Students’ Rights: The Basics
You spend nearly half your waking hours in or around school from when you’re six years old until (at least) you turn eighteen. Thus, it is very important that you know your rights and responsibilities in the school environment. Just as important, the adults who deal with students need to know the extent of their control over the young people in their charge. While students do not check their rights at the schoolhouse gates, as the courts ruled in the famous Tinker v. Des Moines Independent Community School District, it is also true that, because of their youth and because of the educational function of schools, the rights of students are more limited than the rights of adults in the outside world.
Following is an accounting of the basic rights of students that we present as a public education service. It does not constitute legal advice, which can only be given by an attorney. If you are having a problem related to one of the issues presented, you may want to consult a counselor or a teacher, and you also may want to consult an attorney who regularly handles school cases.
The Right to a Free Public Education
The California Constitution requires the state to “provide for a system of common schools by which a free school shall be kept up and supported in each district…” The California Education Code makes further commitments to support educationally disadvantaged youth programs and bilingual education, and authorizes funds to support unserved and underserved populations as long as a need exists.
Students have a right to attend schools in the district in which they live. Students who are homeless also have this right, and the California Education Code calls for any school-aged homeless student to be “placed in the least restrictive educational programs, and ha[ve] access to the academic resources, services, and extracurricular and enrichment activities that are available to all pupils. In all instances, educational and school placement decisions must be based on the best interests of the child.”
State law requires regular attendance at a public school or equivalent program of instruction, either in a private school or home-schooling (as long as it is equivalent instruction).
The California Education Code acknowledges that there are tens of thousands of school age children who have limited English proficiency or do not have the English language skills necessary to benefit from instruction only in English at a level substantially equivalent to pupils whose primary language is English. This presents an obstacle to such pupils’ right to an equal educational opportunity. The California legislature remedied this by requiring that instruction and training in the pupils’ primary languages be enacted, while these pupils are learning English, with the goal of helping each child, as effectively and efficiently as possible, develop fluency in English. The code also calls on public school programs to provide positive reinforcement of the self-image of participating pupils, promote cross-cultural understanding, and provide equal opportunity for academic achievement, including, when necessary, academic instruction through the primary language. Participation in bilingual programs is voluntary on the part of the parent or guardian.
Freedom from Discrimination
Intentional racial discrimination was first declared illegal by the US Supreme Court in the 1954 landmark case, Brown v. Board of Education. Ten years later, Congress passed Title VI of the Civil Rights Act of 1964, which prohibits discrimination and segregation based on race or national origin.
Like other forms of discrimination, gender discrimination is illegal under both federal and state law. Title IX of the Educational Amendments of 1972 provides that “No person living in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Specific regulations in Title IX make it illegal to discriminate against girls/women in the areas of curriculum, extracurricular activities, student aid, student services, counseling and guidance, and financial aid.
Although Title IX specifically prohibits discrimination in athletics, it does contain two major exceptions:
1. Single-sex teams are permitted in contact sports (football, basketball, ice hockey, boxing and wrestling); and
2. Single-sex teams may be permitted in non-contact sports if parallel male and female teams are established. So, for example, a men’s field hockey team is permitted if a women’s field hockey team exists.
Challenges against these exceptions have been brought, so if you are experiencing discrimination in athletics based on your gender, talk to a counselor or teacher, and possibly an attorney.
Married, Pregnant and Parenting Students
Such students have the same right to a free education as all other students, including the right to participate fully in all activities offered by the school.
Discrimination Based on Citizenship
The US Supreme Court has ruled that excluding the children of undocumented immigrants from public schools violates the children’s right to equal protection of the laws, and is therefore unconstitutional. Because immigration status is not relevant to the determination of whether students may attend school, directly or indirectly questioning students or their parents regarding their citizenship is suspect, and violates their right to equal protection.
Non-English Speaking Students
The failure of a school district to provide remedial English language instruction to non-English speaking students, or other adequate instruction in their own language “makes a mockery of public education” and constitutes illegal discrimination, according to the federal courts. Federal law specifically requires that all school districts receiving federal funds provide classes for non-English speaking students to learn English.
Students with Educational Disabilities
The federal Americans with Disabilities Act.
