School Policies May Be Biggest Threat to Constitutional Rights

As school officials embark on a campaign to educate students about the bicentennial of the U.S. Constitution, educators need to be more conscious of the fact that the Constitution applies both in theory and practice to the educational setting.

As the Supreme Court said almost 20 years ago, “Students and teachers do not shed their constitutional rights at the schoolhouse door.”

Educators at every level must be legally literate today and take steps to avoid conflicts that end up in court. They must take special care to read the cases that interpret the Constitution and to take even greater care to be sure that their actions do not trample on the rights of students, parents and taxpayers.

Unfortunately, as cases and controversies from within San Diego County indicate, this has not been the case. Instead of practicing what they teach about the Constitution, school officials, often without legal counsel, make legal decisions that students challenge in long and costly court battles. Often, school officials lose to students or other parties asserting that their civil rights have been violated.

The controversies range from suspending students for wearing certain garments to censoring school papers and library materials.

For example, in 1986 the Fallbrook Union High School District reached a settlement in a case involving the suspension of two students who published and distributed an underground paper on campus.

After 18 months of litigation and a judge’s ruling that the principal lacked legal authority to suspend the students, the school district agreed to an out-of-court settlement. The district agreed to change its policies on unofficial student publications, apologize to the students involved, and pay the students damages.

The Grossmont Union High School District faced similar litigation involving official school papers. Recently, the district decided to forgo appealing a federal appeals court decision that held that the district violated the First Amendment rights of the Committee Against Registration and the Draft (CARD) by granting ad space in school papers for military recruiting ads, but refusing equal space to CARD.

Unfortunately, Grossmont’s problems with free expression didn’t end with the CARD suit. The district found itself in another controversy concerning punishing students who wear T-shirts that display commercial trademarks. Students wearing T-shirts bearing logos for “Corona Beer” and “Sex Wax” (a surfboard wax) were ordered to change their clothes.

School officials took the action even though California and federal law prohibit punishing students for wearing clothing that does not cause a substantial disruption of the educational process.

At least in the area of book banning, the Grossmont district’s board did this year take a firm stand against removing the book, “The Color Purple,” from a school library.

Unfortunately, First Amendment advocates could not celebrate long. During the holiday season, Grossmont High presented its annual holiday celebration, which contains heavy religious overtones. Though traditional, the use of public funds for what is largely a religious observance violates the separation of church and state.

Dealing with free expression and religious issues has been at the center of a controversy in the Oceanside Unified School District, where school officials still are grappling with removing books from a school library.

A group of students, called the “God Squad,” believes that the books in question--dealing with magic, witchcraft and astrology--promote devil worship. Despite legal advice that the removal violates the Constitution, and a vote by the school board against removal of the books, some board members still wanted the school district to find a lawyer who would support censorship.

The First Amendment is also causing debate in Escondido. The Escondido Union High School District has adopted a “controversial issues” policy. This requires teachers to provide “alternative” assignments when students object to an assignment based on “religious” or “political” beliefs.

Though the motives of the district are to protect minority religious and political views, the Escondido policy has the effect of denying students First Amendment protection. The policy restricts access to ideas. Teachers may simply avoid presenting controversial assignments. The policy also creates an entanglement with religion because teachers must inquire into students’ religious beliefs to determine whether an alternative assignment is warranted.

Due process was at issue at Poway High School this year. Several students were expelled after they were reported to have consumed alcohol during a trip. Though the students were unaware, school officials contended that the trip was a “school-sponsored activity.”

Superior Court Judge Richard Huffman restrained the district from enforcing the expulsions, holding that the students had no reasonable basis on which to believe the event was a school event.

These cases from the last year indicate that some school officials simply are not sensitive to basic constitutional values. Costly lawsuits involving protracted litigation simply are no solution.

Florida may have found a solution. The state will soon require that school officials seeking administrative certification take a competency test showing that they are legally literate in the burgeoning area known as educational law.

The Florida example is a smart one. School officials must demonstrate at least a basic understanding of constitutional principles and of case law interpreting the rights of students and teachers.

Floridians got fed up with having to pay large settlements for civil rights violations. More importantly, they found that school officials were spending more time and money in court defending decisions, like suspending a student for wearing jogging shorts to school, than they were on helping students to become literate.

A mandatory mini bar exam for school administrators sounds outrageous to some, but it may be the next step. School officials often must make quick judgments without benefit of legal counsel. Rather than expose a school district to a lawsuit, it is much better to have someone making decisions who has some legal knowledge.