History of Student Civil Rights


              The philosophy of student rights is a recent development of Western societies. Traditionally, children had few rights; instead, they had the affirmative duty to obey parental authority (Gibson, 1978, p. 51). Since teachers stood "in loco parentis" to the pupils--meaning the parents delegated their status and authority to the teacher when they sent their children to school--students were forbidden to disobey teachers as well (Parker-Jenkins, 1997, p. 8). To correct insubordinate children and instill discipline, parents liberally dispensed corporal punishment, and they sanctioned its use in the schools as a tool to make sure their children learned. Horace Mann, noted school reformer of the mid-19th century, reported seeing "328 floggings in one school during the course of a week" (as cited in Adams, 2000, p. 4), and spoke out against corporal punishment. The flogging continued, however, because in the 19th century "students were presumed to have few constitutional rights of any kind" (Pember, 1990, p. 73).

              This research reviews United States Supreme Court and lower court cases that established the First, Fourth, and Fourteenth Amendment rights of minors and challenged "existing notions of adult authority" (Parker-Jenkins, 1997, p. 3), as well as literature analyzing the sociopolitical context in which these cases arose. The term "school officials" refers to teachers, administrators, and/or school board members.


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Student Rights in the 1950s & 60s:
Southern Desegregation

              In the early 1950s, students in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) first asserted their rights in the political context of school segregation, claiming under the Equal Protection Clause of the 14th Amendment their right to obtain "admission to the public schools of their community on a nonsegregated basis." Holding in favor of the students in the first civil rights case to attempt institutional reform of all public schools, the Brown Court ruled that the students were entitled to nonsegregated schools under the 14th Amendment's Equal Protection Clause and ordered the lower courts to act "with all deliberate speed" in desegregating the public schools.

              Nine years later, the southern states continued to fight the Brown Court's order through evasive segregation schemes or by abolishing segregation laws, instead of affirmatively integrating. The South's resistance, especially violence recorded on film, caused public opinion in the North regarding southern segregation practices to solidify. In turn, this helped push Congress to pass the 1964 Civil Rights Act, which empowered the Office of Education in the Department of Health, Education and Welfare (HEW) to issue "guidelines for desegregation of school districts in southern states which, if not followed, could result in the withholding of federal funds" (Alexander and Alexander 202). Moreover, the 1964 Civil Rights Act placed "the power of the U.S. Attorney General's office at the disposal of private citizens faced with racial discrimination in public schooling" (Kemerer and Deutsch 548), accelerating the pace of integration.

              On the judicial front, in 1969 the Supreme Court finally responded to the South's continued evasion of its desegregation order, holding in Alexander v. Holmes County Board of Education, 396 U.S. 976 (1969) that " . . . continued operation of segregated schools under a standard of allowing 'all deliberate speed' for desegregation is no longer constitutionally permissible." Instead, all school districts in the southern states must "terminate dual school systems at once and . . . operate now and hereafter only unitary schools."


Student Rights in the 1970s:
Northern Desegregation

              The politics of public school segregation in the North also captured national attention as courts began to identify and take judicial steps to remedy racially segregated northern schools. For example, the federal district court in Detroit suggested a conspiracy among government officials (federal, state and local) and private organizations to reinforce segregation throughout the Detroit schools (Milliken v. Bradley, 338 F. Supp. 582 {1971}). In Denver, the district court found that school officials had engaged in racial segregation of one section of the district through deliberate manipulation of the "neighborhood school" (Keyes v. School District Number I, 303 F. Supp. 279 {D. Colo. 1969}).

              When the Supreme Court confronted its first northern school desegregation case in Keyes v. School District Number I, 413 U.S. 189 (1973), Justice Brennan, writing for the majority, admonished the school authorities declaring that intentional segregation of one portion of the district creates a prima facie case of unlawful segregative design in other portions as well. For this reason, the Court required the school authorities to "adduce proof sufficient to support a finding that segregative intent was not among the factors" responsible for other segregated schools in the district.

              In 1974 following the Keyes opinion, Judge W. Arthur Garrity of the U.S. District Court for the District of Massachusetts "found that the [Boston] School Committee had used covert techniques to segregate the system, and had done so with 'segregative intent.'" (Garrity qtd. in Cozzens 2). Judge Garrity adopted a busing plan to end the segregation, which led to violent protests in South Boston, such as the white protestors who shattered school bus windows and injured nine of the black students inside. (Cozzens 3).

