02/08/2010: "Superintendent’s Corner"
By Walt Wegener
As parents we often wonder about the rights of students in the schools. Indeed, we wonder so much that over the years a considerable amount of litigation has followed from our wondering.
The student handbook in every school contains the road map used by the Principal to guide and direct the response to unexpected behaviors by students.
In particular, actions associated with the First, Fourth and Fourteenth Amendments to the US Constitution are most often in play.
Many people never make themselves aware of our Constitution and how it directs our lives in real-time. A lesson for us all, but especially for parents, is that everyday our children are directly affected by our State and US Constitutions. Students seem to see their “bill of rights” as defined more by the rights they do NOT have as opposed to the rights that they do have.
Indeed, the Supreme Court has held over and over, student rights are determined according to the general concept of time, place and manner.
Because all students between the age of 8 and 18 are required to either home-school, go to private school or participate in public school, the court deems school attendance as mandatory. Thus, says the Court, schools are “closed forums.” A closed forum supports a separation between the school’s educational program and outside controversy.
Amendment 1 - Freedom of Religion, Press, Expression. December 15, 1791. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
You cannot pray in school because there are too many religions to provide for inclusion of all. You may not freely express your every thought because it may be offensive to others. Self-expression for students is controlled by choice of time, place and manner. And, the control is in the hands of the school, guided by the local board.
Harassment, intimidation and bullying are also specifically addressed issues. Indeed, any abusive act that could be resisted or avoided on the street but cannot be avoided in a closed local forum, i.e. within the school environment, cannot be tolerated. Schools are not a “public forum” but a “closed forum” limited to designated learning targets. The student handbook addresses these issues.
Amendment 4 - Search and Seizure. December 15, 1791. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Search and seizure rules are also considerably modified for the school environment. The student is due the respect of person and property, but the threshold of due process is completely different from the threshold of due process on the street. Though we live in a free country and, in public, have an expectation of the preservation of our individual Constitutional rights, in school the primary consideration is the safety and wellbeing of the population, not the individual rights of the student.
Thus, with any professionally determined probable reason for concern, students may be separated from the group and appropriately searched. Their lockers are not protected nor are their computers or cell phones. In a school environment, “probable reason for concern” is a much more lenient threshold than is the legal “probable cause” necessary for a law enforcement search. The limits of “due process” are defined in the student handbook.
Amendment 14 - Citizenship Rights (Abbreviated) July 9, 1868. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (There are four more sections.)
Finally, the 14th Amendment spells out a requirement that each process will be applied evenly to all children. It is the “one bad apple” rule. If a particular rule is applied to some children it must be applied to all children. A perfect example of this is the dress code in relationship to “gang styles.” Even in an environment with few or no gang connections, a student who dresses top to bottom as a gangster is in violation of the dress code. By the 14th Amendment, the student handbook applies to every child, not just gangsters and “wannabe’s” so our expectations are that all children refrain from dressing in gang styles.
So, what should a parent take home and know about our student handbook? Well, it is deeply rooted in Supreme Court cases and personal rights. Student rights in schools are far different than adult or youth rights on the street. The focus for schools is first and foremost personal safety and learning, and only secondarily politics or personal statements.
And, as one last thought, to graduate from high school, sometime between 7th grade and graduation, students must take and pass classes that cover the Washington State Constitution and the U. S. Constitution. Hopefully, between the student handbook and their government classes, they begin to understanding their rights as citizens, both at school and in public.
(Walt Wegener is interim the San Juan Island School District Superintendent of Schools)