The Supreme Court First Gave Students Constitutional Rights, Then Shrank Them: From Flag Salutes to Backpack Searches
From refusing to salute the flag to searching backpacks, six rulings gradually mapped the constitutional rights of American public school students; the Court, while declaring that "schools are not totalitarian enclaves," also upheld corporal punishment and reasonable-suspicion backpack searches, narrowing the boundaries of those rights.
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The argument · tap a timestamp to hear it
Flag-salute case: student rights enter the schoolhouse
Can students really assert First Amendment rights during class? This case actually began with religion: Jehovah's Witnesses families believed saluting the flag violated the commandments against other gods and graven images, so they refused to salute and pledge. In 1940, the Supreme Court ruled against them, and World War II led more districts to require daily salutes and pledges. West Virginia expelled students who refused and listed them as delinquents; parents could be fined or jailed. In 1943, the Court reversed 6–3, with Justice Jackson writing on Flag Day: no official can define orthodoxy in politics, nationalism, religion, or other opinion; students need not confess words that contradict their hearts or make empty gestures. This was the first time the Court established that students have some First Amendment rights inside school.
— Tracy V. WilsonOfficial prayer struck down as unconstitutional
During the Cold War, America cast itself as a God-fearing nation, adding "Under God" to the Pledge in 1954, and more public schools began reading scripture or praying before class. In 1951, the New York State Board of Regents asked religious leaders to compose a short, non-denominational prayer, leaving adoption to each district. Districts that used it allowed students to opt out, but parents of ten students sued anyway. In 1962, Engel v. Vitale ruled 6–1 that the prayer was unconstitutional—not because it was mandatory, but because it was composed by the government, which itself constituted an establishment of religion. Justice Black quoted Madison: that the first experiment with our liberties should be a warning; the same power that can establish Christianity to the exclusion of all other religions can also easily establish one sect of Christianity. The decision sparked fierce backlash, and the plaintiff families faced ridicule and harassment.
— Tracy V. WilsonArmbands are constitutionally protected expression
In December 1965, Des Moines middle and high school students planned to wear black armbands to class to protest U.S. involvement in Vietnam. The school announced in advance that those who refused to remove them would be suspended; some students—including four siblings—wore them and were suspended. In 1969, the Supreme Court ruled 7–2 for the students. The issue was not ordinary dress code but a quiet, passive expression akin to pure speech, and it did not disrupt class. Without evidence of actual or reasonably foreseeable material disruption of schoolwork, school officials may not suppress student opinion. The opinion declared that public schools are not totalitarian enclaves, and students and teachers do not shed their constitutional rights at the schoolhouse gate. This "substantial disruption" test became the benchmark for campus speech. Justice Black dissented, predicting students would defy nearly all rules; the hosts note that this slippery-slope argument sounds quite absurd.
— Tracy V. WilsonSchool-funded newspaper can be censored
In 1983, Hazelwood East High School's student newspaper, The Spectrum, had two articles that unsettled Principal Reynolds: one on teenage pregnancy used pseudonyms but might still identify the interviewee, and a divorce story named and criticized a student's parent. Reynolds decided to delete the entire two pages rather than just the articles, citing lack of time to edit and the need to publish before semester's end. In 1988, the Supreme Court ruled 5–3 for the school. The key distinction was between "tolerating student speech" and "promoting student speech": the paper was funded by the school, readers would assume the school endorsed its content, and the two pieces were indeed immature in journalistic ethics. The Court held that schools may regulate content they promote. This carved the first clear boundary around the rights established in Tinker.
— Tracy V. WilsonCorporal punishment is not cruel and unusual
Host Tracy suddenly recalled that many teachers kept wooden paddles on their desks when she was young, and research showed corporal punishment has not disappeared in America. In the 1977 case Ingram v. Wright, the school's regulation paddle was less than two feet long, three or four inches wide, and half an inch thick, with one to five strokes per incident; but Ingram was hit more than 20 times in a single incident and required medical attention. The Court did not dwell on whether this particular case was excessive; it ruled that school corporal punishment does not violate the Constitution. The Eighth Amendment protects convicted persons, and prisoners are separated from schoolchildren by the "harsh facts of criminal conviction and incarceration"; schools are open places with teachers and peers as witnesses, and students can go home after school. According to NEA statistics, corporal punishment remains legal in public schools in 17 states and is actually used in 14; boys, Black students, and students with disabilities are paddled at significantly higher rates.
