Should Students Have Constitutional Rights? Keeping Order in the Public Schools

George Washington Law Review

Volumn 65, Issue 1, 1996, Pages 49-105

  Dupre, Anne Proffitt ^a,b  

^a UNIVERSITY OF GEORGIA   (United States)

^b UNIVERSITY OF RHODE ISLAND   (United States)

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[No Author keywords available]

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EID: 0030328905     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (396)

1. Jonathan Yardley, We Have Met the Future and It Is Us, WASH. POST, June 11, 1995, at 3 (Book World) (reviewing DAVID GELERNTER, 1939: THE LOST WORLD OF THE FAIR (1995)).
2. Jonathan Yardley, We Have Met the Future and It Is Us, WASH. POST, June 11, 1995, at 3 (Book World) (reviewing DAVID GELERNTER, 1939: THE LOST WORLD OF THE FAIR (1995)).
3. In a recent poll by the education association Phi Delta Kappa, the public judged "lack of discipline" to be the biggest problem faced by public schools. Stanley M. Elam & Lowell C. Rose, Of the Public's Attitudes Toward the Public Schools, PHI DELTA KAPPAN, Sept. 1995, at 41, 52. Lack of discipline consistently has been cited as the biggest problem for public schools, together with "fighting/violence/gangs" and "drug abuse," id., both of which are subsets of discipline. "Lack of respect for teachers, authority, students" was also cited as a significant problem, id., and is another subset of school discipline.
4. See generally MARTE WINN, CHILDREN WITHOUT CHILDHOOD (1983) (exploring cul-tural changes that have resulted in a shortened period of nurture and protection for children). Of course, with the disintegration of these institutions, more responsibility fell on the public school. Expected to provide the community with athletic and cultural recreation and the students with breakfast, lunch, and after-school care, the school has been asked to shoulder many of the functions that have previously been the province of other institutions.
5. Bruce C. Hafen, Developing Student Expression Through Institutional Authority: Public Schools as Mediating Structures, 48 OHIO ST. L.J. 663, 685-86 (1987) (quoting Gerald Grant, The Character of Education and the Education of Character, AM. EDUC., Jan./Feb. 1982, at 37, 41) (internal quotation marks omitted); see also Betsy Levin, Educating Youth for Citizenship: The Conflict Between Authority and Individual Rights in the Public School, 95 YALE L.J. 1647, 1650-51 (1986) (noting growing concern that "legalization" in schools has hindered schools from performing their educational mission). For two additional perspectives on how rights affect society, compare MARY ANN GLENDON, RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE (1991) (arguing that an overly individualistic, simplistic, and absolutist view of rights can impede efforts to develop a strong social fabric), with Martha Minow, Interpreting Rights: An Essay for Robert Cover, 96 YALE L.J. 1860 (1987) (positing that rights arguments reconfirm community).
6. Bruce C. Hafen, Developing Student Expression Through Institutional Authority: Public Schools as Mediating Structures, 48 OHIO ST. L.J. 663, 685-86 (1987) (quoting Gerald Grant, The Character of Education and the Education of Character, AM. EDUC., Jan./Feb. 1982, at 37, 41) (internal quotation marks omitted); see also Betsy Levin, Educating Youth for Citizenship: The Conflict Between Authority and Individual Rights in the Public School, 95 YALE L.J. 1647, 1650-51 (1986) (noting growing concern that "legalization" in schools has hindered schools from performing their educational mission). For two additional perspectives on how rights affect society, compare MARY ANN GLENDON, RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE (1991) (arguing that an overly individualistic, simplistic, and absolutist view of rights can impede efforts to develop a strong social fabric), with Martha Minow, Interpreting Rights: An Essay for Robert Cover, 96 YALE L.J. 1860 (1987) (positing that rights arguments reconfirm community).
