What does a school leader (e.g. principal) needs to know about STUDENT RECORDS – FERPA? Pay close attention to the issues involved: recent trends, controversies, new developments and circumst

LaMorte, M. (2012). School Law: Cases and Concepts. 10th edition. Pearson Education: London, England.

3 Students and the Law

Countless interactions between students and school officials occur in public schools, and inevitably, some students or their parents become displeased either with a school official’s actions or with school policy. The vast majority of such disputes are not litigable, however, unless school authorities have violated a student’s constitutional rights, not followed applicable federal or state statutes, or not had appropriate policies or procedures.

Prior to the 1970s, courts usually upheld school authorities who demonstrated no more than that their actions were reasonable. Public schools were perceived as enjoying parental prerogatives (in loco parentis), and it was uncertain whether any constitutional rights extended to students. However, in a 1969 landmark decision, the US Supreme Court in Tinker v. Des Moines's Independent Community School District declared that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Subsequently, in 1975 the high court held that public school students possess liberty and property interests in their education, and therefore, that constitutional principles of due process apply to school officials’ treatment of students. Several important federal statutes also emerged in the 1970s, expanding the scope of student rights. Title IX of the Education Amendments of 1972 expanded the rights of female students; the Family Educational Rights and Privacy Act of 1974 protected information concerning students; and the Education for all Handicapped Children Act of 1975 provided for a free appropriate public education for all disabled children. As a result of these many changes in students’ legal status, a period ensued when students were often successful in challenging school policies and procedures and when many school officials perceived an erosion of their authority.

In the mid 1980s, however, a shift became evident in the courts’ tendency to uphold students. In particular, several Supreme Court decisions clearly increased the authority of public school officials regarding students’ rights to free expression and several areas of conflict.

In addition to discussing students’ rights to free expression, this chapter addresses issues associated with student privacy; suspension, expulsion, and involuntary disciplinary transfer from school; corporal punishment; search of students, their lockers, and cars; student appearance; pregnancy, parenthood, and marriage; participation in extracurricular activities; and school punishment for out-of-school offenses.

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An examination of court decisions in these areas revealed that courts must often balance students' constitutional rights against the duty of public school officials to maintain an appropriate environment for learning and safety. A deceptively, simple administrative practice, emerges that produces legal confrontations, and also facilitates school operations; namely, school officials should ensure the adoption of policies that are legally and educational sound, that are clearly written, that are adequately communicated to students and their parents, and that are enforced in a fair and impartial manner.

I. FREEDOM OF EXPRESSION A. The Tinker Doctrine

Students had not been recognized as having the first amendment right of freedom of expression until 1969, when the United States Supreme Court addressed the question in Tinker v. Des Moines's Independent Community School District. Although the seven-to-two decision did not address the question of “pure speech” – the issue before the court, involves the wearing of arm bands by students protesting the Vietnam War – the Court's decision Tinker, provided the public school community with a clear message that a student has the right of political freedom of expression.

TINKER v. DES MOINES'S INDEPENDENT COMMUNITY SCHOOL DISTRICT

Supreme Court of the United States, 1969 393 U.S. 503

MR. JUSTICE FORTAS delivered the opinion of the Court. Petitioner John Fr. Tinker, 15 years old, and petitioner Christopher Eckhardt, 16 years old,

attended high schools in Des Moines, Iowa. Petitioner Mary Beth Tinker, John’s sister, was a 13-year-old student in junior high school.

In December 1965, a group of adults and students in Des Moines held a meeting at the Eckhardt home. The group determined to publicize their objectives to the hostilities in Vietnam and their support for a truce by wearing black armbands during the holiday season and by fasting on December 16 and New Year’s Eve. Petitioners and their parents had previously engaged in similar activities, and they decided to participate in the program.

The principals of the Des Moines schools became aware of the plan to wear armbands. On December 14, 1965, they met and adopted a policy that any student wearing an armband to school would be asked to remove it, and if they refused he would be suspended until he returned without the armband. Petitioners were aware of the regulation that the school authorities adopted.

