Missouri Bar Citizenship Education

 

CONSTITUTIONAL ISSUES AND TEENAGERS


Prepared by Millie Aulbur
Director of Citizenship Education, The Missouri Bar

Grade level High School
Subject areas Government, Civics, Law and American History
Objectives 1. To acquaint students will with court cases that address constitutional rights and high school students.
2. To analyze why the courts have treated school settings differently than the general public in matters of constitutional rights.
3. To demonstrate the relevance of the Bill of Rights in students’ lives.
Materials Handouts for the students and access to a computer.
Suggested websites www.streetlaw.org/en/landmark/home
www.uscourts.gov/EducationalResources.aspx

Note:  All handouts are at the end of the lesson plan.

Directions for moot court activity:

1. Prior to beginning any activity, students should be acquainted with the case of Tinker v. Des Moines, 393 U.S. 503 (1969). (“Students do not shed their constitutional rights at the schoolhouse gate.”).  This is the seminal case for students’ rights.

2. Choose a Supreme Court case that may interest high school students.  The summaries of four famous cases where the parties are high school students are attached as handouts to this lesson.  Additional cases may be found at the suggested websites above.  The holdings in the cases included in this lesson plan are as follows:     
• New Jersey v. T.L.O, 469 U.S.325, 105 S.Ct. 733, 83 L.Ed.2d 720(1984). The United States Supreme Court found that a search of T.L.O.'s purse was reasonable because the vice-principal had information from a teacher that T.L.O. had violated school rules.
• Bethel School v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549(1986). The United States Supreme Court held that it is a "highly appropriate" function of public school education to prohibit vulgar and offensive terms in public discourse and that Fraser's  "offensively lewd and indecent speech" was not protected by the First Amendment.  After discussing this case, consider studying and discussing the Morse v. Frederick,  551 U.S. 393 (2007 ) case.  There are excellent classroom activities for this case at: www.uscourts.gov/EducationalResources/ClassroomActivities/FirstAmendment/FreeSpeechAndSchoolConduct/Background.aspx
• Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988). The United States Supreme Court held that the principal’s decision to disallow two articles in the school newspaper did not violate the First Amendment.  The court held that "a school need not tolerate student speech that is inconsistent with its basic educational mission, even though the government could not censor similar speech outside the school."  The United States Supreme Court further held that school facilities may be deemed to be public forums only if the school has opened its facilities for "indiscriminate use by the general public."  Since the Hazelwood School District did not open its facilities to the public at large, its student newspaper was not considered a public forum, and, therefore was not entitled to the same First Amendment protection as a public newspaper.
• Vernonia School District 47J v. Acton, 515 U.S. 646 (1995).  The United States Supreme Court held that the Vernonia School could test its athletes for drugs without violating the students’ Fourth Amendment Rights.  The court held that requiring a student to submit to a urine test is a search within the meaning of the Fourth Amendment and that an individual's right to privacy must be balanced against the school's interest in curbing illegal during use among the student body.  However, a school may exercise greater supervision over school children than the state can over adults.   Although students do not leave their constitutional rights at the school door and any search or seizure must be considered reasonable, school children have a lesser expectation of privacy than adults in that they are required to have physical examinations and vaccinations in order to attend school.  Student athletes have an even lesser expectation of privacy in light of the fact that they often undress in open locker rooms.  As to the balancing test, the privacy interests involved with urine testing are minimal compared to the school's interest in curbing the use of illegal drugs among the students.  Furthermore, student athletes have a greater potential to harm themselves and otherwise while using illegal drugs, and, in the Vernonia School District, the results of the drug test would be kept confidential and not turned over to law enforcement officials.  The court broaden its holding in a subsequent case, Board of Education Independent School District No. 92 of Pottawatomie County et al. v. Earls et al. 536 U.S. 822 (2002)

After choosing a case or several cases for study, have the students work individually or in groups to complete the handout on analyzing a case.
3. After the students have completed the worksheets, either do a class discussion about the case(s), or have the students do a simple moot court appellate argument.  The steps the moot court are in the attached handout.

