Student Rights: Not To Be Forgotten

Intellectual Freedom Issues, Legislation, Minors

By: Kate Lechtenberg

Student's RightsAt a Des Moines Public Schools School Board meeting last month, board members wore black armbands to honor the legacy of students’ right to free expression, including the right to peaceful political protest. The armbands were a visual link from the recent student walkouts and protests in Des Moines and around the country back to the landmark 1969 Tinker vs. Des Moines Independent School District Supreme Court decision that has forever tied Des Moines to the issue of students’ rights.

I live in Des Moines and my kids now go to a DMPS elementary school, and since I’m an English teacher and school librarian of 14 years, you might think I would know the ins and outs of Tinker vs. Des Moines’s legacy. Unfortunately, as with many of our country’s most essential freedoms, my everyday habit is to place my trust in the abstract right without really knowing how I should act as a professional or a parent if those rights were tested.

That’s not a habit I plan to continue, and a recent webinar with Emilio De Torre, director of youth and programs at the ACLU of Wisconsin, helped me fill in some gaps and prepared me to defend my students’ and children’s rights.

Here’s a rundown of what some of the key points I reviewed and learned from De Torre’s presentation:

  • Constitutional RightsStudents do not “shed their constitutional rightsin schools: Tinker vs. Des Moines established the fact that public school students have the right to peaceful protest. These rights aren’t unlimited; here are a few common limits:
    • Students cannot “materially and substantially” disrupt their education or others’ educations. (So Des Moines students could have faced disciplinary consequences for walking out — that disturbs their own education.)
    • Schools can place reasonable restrictions on the “time, place, and manner” of speech.
    • Hate speech and bullying is not protected.
    • Private school students are not protected since the rulings apply to government entities such as public schools.
  • Increased police presence presents new challenges for schools: In recent years, school resource officers on campus and other police officers have been called upon more than they had in the past to consult on a variety of student discipline issues. These are new waters for everyone, so administrators, parents, students, and police need to be clear on the jurisdiction of the police and the rights of the students. Many cases reported in the media show how complicated issues of physical restraint of students and sexting between teens can become.
  • Students do not have to consent to search of their phones: De Torre emphasized that we can encourage our students to respectfully ask for a parent to be present before allowing phones to be searched or before signing anything. Without parental or legal support, students may unknowingly consent to self-incrimination with extreme consequences, as with the consensual sexting (see the resolution to the above sexting case linked) between a 16-year-old couple whose phones were searched by police while investigating an unrelated case.
  • Video surveillance is on the rise, and for the most part, it’s legal: Surveillance in schools and libraries can get sticky when we consider what video might be capturing from patrons’ screens, and this is certainly an issue we need to continue monitoring.

Many questions about student rights can only be answered by qualified legal counsel, but reviewing these key points and exploring these resources has given me more confidence that I’ll know the right questions to ask when the time comes for my students — or my kids.


Kate LechtenbergKate Lechtenberg is in her first year of doctoral studies in Language, Literacy, and Culture at the University of Iowa. After teaching high school English for 10 years and working as a school librarian for four years, her research focuses on how affect, emotion, and morality intersect with the structural constraints of educational policies and standards. Lechtenberg teaches a young adult literature course for preservice teachers and English majors and a course on collection development for preservice teacher librarians in the School of Library and Information Science, and she is currently serving on the AASL Standards and Guidelines Implementation Task Force. Find her on Twitter @katelechtenberg.


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