On December 16, Mary Beth and Christopher wore black armbands to their schools. John Tinker wore his armband the next day. They were all sent home and suspended from school until they would come back without their armbands. They did not return to school until after the planned period for wearing armbands had expired – that is, after New Year’s Day.

This complaint was filed in the United States District Court by petitioners, through their fathers, under 1983 of Title 42 of the United States Code. It prayed for an injunction restraining the respondent school officials and the respondent members of the board of directors of the school district from

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disciplining the petitioners, and it sought nominal damages. After an evidentiary hearing the District Court dismissed the complaint. It upheld the constitutionality of the school authorities' action on the ground that it was reasonable in order to prevent

disturbance of the school discipline. * * * The court referred to but expressly declined to follow the Fifth Circuit’s holding in a similar case that the wearing of symbols like the armbands cannot be prohibited unless it “materially and substantially interfere(s) with the requirements of appropriate discipline in the operation of the school.” * * *

On appeal, the Court of Appeals for the Eighth Circuit considered the case en banc. The court was equally divided, and the District Court’s decision was accordingly affirmed, without opinion. * * * We granted certiorari. * * *

The District Court recognized that the wearing of an armband for the purpose of expressing certain views is a type of symbolic act that is within the Free Speech Clause of the First Amendment. * * * As we shall discuss, the wearing of armbands in the circumstances of this case was entirely divorced from actually or potentially disruptive conduct by those participating in it. It was closely akin to “pure speech” which, we have repeatedly held, is entitled to comprehensive protection under the First Amendment. * * *

First Amendment rights, applied in the light of the special characteristics of the school environment, are available to teachers and students. 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. * * *

* * * On the other hand, the Court has repeatedly emphasized the need for affirming the comprehensive authority of the Stated and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools. * * * Our problem lies in the area where students in the exercise of the First Amendment collide with the rules of the school authorities.

The problem posed by the present case does not relate to regulation of the length of skirts or the type of clothing, to hair style, or deportment. * * * It does not concern aggressive, disruptive action or even group demonstrations. Our problem involves direct, primary First Amendment rights akin to “pure speech.”

The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder of disturbance on the part of the petitioners. There is no evidence whatever of petitioners' interference, actual or nascent, with the schools’ work or of collision with the rights of other students to be secure and to be let alone. Accordingly, this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students.

Only a few of the 18,000 students in the school system wore the black armbands. Only five students were suspended for wearing them. There is no indication that the work of the schools or any was disrupted. Outside the classrooms, a few students made hostile remarks to the children wearing armbands, but there were no threats or acts of violence on school premises.

The District Court concluded that the action of the school authorities was reasonable because it was based upon the fear of disturbance from wearing of the armbands. But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right of freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause disturbance. But our Constitution says we must take this risk, * * *; and our history says that it is this sort of hazardous freedom – this kind of openness – that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.

In order for the State in the person of the school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere

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desire to avoid the discomfort and unpleasantness that always accompany an unpopular view-point. Certainly where there is no finding and no showing that enganging in the forbidden conduct would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,” the prohibition cannot be sustained. * * *

In the present case, the District Court made no such finding, and our independent examination of the record fails to yield evidence that the school authorities had reason to anticipate that the wearing of the armbands would substantially interfere with the work of the school or impinge upon the rights of other students. Even an official memorandum prepared after the suspension that listed the reasons for the ban on wearing the armbands made no reference to the anticipation of such disruption.

On the contrary, the action of the school authorities appears to have been based upon an urgent wish to avoid the controversy which might result from the expression, even by the silent symbol of armbands, of opposition to this Nation’s part in the conflagration in Vietnam. It is revealing, in this respect, that the meeting at which the school principals decided to issue the contested regulation was called in response to a student’s statement to the journalism teacher in one of the schools that he wanted to write an article on Vietnam and have it published in the school paper.(The student was dissuaded.)

It is also relevant that the school authorities did not purport to prohibit the wearing of all symbols of political or controversial significance. The record shows that students in some of the schools wore buttons relating to the national political campaigns and some even wore the Iron Cross, traditionally a symbol of Nazism. The order prohibiting the wearing of the armbands did not extend to these. Instead, a particular symbol, black armbands worn to exhibit opposition to this Nation’s involvement in Vietnam – was singled out for prohibition. Clearly, the prohibition of expression of one particular opinion, at least without evidence that is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible.