              Against this backdrop of violence, evasion and deception, and suggestions of conspiracy--all within the context of an increasingly litigious society--the public attitude toward state schools began to change between the 1960s and the early 1970s: the trusted alliance between parent and school began to break down for many, much as a parental alliance breaks down during a divorce, and the schools began to combat a new alliance between the parent and child, as a non-custodial parent combats the parent/child alliance of a single-parent household (Weiss, 1996, p. 219). Symptomatic of this breakdown, parents who orchestrated student legal challenges, or students who were backed by parental authority, began what constituted an assault on the doctrine of the public school standing "in loco parentis" to the pupil, like a divorced parent suing to declare the other parent unfit.


Student Rights in the 1960s & 70s:
Freedom of Speech

              The first significant instance of an assault on the doctrine of "in loco parentis" occurred in 1969 in the case of Tinker v. Des Moines Independent Community School District, 393 U.S. 503, where children through their fathers sued to restrain school officials from disciplining them. In Tinker, a group of parents and their children determined to wear black armbands during the December holiday season in protest of the hostilities in Vietnam. Their children, ranging in age from 8 to 16, agreed to wear the armbands at school. When the principals of the Des Moines schools learned of the plan, they met and approved a policy that any pupil wearing an armband during school would be asked to remove it, and if the pupil refused, he or she would be suspended until it was removed. The petitioner students wore the armbands, were suspended, and brought this suit. Ruling in favor of the students, the Supreme Court held the school officials failed to show that the petitioners' conduct would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school." Therefore, the Court declared petitioners' conduct was symbolic speech protected by the First Amendment.

              As the Court began to define student rights, the balancing approach used to weigh educational interests against First Amendment freedoms seemed to tilt in a new direction. Whereas "until 1969 it was generally assumed that the interests of educational officials in providing an educational environment conducive to teaching and learning outweighed any right students might have to freedom of expression in that setting" (Kemerer and Deutsch 98), such an assumption was no longer valid.

              Concerned about the consequences of this new preference, Justice Black--the preeminent First Amendment judicial activist--dissented in Tinker, predicting

"if the time has come when pupils . . . can defy and flout orders of school officials . . ., it is the beginning of a new revolutionary era of permissiveness in this country fostered by the judiciary . . . . One does not need to be a prophet or the son of a prophet 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 practically all orders . . . . 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 . . . " (Tinker, 393 U.S. at 518, 525).

              A year later in Shanley v. Northeast Independent School District, 462 F.2d 960 (5th Cir. 1972), the Court of Appeals relied on Tinker to further weight the presumptive preference in favor of a student's right to free expression declaring, "When the constitutionality of a school regulation is questioned, it is settled law that the burden of justifying a regulation falls upon the school board." In this suit brought by the parents of five high school seniors who had been suspended for distribution of an underground newspaper, the 5th Circuit enjoined the school board from entering zeros into the students' permanent records. Although Shanley is precedent only for the 5th Circuit, most courts have followed it (Kemerer and Deutsch 136).

              During the first six years after the Tinker decision, there were "literally hundreds of cases by school children alleging violation of their constitutional rights" (Goss v. Lopez, 419 U.S. 565 {1975} Powell, J. dissenting), and "at least 125 . . . court decisions followed that precedent, repeatedly overruling administrative censorship of student publications and other forms of campus expression" (Overbeck and Pullen). Furthermore, "many more cases arose, as students asserted their newly won constitutional rights. Some of the earliest post-Tinker cases were only federal district court decisions and hence of limited value as precedents, but students were winning lawsuits against school officials" (Overbeck and Pullen 435).


Student Rights in the 1970s:
Due Process Protection & Corporal Punishment

Due Process

              In the 70s, as American high schools expanded into "warehouses for young people on the general track" (Marsh et al. 21), and assumed more influence over the lives of students, the trusted alliance between school and parent continued to break down. Charging school officials with unreasonable or arbitrary actions, students through their parents also began to assert their legal rights for due process under the 14th Amendment.

              The most important student due process case is Goss v. Lopez, 419 U.S. 565 (1975), wherein students were suspended without a hearing for various incidents including refusing to leave the school auditorium when ordered to do so by the principal and physically attacking an on-campus police officer. The students "sought a declaration that Ohio Code Section 3313.64 was unconstitutional in that it permitted public school administrators to deprive plaintiffs of their rights to an education without a hearing of any kind" in violation of the 14th Amendment Due Process Clause. Ruling in favor of the students, the Court declared students have a property interest in their public education that is protected by the Due Process Clause, "and which may not be taken away for misconduct without adherence to minimum procedures" including the right to notice and a hearing. Due process constraints on school disciplinary proceedings were thus imposed.