7. Bruce C. Hafen, Developing Student Expression Through Institutional Authority: Public Schools as Mediating Structures, 48 OHIO ST. L.J. 663, 685-86 (1987) (quoting Gerald Grant, The Character of Education and the Education of Character, AM. EDUC., Jan./Feb. 1982, at 37, 41) (internal quotation marks omitted); see also Betsy Levin, Educating Youth for Citizenship: The Conflict Between Authority and Individual Rights in the Public School, 95 YALE L.J. 1647, 1650-51 (1986) (noting growing concern that "legalization" in schools has hindered schools from performing their educational mission). For two additional perspectives on how rights affect society, compare MARY ANN GLENDON, RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE (1991) (arguing that an overly individualistic, simplistic, and absolutist view of rights can impede efforts to develop a strong social fabric), with Martha Minow, Interpreting Rights: An Essay for Robert Cover, 96 YALE L.J. 1860 (1987) (positing that rights arguments reconfirm community).
8. Bruce C. Hafen, Developing Student Expression Through Institutional Authority: Public Schools as Mediating Structures, 48 OHIO ST. L.J. 663, 685-86 (1987) (quoting Gerald Grant, The Character of Education and the Education of Character, AM. EDUC., Jan./Feb. 1982, at 37, 41) (internal quotation marks omitted); see also Betsy Levin, Educating Youth for Citizenship: The Conflict Between Authority and Individual Rights in the Public School, 95 YALE L.J. 1647, 1650-51 (1986) (noting growing concern that "legalization" in schools has hindered schools from performing their educational mission). For two additional perspectives on how rights affect society, compare MARY ANN GLENDON, RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE (1991) (arguing that an overly individualistic, simplistic, and absolutist view of rights can impede efforts to develop a strong social fabric), with Martha Minow, Interpreting Rights: An Essay for Robert Cover, 96 YALE L.J. 1860 (1987) (positing that rights arguments reconfirm community).
9. Bruce C. Hafen, Developing Student Expression Through Institutional Authority: Public Schools as Mediating Structures, 48 OHIO ST. L.J. 663, 685-86 (1987) (quoting Gerald Grant, The Character of Education and the Education of Character, AM. EDUC., Jan./Feb. 1982, at 37, 41) (internal quotation marks omitted); see also Betsy Levin, Educating Youth for Citizenship: The Conflict Between Authority and Individual Rights in the Public School, 95 YALE L.J. 1647, 1650-51 (1986) (noting growing concern that "legalization" in schools has hindered schools from performing their educational mission). For two additional perspectives on how rights affect society, compare MARY ANN GLENDON, RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE (1991) (arguing that an overly individualistic, simplistic, and absolutist view of rights can impede efforts to develop a strong social fabric), with Martha Minow, Interpreting Rights: An Essay for Robert Cover, 96 YALE L.J. 1860 (1987) (positing that rights arguments reconfirm community).
10. See Hafen, supra note 4, at 681 (maintaining that the Supreme Court's children's rights decisions created a basic, though symbolic, shift in perceptions about the relationship between children and public school authorities); see also Theodore F. Denno, Mary Beth Tinker Takes the Constitution to School, 38 FORDHAM L. REV. 35, 58 (1969) (contending that Supreme Court cases indicate that "traditional deference paid to education officials . . . is at an explicit end").
11. See Hafen, supra note 4, at 681 (maintaining that the Supreme Court's children's rights decisions created a basic, though symbolic, shift in perceptions about the relationship between children and public school authorities); see also Theodore F. Denno, Mary Beth Tinker Takes the Constitution to School, 38 FORDHAM L. REV. 35, 58 (1969) (contending that Supreme Court cases indicate that "traditional deference paid to education officials . . . is at an explicit end").
12. Hafen, supra note 4, at 686 (citation and internal quotation marks omitted).
13. See Day One: School Discipline (ABC television broadcast, June 1, 1995). Of course, the decision to move a student out of the classroom can be fraught with legal difficulties. See, e.g., Honig v. Doe, 484 U.S. 305, 313, 323 (1988) (holding that, under a federal statute, a school does not have power to exclude unilaterally a disabled student from the classroom after the student kicked out a school window and choked another child, leaving abrasions); Goss v. Lopez, 419 U.S. 565, 573-74, 581 (1975) (holding that because public education is a property right protected by due process, a school may not suspend a disruptive and disobedient student without notice and hearing).
