Week 2 - Student Rights and Due Process

Week 2 - Student Rights and Due Process

 

Please read the information below. These experts were lifted from the textbook.

1. Respond to the discussion questions in the case study.
2. Respond to at least two comments on your classmates' posts.
3. Post a "What if" question on one of the two topics.

I will makes comments to your post by Sunday evening. Next week's topic will be posted by Monday evening. Happy blogging..........

 

Freedom of Expression

1. School officials may restrict freedom of expression where there is evidence of material and substantial disruption, indecent or offensive speech, violation of school rules, destruction of school property, or disregard for authority. In each case, students must be provided minimal due process before any punitive action is taken.
2. Buttons, pamphlets, and other insignia may be banned if the message communicated is vulgar or obscene or mocks others based on race, origin, color, sex, or religion. They may also be banned if their content is inconsistent with the basic mission of the school. School policies that address these issues should be developed and communicated to students and parents.
3. To justify the prohibition of a particular form of expression, there must be something more than a mere desire to avoid the discomfort and unpleasantness associated with an unpopular view. Such action is arbitrary, capricious, and indefensible.
4. The time, place, and manner of the distribution of pamphlets, buttons, and insignia may be regulated by school officials. Prohibiting distribution in class during regular school hours or in the corridors between classes is considered reasonable.
5. Unsubstantiated fear and apprehension of disturbance are insufficient grounds for restricting the right to freedom of expression.

Protests and Demonstrations

1. Demonstrations that deprive other students of the right to pursue their studies in an orderly and peaceful environment can be disallowed.
2. Students engaged in demonstrations and protests cannot obstruct the corridors or prevent free movement among students who are not participants in these activities.
3. Any activities associated with demonstrations and protests that result in disrespect for authority, destruction of property, violation of school rules, or any other unlawful activities may be banned.
4. An activity involving students’ right to freedom of expression cannot be banned because it creates discomfort or conflicts with the views of school officials.

Student Newspapers

 

In light of the Eighth Circuit Court’s posture, school authorities would be well advised to consider these suggestions to avoid legal challenges regarding school-sponsored student newspapers:

1. Through the involvement of representative students, teachers, and other interested persons, formulate a set of legally defensible policies governing publication of the school’s newspaper.
2. Choose responsible student editors who will exercise high standards of responsible journalism.
3. Be aware that administrative prerogatives vary based on whether the student newspaper is considered to be an open forum or a curriculum-based publication.
4. Emphasize to student editors that they have primary responsibility to see that the newspaper is free of libelous statements and obscenity. In addition, remind them that newspapers are subject to the law of libel.
5. Develop regulations that prescribe procedures to be followed in the event that prior review is warranted. These should include the following:
• A definite period of time in which the review of materials will be completed
• The specific person to whom the materials will be submitted
• What specific materials are included for review
6. Do not impose policy restrictions on school-sponsored publications that cannot be defended on reasonable grounds.
7. Consult the school district’s legal advisor in cases where there is uncertainty regarding the appropriate administrative action to be taken when controversial subject matter is proposed by

Non School Sponsored Student Publications

1. Defensible policies should be developed that cover all aspects of student publications. These policies should be carefully crafted and communicated to students and their parents. Fundamental fairness should be the guiding principle in developing these policies.
2. School policies regarding non school-sponsored publications should not be written using broad and vague language so as to provide unlimited discretion in exercising prior restraint measures by school officials.
3. School officials must establish proof of disruption of a material and substantial nature before they can initiate disciplinary action against students. Disciplinary actions must meet the standards of fundamental fairness.
4. Actions by school officials are justified when there is evidence that the publication encourages disregard for school rules and disrespect for school personnel.
5. If the publication contains vulgar or obscene language, ridicules others, or violates policies on time, place, and conditions for distribution, disciplinary action by school officials is generally supported by the courts.
6. School officials may not be held accountable for content in a non school-sponsored newspaper.
7. Student editors are responsible for their own acts of libel. students.

Censorship

1. Courts are in disagreement regarding the extent to which school officials may examine and make judgments on student publications prior to their distribution.
2. If prior restraint is invoked, justification for doing so should be demonstrated and compelling.
3. School officials must be able to demonstrate that the distribution of a student publication will create a material and substantial disruption.
4. If limited review is legally justified, the following safeguards should be included:
• A brief review process
• An explanation of the person(s) vested with the authority to approve or disapprove the material
• The form in which the material is to be submitted
• A clear and specific explanation of the types of items that are prohibited, with a rationale as to why they are prohibited
• An opportunity for students to appeal the decision if they feel that it is unjust

Dress and Appearance

1. Local school dress codes developed by the school should be approved by the board of education.
2. Faculty, students, parents, and citizens should be involved in the formulation of such regulations.
3. Policies and regulations governing dress should be communicated and discussed with students and parents.
4. Dress codes will be supported by the courts only when there is evidence that they are reasonable.
5. Dress and appearance restrictions based on taste, style, and fashion rather than health, safety, and order will not pass court scrutiny.
6. Appearance that does not conform to rudiments of decency may be regulated.
7. Dress that is considered vulgar or that mocks others on the basis of race, gender, religion, color, or national origin may be prohibited.