Freedom of Speech and Expression
Speech and Political Expression
Freedom from governmental interference with speech is guaranteed to everyone in California by the First Amendment to the U.S. Constitution, and by Article I, Section 2, of the California State Constitution. Public school teachers and administrators are all considered government actors, which means that students have free speech rights at public schools. It also guarantees that school officials must provide students with wide latitude in the expression of their ideas and opinions.
These rights, however, do have limitations:
- Schools can impose reasonable restrictions on when, where, and how speech activities take place in order to prevent disruption of educational activities. For example, a school can limit passing out flyers in hallways to before or after school begins and during the lunch hour, but they may not have a blanket rule against handing out literature anywhere or any time during school.
- However, students cannot be disciplined for merely expressing an idea, whether as part of a classroom discussion or protesting a government or school policy outside class, as long as it does not disrupt educational activity or interfere with the rights of others. No peaceful expression, no matter how unpopular or controversial, may be censored.
- Students may express their views verbally–as oration or in writing–but also symbolically, such as wearing political buttons, flags, decals, or armbands, as long as they are not obscene and do not provoke a “material and substantial” interference with classroom activities or the rights of others. But students’ rights to express their views cannot be abridged simply because the views are unpopular with school officials or other students, or because administrators fear students reacting to a symbol will cause a disruption.
- Students may not encourage others to commit acts of violence.
- Students who make false personal attacks may be disciplined or sued for slander or libel.
- Students may be punished for speech that is obscene, and may even be disciplined for using sexual innuendo.
Picketing, marching and other forms of peaceful demonstration are forms of symbolic expression and, as a result, are constitutionally protected. As long as school activities are not disrupted or obstructed, demonstrations should not be prohibited, and participants should not be subject to discipline. Many courts, however, have restricted student demonstrations on school property, particularly if the demonstration occurs during school hours or within a school building. While school authorities are responsible for disorderly conduct by students on the way to and from school, they have no right to restrict students’ participation in demonstrations held off campus and after school hours.
Hair and Dress Codes
Hair and dress codes are as much a form of expression for students as speech and demonstrations. Therefore, schools that adopt unreasonable regulations in this area may be interfering with students’ constitutional rights. The wearing of a particular type or style of clothing usually is not seen as expressive conduct, protected by the First Amendment guarantee of free speech. But if the type of clothing conveys a particularized message which has the great likelihood to be understood by those who see the clothing, then the clothing would generally constitute protected speech. A student’s right to wear his or her hair any length and style has been consistently upheld by the courts. Students may not be barred from participating in school activities, like band or athletics, because of their hairstyle or because they have beards and/or mustaches, but school officials may require students to alter their hairstyles if they interfere with work, present a health or safety danger, or create a disruption in the classroom or elsewhere on campus.
Student Newspapers and Publications
The U.S. Supreme Court has made it clear that under the U.S. Constitution, school officials may exercise editorial control over both the style and the content of school-sponsored newspapers and other publications, as long as the restrictions are reasonably related to a valid educational policy (Hazelwood School District v. Kuhlmeier). This decision overturned many lower court decisions that permitted students to make their own judgments about the content of school newspapers unless materials threatened to severely disrupt the educational process. The court ruled that since the school is the “publisher,” and the publications are printed under school supervision and at school expense, even though the writers are students, the “publisher” can determine what can be published.
In the case of non-school sponsored (“underground”) publications, the school has much less control. Material in such publications can be censored only if it meets a clearly stated definition of libel or obscenity, or if it will cause a substantial disruption. Students may distribute underground newspapers on school grounds before and after school and between classes, as long as the distribution is reasonable in terms of time, place and manner of distribution. School authorities do not have the right to review the contents of underground publications before distribution, nor can they regulate off-campus distribution of underground student newspapers.
Censorship of Information
Censorship of books and instructional materials has become a problematic issue across the country. The Supreme Court has upheld high school students’ constitutional right not only to speech but also to the “receipt of ideas,” because this is an essential element of the meaningful exercise of free speech. The Court ruled that a school board may not remove books from school libraries based solely on a school board’s view of what should be acceptable religion, politics, or other matters of opinion (Board of Education, Island Trees Union Free School District No. 26 v. Pico, 1982). The Court did allow for the removal of books that are “pervasively vulgar” or not “educationally suitable.”
