The Supreme Court Gave Students Constitutional Rights, Then Handed Searches and Paddlings Back to the Schools
From refusing to salute the flag to having a purse searched, six cases gradually drew the line of American public school students' constitutional rights; the Supreme Court laid down that "schools are not totalitarian enclaves" while accepting that corporal punishment and reasonable-suspicion searches do not violate the Constitution, and the boundary of those rights narrowed accordingly.
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The argument · tap a timestamp to hear it
The flag-salute case: student rights enter the schoolhouse for the first time
Can students really invoke the First Amendment in class? This case actually begins with religion: Jehovah's Witnesses families held that saluting the flag violated the commandments against having other gods and against graven images, and refused to pledge and salute the flag. In 1940 the Supreme Court had ruled against them, and World War II pushed more school districts to require students to salute and recite the pledge daily. West Virginia expelled students who refused the pledge, labeled them delinquents, and their parents could face fines or even jail. In 1943 the Supreme Court overturned the earlier ruling 6-3, and Justice Jackson wrote the opinion on Flag Day: orthodoxy in politics, nationalism, religion or other matters of opinion is not to be defined by any official; students need not utter words they do not believe or make empty gestures. This was the first time the Court established that students hold some First Amendment rights inside school.
— Tracy V. WilsonAn official prayer text is held unconstitutional
In the Cold War the United States cast itself as a God-fearing nation, added "Under God" to the Pledge of Allegiance 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 co-write a short, non-denominational prayer, with each district deciding whether to adopt it. Districts that used the prayer let students opt out, but the parents of 10 students still sued. In 1962 Engel v. Vitale held it unconstitutional 6-1; the key was not whether it was compulsory but that the prayer was written by the government, which itself constituted establishing religion. Justice Black quoted Madison: it is proper to take alarm at the first experiment on our liberties; the same authority that could establish Christianity to the exclusion of other religions could easily establish one Christian sect. The ruling provoked fierce backlash, and the plaintiff families were mocked and harassed.
— Tracy V. WilsonAn armband is constitutional expression
In December 1965, middle and high school students in Des Moines planned to wear black armbands to class to protest American involvement in the Vietnam War. The schools announced in advance that refusing to remove them would mean suspension, and some students — including four siblings — wore the armbands anyway and were suspended. In 1969 the Supreme Court ruled for the students 7-2. The issue was that this was not ordinary dress or grooming but quiet, passive expression close to pure speech, and it did not disrupt class. Absent evidence of actual or demonstrable substantial interference with instruction, school officials may not suppress student opinion. The ruling said: public schools may not be totalitarian enclaves, and students and teachers do not shed their constitutional rights at the schoolhouse gate. This "substantial disruption" standard later became the baseline for free speech on campus. Justice Black dissented that students would from then on resist almost every school rule, and the host says on the show that this slippery-slope argument sounds pretty absurd.
— Tracy V. WilsonA school-funded newspaper can be censored
In 1983 two pieces in the Hazelwood East High School student newspaper The Spectrum troubled principal Reynolds: a story on teen pregnancy that used pseudonyms but might still make the interviewees identifiable, and a divorce story that named and criticized a student's parent. Reynolds decided to cut both full pages rather than just remove the articles, on the grounds that there was no time to revise and the paper had to come out before the semester ended. In 1988 the Supreme Court ruled for the school 5-3. The key distinction is between "tolerating student speech" and "promoting student speech": this paper was funded and published by the school, readers would take its contents as endorsed by the school, and the two pieces were indeed ethically immature as journalism. The Court held that schools may exercise control over what they themselves promote. The rights established in Tinker thus acquired their first clear boundary.
— Tracy V. WilsonCorporal punishment is not an Eighth Amendment matter
Host Tracy suddenly recalls that many of her childhood teachers kept wooden paddles on their desks, and on looking it up finds corporal punishment has still not died out in the United States. In the 1977 Ingram v. Wright case, the school's paddle was under two feet long, three or four inches wide and half an inch thick, with one to five swats in principle; but Ingram was struck more than 20 times in a single incident and needed medical attention. The Supreme Court did not dwell on whether that individual case was excessive, but held that school corporal punishment does not violate the Constitution. The reasoning: the Eighth Amendment protects the convicted, and prisoners are separated from schoolchildren by "the harsh facts of criminal conviction and incarceration"; schools are open places, with teachers and classmates as witnesses, and you can go home after school. According to NEA figures, corporal punishment remains legal in public schools in 17 states and is actually practiced in 14, and boys, Black students and students with disabilities are paddled at significantly higher rates.
— Tracy V. WilsonSearching a bag requires only reasonable suspicion
In 1980 in New Jersey, a 14-year-old student, TLO, was reported by a teacher for smoking in the restroom. Vice principal Choplik searched her purse, saw cigarettes and rolling papers, kept digging, and found what appeared to be marijuana and evidence of drug dealing; TLO was ultimately convicted and given a year's probation. In 1985 the Supreme Court upheld the search 6-3. The ruling acknowledged that the Fourth Amendment binds school officials and that students have a privacy expectation, but that it must be balanced against the school's need to maintain a learning environment. So school searches need not meet the probable cause police require; the lower threshold of reasonable suspicion suffices. The teacher's report that TLO was smoking gave the vice principal reason to suspect she had cigarettes, and a purse is exactly the obvious place; seeing rolling papers naturally extended the suspicion to marijuana, which was equally 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 figure: states where corporal punishment is legal in public schools | 17 states | 29:46 |
| NEA figure: states where corporal punishment is actually practiced in public schools | 14 states | 29:46 |
| Number of strikes in a single incident in the Ingram case | more than 20 | 26:40 |
| US heat wave deaths in 1980 (listener letter) | about 1,300 | 37:55 |
Glossary
- Substantial Disruption Test
- The threshold established in Tinker for school discipline over student speech: there must be actual serious disruption or evidence that instruction would be disrupted.
- Establishment Clause
- The First Amendment clause barring government from establishing or supporting religion; it originally bound only the federal government and was later applied to the states through the Fourteenth Amendment.
- reasonable suspicion
- An evidentiary threshold lower than probable cause, the standard that applies when school officials search a student's belongings.
- probable cause
- The higher evidentiary standard required for police arrest or search, used in this episode to contrast with reasonable suspicion for in-school searches.
- corporal punishment
- Discipline that inflicts physical pain, in this episode referring to striking students on the buttocks with a wooden paddle.
- closed-circuit recipients
- People who can only receive in one direction what the state chooses to instill, and cannot express opinions of their own.
How to listen
Parents, middle and high school teachers, and law students, plus anyone who wants to understand where government power ends and a child's rights begin in American public schools.
Listeners already familiar with the Establishment Clause can skip the second case; those who know the earlier cases in detail can jump straight to the corporal punishment and search cases after 25:40.