1st Amendment Rights and School Law

Introduction

Since the writing of the Constitution in 1787 that established the government in 1789, the power of the government rests with its people. With that power, come responsibilities including the responsibility of educating the young people in the virtues and values of the American republic. American republican principles are rooted in the fundamental philosophy of John Locke. Locke’s words, which re-appear in the Declaration of Independence and the Bill of Rights, are the natural rights we have followed and debated for the last two hundred and eighteen years. With the expansion of public schools during the 20th century, educators and administrators have been faced with the challenge of protecting the First Amendment rights of students and balancing that with the schools’ need to maintain a safe and orderly environment. Appellate courts, Circuit courts, and even the United States Supreme Court have heard cases in which students, fearing the annulment of their rights, have challenged the educational institutions. In contrast, the schools have sought, through the judicial system, an affirmation of their rights as educators to maintain control and balance, particularly in light of growing violence within the school systems. While the courts have certainly clarified many of the laws regarding student’s rights, the struggle to balance the issues remains constant. Before analyzing the issues, it is important first to understand the Amendment in question. The First Amendment to the United States Constitution reads, as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; of abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances (U.S. Const., Amendment 1).

Simply, the First Amendment seeks to protect the right of all persons to practice any religion, speak freely of their beliefs, assemble in groups, understanding that those groups must be peaceful in nature, and to petition the government when needed. Additionally, the First Amendment seeks to maintain freedom of the press, to ensure that the press is free to publish and write about whatever topics in whatever form they feel necessary.

In dealing with so many broad protected freedoms, there are bound to be difficulties with interpretation and enforcement. As early as 1943, in West Virginia Sate Board of Education v. Barnette (1943), the issue of First Amendment rights violations was brought to a national level. In the Barnette case, a group of Jehovah’s Witnesses sued in the United States District Court on behalf of their children, and other children in West Virginia. A previous court decision had inspired the Board of Education of West Virginia to order that saluting the flag become a “regular part of the program of activities in…public schools” and that all students were required to participate. Refusal to salute would result in expulsion of the student. However, due to their religious beliefs that the flag was a “graven image”, and that saluting the flag would be in violation of God’s commands, the Jehovah’s Witness members sought to avoid the forced expulsion upon their refusal to salute. The Supreme Court found in favor of the students, noting that the First Amendment protected the student’s rights to dissent. In their decision, the Court also spoke strongly of the protection of that right, even when the matter at hand was “things that touch the heart of the existing order,” (West Virginia Sate Board of Education v. Barnette, 1943).

Since cases such as West Virginia v. Barnette, issues such as the freedom of school newspapers, clothing choices of students, the right to assemble, the right to free speech within the public school, and freedom of religion has been an issue of constant controversy. Even the issue of the Pledge of Allegiance and the salute to the flag are still under fire on the lower courts, as non-religious parents and students seek to abolish the words “under God” from the Pledge (Russo, 2003). While students seek stabilization of their First Amendment rights, institutions seek to maintain control over an increasingly violent school population.

In current Supreme Court and lower court rulings, three landmark cases are often used as precedence, and used to determine if, in fact, student’s First Amendment rights have been violated. In fact, in a 2001 decision by the U.S. Court of Appeals for the 5th circuit, in Canady v. Bossier Parish School Board (2001), Judge Robert M. Parker discusses these three cases, and explains that the Supreme Court uses each case to assist in categorizing First Amendment issues before the Court (Dowling-Sendor, 2001). Each case, and