— Tracy V. WilsonBackpack search only needs reasonable suspicion
In 1980, a 14-year-old New Jersey student, TLO, was reported by a teacher for smoking in the restroom. Vice Principal Choplik searched her purse, found cigarettes and rolling papers, then continued searching and found what appeared to be marijuana and evidence of drug dealing. TLO was convicted and sentenced to one year of probation. In 1985, the Supreme Court ruled 6–3 that the search was legal. The Court acknowledged that the Fourth Amendment binds school officials and that students have a legitimate expectation of privacy, but it must be balanced against the school's need to maintain a learning environment. Therefore, school searches need not meet the probable cause standard required of police; they only need the lower threshold of reasonable suspicion. The teacher's report gave the vice principal reason to suspect she had cigarettes, and the purse was the obvious place; seeing rolling papers naturally extended the suspicion to marijuana, which was also reasonable.
— Tracy V. WilsonIn their own words · checked verbatim
no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein
Tracy V. Wilson7:12
it is proper to take alarm at the first experiment on our liberties. Who does not see that the same authority which can establish Christianity in exclusion of all other religions may establish with the same ease any particular sect of Christians in exclusion of all other sects?
Tracy V. Wilson11:21
It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this court for almost 50 years.
Tracy V. Wilson16:26
In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are persons under our Constitution. They are possessed of fundamental rights which the state must respect, just as they themselves must respect their obligations to the state.
Tracy V. Wilson18:31
the prisoner and the schoolchild stand in wholly different circumstances, separated by the harsh facts of criminal conviction and incarceration
Tracy V. Wilson28:44
a teacher had reported that TLO was smoking in the lavatory. Certainly, this report gave Mr. Choplik reason to suspect that TLO was carrying cigarettes with her. And if she did have cigarettes, her purse was the obvious place in which to find them.
Tracy V. Wilson33:52
Figures
| West Virginia v. Barnette vote | 6-3 | 5:10 |
| Engel v. Vitale vote | 6-1 | 11:21 |
| Tinker v. Des Moines vote | 7-2 | 16:26 |
| Hazelwood v. Kohlmeier vote | 5-3 | 23:40 |
| New Jersey v. TLO vote | 6-3 | 32:52 |
| NEA: states where corporal punishment is legal in public schools | 17 states | 29:46 |
| NEA: states where corporal punishment is actually practiced | 14 states | 29:46 |
| Number of paddle strokes in Ingram case | more than 20 | 26:40 |
| 1980 U.S. heat wave deaths (from listener mail) | about 1,300 people | 37:55 |
Glossary
- Substantial Disruption Test
- The threshold established in Tinker for disciplining student speech: there must be actual material disruption or evidence that disruption would reasonably result.
- Establishment Clause
- The First Amendment provision prohibiting the government from establishing or endorsing religion; originally applied only to the federal government, later extended to states via the Fourteenth Amendment.
- reasonable suspicion
- A lower evidentiary standard than probable cause, applied to school officials searching student belongings.
- probable cause
- The higher evidentiary standard required for police arrests or searches; contrasted in this episode with the reasonable suspicion standard for school searches.
- corporal punishment
- Punishment that inflicts physical pain; in this episode, the practice of striking students' buttocks with a wooden paddle.
- closed-circuit recipients
- People who can only passively receive what the state chooses to indoctrinate, unable to express their own views.
How to listen
Parents, middle and high school teachers, and law students, as well as anyone wanting to understand the boundary between government power and children's rights in American public schools.
Listeners familiar with the Establishment Clause can skip the second case; if you know the earlier cases in detail, jump to the corporal punishment and backpack search cases after 25:40.