Search and Seizure

1. A student’s freedom from unreasonable search should be carefully balanced against the need for school officials to maintain order, maintain discipline, and protect the health, safety, and welfare of all students.
2. Factors such as the need for the search, the student’s age, history, and record of behavior, the gravity of the problem, and the need for an immediate search should be considered before initiating a search.
3. A school search should be based on reasonable grounds—that is, believing that something contrary to school rules or significantly detrimental to the school and its students will be produced by the search.
4. The information leading to school searches should be independent of law enforcement officials.
5. Searches involving law enforcement officials must be accompanied by probable cause and a search warrant.
6. Although the primary purpose for the search should be to secure evidence of student misconduct for school disciplinary purposes, it may be contemplated under certain circumstances that criminal evidence may be made available to law enforcement officials.
7. Strip searches should be avoided except where imminent danger exists. Such searches can be justified only in cases of extreme emergency where there is an immediate threat to the health and safety of students and school personnel. In such cases, school authorities should be certain that their actions are fully justified and that they have convincing information to support this more intrusive search.
8. School personnel should conduct the search in a private setting. At best, a search is a demoralizing experience; care should be taken to minimize embarrassment to the student as much as possible.
9. The magnitude of the offense, the extent of the intrusiveness, the nature of the evidence, and the background of the student involved should be considered before a search is initiated.
10. A pat-down search of a student, if justified, should be conducted by a school official of the same sex and with an adult witness of the same sex present, if possible. Personal searches conducted by persons of the opposite sex can be very risky.
11. Arbitrary searches or mass shakedowns cannot be justified as reasonable and are illegal.
12. The use of canines should be avoided unless sufficient evidence justifies the need to employ these methods. Serious incidents that pose an imminent threat to students’ safety should form the basis for such action.

“No Pass, No Play”

1. Involve parents and students in the development of “no pass, no play” policies.
2. Make certain that policies are fair, reasonable, and legally defensible.
3. Provide strong remedial support for students who experience academic difficulty in classes.
4. Closely monitor policy implementation and maintain the necessary flexibility to modify the policy as the need arises.

Cell Phones, Pagers, PDAs, and Other Electronic Devices

1. Do not arbitrarily ban the use of cell phones, pagers, PDAs, and other electronic devices by students unless there is sufficient evidence of disruption or improper use.
2. If permitted, develop specific guidelines governing the conditions under which these devices may be used.
3. If not permitted for general use, allow for exceptional cases involving medical emergencies or other special circumstances that warrant the use of these devices.
4. Policies or guidelines should always be guided by a sense of fairness and due consideration for the unique and personal needs of students.
5. School officials may determine if students are allowed to use personal digital assistants.

Corporal Punishment

1. Corporal punishment should not be used except for acts of misconduct that are so antisocial and disruptive in nature as to shock the conscience.
2. School officials should not expect the courts to support malicious and excessive physical punishment of students.
3. The punishment must not be inflicted with such force or in such manner as to be considered malicious, excessively cruel, or unusual.
4. Reasonable administration of corporal punishment should be based on such factors as the gravity of the offense and the age, size, gender, and physical ability of the child to bear the punishment.
5. If a student professes a lack of knowledge regarding the rule violation or innocence of the rule violation, a brief but adequate opportunity should be provided to explain the rule and to allow the student to speak on his or her behalf.
6. Whenever possible, students should be provided punishment options for deviant behavior. Corporal punishment should never be administered when the child is physically resisting.
7. Attempts should be made to comply with the parent’s request that corporal punishment not be administered on the child with the understanding that the parent assumes responsibility for the child’s behavior during the school day.

Due Process

1. The essential focus of due process is fundamental fairness.
2. Due process provides a remedy for students against arbitrary or capricious acts by school officials.
3. The level of due process is a function of the seriousness of the threat to deprive students of their liberty or property interests.
4. Procedural or substantive due process singularly is of no value to school officials, unless the requirements of both aspects are met when they contemplate depriving students of liberty and property interests.
5. Fairness is not always absolute. What constitutes fairness in one situation may be totally unfair in another. The courts use a balancing test to determine the appropriateness of the procedures that should apply in a given situation.
6. For suspensions of more than ten days (and expulsions), obviously more than rudimentary due process procedures must be observed. However, the Supreme Court has not currently addressed this situation, and case law precedents are conflicting among the various circuit courts of appeals. A prudent school leader, however, should err on the side of providing students an opportunity for full protection of due process, including but not limited to the following:
• Notice of charges
• Prior notice of hearing
• Right to legal counsel at all appropriate stages
• Hearing before impartial party
• Right to compel supportive witnesses to attend
• Right to confront and cross-examine adverse witnesses and/or to view and inspect adverse
• evidence prior to hearing
• Right to testify on one’s own behalf
• Right to have a transcript of proceedings for use on appeal

Case Study: Search of Student Involving Protruding Object
Jim Robinson is a tenth-grade teacher. While walking down the hall, he spotted a suspicious
object protruding from a student’s pocket. He asked the student to empty his pocket, but the student refused.

Discussion Questions

1. Does the teacher have grounds to make such a request?
2. Does the student have a right to refuse to obey the teacher’s request?
3. Should physical force be used to identify the object?
4. Would such a search be legal?
5. What guidelines would you suggest school personnel follow in matters involving student search in situations such as this one?