictions on the power of the state to deprive an individual of liberty and property without sufficient factual evidence to justify its actions; (requires state to clearly demonstrate it has a legal and/or logically defensible basis prior to depriving or restricting student's rights (presumption of innocence: right to jury; right to remain silent)

Desilets v Clearview Regional Board of Education:

prevent taking contraband to field trip; permission slips indicated search; right to provide discipline, supervision and control;

parked on nonschool property

probable cause must be established; involve law enforcement officials required to present a warrant prior to the initiation of the search; parents informed of impending search; illegal items discovered are admissible in court;

5th and 14th Amendment

prohibit the government from depriving a person of life, liberty or property without due process of law; due process requires fundamental fairness, fair processes, and fair procedures

Vagueness Test (applied by court)

protects those who allege discrimination from arbitrary and capricious acts by the employer; laws and policies are considered vague if a person of common intelligence has to guess at their nature; contingent on the nature of the legislation and the consequences that follow

2 standards governing corporal punishment

reasonableness standard: punishment must be exerted within bounds of reason and humanity; good faith standard: person administering the punishment must not be motivated by malice and must not inflict punishment excessively

Student desks:

reasonableness; never on a hunch; school rules violated; health and safety of students threatened; based on clearly written policy; inform students that desks are subject to search if reasonable suspicion is established; policy spells out conditions and circumstances desk searches occur

school suspensions

require substantive and procedural provisions of due process be met; 14th amendment; fundamental fairness: fair hearing, fair trial, fair judgement

Reasonableness

rules are deemed to be reasonable if they are necessary to maintain order and peaceful school environment.

Limits to in loco parentis

school authorities and teachers do not fully occupy the place of the parent; Their control or jurisdiction is limited to school functions and activities.

arbitrary and inconsistent interpretation

schools rules should not be so broad and nebulous; they need to ensure proper order and decorum

justified at its inception

search and seizure

New Jersery v TLO

searches conducted by school authorities are subject to standards of the 4th Amendment, warrant requirement is unsuited to the school environment; (teacher) interfere with maintenance of the disciplinary procedures needed in the school; needs to be individualized suspicion, at its inception

Corporal Punishment safeguards

specific warning of CP, given other measures attempted have failed; administration of CP must take place in presence of other school official; on request, written statement given to parents regarding the reasons for the punishment and the name of the official witness

due process clause 14th amendment

state goverment

Protests and Demonstrations

students have a right to participate under certain circumstances: Peaceful, do not violate school rules, do not result in destruction of school property; cannot obstruct corridors or prevent free movement among students who are not participating

Protest and Demonstrations regulated by school officials

time, place and manner of conducting these activities; responsible for students; Conditions rather than prohibitions

Expulsion Procedural Steps

written notice of charges; right fair hearing; right to inspect evidence; right to present evidence on students' behalf; right to legal counsel; right to present evidence on student's behalf; right to call witnesses; right to cross-examination and to confrontation; right against self-incrimination; right to appeal

Book Bags search

Complex and intrusive; more intrusive search means stronger evidence to establish reasonable suspicion; Standard of 4th Amendment reasonableness approaches probable cause in school context;

automobile search school property

If on school property and standards of reasonable suspicion are met. Parents and students should be informed by school or district policy that autos are subject to reasonable search if there is a legitimate basis for doing so. If school official receives reliable info; illegal item; (same as student locker) student and another witness during actual search

desk search

clearly written policies

8th Amendment

cruel and unusual punishment (