Federal Courts in the Classrooms

By Jamin Raskin, Campus Progress. Posted June 2, 2005.

With the recent confirmation of extremist right-wing judge /www.allianceforjustice.org/hot_topic/collection/owennomination.html”> 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 school’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 “reasonably related to legitimate pedagogical concerns.” In dissent, Justice William Brennan, writing for himself and Justices Thurgood Marshall and Harry Blackmun, argued that the “mere fact of school sponsorship does not license” a regime of “thought control in the high school.” 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 “role model” concerns, upheld a high school’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 “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” 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 “indecent” speech and allowing much greater censorship of speech in school contexts. Will the conservative courts reduce Tinker down to a shadow of itself?

4. Teenagers’ 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 girl’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 Jefferson’s “wall of separation” 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?

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.

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