4. After the moot court, the teacher should announce the actual holding of court in the case(s).

Directions for role playing:
The following role plays cover several constitutional issues involving a school setting.

First Amendment role plays
1. Begin by having the students look at the First Amendment and take note of the following two things:
• That there are five freedoms in the First Amendment that are in our GRASP—Grievance, Religion, Assembly, Speech and Press

• That it is “Congress” that is forbidden from making any laws that interfere with these freedoms.  Make sure students know what Congress is.

2. Do the role plays with follow up discussion:
a.   Budding Journalists—pick students to play the parts. After role playing discuss:
• What freedom are we talking about?
• Is a school newspaper protected by the First Amendment? (Yes, in Tinker v. Des Moines, the Supreme Court made it clear that students have constitutional rights that they do “not shed at the school house door.”
• If the First Amendment is about Congress making no law, why must a school worry about freedom of the press for its students?  (Depending upon the age and sophistication of the students, a presenter can explain that the 14th Amendment was added to Constitution after the Civil War and it basically made the Bill of Rights applicable to any governmental unit, including public schools.  At the very least, point out that now any institution supported by public funding must honor the freedoms and protections guaranteed by the Constitution.)
• Is a school newspaper a place where anyone can express his or her opinion?
• Could the students send their information to the local newspaper and be protected by the First Amendment?
• Discuss the Hazelwood v. Kuhlmeier case where the U.S. Supreme Court held that while school newspapers are covered by the First Amendment, school authorities may take measures to protect to protect the students’ privacy and ensure content is consistent with the school’s policies, especially when the school newspaper is part of the curriculum.  

b. Graduation Prayer-- pick students to play the parts. After role playing discuss:
• What freedom are we talking about?
• What are the two parts to freedom of religion and what do they mean?  (Free practice and establishment clause).  Which is this role play about?
• Is it constitutional for the school to have a prayer at graduation?
• What “government” is involved here?  (School)
• Could a teacher offer a prayer at the beginning of her class at Central High School? 
• What about at St. John's Lutheran High School where it is not a requirement that one be a Lutheran to attend and, indeed, most classes have students who have various religious beliefs?  (Private schools are not government bodies and these other factors do not matter.)
• Discuss the Lee v. Weisman, 112 S.Ct. 2649(1992) case where the U.S. Supreme Court held that graduation prayer did violate the establishment clause of the First Amendment.  Although graduation is not part of the school day, it is a school sponsored event.
• Discuss the Good News Club v. Milford Central School, 533 U.S. 98 (2001) case where the U.S. Supreme Court held that since the school district allowed non-school groups, such as Boy Scouts, to hold meetings in school facilities, it could not deny a group use of the facilities on the grounds that it was a religious club.  The language of the court is very interesting and worth examining and may be found at www.law.cornell.edu/supct/html/99-2036.ZO.html.
• Discuss the Santa Fe Independent School District v. Doe, 530 U.S.290 (2000) case where the U.S Supreme Court held that the student initiated, student led prayer before football games violated the Establishment Clause of the First Amendment.   The language of the court is very interesting and worth examining and may be found at www.law.cornell.edu/supct/html/99-62.ZS.html.

c. Aunt Frieda and Church-- pick students to play the parts. After role playing discuss:
• What freedom are we talking about?
• Is Aunt Frieda violating Penny's and Peter's First Amendment right by forcing her religion on them?
• Could Peter and Penny take their "case" to the United States Supreme Court?   Clue:  Who does the Bill of Rights protect you from?  What governmental agency is involved?

Note:  The concept of the Bill of Rights protecting us from the government is an extremely important concept and one often overlooked by most people.

Fourth Amendment role plays
1. Begin by having the students look at the Fourth Amendment and discuss the following matters:
• What is a search?
• What is a seizure?
• What must a law enforcement officer show to obtain a warrant to search
something or someone?  (Probable cause that a crime has been committed.)
• You may want to consider discussing that the right to be free of unreasonable searches also means that there is an expectation of privacy in the thing being searched.  Give some examples of something private:  home, locker, car, purse, pockets, and hotel room.  But what about a friend’s house or a friend’s car? What would you say about trash bags in front of your home?  What would you see about heat radiating from your home? 

