It is an unfortunate characteristic of today’s communication model that we talk to those who agree with us and shout at those who don’t. We howl at conduct by others that might curtail what the U.S. Constitution has guaranteed us, while clearly wanting all sorts of behaviors by others to be quickly suppressed.

We want not only order but discipline. We find no exercise of liberty more threatening than the actions of the young.

In many ways, the schoolroom is a restricted microcosm of a society as a whole, including expectations of behavior by students, parents and educators that are occasionally in conflict with what we see as our “rights.”

Those rights include free speech, reasonable expectations of privacy and, in some cases, what we might see as the right to due process or the prohibition of cruel or unusual punishment.

A school is a community entitled to these rights, except when it is not.

In general, educators have been given specific control often referred to as “in loco parentis.” We want educators to act as parents during the school day, during school activities and, occasionally, when they are far from any school boundaries.

The First Amendment of the Constitution gives students the right to free speech, yet these rights are invariably, and often necessarily, curtailed. Courts have held that students are entitled to freedom of speech and expression unless that expression is deemed disruptive.

In a simpler time that may only be imagined, educators were able to silence the class clown or to ask that adolescent males stop giggling when an educator discussing the solar system used a certain pronunciation of the seventh planet from the sun.

Those days are gone. Today, an educator must walk a very thin line between speech or expression that is merely offensive, rather than speech or expression that is truly disruptive.

Brian Hauss is a staff attorney for the American Civil Liberties Union (ACLU) Speech, Privacy and Technology Project. We love, or do not love, the ACLU because of its consistent defense of free speech, our opinion depending on which speech we feel is justified.

To Hauss, the rules are clear even if the interpretations are not.

In a decision that seems relevant to high school athletes taking a knee during the national anthem, Hauss referenced a famous West Virginia case where Jehovah’s Witness students would not salute the flag. The court said, “That they are educating the young for citizenship is reason for scrupulous protection of freedoms of the individual if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.”

In an ACLU case (Tinker v. Des Moines) a student wore a black armband to protest the Vietnam War. When she refused to remove the armband, rejecting the school’s argument that it was disruptive, she won. The court ruling upheld the right to peaceful, non-disruptive protest.

More recently the ACLU defended a student’s right to wear a T-shirt that read, “Some People are Gay. Get Over It.” At the other end of the political spectrum the ACLU defended student rights to voice anti-abortion messages at school and, in an ironic position, defended student rights to protest the ACLU.

Obviously, the challenge for educators is that what may be predicted as disruptive expression will vary school-to-school and community-to-community. For an educator to predict disruption may well require skills in evidence gathering, rather than simple intuition. Would you consider it disruptive, for example, for students at a high school basketball game to shout the name of a U.S. President?

In December 2017, The New York Times ran a story that said that repeating the name “Trump, Trump, Trump” had become a racial jeer, used by white students at athletic events to mock minority students on opposing teams. A presidential historian said that if you were seeking historical analogies for using a President’s name in that way you were “in virgin territory.” If you’re an educator or a coach can you, should you, stop that?

As noted by the newspaper, the Southern Poverty Law Center published a report entitled “The Trump Effect: The Impact of the 2016 Election on Our Nation’s Schools” which surveyed more than 10,000 educators and found incidents such as students barring minority students from entering schools while yelling “Heil Trump.” It also found that when Trump supporters were in the student minority they too suffered verbal abuse.

The idea that some communication can, or should, be regulated even if it was created outside the physical boundaries of the school is clearly a burgeoning issue, and not simply for students.

Late in 2017, a school superintendent in Pennsylvania promised to use his full authority to punish students who circulated photographs on social media of pumpkins carved with swastikas and the letters KKK.

Educators have been fired, suspended or reprimanded for posting social media commentary denigrating their own students. Students have been disciplined for what they wear or what they would not wear.

In Florida, a man identified as a student’s stepfather was charged with a second-degree felony after he drew his depiction of a school massacre on a child’s homework.

Then there are the abundant issues surrounding student publications. These publications are often subject to censorship by educators acting as editors or journalism advisors, and are often resolved in court.

