Federal Courts in the Classrooms
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With the recent confirmation of extremist right-wing judge Priscilla Owen, it is important to look at the stakes for students in federal judiciary nominations. Here are ten ways that federal judges dramatically shape the rights and experiences of young people in public high schools and universities.
1. Censorship of Student Newspapers. In 1988, the Supreme Court upheld a high schoolâ€™s censorship of two articles in the school-sponsored student newspaper. One article was about teen pregnancy and how pregnant students struggle to keep up with their studies. The other was about the impact of parental divorce on students at school. Writing for the majority in Hazelwood School District v. Kuhlmeier, Justice Byron White found that the censorship was â€œreasonably related to legitimate pedagogical concerns.â€ In dissent, Justice William Brennan, writing for himself and Justices Thurgood Marshall and Harry Blackmun, argued that the â€œmere fact of school sponsorship does not licenseâ€ a regime of â€œthought control in the high school.â€ How far will the Supreme Court let high schools go in censoring and punishing the student press?
2. Drug Testing. In 1995, a conservative majority on the Supreme Court, citing safety and â€œrole modelâ€ concerns, upheld a high schoolâ€™s compulsory, random and suspicionless drug testing of student athletes. In 2002, in a bitterly divided 5-4 decision in Pottawatomie County v. Earls, Justice Clarence Thomas went a step further and found for the majority that schools could forcibly drug test all students in high school extracurricular activities. The theory was that this would deter kids from drug use. Why not just randomly drug test all students in that case? It could happen at a school near you.
3. Student Speech. When Mary Beth Tinker wore her black armband to protest the Vietnam War in 1965, she was suspended and told not to return to school until she took it off. Her parents went to the ACLU for help and, in 1969, the Supreme Court found that neither students nor teachers â€œshed their constitutional rights to freedom of speech or expression at the schoolhouse gate.â€ Students can express themselves so long as the speech is nonviolent and not disruptive of the educational process or violative of the rights of other students. But the Supreme Court has of late been taking big bites out of the Tinker principle, upholding discipline against students for â€œindecentâ€ speech and allowing much greater censorship of speech in school contexts. Will the conservative courts reduce Tinker down to a shadow of itself?
4. Teenagersâ€™ Abortion Rights. The Supreme Court has tolerated much greater state regulation of abortion where it affects the rights of teenagers. Thus, young women have to contend with parental notification and consent laws in many states. In parental consent states, pregnant teens in, for example, abusive homes who cannot obtain the consent of one of their parents must appear before a judge to ask permission to get an abortion. The Supreme Court just announced on May 23 that it would hear a case about a New Hampshire law that requires abortion providers to give parents 48 hours notice before an abortion unless the teen can get a judge to sign off or her life is at stake. The law makes no general exception for a girlâ€™s health. How will the Supreme Court treat this law?
5. Prayer in Public Schools. Despite a lot of hype, the Supreme Court has never banned prayer in public schools. That is, as long as there are pop quizzes there will also be prayer in the public schools. What the Court banned, in 1962, was prayer in public schools organized and sponsored by teachers, principals and administrators. Yet, there have been continuing efforts to erode Jeffersonâ€™s â€œwall of separationâ€ at school. In 1992, the Court had to specify that public high school graduation ceremonies are not the occasion for religious prayers by rabbis and priests. In 2000, the Court had to make the obvious point that the football field is part of the school and therefore not an appropriate place for officially-sponsored prayer. In all of these cases, conservative justices have argued for allowing religious prayer. In the current climate, the Establishment Clause is under fire again. Which judges will be deciding these issues?
6. The Ten Commandments at School. The Supreme Court just heard a pair of cases about the placement of the Ten Commandments on public property. Although it said back in 1980, in Stone v. Graham, that school systems could not post the Ten Commandments at the front of the class, this fairly obvious point is now deeply controversial. Many conservatives say that the Ten Commandments are not really religious! Who is going to make this call?
7. â€œUnder Godâ€ in the Pledge of Allegiance. The original Pledge of Allegiance, written in 1892 by radical Baptist minister Francis Bellamy, was designed to unify all Americans and did not mention God at all. Congress changed it in 1954 to send a message to the Soviet Union. A few years ago, the 9th circuit court of appeals in California, in an opinion written by a federal judge appointed by Richard Nixon, found that the recitation of the Pledge with the words â€œunder Godâ€ was as religious as having kids say â€œunder Krishnaâ€ or â€œunder Christâ€ or â€œunder Allah.â€ The Supreme Court tossed the case, Newdow v. United States Congress, out on technical grounds (Michael Newdow lacked standing because he was not the custodial parent of his daughter). The issue is still alive. Are we going to be one nation under the Constitution when we are at school?
8. Sexual Harassment. In 1999, in Davis v. Monroe County Board of Education, the Supreme Court found that schools can be held liable for student-on-student sexual harassment when teachers and officials know about it and are â€œdeliberately indifferentâ€ to the harassment. In this case, a girl was subjected to repeated groping and grabbing of her genitals and breasts as well as a stream of verbal abuse. Three justicesâ€”Kennedy, Scalia and Thomasâ€”dissented, saying that the â€œgirl who skips recess because she is teased by the boys is no different from the overweight child who skips gym class because the other children tease her about her size in the locker room; or the child who risks flunking out because he refuses to wear glasses to avoid the taunts of â€˜four eyes. . .â€™â€ Basically, they were saying, grin and bear it. The students just have to accept the â€œteasingâ€ and the schools are not responsible. Does unwanted groping of genitals count as basic schoolyard teasing? Which theory makes more sense for Americaâ€™s students?
9. Corporal Punishment. In 1977, in a 5-4 decision called Ingraham v. Wright, the Supreme Court found that school systems can engage in reasonable corporal punishment, including the â€œpaddling of students as a means of maintaining school discipline,â€ without violating the 8th Amendmentâ€™s ban on â€œcruel and unusual punishment.â€ Many states still allow corporal punishment at public schools and there have been many severe injuries as a result. Should students really have no rights under the 8th Amendment?
10. Evolution and Creation. Up until now, the Supreme Court has held the line against constant efforts to drive the teaching of Darwin and evolution out of the public schools. The new trick is to insert â€œcreation scienceâ€ or â€œintelligent designâ€ theory into science classes, mixing religion and science together into an incomprehensible stew. A district court in Georgia just got rid of a warning label that said evolution was â€œtheory not a factâ€ that the Cobb County schools pasted on science books, saying that it violated the separation of church and state. What will the courts say about the resurgent efforts to substitute Creation-based â€œscienceâ€ for the teaching of evolution?
Jamin B. Raskin is a professor of Constitutional Law at American University Washington College of Law and the bestselling author of Overruling Democracy and We the Students.