2. Do the role plays with follow up discussion:
       a. It’s My Locker
• Who is right?  Patty and Peter or the principal?
• If the principal does not find anything, does that mean she did not violate their Fourth Amendment rights?
• Did the principal need a reason to search their lockers?

         b. It’s My Body
Who is right—the coaches or the students?







































Handout
BILL OF RIGHTS

Amendment 1
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or 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.

Amendment 2
A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

Amendment 3
No soldier shall, in time of peace be quartered in any house, without the consent of owner, nor in time of war, but in a manner to be prescribed by law.

Amendment 4
The right of the people to be secure in their persons, house, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment 5
No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger, nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law, nor shall private property be taken for public use without just compensation.

Amendment 6
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for defense.

Amendment 7
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of the trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Amendment 8
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.

Amendment 9
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage other rights retained by the people.

Amendment 10
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.




Handout
BUDDING JOURNALISTS

PLAYERS:  Joe, Jenny and Mr. Fair

Setting:  School newspaper production room

Joe:  Mr. Fair, Jenny and I have a great article on why the dress code in this school is unfair and unreasonable.

Jenny: We did a survey of 100 kids with kids from all the grade levels and with equal numbers of boys and girls.

Joe: I think when the administration and school board see this they are going to get the message about what needs to be done about the dress code.

Jenny: I have an editorial related to the article, too.

Mr. Fair: I probably better check with the principal about this article. (He leaves and comes back a short time later.)

Mr. Fair: Joe and Jenny, you really did a nice job on this project but the administration and school board with a student group came up with the present dress code
several years ago and the principal feels it is not a good idea to open up this subject for debate again.

Joe: But this is our newspaper.  The first amendment guarantees our right to print what we want.

Jenny: My mom is a lawyer.  We'll take this to the Supreme Court if necessary.  Thomas Jefferson and James Madison would not like what is happening here.














Handout

GRADUATION PRAYER

Players:  Mr. or Ms. Jones--Principal of Central High School
                Mr. and Mrs. Smith--parents of a senior at Central High School

Setting:  The principal's office, one month prior to graduation

THE PRINCIPAL: I am so glad you came in today, Mr. and Mrs. Smith.  I understand you have some concerns about our graduation ceremony that is coming up next month.

MRS. SMITH:     Yes, we do.  It is our understanding that the minister from the Methodist church has been asked to say a prayer at the graduation exercises.  Is that correct?

THE PRINCIPAL: Yes, it has been a long-standing tradition here at Central to have a minister from one of the community's churches say a prayer.  We rotate the honor among the various denominations.  Last year it was Father Murphy from St. Mary's and the year before that it was Rabbi Jaffe from the Hillel Center.

MR. SMITH:      Since this is a public school, we feel very strongly that it is unconstitutional for the school to have any kind of prayer at a school function.  While we believe in God, we belong to a non-traditional church and prefer that our children not be forced to be part of a prayer experience that is contrary to our religious practice.

THE PRINCIPAL: This issue has arisen before.  We have asked the students how they feel and the majority of students want the prayer.

MRS. SMITH:     The majority?  So there have been students who have voiced objections?

THE PRINCIPAL: Well, yes, but we remind the students that this is a democracy and the majority rules.

MR. SMITH:  Our child will not be a part of any ceremony where there is a prayer offered.  What you are doing is unconstitutional and we will take this to the Supreme Court if we have to!







Handout

AUNT FRIEDA AND CHURCH

Players:  Aunt Frieda--a domineering woman.  Penny and Peter--Aunt Frieda's niece and nephew who have come to live with her for reasons unknown.

Setting:    Aunt Frieda's living room on Sunday morning.

AUNT FRIEDA: Penny!  Peter!  Come on, it is time for us to go to church.  (Enter Penny and Peter.)

AUNT FRIEDA: We need to get to church early so I can enroll you officially as members of the Maple Street Methodist Church.
 