School newspaper censorship is also occasionally subject to irony. In a Pennsylvania school, the student editors banned the use of the word “Redskins” – the name of the school’s football team. When the son of a school board member submitted an editorial using the word Redskins, it was cut. The school then demanded that the word be reinserted to avoid censorship.

“We don’t want to silence the voices of students who are really trying to learn journalism.”
David Hudson, Jr.

Then there is the Fourth Amendment, protecting us against unwarranted search and seizure. Except… a student is not always entitled to be free from a search of a school locker, especially if there is probable cause for the search.

A student, in some cases, can be physically searched by educators or law enforcement with probable cause. On occasion, those circumstances can be random. However, a sheriff in Texas was disciplined after he sent deputies into a high school to search every student for drugs with no specific probable cause beyond his own inclinations.

Some states and school districts allow students to claim Fourth Amendment rights and avoid, temporarily, searches of person or property. In other districts, refusal to allow a search is a disciplinary offense. In one case a student refused a locker search until a warrant was obtained. When the search found nothing, the student was still suspended for 10 days for the initial search refusal.

Depending on where you are, one method of dealing with speech or expression that is offensive, behavior that is suspicious, or other actions that are disruptive, is simply to hit the offenders.

In one early landmark case, a court ruled that a Vermont student driving cows past a teacher’s house far from the school uttered a disparaging remark and that the teacher was entitled to beat the student when he returned to school.

While corporal punishment sounds like a barbaric violation of student civil rights to many, hitting a student can be a locally acceptable part of loco parentis even if many of us see the word loco here as more appropriate in its more familiar sense. A little more than a year ago, National Public Radio identified 22 states that allow, or do not expressly forbid, corporal punishment in schools.

Usually, it involves striking a student on the rear end with a paddle or a baseball bat flattened on one side while the student is bent over a desk or other object, often in view of other students. According to the story, in the school year that ended in 2014, such corporal punishment was administered more than 100,000 times. Other studies suggest that such punishment is often applied disproportionately to minority students or students with disabilities or hyperactivity disorders.

Even in those communities where not sparing the rod is an article of faith, it would be illegal to treat a suspected criminal that way in a holding cell.

The issue and protection of Civil Rights in public schools is one of the mandates of the U.S. Department of Education. Last year in a streamlining of the agency, more than 200 people accepted voluntary buyouts, with more coming from the Civil Rights Office than any other department. As a superintendent or educator, the responsibilities you’ve added to educating include immigration expertise, arbiter of bathroom gender policies, interpreting local standards and constitutional scholarship.

There have always been qualities familiar in the best educators – expertise, commitment, compassion and a level hand. To be the Solomon-like center in a world seemingly in chaos demands one other attribute in great supply: courage.

Several students wore black armbands to school in a protest against the Vietnam War and were suspended when they refused to remove the armbands.

The Supreme Court sided with the students, saying that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

This right is not unlimited. In 2002 a student was suspended for holding a sign that said, “Bong Hits 4 Jesus” while standing across the street from the school during an Olympic torch relay. The court sided with the school, saying the message advocated illegal drug use.

Three junior high school students writing and editing a school paper for a journalism class included articles on divorce and teen pregnancy that the school determined to be unsuitable for the age group reading the publication. The students claimed their First Amendment rights had been violated. The Supreme Court ruled against the students, saying the school newspaper wasn’t a public forum but a “supervised learning experience.”

A student caught smoking in a school bathroom was asked to allow her purse to be searched. Rolling papers and marijuana were found and she was subsequently convicted of drug possession. She appealed, suggesting that her Fourth Amendment rights against unreasonable search and seizure were violated.

She lost. The Supreme Court said that while students have legitimate expectations of privacy, the school had a legitimate responsibility for maintaining an environment in which learning can take place.

A 14-year-old student accused of rowdy behavior in a school auditorium was held down in a principal’s office and given 20 swats with a paddle. The student missed school for 10 days and sought medical attention. His parents sued the school district, saying that the paddling violated his Eighth Amendment rights against cruel and unusual punishments.

The court ruled against the family. According to the court, the Eighth Amendment protected convicted criminals, rather than misbehaving students. The court said the overall issue of corporal punishment for students was up to states and school districts.