Supreme Court to hear important Students' Rights case this term

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Permalink Reply by Michael Soguero on February 16, 2009 at 9:17am

First off, I have to say I'm not sure about what to do in these cases. My "constitutional sense" argues that rights should be protected and there needs to be a high barrier to narrowing the rights of students. My gut says that standard was not met in this case.

However, I also worked in a school building (small school amidst a large comprehensive high school) that was labeled as one of the "dirty dozen" in the NYC press - it was in the top 12 of most dangerous buildings in New York City based on crime statistics. Scanning, searching, kids in cuffs were an everyday occurrence. I believe I had a good track record of fighting this where I believed it was unwarranted. And, there were, in my opinion, unwarranted acts of indignity and rights each day.

But, I also had situations where some students were dangerous to others. One mugged a student for $100 right in our hallways on the way to lunch. I've witnessed school safety officers being picked up by students and thrown onto hoods of cars. And, the maximum punishment available at the time against a student was a 5 day suspension.

There's something about (1) the compulsory nature of schooling and (2) the limits of school staff to impose consequences that make me wonder about the correct way to ensure safety. Since it's compulsory, families have no choice but to send their children to school even if the parents fear they are violent environments. Since school staff are extremely limited regarding discipline, there is an attraction to being as pre-emptive as possible.

To me, this question of students' rights must be discussed in light of these other two government imposed conditions: compelling by force of law that all young people of a certain age attend and imposing conditions that limit what school officials can do in terms of imposing discipline and ensuring safety.

Michael

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Permalink Reply by David Scott on March 20, 2009 at 7:08pm

Michael,

I agree with much of what you wrote. We have common career experience in that I was a NYC high school dean for 5 years prior to move to the suburbs. My job related directly to dealing with students who brought contraband to school. I would argue that Freedom and Safety are not mutually exclusive. Instead Freedom and Safety go together when they are bound together by a school culture of respect, responsibility and careful consideration of individual rights.

In my 5 years as a dean I was involved in countless student searches. In all instances the students were treated with respect and their rights were carefully considered. I never even contemplated a “strip search.” To me this was far beyond the scope of my authority. In the “Redding” case, I am concerned about the direction the Supreme Court might go. It seems to me that this is a clear case of a search that was constitutionally flawed in both “inception” and “scope.” There needs to be a balance between the danger presented and the basis for the search against the rights of the student. In “Redding” the basis seems highly suspect. All the school had was a tip from another student. The danger of prescription strength Ibuprofen in the possession of a student may be a legitimate concern, however it certainly does not rise to the level of something like a gun or narcotics. While some sort of investigation and parental notification was appropriate, the “strip search” of a female middle school student under the facts in the Redding case seems like a clear constitutional violation to me.

What really worries me is that the Supreme Court could be continuing its line of jurisprudence that expands the power of schools to limit students’ rights in the interest of safety and “the war on drugs.” I think it would set a terrible precedent if the Supreme Court found that the search in “Redding” was justified in its inception and scope based upon the facts of the case. Even if this is not the outcome, there is also the danger that they could still find that the school officials deserve qualified immunity. What other Constitutional violations might students in the United States be made to suffer if qualified immunity is granted on these facts? I think the possibilities are limitless. Inherent in the First Amendment and the Fourth Amendment is the recognition that we value the dignity of all persons. In the Redding case there must have been a way to achieve the school’s goal of “safety” while recognizing the dignity of this student. To me, the conduct of the school officials is clearly not justified. If the Supreme Court thinks this is a case where qualified immunity is justified, I worry about what indignities students in the future will suffer under the claim by school officials that the “standard was not clear.” It is just my opinion but I don’t even think it is a close call in Redding. When you balance the interest of the school in creating a safe school environment (based on the facts in Redding) against the intrusion on the rights of this middle school student, I would come out firmly on the side of the student. The 9th Circuit ruled in favor of the student. Since the Supreme Court is reviewing this case I have to wonder (and worry) about what they are going to do.

To be optimistic, perhaps they will affirm the 9th Circuit and provide clear constitutional standards that will be helpful to schools. For now we will have to wait and see.

I always find these “School Law” cases to be a terrific way to engage students in discussions about constitutional principles. Morse v. Frederick was a great teaching tool. One of the lessons of Morse v. Frederick is that when students do not use their voice responsibly the courts find ways to limit student expression. I just hope that with Redding, we are not seeing another case where student rights will be limited again. I agree with concerns about school safety. However safe schools will not come from a system that fails to live up to our core constitutional principles. We must honor the dignity of all students and engage them as part of our school community. If we treat students like inmates we dishonor the very foundation of our democratic society and will send these students into the future with nothing but distrust and suspicion (instead of the civic values and dispositions necessary to sustain our democracy).

I am very fortunate to work in a school community that is part of the “First Amendment Schools” program. One of the principles of “First Amendment Schools” is that schools should be laboratories of democratic freedom. What lessons are learned about democracy and freedom when students are treated like inmates? In many of the trainings we had in First Amendment Schools we talked about how schools can be “authoritative” without being “authoritarian.” There is great strength that can be found in honoring constitutional principles and advancing the cause of freedom in schools. This does not mean that we should not work hard to create safe school environments. I just don’t think that finding the “strip search” in Redding either constitutionally permissible or deserving of qualified immunity will result in anything positive for our students, our schools or our democracy.

I’m sorry it took me so long to get this post up. I do appreciate the feedback. I think this is an important topic that we should be talking about. I welcome more thoughts.

Respectfully,

Dave Scott

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