PENNY:     Aunt Frieda, Peter and I are Presbyterians, not Methodists.  We will go to the Presbyterian Church here in Somerset.

AUNT FRIEDA:   While you are living with me, you will be Methodists.  You  have no other choice.

PETER:     Hold on a minute, Aunt Frieda.  Haven't you heard of The First Amendment and freedom of religion.

AUNT FRIEDA:   Take me to the Supreme Court if you want.  You are going to the Methodist church.















Handout

IT 'S MY LOCKER!

PLAYERS:  Ms. Jones, the principal, and two students, Patty and Peter

Setting:     School hallway in front of Peter's and Patty's lockers.

Ms. Jones:  Peter and Patty, please open your lockers.  It has been reported to the office that you brought pagers to school.  You know it is against the rules to have a pager at school.

Peter:  I do not have a pager in my locker.  I will not open this locker without you getting a search warrant.

Patty:   I also do not have pagers in my locker.  Unless you have a search warrant, you have no right to search my locker.

Ms. Jones:  I have here the combinations to both of your lockers.  If you will not open the lockers for me, I will open them on my own.

Peter:  If you find anything, you cannot use it against me to punish me.

Patty:  Don't you know anything about the Fourth Amendment?  You can't just search anywhere that you want.  This is my private locker.



















Handout



IT'S MY BODY!

Setting:    High School classroom during a meeting for winter sports

Players:   Girls' basketball coach--Coach Champ, Boys' basketball coach--Coach Winner,  Players--Jack and Jill

Coach Champ:  All of you players need to know that at any time we can require you to give us a urine sample.

Jack:  No way!  That is an invasion of our privacy.

Coach Winner:  The United States Supreme Court says we can do it and we will.

Jill:  Why are you  doing this?

Coach Champ:  To test for drug use among the athletes.

Jack:  I didn't think we had a drug problem in this school

Coach Winner:  We don't, but we are going to test so we can keep drugs out.

Jill:  I don't think the United States Supreme Court allows you to do that.

Coach Champ:  The school lawyers  say we can legally do this.

Jack:  Those two got their law degrees by correspondence courses.














Handout
How to Analyze a Court Case

SUMMARIZING THE FACTS

1. Who are the parties?
Appellant(s) or Petitioner(s)

Respondent (s)

2. What kind of case is this—civil or criminal?

3. What happened in this case?







4.   What does the party who initiated the lawsuit want to happen in this case?





5.  How did the lower courts rule?





FRAMING THE ISSUE

1. What is the legal issue in this case?







2. What sections of the United States or Missouri Constitution, Bill of Rights, Civil Rights laws or other laws apply to this case?






3. Are there past court decisions that are relevant to this case and have precedential value for this case?







4. How is this case similar or different from these past cases?





MAKING A DECISION AND EXPLAINING THE REASONING BEHIND THE DECISION

1. What are the arguments for both parties?
Appellant(s):







Respondent(s):









2. What kind of impact will the decision have on the law? On society?












Handout

Conducting a Simple Moot Appellate Court

1. Divide the class into the following groups:
a. Seven to nine judges.  This group should meet and come up with questions for both parties.  They should pick someone to act as the Chief Justice.
b. Appellant or petitioner’s team.  This group should choose one spokesperson to do the argument, but everyone in the group should help with the argument and will sit with the spokesperson at the argument.  Everyone on the team will be allowed to answer the judges’ questions.
c. Respondent’s team. This group should choose one spokesperson to do the argument, but everyone in the group should help with the argument and will sit with the spokesperson at the argument.  Everyone on the team will be allowed to answer the judges’ questions.
d. Reporters.  This group will study the cases and do a short story about the upcoming argument and a short story after the argument.  They may interview the parties, but not the judges.

