Are Students (and Minors) Protected by the Constitution?
Why can schools impose dress codes and search students’ backpacks? Doesn’t the Bill of Rights protect minors from such intrusions?
Today’s topic: The rights of minors
And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.
Are Minors Protected by the Constitution?
Not long ago, I got an email from Michael, who just turned 13, asking me about his rights as a minor. Specifically, he asks: “is it a breach of the First Amendment for a school, private or otherwise, to require its students to wear a uniform or follow a dress code? Also, do I have full protection via the Bill of Rights as a minor?”
These are great questions, Michael. As I’ll explain in a minute, the Bill of Rights–including the First Amendment–does apply to minors. However, as is so often the case, the student version of the Bill of Rights is somewhat different from the teacher’s edition. Or the parent’s edition, for that matter.
The Constitution Applies to Everyone–Sort Of
Generally speaking, the Constitution applies to everyone regardless of age, color, race, religion, or other factors. But minors don’t always enjoy full constitutional rights. The Fifth Amendment, for example, guarantees “liberty,” which means that the State can’t hold you against your will, unless you’ve done something wrong. But in the case of minors, the State requires them to spend all day in an institution, often against their will–it’s called school, and kids have to go there even if they haven’t done anything wrong.
The Bill of Rights Applies to Public Schools
Did you notice that I referred to “the State” in the example I just gave? Remember that the Bill of Rights, i.e., the first ten amendments to the Constitution, protects the People from certain actions by the federal or state government. That answers part of Michael’s question: a private school cannot violate the First Amendment because it is not a “state actor,” to use the legal term.
For the same reason, you can’t sue your parents for violating your constitutional rights–even if they take away your Guitar Hero. In this article, when I talk about the rights of students, I’m basically referring to the rights of students in public schools.
Students Can Express Themselves if they Don’t Disrupt the School
That annoying class clown can’t use the First Amendment to get out of detention.
In the 1969 case of Tinker v. Des Moines [1], the Supreme Court famously held that students in public schools do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” In that case, a group of high school students got into trouble when they wore black armbands to school to protest the Vietnam War. The Court held that school officials could not force the students to remove the armbands.
The Supreme Court did not, however, endorse absolute freedom of expression in the Tinker case. Instead, the Court said that the First Amendment would protect expression only insofar as it does not that “materially disrupt classwork or involve substantial disorder or invasion of the rights of others.” So that annoying class clown can’t use the First Amendment to get out of detention. More seriously, the Supreme Court has held that schools can discipline students who use crude language at school assemblies and students who promote illegal drug use – even if the speech occurs off l campus.
Dress Codes and the Constitution
Schools are generally allowed to impose dress codes, and even uniforms, without running afoul of the First Amendment. In 1973, the Supreme Court upheld a school’s decision to suspend two male students for wearing their hair long–even though both students were Pawnee Indians for whom long hair was a cultural tradition[. The Supreme Court has not addressed other aspects of student dress code–such as prohibitions against cut-off shorts–but such prohibitions have generally been upheld in the lower courts.
Search and Seizure
The other part of the Bill of Rights that is particularly relevant to students is the Fourth Amendment, which protects the people against “unreasonable searches and seizures” conducted by representatives of the state including, of course, public schools.
As I explained in an earlier article, the Supreme Court has held that the Fourth Amendment applies to searches conducted on school grounds. However, the Court also held that schools are not required to get a warrant to search a student.
Also, the Court decided that school officials do not have to meet the usual standard of “probable cause” that is required when the state searches an adult. Rather, schools can search students based on a lower threshold, sometimes referred to as “reasonable grounds” or “reasonable suspicion.”
Part of the rationale behind this case–and the other cases I’ve discussed–is a doctrine called in loco parentis, which is Latin for “in place of the parents.” Legally, this phrase means that while the student is in the school’s custody, the school must fulfill the parent’s role which may include some tough love to make sure that the student isn’t getting into trouble. I know this is not always easy for kids to accept, but trust me, when the school doesn’t act in loco parentis, it drives the parents loco.
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References
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About the Author
Adam Freedman is a lawyer and a regular contributor to Point of Law and Ricochet. Freedman’s legal commentary has been featured in The New York Times, the Minneapolis Star-Tribune, and on Public Radio. He holds degrees from Yale, Oxford, and the University of Chicago. He is the author of The Naked Constitution (2012).