With the escalating use of computers and the internet in classrooms, another dimension is added to the censorship issue. No court has yet decided whether a school can censor web pages, the U.S. Supreme Court did rule that the internet is the most participatory form of mass speech yet developed, and is entitled to the highest protection from government intrusion (Reno v. American Civil Liberties Union, 1997). This ruling was not framed in the context of schools, but it strongly indicates that the internet deserves at least as much protection from censorship as a school library.
Flag Salute and Pledge of Allegiance
Students have the right to refuse to salute the flag or recite the Pledge of Allegiance if they have any conscientious objections to either of these acts. School authorities may not judge whether such objections are sincere or reasonable. The First Amendment protects the expression of dissent or silence. A federal court ruled that students who choose not to participate in either or both of these activities may not be required to leave the room.
All student groups, including religious clubs (see below) and clubs of a political nature, have the right to use classrooms, auditoriums, or other school facilities public secondary schools during non-instructional time if other “non-curriculum-related” groups have the right to use the facilities. “Non-curriculum-related” is subject matter that is not taught in a regularly offered course, does not concern the body of courses as a whole, and participation is not required for a course and does not result in course credit. (So, a chess or scuba diving club would be non-curriculum-related, but a Spanish club would be considered curriculum-related.) The school must ensure that the group’s meetings are voluntary and student-initiated, that there is no sponsorship of the meetings by the school or government, that school or government personnel may be present in a non-participatory capacity, that the meetings do not interfere with educational activities, and that non-school persons may not direct, conduct, control, or regularly attend activities of student groups.
Religion in Schools
Our nation’s founders strongly believed that individuals should be granted the right to practice their religious beliefs or non-beliefs, and that they should be free from religious persecution. The framers of the Constitution believed that the best way to ensure religious freedom and diversity was to keep the government out of religious matters. This means that the Establishment Clause of the First Amendment sets forth the principle of separation of church and state, in that “Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof…” In public schools, this means that students are free to believe what they wish and that school officials (acting, remember, as government players) may not endorse, promote, fund, or otherwise impose religious beliefs in any way.
School-sponsored prayer in public schools is forbidden. The Supreme Court has recognized that “prayer exercises in public schools carry a particular risk of indirect coercion” (Lee v. Weisman, 1992). Thus, public schools may not conduct prayer or Bible reading sessions, even if students who do not want to participate are permitted to remain silent or leave the classroom. Nor may teachers announce that a period of prayer may be offered by a student volunteer. Even so-called “non-denominational” prayers are banned. It is important to point out that the Establishment Clause prohibits both the endorsement of one religion over another, as well as the endorsement of religion over non-religion (Wallace v. Jaffree, 1985).
Of course, private, individual prayer is always permissible and protected by the Constitution. In addition, the Bible and other religious works may be read or studied as works as literature, and the study of all religions for an academic purpose is proper.
Moment of Silence
The U.S. Supreme Court upheld a federal appeals court ruling that “moment of silence laws” violate the First Amendment’s separation of church and state, and is thus prohibited (May v. Cooperman, 1985).
Released Time Program and Religious Holidays
The courts have ruled that it is unconstitutional for a school to have a “released time” program in which regular public school classes end early each week to allow for religious instruction by teachers employed by private religious groups in public school classrooms. The Supreme Court did rule, however, that it is constitutional for a school to have “released time” to allow students to leave public schools to receive religious instruction elsewhere. Additionally, a student may be absent, with parental permission, for religious holidays, and the absence may not be counted against the student’s attendance or academic record.
Student groups, including religious clubs, have the right to use classrooms, auditoriums, or other school facilities public secondary schools during non-instructional time if other “non-curriculum-related” groups have the right to use the facilities (see “Student Clubs” above).
The guiding principle endorsed by the Supreme Court is that government must maintain a course of neutrality between religions, and between religion and non-religion. Thus, schools should keep in mind that an attempt to include all religions in a holiday display is not an adequate response, since many students either do not have any religious beliefs or follow faiths (such as Islam) that do not have holidays around Christmas.
