Students' rights: A haze of precedents
Under the U.S. Constitution, how may a district investigate a student thought to have stolen a school computer, smoked cigarettes in a school’s back stairwell, or bullied a youngster online? It depends on the location of the district. In Richmond, VA, and other parts of the Fourth Circuit, district personnel may opt to seize and search the student’s cell phone, accessing potentially incriminating text messages. In Boulder, CO, and other communities within the Tenth Circuit, inquisitive staffers may do the same thing—but only with student or parent permission.
Which method is just? Constitutionally sound? Is a school like a parent, with legal protections to read its children’s text messages? Or is it instead like a neighbor, who would face charges for opening the mail of the person next door without consent, or for looking through his email?
These are but a few of the thousands of questions federal courts must answer in the fog that is the field of students' rights litigation.
Students’ rights law—with its strong implications for school safety—is perhaps the most visible element of American educational jurisprudence. And, thanks to the Supreme Court’s vague and sometimes contradictory decisions on this front, it’s also the most contentious. The High Court first weighed in on students’ rights in 1969, declaring in their Tinker ruling that “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Since then, educators—and state and local officials—have wrestled with what exactly the Court had in mind.
Now, more than forty years later, district administrators and state policymakers still find little guidance in Supreme Court opinions. Instead of offering concrete precedent, Tinker and other High Court opinions have left ample room for lower courts to diverge in their interpretations—and, as is the case in Boulder and Richmond, these lower courts have embraced this opportunity wholeheartedly.
To understand the variation of appellate court decisions on this issue, I assembled the first comprehensive dataset of federal cases dealing with students’ rights in public schools (from 1969 to 2009), with an eye to answer one key question: whether judges’ interpretations and holdings are significantly influenced by the federal circuits (with their contrasting political make-up) to which they are aligned.
It turns out that there is enormous cross-circuit divergence in students’ rights case outcomes—more, even, than noted legal scholar Cass Sunstein found in the touchy areas of race and sex discrimination.
Over this forty-year period, the rate of U.S. appellate-court case outcomes that were pro-student (when a student plaintiff was granted some relief by the court) varied by as much as 56 percent, depending on which circuit tried the case (see Figures 1 and 2). Overall, the national average of pro-student case outcomes was roughly 42 percent. Students in the First and Fourth Circuits saw favorable court-case outcomes 75 and 67 percent of the time, respectively; those in the Eleventh and Sixth Circuits, just 30 and 19 percent of the time, respectively. At least four of the eleven circuits produce case outcomes that vary from the national average by more than a full standard deviation.
Figure 1: Summary of Student Rights Case Outcomes by Circuit
From another perspective, these variances in circuit court rulings represent a dramatic regional bias associated with the judicial outcomes. In the (more liberal) Northeast, Mid-Atlantic, and West Coast, courts favor students in a majority of cases: In the (more conservative) southern and central states, students can expect a favorable outcome less than a third of the time. This means that landmark students-rights decisions at the national level, like Tinker, play out very differently across America’s regions. In the nation’s four biggest states—California, Florida, New York, and Texas—roughly 40 percent of the variance in all case outcomes of student rights claims can be accounted for by geographic situation alone.
Figure 2: Regional Variation in Student Rights Rulings, 1969-2009
These variant Appellate Court interpretations set a moving bar for educators across the country. A ruling from the California-based Ninth Circuit may not see the same conclusion in the Georgia-based Eleventh Circuit. Without clarity, the scope of school-leader authority lingers in a legal mist. Our national judicial system is grounded in the supposition that court rulings objectively determine statute. These findings hammer at the bedrock of that assumption.
Daniel Nadler is a graduate student studying the political economy of the United States at the Harvard University Department of Government.
This piece is an adaptation of an academic-length paper entitled Regional Heterogeneity in U.S. Courts of Appeals Case Outcomes Over Time: A Review of Existing Studies & New Data from the Field of Student Rights and supported by the Thomas B. Fordham Institute as part of our Fordham Scholars program.
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