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 out of school are “persons” under our Constitution. They are possessed of fundamental rights which the State chooses to communicate. They may be confined to the expression of the sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views. * * *

* * * * * * The principal use to which the schools are dedicated is to accommodate students during prescribed hours for the purpose of certain types of activities. Among those activities is personal intercommunication among the students. This is not only an inevitable part of the process of attending school; it is also an important part of the educational process. A student’s rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without “materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school” an without colliding with the rights of others. * * * But conduct by the student, in class or out of it, which for any reason – whether it stems from time, place, or type of behavior – materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course not immunized by the constitutional guarantee of freedom of speech. * * *

Under our Constitution, free speech is not a right that is given only to be so circumscribed that it exists in principle but not in fact. Freedom of expression would not truly exist

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if the right could be exercised only in an area that a benevolent government has provided as a safe haven for crackpots. The Constitution says Congress (and the States) may not abridge the right to free speech. This provision means it says what it says. We properly read it to permit reasonable regulation of speech-connected activities, in carefully restricted circumstances. But we do not confine the permissible exercise of First Amendment rights to telephone booth or the four corners of the pamphlet, or to supervised and ordained discussion in a school classroom.

If a regulation were adopted by school officials forbidding discussion of the Vietnam conflict, or expression by any student of opposition to it anywhere on school property except as part of a prescribed classroom exercise, it would be obvious that the regulation would violate the constitutional rights of students, at least it could not be justified by showing that the students’ activities would materially and substantially disrupt the work and discipline of the school. * * * In the circumstances of the present case, the prohibition of the silent passive “witness of the armbands,” as one of the children called it, is no less offensive to the Constitution’s guarantees.

As we have discussed, the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred. These petitioners merely went about their ordained rounds in school. Their deviation consisted only in wearing on their sleeve a band of black cloth, not more than two inches wide. They wore it to exhibit their disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them. They neither interrupted school activities nor sought to intrude in the school affairs or the lives of others. They caused discussion outside of the classroom, but not interference with work and no disorder. In the circumstances, our Constitution does not permit officials to deny their form of expression.

We express no opinion as to the form of relief which should be granted, this being a matter of the lower courts to determine. We reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded. * * *

MR. JUSTICE BLACK. Dissenting.

The Court’s holding in this case ushers in what I deem to be an entirely new era in which the power to control pupils by the elected “officials of the state-supported public schools…” in the United States is in ultimate effect transferred to the Supreme Court. * * *

* * * Assuming that the Court is correct in holding that the conduct of wearing armbands for the

purpose of conveying political ideas is protected by the First Amendment * * *, the crucial remaining questions are whether students and teachers may use the schools at their whim as a platform for the exercise of free speech – “symbolic” or “pure” – and whether the courts will allocate to themselves the function of deciding how the pupils’ school day will be spent. While I have always believed that under the First and Fourteenth Amendments neither the State nor the Federal Government has any authority to regulate or censor the content of speech, I have never believed that any person has a right to give speeches or engage in demonstrations where he pleases and when he pleases. * * *

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While the record does not show that any of these armband students shouted, used profane language, or were violent in any manner, detailed testimony by some of them shows their armbands caused comments, warnings by other students, the poking of fun at them, and a warning by an older football player that other, nonprotesting students had better let them alone. There is also evidence that a teacher of mathematics had his lesson period practically “wrecked” chiefly by disputes with Mary Beth Tinker, who wore her armband for her “demonstration.” Even a casual reading of the record shows that this armband did divert students’ minds from their regular lessons, and that talk, comments, etc., made John Tinker “self-conscious” in attending school with his armband. While the absence of obscene remarks or boisterous and loud disorder perhaps justified the Court’s statement that the few armband students did not actually “disrupt” the classwork, i think the record overwhelmingly shows that the armbands did exactly what the elected school officials and principals oversaw they would, that is, took the students’ minds off their classwork and diverted them to thoughts about the highly emotional subject of the Vietnam war. And I repeat that if the time has come when pupils of state-supported schools, kindergartens, grammar schools, or high schools, can defy and flout orders of school officials to keep their minds on their own schoolwork, it is a beginning of a new revolutionary era of permissiveness in this country fostered by the judiciary. The next logical steps, it appears to me, would be to hols unconstitutional laws that bar pupils under 21 or 18 from voting or from being elected members of the boards of education.