              Supreme Court commentator, J. Harvie Wilkinson III, suggested that Goss represents an attempt by the Court to manage "second generation" problems caused by school desegregation. Since the disruption of schools frequently resulted from black-white confrontation, as in Goss, and since African-American students were often the ones subject to discipline, again as in Goss (all of the defendants were black), the majority's decision to require notice and hearing were meant to mitigate what many may have considered the continuing discrimination of African-American students (32).

              Nevertheless, Justice Powell in his dissent criticized the majority's decision in Goss for its destructive effect on the relationship between the teacher and student, a relationship which has traditionally taken on many roles--"educator, adviser, friend, and, at times, parent-substitute." Powell wrote,

"In an age when the home and church play a diminishing role in shaping the character and value judgments of the young, a heavier responsibility falls upon the schools . . . . to inculcate an understanding in each pupil of the necessity of rules and obedience thereto. . . . When an immature student merits censure for his conduct, he is rendered a disservice if appropriate sanctions are not applied or if procedures for their application are so formalized as to invite a challenge to the teacher's authority--an invitation which rebellious or even merely spirited teenagers are likely to accept. The lesson of discipline . . . provides an early understanding of the relevance to the social compact of respect for the rights of others. This understanding is no less important than learning to read and write" (Goss, 419 U.S. at 593).

              Justice Powell's dissent echoes the sentiments of Edmund W. Gordon, "the first research director of Head Start and perhaps the foremost black psychologist of his generation" (Traub 191), concerning the value of teaching personal responsibility and its relationship to the "social compact of respect for . . . others" (Goss, 419 U.S. at 593). To close the gap between black and white academic performance, Gordon urges black parents to strive against the anti-academic and oppositional black peer culture, and strive to provide their children with "human capital" and "social capital", the former defined as the ability to "deal in abstractions, recognize and adhere to rules, [and] to use language at a high level", and the latter as the opportunity to assimilate "the norms, the social networks, [and] the relationships between adults and children that are of value for the children's growing up" (Traub 191-193).

              Teachers also can transmit human and social capital to their pupils, but their ability to do so is often dependent upon the mutual affection teachers develop with their pupils as they stand in the place of the parent--a loving parent who may also assume the role of adviser and friend. However, if the teacher no longer stands in loco parentis, but acts as the State official who is fettered by the oppositional nature of man's relationship to his State, the opportunity to develop this mutual affection is diminished; as is the related opportunity to transmit these essential human and social capitals--especially to the "rebellious . . . teenager" as Justice Powell forbode.

Corporal Punishment

              The first clear statement from the U.S. Supreme Court that the source of a teacher's authority had changed came only two years after Goss in Ingraham v. Wright, 430 U.S. 651 (1977). In this case, the Court held that the imposition of corporal punishment by school officials was not in violation of the Eighth Amendment. Nevertheless, the school's source of authority to impose corporal punishment came not from the parents, but from the State in its capacity to ensure "the proper education of the child and for the maintenance of group discipline."--a view that the Court declared is "more consonant with compulsory education laws" (Ingraham, 430 U.S. at 662).


Student Rights in the 1980s:
Search and Seizure

              Although the Court declared its departure from the doctrine of in loco parentis in Ingraham, school authorities continued to use the doctrine as a legal defense in the battle to expand student constitutional rights. Set in the politics of the "war on drugs" of the 1980s, the final expansion of student rights in the 20th century came as a backlash from the national concern over drug abuse. "[D]rug abuse and addiction had become a serious and dangerous problem in the 1980's due to a rise in the popularity of casual cocaine use among the middle and upper class, and the invention of crack cocaine, a smokable, more potent form of cocaine, used primarily by poorer, drug addicted people." (Check 1) The U.S. Bureau of Labor estimated that employee drug use cost businesses $60 billion a year (Krane 75).

              In response to national concern over children using drugs, in the early 80s First Lady Nancy Reagan initiated her "Just Say No" campaign, aimed at teaching school children how to "just say no to drugs." As school administrators felt the mounting community pressure to make schools safe from drugs, they resorted to more searches of students suspected of drug possession. In the prevalent climate of parent/school mistrust of the litigious 80s, these searches inevitably led to lawsuits claiming that the search was in violation of the student's Fourth Amendment right "to be secure . . . from unreasonable searches and seizures".