As part of the guarantee that church and state must be separated, the Constitution prohibits government funding of religious schools (School District of Grand Rapids v. Ball, 1985). Many states, however, have enacted voucher programs wherein, as an alternative to attending their local public school, students can receive cash allowances to be used at any other school, including religious schools. Thus far, almost every court that has examined a voucher plan has determined that the use of government-funded vouchers at religious schools is unconstitutional.
Search and Seizure
The Fourth Amendment to the U.S. Constitution guarantees citizens freedom from unreasonable governmental searches. Ordinarily, law enforcement officials cannot search a person or person’s possessions unless they have probable cause to believe that that person has committed a crime or is committing a crime. The official usually must obtain a search warrant before conducting such a search.
The rules regarding searches are very different for students. The U.S. Supreme Court determined that students are protected from unreasonable searches and seizures by public school officials (who are viewed as agents of the government), but it also found that within a school setting, where school personnel must maintain discipline so that learning can take place, the definition of what is “reasonable” is much broader (New Jersey v. T.L.O., 1985). Accordingly, school officials do not need to obtain search warrants, nor do they need to have probable cause to believe a student is violating the law prior to conducting a search. The search will generally be found to be reasonable if:
- there are reasonable grounds for suspecting the search will yield evidence that the student is violating the law or school rules, and
- the search is no more intrusive than necessary to turn up this particular evidence.
The age and sex of the student, and the seriousness of the offense are also considered in determining reasonableness.
The court did reject the argument that school officials, as “substitute parents,” can search any student at any time. But once officials reasonably suspect a student of violating the law, they have broad authority to search, among other places, the student’s locker, backpack, purse, and pockets, and they can turn over what they find to the police.
It is important to remember that the court prohibited searches that are overly intrusive. For instance, strip searches are generally regarded as so intrusive that they cannot be legally justified. A number of courts have ruled that the more intrusive the search, the higher the degree of suspicion required.
Making all students walk through a metal detector before entering school is becoming more widespread. The courts have upheld the use of metal detectors at school entrances, saying they are relatively unintrusive methods of inspection and that the objectives of the search–keeping weapons out of school–are necessary to protect and maintain a proper educational environment.
The courts have also upheld the use of drug-sniffing dogs to search all lockers, using the same logic. However, many courts have distinguished between the use of dogs to sniff lockers and the use of dogs to sniff the individual student.
Searches of Desks and Lockers
Students must consider any desk or locker, or any other place provided by the school for their belongings, to be searchable without a warrant. Students should not put anything in these places that they would not want anyone to find or see. A school might be able to conduct a search of locker or desk without a warrant, consent by the student, or even any particular suspicion, so long as there is a written policy that allows such searches and students are informed in writing that an inspection may occur. If your school does not have such a stated policy, failing a warrant or a student’s consent, the search must be based on reasonable suspicion.
Random Drug Testing for Extracurricular Activities
Testing a person for the presence of drugs has been held to be a type of search and thus subject to the constraints of the Fourth Amendment. The U.S. Supreme Court first ruled in 1995 on random school drug-testing in Vernonia School District v. Acton, holding that the school district could require students to consent to random drug testing before they would be allowed to play interscholastic sports. The court found that student athletes have even less expectation of privacy than other students, and that the testing program seemed an effective way to serve the district’s interest in fighting drug abuse. The Supreme Court extended the Vernonia decision with Board of Education of Independent School District No. 92 of Pottawatomie v. Earls in 2002, upholding a drug testing policy covering all students who participated in any competitive extracurricular activity, not just student athletes.
The right of parents and students to see school records is confirmed in a 1976 federal act, The Buckley Amendment. A student’s parents and students 18 years of age or older (or 16 and graduating or leaving school) can inspect and review official school records and files directly related to the student. The school must provide the records within a reasonable period of time, but never more than 45 days after the request. Information in the record that is inaccurate, misleading, or otherwise in violation of privacy or other rights can be challenged.
Disclosure of Information to Military Recruiters
There is a provision in the No Child Left Behind Act, signed into law by President Bush in 2002, requiring school districts that receive certain federal funding to share students’ names, addresses and telephone numbers with military recruiters to the same extent the information is shared with institutions of higher learning. But schools also must inform students and parents of their right to refuse distribution of this material to the military.
Our very special thanks to the ACLU of New Jersey, which researched and created an original students’ rights handbook upon which much of the information above is based.