* * * * * * But even if the record were silent as to protests against the Vietnam war distracting students

from their assigned class work, members of this Court, like all other citizens, know, without being told, that the disputes over the wisdom of the Vietnam war have disrupted and divided this country as few other issues ever have. Of course students, like other people, cannot concentrate on lesser issues when black armbands are being ostentatiously displayed in their presence to call attention to the wounded and dead of the war, some of the wounded and the dead being their friends and neighbors. It was, of course, to distract the attention of other students that some students insisted up to the very point of their own suspension from school that they were determined to sit in school with their symbolic armbands.

Change has been said to be truly the law of life but sometimes the old and the tried and true are worth holding. The schools of this Nation have undoubtedly contributed to giving us tranquility and to making us a more law-abiding people. Uncontrolled and uncontrollable liberty is an enemy to domestic peace. We cannot close our eyes to the fact that some of the country’s greatest problems are crimes committed by the youth, too many of school age. School discipline, like parental discipline, is an integral and important part of training our children to be good citizens – to be better citizens. Here a very small number of students have crisply and summarily refused to obey a school order designed to give pupils who want to know that after the Court’s holding today some students in Iowa schools and indeed in all schools will be ready, able, and willing to defy their teachers on practical all orders. This is the more unfortunate for the schools since groups of students all over the land are already running loose, conducting break-ins, sit-ins, lie-ins, and smash-ins. Many of these student groups, as is all too familiar to all who read the newspapers and watch the television news programs, have already engaged in rioting, property seizures, and destruction. They have picketed schools to force students not to cross their picket lines and have too often violently attacked earnest but frightened students who wanted an education that the pickets did not want them to get. Students engaged in such activities are apparently confident that they know far more about how to operate public school systems than do their parents, teachers, and elected school officials. It is no answer to say that the particular students here have not yet reached such high points in their demands to attend classes in order to exercise their political pressures. Turned loose with lawsuits for damages and injunctions against their teachers as they are here, it is nothing but wishful thinking to imagine that young, immature students will not soon believe it is their right to control the schools rather than the right of the States that collect the taxes to hire

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the teachers for the benefit of the pupils. This case, therefore, wholly without constitutional reasons in my judgment, subjects all the public schools in the country to the whims and caprices of their loudest-mouthed, but maybe not their brightest, students, I, for one, am not fully persuaded that school pupils are wise enough, even with this Court’s expert help from Washington, to run the 23,390 public school systems in our 50 States. I wish, therefore, wholly to disclaim any purpose on my part to hold that the Federal Constitution compels the teachers, parents, and elected school officials to surrender control of the American public school system to public school students. I dissent.

Notes and Questions

It should be kept in mind that the freedom of expression protected in Tinker pertains to the expression of social, political, and economic issues by high school and junior high school students. Not protected is such student conduct in insolence, disrespect, screaming, or cursing at staff members or fellow students.

Tinker was filed as a legal action under 1983 of Title 42 of the United States Code. This section of the Civil Rights Acts is often employed as a legal basis for bringing a suit involving students or teachers. See Chapter 8 (p. 347) for a brief discussion of this act.

According to Tinker, “undifferentiated fear or apprehension of disturbance is not enough to overcome the right of freedom of expression,” and school authorities must accept “mere disturbance” when students exercise their First Amendment rights. Only when students engage in conduct that would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school” [emphasis added] may authorities prohibit the conduct. Unfortunately, the Court did not provide a test that school authorities could employ to determine whether actual disruption or merely a forecast of “substantial disruption” was necessary before they could prohibit conduct where freedom of expression was at issue. Further complicating the picture for school administrators was the failure by the Court to provide sufficient guidance concerning the meaning of a forecast of “substantial disruption.”

