Overview from the report on Student Rights

By Kenneth Jost, June 5, 2009

Savana Redding recalls it as “the most humiliating experience” of her life: the day she was forced to undress to her underwear at her school in Safford, Ariz., in what proved to be a fruitless strip-search for a prescription-strength pain reliever.

Authorities at Safford Middle School were on edge about drugs in fall 2003, partly because a year earlier a student had had a serious reaction to a prescription pill given to him by one of his schoolmates. So assistant principal Kerry Wilson reacted quickly on Oct. 8 when a student handed him what turned out to be a 400-mg ibuprofen tablet and told him the pills were being passed out for students to take at lunchtime.

The student's accusation led first to eighth-grader Marissa Glines, who was found to have several ibuprofen tablets in her wallet. Glines said she had gotten the pills from her classmate Redding. But when Wilson brought Redding to his office, she denied any knowledge of the pills.

A search of her backpack found nothing, but Wilson remained suspicious. He asked his administrative assistant Helen Romero to take Redding to the office of the school nurse, Peggy Schwallier, to look — as the school district's lawyers later put it — “for any pills that might be discreetly hidden in her clothes.”

A supporter of the group Students for a Sensible Drug Policy demonstrates at the U.S. Supreme Court in March 2007 during arguments in the case of Alaska high-school student Joseph Frederick, who was suspended for displaying his “Bong Hits 4 Jesus” banner during a school-sponsored event off school grounds. In a 5-4 decision, the court upheld schools' power to punish students for advocating or promoting illegal drug use.

Redding, then 13, was directed first to remove her shoes and socks and then her shirt and pants. With nothing found, she was then told to shake the band on her bra and then the elastic on her underwear. Still nothing.

Redding was never touched, but, as she recalled later, she felt “violated” by the strip-search. Romero allowed her to get dressed and return to class, but the experience was so humiliating that Savana decided to transfer to another school. She says now she developed stomach ulcers as a result.

Nearly six years after the episode, Redding, now 19, sat before the nine justices of the U.S. Supreme Court on April 21 listening as they considered whether the strip-search violated her right under the Fourth Amendment to be free from “unreasonable” searches.

In years past, Redding's grievance would have gone no further than the local school board — if she or her family had complained at all. But for the past 40 years, ever since a landmark Supreme Court decision, student-rights have been a staple on the dockets of state and federal courts up to and including the nation's highest tribunal.

The student-rights era began with a 1969 decision, Tinker v. Des Moines, that upheld the right of three middle- and high-school students to wear black armbands to signal their support for a Christmastime cease-fire in the Vietnam War. “It can hardly be argued,” Justice Abe Fortas wrote, “that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

In the years since, “few realms of educational policy have escaped the courtroom,” according to Frederick Hess, director of education policy studies at the American Enterprise Institute (AEI), a conservative think tank in Washington. The Supreme Court has established due process standards for student discipline and some limits on searches of students and their belongings. Today, lower courts are grappling with issues ranging from the free-speech rights of gay — and anti-gay — students and censorship of high-school newspapers to schools' efforts to police students' outside-school postings on the Internet.

Four decades after Tinker, civil liberties advocates say the decision is one to celebrate. “The Tinker decision was a watershed moment,” says Jamin Raskin, a professor at American University's Washington College of Law and editor of a book on student rights. “The Supreme Court essentially declared that education is about becoming a full-fledged citizen of democracy.”

“It seems a strange way to train children to be members of society to tell them that they have fewer rights than others,” says Catherine Crump, a staff attorney in the First Amendment Working Group at the American Civil Liberties Union (ACLU). “That doesn't seem like a good way to turn kids into adults who are fully participating members of our democratic society.”

Hess, who organized an AEI conference on education-related litigation in October 2008, agrees that recognition of student rights has had some benefits. “It's expected that adolescents will be more expressive,” he says. “Bringing some of that into the school environment seems both inevitable and constructive.”

On balance, however, Hess says the net impact of student rights has been “a substantial negative.” The movement, he says, “has significantly curtailed the ability of educational leaders and classroom teachers to set expectations, enforce discipline or aggressively shape a school culture that is conducive to teaching and learning.”

Richard Arum, a professor of sociology at New York University, agrees. “The expansion of students' legal entitlements has not only had unintended consequences on the capacity of schools to socialize youth effectively,” Arum writes, “but it has also increased the potential for student dissent in U.S. schools — whether of a political, religious or other ideological character.”

Without overruling Tinker, the Supreme Court has seemed more and more sympathetic to school administrators' concerns since the 1980s. In a pair of rulings under Chief Justice William H. Rehnquist, the court approved random drug testing for many high school students. And under current Chief Justice John G. Roberts Jr., the court in 2007 ruled that public schools can punish students for advocating or promoting illegal drug use.

Representing Redding before the Supreme Court, Adam Wolf, of the ACLU's Drug Law Reform Project, acknowledges public concern about drug use by students. “We all want our schools to be safe and to be drug-free, but that does not give schools carte blanche to do anything they want,” Wolf says. “Some policies just clearly cross the line and unreasonably invade student privacy.”

But Matthew Wright, the Phoenix lawyer representing the school district, urged the justices to give schools flexibility in dealing with students suspected of using or distributing drugs. Schools are “in the untenable position of either facing the threat of lawsuits for their attempts to enforce a drug-free policy or for their laxity in failing to interdict potentially harmful drugs,” Wright said in a statement prior to argument.

The Issues:

*Do schools' anti-drug enforcement policies violate students' rights?
*Do schools improperly limit students' free-speech rights?
*Do schools improperly limit students' religious freedoms?

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