14. Alison Mitchell, Clinton Will Advise Schools on Uniforms, N.Y. TIMES, Feb. 25, 1996, at 24 (describing how "President Clinton instructed the Federal Education Department . . . to distribute manuals to the nation's . . . school districts advising them how they can legally enforce a school uniform policy").
15. See Leslie Brody, Overlooked in the Debate: Minorities That Opt for Private Schools, THE RECORD, N. N.J., Nov. 12, 1995, at Al; Jonathan Kaufman, Suburban Parents Shun Many Public Schools, Even the Good Ones, WALL ST. J., Mar. 1, 1996, at A1.
16. See Leslie Brody, Overlooked in the Debate: Minorities That Opt for Private Schools, THE RECORD, N. N.J., Nov. 12, 1995, at Al; Jonathan Kaufman, Suburban Parents Shun Many Public Schools, Even the Good Ones, WALL ST. J., Mar. 1, 1996, at A1.
17. There is a telling connection between the problems in the public schools and the problems in many neighborhoods. Political scientist James Q. Wilson and criminologist George Kelling first introduced the "broken windows" theory in 1982. They contended that even seemingly benign social misbehavior like graffiti or a window left unfixed signalled to a neighborhood's citizens that the social order had broken down which, in turn, led to more and more serious crime. See James Q. Wilson & George L. Kelling, Broken Windows, THE ATLANTIC, Mar. 1982, at 29, 31-32; see also WESLEY G. SKOGAN, DISORDER AND DECLINE: CRIME AND THE SPIRAL OF DECAY IN AMERICAN NEIGHBORHOODS (1990). The crucial battles to save either a neighborhood or a school must be fought over minor social infractions. See John Leo, Fighting for Our Public Spaces, U.S. NEWS & WORLD REP., Feb. 3, 1992, at 18. When disorderly behavior is left unchallenged, the signal is given that no one cares, and the disorder escalates. See James Q. Wilson & George L. Kelling, Making Neighborhoods Safe, THE ATLANTIC, Feb. 1989, at 46, 48.
18. There is a telling connection between the problems in the public schools and the problems in many neighborhoods. Political scientist James Q. Wilson and criminologist George Kelling first introduced the "broken windows" theory in 1982. They contended that even seemingly benign social misbehavior like graffiti or a window left unfixed signalled to a neighborhood's citizens that the social order had broken down which, in turn, led to more and more serious crime. See James Q. Wilson & George L. Kelling, Broken Windows, THE ATLANTIC, Mar. 1982, at 29, 31-32; see also WESLEY G. SKOGAN, DISORDER AND DECLINE: CRIME AND THE SPIRAL OF DECAY IN AMERICAN NEIGHBORHOODS (1990). The crucial battles to save either a neighborhood or a school must be fought over minor social infractions. See John Leo, Fighting for Our Public Spaces, U.S. NEWS & WORLD REP., Feb. 3, 1992, at 18. When disorderly behavior is left unchallenged, the signal is given that no one cares, and the disorder escalates. See James Q. Wilson & George L. Kelling, Making Neighborhoods Safe, THE ATLANTIC, Feb. 1989, at 46, 48.
19. There is a telling connection between the problems in the public schools and the problems in many neighborhoods. Political scientist James Q. Wilson and criminologist George Kelling first introduced the "broken windows" theory in 1982. They contended that even seemingly benign social misbehavior like graffiti or a window left unfixed signalled to a neighborhood's citizens that the social order had broken down which, in turn, led to more and more serious crime. See James Q. Wilson & George L. Kelling, Broken Windows, THE ATLANTIC, Mar. 1982, at 29, 31-32; see also WESLEY G. SKOGAN, DISORDER AND DECLINE: CRIME AND THE SPIRAL OF DECAY IN AMERICAN NEIGHBORHOODS (1990). The crucial battles to save either a neighborhood or a school must be fought over minor social infractions. See John Leo, Fighting for Our Public Spaces, U.S. NEWS & WORLD REP., Feb. 3, 1992, at 18. When disorderly behavior is left unchallenged, the signal is given that no one cares, and the disorder escalates. See James Q. Wilson & George L. Kelling, Making Neighborhoods Safe, THE ATLANTIC, Feb. 1989, at 46, 48.