2. Explain the rules of a moot court:
a. The judges, appellant team and respondent team will sit as panels.  The room should be arranged so that the judges are seated in front, a speaking podium is in front of the “bench,” and the appellant and respondent teams are seated on either side of the speaking podium.  The judges should not enter the “courtroom” until court is called to order by the teacher-bailiff.
b. When the appellant and respondent teams are seated, the teacher-bailiff will call the court to order:  “Oyez (oy-yay)! Oyez!  Oyez!  The Supreme Court of the United States is now in session with the Honorable (name of Chief Justice) presiding.  All will stand and remain standing until the judges are seated and the Chief Justice has asked all present to be seated. 
c. The Chief Justice will then call the case and ask if the parties are ready.  Each spokesperson should answer, “Yes.”  The appellant spokesperson should approach the podium first, and say, “May it please the court.”  The Chief Justice should say, “Yes” and the argument begins.  Judges should know that they may (and should) interrupt at any time to ask a question.  Any member on the panel may answer a question.  NEVER tell a judge to “wait a minute” in order to finish a point in an argument.  All questions must be answered as they are asked.
d. Each side should be given 10 minutes to argue.  The teacher-bailiff should announce when there is one minute left.  When time is up, the spokesperson should be seated immediately unless a judge asks him/her to complete an answer.  A party never asks for more time.
e. After all the arguments, the teacher-bailiff should have all rise as the judges retire to chambers to make a decision.  (Allow 5 minutes)  The judges re-enter and all rise.  The Chief Justice announces the court’s decision.


Handout
NEW JERSEY v. T.L.O.
Facts of the Case
On March 7, 1980, a teacher at Piscataway High School in New Jersey found two girls smoking in a restroom.  Since this was a violation of school rules, the teacher took the two students to the principal's office.  The assistant vice-principal questioned the two girls separately.  One student admitted that she had been smoking.  However, T.L.O. denied that she had been smoking in the restroom and claimed she did not smoke at all.  The assistant vice principal then asked to see T.L.O.'s purse.  When he opened the purse he found a pack of cigarettes and also noticed a package of rolling papers which the vice-principal knew were associated with marijuana use.  He then searched the purse more thoroughly and found a small quantity of marijuana, a pipe, several empty plastic bags, a substantial amount of money, a card that appeared to be a list of students who owed T.L.O. money, and two letters that implicated T.L.O. in the distribution and sale of marijuana, a crime under New Jersey law.

What Happened in State Court
The State of New Jersey brought delinquency charges against T.L.O. in Juvenile Court. T.L.O. argued that the vice-principal violated her Fourth Amendment rights to be free from unreasonable searches and seizures by government officials because the vice-principal had no reason to believe a crime had been committed and had no search warrant.  The Juvenile Court agreed that a vice-principal was a government official and that Fourth Amendment protections applied to searches by school officials, but found that the vice-principal's search of her purse was reasonable.  The New Jersey Supreme Court reversed the Juvenile Court and found that once the vice-principal had found the cigarettes in T.L.O.'s purse, the search should have ended and there should have been no further exploration of the purse.
• Appellant’s (State of New Jersey) argument: The vice-principal's search of the purse was reasonable because a teacher had told the vice-principal that T.L.O. had been smoking.  Thus, the vice-principal had reasonable cause to suspect a school rule had been broken.  When the vice-principal was searching for the cigarettes, the drug-related evidence was in plain view.  Plain view is an exception to the warrant requirement of the 4th Amendment.
• Respondent’s (T.L.O.) argument: The vice-principal had no probable cause to believe that T.L.O. had committed a crime when he searched her purse.  Possession of and use of cigarettes (at that time) were not crimes.   Belief that a school rule has been broken is not grounds for a warrantless search.   Furthermore, even if the vice-principal had the right to search T.L.O.'s purse for cigarettes that the search should have ended when the cigarettes were found.

Food for thought: If the Court should find that the vice-principal's search of T.L.O.'s purse was reasonable, does this open the door to school administrators randomly searching students' lockers, desks and belongings?









Handout
Bethel School v. Fraser
Facts of the Case
Matthew Fraser was a student at Bethel High School.  On April 26, 1983, he gave a speech to 600 high school students to nominate a student candidate for a school officer. The students had a choice to attend the assembly or go to study hall.