              By 1985, the United States Supreme Court decided to rule on the issue of student Fourth Amendment rights in New Jersey v. T.L.O., 469 U.S. 325 (1985), wherein the parents of a student who was searched for drug possession appealed on the grounds that the search was illegal under the Fourth Amendment. Although holding in favor of the school district on the facts of this case, the Court ruled that the Fourth Amendment's "prohibition on unreasonable searches and seizures applies to searches conducted by public school officials." Addressing the argument that school officials should not be subject to the Fourth Amendment because, under the doctrine of in loco parentis, "their authority is that of the parent, not the State," the Court declared,

"Such reasoning is in tension with contemporary reality and the teachings of this Court. We have held school officials subject to the commands of the First Amendment, see Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), and the Due Process Clause of the Fourteenth Amendment, see Goss v. Lopez, 419 U.S. 565 (1975) . . . . More generally, the Court has recognized that "the concept of parental delegation" as a source of school authority is not entirely "consonant with compulsory education laws." Ingraham v. Wright, 430 U.S. 651, 662 (1977). Today's public school officials do not merely exercise authority voluntarily conferred on them by individual parents; rather, they act in furtherance of publicly mandated educational and disciplinary policies. . . . In carrying out searches and other disciplinary functions pursuant to such policies, school officials act as representatives of the State (emphasis added), not merely as surrogates for the parents, and they cannot claim the parents' immunity from the strictures of the Fourth Amendment" (T.L.O., 469 U.S. at 336-337).

              Although T.L.O. ruled in favor of the school district on the facts of the case, it acknowledged that students were protected by the Fourth Amendment, and it helped sear into the American collective unconscious the image of school officials as the "State" and teachers as one party to an arm's length transaction--thereby expanding the psychological distance between teacher and student, and, by consequence, decreasing a teacher's ability to transmit human and social capital to those "rebellious . . . teenagers" (Goss, 419 U.S. at 593) who may need it most. Seeking to protect themselves against the "State", students and their parents litigated the unresolved issues of T.L.O. throughout the late 80s.


Legal Action of the 1990s

              In the 1990s, the perception of school violence reached heightened proportions and preventing it assumed center stage nationally. For example, the United States Congress enacted the "Gun-Free School Zones Act of 1990" (declared unconstitutional by the U.S. Supreme Court in 1995) (Daniel 602); the National Education Goals Panel of 1993 declared that "by the year 2000, every school in America will be free of drugs and violence and will offer a disciplined environment conducive to learning" (3); and in 1994, the United States Congress made federal funds available to support the goal of drug and violence-free schools by enacting the "Goals 2000 Educate America Act-Safe Schools Initiative" (Stefkovich and Guba 220). Also in 1994, Congress enacted the "Gun-Free Schools Act of 1994", prohibiting "states from receiving federal funds unless they enact a law requiring students who bring weapons to school to be expelled for not less than one year" (Daniel 602).

              In response to national concern over school violence, "the courts began seriously to extend T.L.O. by tipping the balance in favor of educators. In fact, two courts declared that, under certain circumstances, strip searches in schools are legal" (Williams v. Ellington, 936 F.2d 881 {6th Cir. 1991}; Cornfield v. Consolidated High School District No. 230, 991 F.2d 1316 {7th Cir. 1993}); other courts upheld "metal detector searches of students without individualized suspicion" (e.g., People v. Dukes, 580 N.Y.S. 2d 850 {Crim. Ct. N.Y. 1992}; In re F.B., 658 A.2d 1378 {Pa. Super. Ct. 1995}; In re S.S., 680 A.2d 1172 {Pa. Super. Ct. 1996}; People v. Pruitt, 662 N.E. 2d 540 {Ill. App. Ct. 1996}; and in Vernonia School District 47J v. Acton, 115 S. Ct. 2386 {1995}), the U.S. Supreme Court upheld "drug testing of student athletes without individualized suspicion" (Stefkovich and Guba 218-219).