There is little doubt that school officials may enforce reasonable rules to ensure the orderly operation of the school. However, Tinker proclaimed that when freedom of expression is involved, school officials may not restrict this freedom because the political viewpoint expressed displeases an official or has the potential to bring about a degree of disruption. Part of the desired political socialization of students is that they learn that a government official – a school authority in tihs instance -may not restrict certain types of freedom of expression merely because it may be annoying or somewhat disruptive. Although some school officials may feel uncomfortable with such a doctrine, its rationale is based on the notion that if students are to become full participants in a free and democratic society, they must thoroughly understand that they are free to express themselves on any social, political, or economic issue without undue restraint or reprisal from government. The Court’s contention was that the school is the proper place for a student to come to this understanding through the observance of freedom of expression in the school environment rather than through lectures or through policies that imply that freedom of expression is conferred at a specific age or upon from high school.

Do contemporary notions about being “politically correct” fly in the face of the preceding? Why, for instance, should students not be allowed to make negative comments related to another student’s religion, race, sexual orientation , ethnic background, gender, or group association

merely because it may be offensive or disagreeable? Is it because a school has a duty to teach good manners and civility? Or is it because, in addition to impending the orderly operation of the school,

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students are required by law to attend and that it would appear to be an endorsement by the school if such views were allowed to be uttered?

A middle school student’s suspension for drawing a picture of a Confederate flag on a piece of paper during a math class was upheld in West v. Derby Unified School District,206 F/ 3d 1358 (10th Cir. 2000), cert. Denied 531 U.S. 825 (2000). In this instance, the school district had a “Racial Harassment or Intimidation” policy that prohibits “any written material, either printed or in their own handwriting, that is racially divisive or creates “ill will or hatred” and specifically included confederate flags or articles. In its decision, the court held that given the past history of racial incidents between white and black students, the district had a reasonable basis to assume that this student’s conduct will lead to a substantial disruption of school activities.

However, in Bragg v Swanson, 371 F. Sup.2d 814 (W.Va. 2005), the wearing of a T-shirt and belt buckle displaying the Confederate flag was upheld. Employing in Tinker rationale, the court found that the dress code banning the display of the Confederate flag was overboard because there was no evidence of racial unrest and the likelihood of disruption had not been established. The court cautioned, though, that if the school’s environment changed “. . . this opinion should not be interpreted as offering a safe haven for those bent on using the flag in school as a tool of disruption, intimidation, or trampling upon the rights of others.”

Wearing the Confederate flag in a school where the environment had changed considerably was addressed in Barr v. Lafon, 538 F. 3d 554 (6th Circ. 2008), reh’g, en banc, denied 553 F. 3d 463 (6th Circ 2009). Cet, denied 558 U. S. __(2009). Incidents of racial unrest included: “racist graffiti that made general threats against the lives of African-Americans, graffiti containing ‘hit lists’ of specific students’ names, physical altercations between African-American and white students, and a police lockdown at the school” (p.557). Given this environment the court held that wearing the flag was a racially divisive symbol, and relying on Tinker, that its wearing could reasonably be a forecast to substantially and materially disrupt schoolwork and discipline in the school. And the court maintained that the school enforced its dress code banning the wearing of the Confederate flag in a viewpoint-neutral manner.

Tinker analysis was employed by the judge in Gillman v. School Board for Holmes County, 567 F. Supp.2d 1359 (Fla. 2008), addressing whether a public high school may prohibit students from wearing or displaying T-shirts, armbands, stickers, or buttons containing messages and symbols that advocate the acceptance of and fair treatment for persons who are homosexual. This case initially arose from events surrounding the treatment of a homosexual high school student [not Gillman] and her supporters by their principla at a public school in a rural community in Florida panhandle serving approximately four hundred students in grades six through twelve. The principal not only criticized and harassed the student for being homosexual but also vociferously expressed his own disdain for homosexuality. He told her to “stay away” from middle school students or he would suspend her. He engaged in an investigation to determine which students were homosexual and who supported them and threatened all of them with disciplinary action. Specifically, the following represents s

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