Bethel High School had a rule against using obscene or profane language on school grounds and at school functions.  Fraser had shown his nominating speech to two of his teachers before he gave it.  They warned him that it was inappropriate, that he probably should not give it, and that he would probably get in trouble if he did because it contained obscenities.  Fraser gave the speech anyway.  The following is the entire text of Fraser’s nominating speech:

I know a man is who is firm--he's firm in his pants, he's firm in his shirt, his character is firm--but most of all his belief in you, the students of Bethel, is firm.  Jeff Kuhlman is a man who takes his point and pounds it in.  If necessary, he'll take an issue and nail it to the wall.  He doesn't attack things in spurts--he drives hard, pushing and pushing until he finally succeeds.  Jeff is a man who will go to the very end and even the climax, for each and every one of you.  So vote for Jeff for ASB vice-president--he'll never come between you and the best our high school can be.

The speech drew a variety of responses.  Students hooted and hollered some seemed embarrassed, and some were seen making what appeared to be sexual gestures.  As a result of the speech, one teacher reported that ten minutes of her class time was taken up with discussion of the speech.  No other evidence of disruption of the educational process was reported.

The day after he delivered the speech, Fraser was asked to report to the assistant principal's office and to produce a copy of the text of his speech.  At the meeting, Fraser was given notice that he was being charged with violating the school’s rule prohibiting disruptive conduct.  Disruptive conduct was defined as conduct which materially and substantially interfered with the educational process, including the use of obscene, profane language or gestures.

After he was given an opportunity to explain his conduct, Fraser was suspended for three days.  Fraser, who was a member of the Honor Society and the debate team and the recipient of the "Top Speaker" award in statewide debate championships for two consecutive years, was also informed that his name would be removed from a previously approved list of candidates on the ballot for graduation speaker.  Even though his name was stricken from the ballot, his classmates on a write-in vote, receiving the second highest number of votes cast elected him as a graduation speaker. The school district, nevertheless, continued to deny him permission to speak.

What Happened in the Lower Federal Courts
Fraser sued the school district in the federal court, alleging that the school had violated his First Amendment right of freedom of speech.  The Federal District Court held that the school's actions violated Fraser’s Firrst Amendment right to free speech.  The United States Court of Appeals for the Ninth Circuit affirmed the District Court's opinion.
• Appellant’s (Bethel School) argument: The school had a rule against the use of obscene language and respondent had been warned that his speech was in violation of that rule.  Furthermore, a school has a special interest in protecting students from lewd and offensive language or conduct.
• Respondent’s (Matthew Fraser) argument: In the case of Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d. 731(1969) the Supreme Court held that a student's First Amendment right to free speech does not end at the school door and that a student has the right to express his/her political beliefs.  The students were not required to attend the function so Fraser was not forcing his speech on anyone.  Only one teacher reported any kind of disruption and that was for only ten minutes.  Furthermore, Fraser had no notice that the school officials would react so harshly to his speech. 

Handout

Hazelwood School District v. Kuhlmeier
Facts of the Case
The student newspaper at Hazelwood East High School in St. Louis County was published by the members of the Journalism II class.  The students acted as editors with some oversight by the teacher.  The principal of the school would read the typeset copy before it went to press.  School Board policy said, "school-sponsored student publications will not restrict free expression of diverse viewpoints within the rule of responsible journalism."

For one particular issue, the students had written two articles that met with the disapproval of the principal:  (1) an article on teenage pregnancy which had quotes from unnamed students about sexual activity and birth control methods.  The principal thought the pregnant students could be identified by the text of the article and thought the article was inappropriate for younger students; and (2) an article about divorce that quoted, by name, a student who said her father did not spend enough time with the family before the divorce and was always out of town on business. The principal thought that the quoted student's parents should have had the opportunity to comment on the article or to consent to it before publication.  Due to the principal's claim that there was not enough time left in the school year to carry out major revisions or reviews of the articles, he did not give the editors the opportunity to revise the articles.  The principal ordered that the two articles be deleted from the newspaper.