              Under the pressure of public scrutiny and legislative mandates to create drug-free and violence-free schools, as well as what amounted to a judicial green light regarding the violation of student Fourth Amendment rights, school officials across the country began implementing "zero tolerance" policies--and huge, anonymous American schools became even more alienating. Under the heavy hand of these policies, news stories across the country described incidents such as the "second-grader who accidentally grabbed her mother's lunch bag containing a steak knife [and] was disciplined despite turning the bag over to her teacher as soon as she realized her mistake [; or a] middle-schooler who shared her asthma inhaler on the school bus with a classmate experiencing a wheezing attack [and] was suspended for drug trafficking [; or an] eighth-grader [who] was handed over to juvenile authorities for allegedly making an off-color joke about the Columbine incident to a classmate [and] spent 26 days on home confinement" (Tebo 41).

              As bureaucratic policy replaced human judgment under zero tolerance, students--by their parents--continued to file lawsuits against schools for violation of their constitutional and statutory rights. Furthermore, legal rights organizations such as the ACLU, the American Friends Service Committee (AFSC), the Student Press Law Center, and the Lambda Legal Defense and Education Fund (LLDEF) responded to the crackdown by championing the cause of student rights through educational outreach programs and free legal services. Student outreach literature ran lead-ins such as "you have the right to be treated fairly by people who are in positions of authority--teachers, school administrators, and the police" (Student Rights: Sybil Liberty: Fair Treatment), which betrayed the new zeitgeist--lumping teachers and police in same group. Student organizing manuals, introduced by slogans such as "Are you fed up with the civil liberties violations on your campus?" (Student Rights: Student Organizing Manual), taught high school students an attitude as much as a method and skill.

              The AFSC National Youth & Militarism Program (Y&M) also championed the cause of student First Amendment rights warning students that "concerns over 'school safety' have lead some schools to try to restrict or punish the speech or actions of students even further . . . . But you do have a right to your opinions. . . ." (Student Rights: Say What?). If you feel your rights are being violated, you should ask to see a copy of the school district's or board's policy on students' First Amendment rights. Often, letting officials know that you know that students have rights and reminding them of this by having them read the policy is enough" (Student Rights: What You Can Do). The article closed with a suggestion for students to test the application of court rulings if they were unsure of their rights (Student Rights: Say What?).


Theory of the Relationship
Between Student Rights and Social Promotion

      order and discipline in our public schools were imposed through 
      traditional authority, that is, the authority of teachers, principles and 
      parents legitimized by custom (Weber qtd. in Gerth, 1970, p.296). During 
      the civil rights era of the 1960s, however, the perception of legitimate 
      order began to change to rational-legal authority, that is, authority 
      legitimated by statutory laws or regulations. As notions of legitimate 
      authority changed, so did the notion of the ideal type of organization. 

              With the transformation of 19th century society from agrarian to manufacturing, bureaucracy became the ideal type of organization and by the beginning of the 20th century, the public schools had adopted the bureaucratic form. Bureaucratic regulations governing public schools grew to fill volumes. State secondary schools grew to huge, anonymous institutions where policy took precedence over compassion (Marsh et. al. 1999, pp. 20, 21), and the courts acknowledged the constitutional rights of students to protect them from arbitrary or unjust bureaucratic decisions. In the context of school bureaucracies governing through regulations, the transfer of authority for student disciplinary measures from the traditional authority of the parents to the rational-legal authority of the state was inevitable.

              These conditions, in addition to American societal values that stressed high school diploma acquisition to obtain class, status and power, set the stage for the genesis of social promotion. Societal values made diploma acquisition meaningful so students were motivated to obtain it; however, the same was not true for the independent pursuit of knowledge. Therefore, students commonly sought to maximize their perceived personal advantage by engaging in classroom power struggles with teachers who sought to withhold course credit for unsatisfactory performance.

              Inevitably, the pyramid of authority of Weber's ideal bureaucracy became shared bureaucratic authority in the classroom--students with their newly won constitutional and regulatory protections and teachers with regulatory mandates to maintain order--forcing teachers into the compromise positions dictated by shared power. As the teacher and student remembered the past and anticipated the future, stabilized patterns of interaction characterized by disruption, disorder, and the compromise of inflated grades developed into a classroom ritual that eventually solidified into a social structure for general track public school students called social promotion.



HA1:  State authority as the enabling source for student disciplinary measures is positively related to social promotion.
HA2:  State authority as the enabling source for student disciplinary measures is negatively related to traditional standards of student classroom deportment.
HA3:  As traditional standards of student classroom deportment have decreased,social promotion has increased.


(under construction)