What Happened in the Lower Federal Courts
The student editors sued the school district in federal court, alleging that their First Amendment freedom of the press right had been violated.  The Federal District Court held that no First Amendment violation occurred when the principal ordered that the articles be deleted.  The United States Court of Appeals for the Eighth Circuit, however, reversed the district court, finding that there had been a violation.
• Appellant’s (Hazelwood School District) argument: The student newspaper was not a public forum and was part of a journalism class. The articles that the students wanted to print did not meet the standards of the journalism class. Schools have a duty to screen materials for appropriateness for its students.
• Respondent’s (Journalism students) argument: In the case of Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d. 731(1969), the Supreme Court held that a student's First Amendment right to free speech does not end at the school door. The articles were about issues that are important to teenagers.  The privacy of everyone concerned had been protected.

Food for thought: If a school newspaper is not part of a journalism class, would that
make a difference?  If the school newspaper allowed advertisements from outside businesses, would the newspaper then be a "public forum?"


Handout

VERNONIA V. ACTON

Facts of the Case:
Vernonia, Oregon, is a small community of about 3,000 people with a student population of 690 students.   In this small logging community, most of the students participated in school athletics and school athletic programs are a major focus of the community.  Between 1985 and 1989, the teachers and administrators of Vernonia School District became concerned about what they observed to be a dramatic increase in the use of illegal drugs among the students, many of them student athletes. The increase in drug use corresponded with an increase in student disciplinary problems.  Many student athletes openly bragged about using drugs.  

Prior to 1989, administrators instituted drug education programs and used drug-sniffing dogs to combat the escalating drug problem.  These measures did not work.  Thus, in 1989, the administration adopted a policy that required all students who participated in interscholastic athletics to take a drug test at the beginning of the athletic season and at random times throughout the season.  The urine of athletes was tested strictly for the presence of drugs.  The type of test used is considered 99.94% accurate.  The results were kept confidential and were strictly used by the school.  Those athletes who tested positive for drugs had to participate in a drug counseling program for six weeks.  They also had to agree to weekly drug testing or face being suspended from the team for the current season and all following seasons.  If a student refused to be tested, the student was suspended from inner scholastic athletics for the season.

After the policy went into effect, disciplinary complaints dropped by 50%.  Teachers saw a drop in the use of drugs among their students and saw approval for drug use also drop.

James Acton was in seventh grade during the 1991-1992 school year and wanted to play football. However, he and his parents refused to sign the consent form for the drug testing.  In accordance with the school policy, he was suspended from interscholastic athletics.  The Actons brought a suit against the school in the federal district court, claiming that the school's policy violated James' Fourth Amendment right to be free from unreasonable searches and seizures. 

What Happened in the Lower Federal Courts
The Actons lost in district court and then appealed to the Ninth Circuit Court of Appeals.  They won in the Ninth Circuit.  The School district then asked the United States Supreme Court to review the case.

Arguments for the Parties
Justice Scalia's Views (for appellant, the school):
1. Collecting a student athlete's urine is a "search" and, therefore, the Fourth Amendment issue of whether the search is reasonable.  Reasonableness is judged in this case by balancing the intrusion of requiring a student athlete to provide a urine sample against the school's interest in curbing illegal drug use.

2. School children require a greater degree of supervision than do adults.  The requirements that school children receive physical examinations and have vaccinations indicate that they have a lesser expectation of privacy than the general population.  Student athletes have an even lesser expectation of privacy because they undress in open locker rooms, are subject to preseason physical exams and rules regulating their conduct.

3. The urine is tested only for drugs and only a very limited group knows the results.  The results are not released to medical personnel or the law enforcement community.

4. The importance of deterring illegal drug use by school children cannot be doubted.  Moreover, the policy of drug testing athletes is directed strictly to student athletes who are more susceptible to injuring themselves or others while using illegal drugs.
 
Justice O'Connor's Views (for the respondent, James Action):

1. The Fourth Amendment generally forbids searches of whole groups. There must be suspicion of the individual to justify the search.

2. Students who are disruptive or act suspicious should be tested--this would not violate anyone's constitutional rights.

3. By focusing on individual suspicion, the whole process is kept confidential and then "any distress arising from what turns out to be a false accusation can be minimized."

4. "It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search."