20. There is a telling connection between the problems in the public schools and the problems in many neighborhoods. Political scientist James Q. Wilson and criminologist George Kelling first introduced the "broken windows" theory in 1982. They contended that even seemingly benign social misbehavior like graffiti or a window left unfixed signalled to a neighborhood's citizens that the social order had broken down which, in turn, led to more and more serious crime. See James Q. Wilson & George L. Kelling, Broken Windows, THE ATLANTIC, Mar. 1982, at 29, 31-32; see also WESLEY G. SKOGAN, DISORDER AND DECLINE: CRIME AND THE SPIRAL OF DECAY IN AMERICAN NEIGHBORHOODS (1990). The crucial battles to save either a neighborhood or a school must be fought over minor social infractions. See John Leo, Fighting for Our Public Spaces, U.S. NEWS & WORLD REP., Feb. 3, 1992, at 18. When disorderly behavior is left unchallenged, the signal is given that no one cares, and the disorder escalates. See James Q. Wilson & George L. Kelling, Making Neighborhoods Safe, THE ATLANTIC, Feb. 1989, at 46, 48.
21. Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 514 (1969).
22. David L. Kirp, Proceduralism and Bureaucracy: Due Process in the School Setting, 28 STAN. L. REV. 841, 857 (1976). Professor Kirp has called the forms of disturbances like insubordination and acting out "institutional sabotage" and has called student disrupters the "guerrilla troops in a larger political battle for control of the enterprise." Id.
23. 115 S. Ct. 2386 (1995).
24. See id. at 2396.
25. See, e.g., Paul M. Barrett, Court Says Schools Can Do Random Drug Tests, WALL ST. J., June 27, 1995, at B1 (quoting then Clinton Administration "drug czar" Lee Brown, who described the ruling as "a major victory for kids"); Mark Walsh & Laura Miller, Court Upholds Drug Tests for Student Athletes, EDUC. WK., July 12, 1995, at 1, 23 (stating that many school officials were pleased to have another tool to fight drug abuse in schools). Indeed, many students agreed. See, e.g., Paula Yoo, Test Cases: Youths Think Drug Checks Are OK, But Others Fear the Consequences of a Pass/Fail Mentality, DET. NEWS, June 30, 1995, at IE (citing student support for drug tests).
26. See, e.g., Paul M. Barrett, Court Says Schools Can Do Random Drug Tests, WALL ST. J., June 27, 1995, at B1 (quoting then Clinton Administration "drug czar" Lee Brown, who described the ruling as "a major victory for kids"); Mark Walsh & Laura Miller, Court Upholds Drug Tests for Student Athletes, EDUC. WK., July 12, 1995, at 1, 23 (stating that many school officials were pleased to have another tool to fight drug abuse in schools). Indeed, many students agreed. See, e.g., Paula Yoo, Test Cases: Youths Think Drug Checks Are OK, But Others Fear the Consequences of a Pass/Fail Mentality, DET. NEWS, June 30, 1995, at IE (citing student support for drug tests).
27. See, e.g., Paul M. Barrett, Court Says Schools Can Do Random Drug Tests, WALL ST. J., June 27, 1995, at B1 (quoting then Clinton Administration "drug czar" Lee Brown, who described the ruling as "a major victory for kids"); Mark Walsh & Laura Miller, Court Upholds Drug Tests for Student Athletes, EDUC. WK., July 12, 1995, at 1, 23 (stating that many school officials were pleased to have another tool to fight drug abuse in schools). Indeed, many students agreed. See, e.g., Paula Yoo, Test Cases: Youths Think Drug Checks Are OK, But Others Fear the Consequences of a Pass/Fail Mentality, DET. NEWS, June 30, 1995, at IE (citing student support for drug tests).
28. Tracey Maclin, Court Is Off Base on Student Drug Tests, NEWSDAY, Aug. 9, 1995, at A32; see also Walsh & Miller, supra note 15, at 23 (quoting an ACLU legal director's claim that Acton "sends a strong message to all young people that they are merely second-class citizens under the Fourth Amendment") (internal quotation marks omitted).
29. Tracey Maclin, Court Is Off Base on Student Drug Tests, NEWSDAY, Aug. 9, 1995, at A32; see also Walsh & Miller, supra note 15, at 23 (quoting an ACLU legal director's claim that Acton "sends a strong message to all young people that they are merely second-class citizens under the Fourth Amendment") (internal quotation marks omitted).
30. See, e.g., Andrew T. Pittman & Mark R. Slough, Commentary, Drug Testing of High School Student Athletes After Vernonia, 104 EDUC. L. REP. 15, 17 (West 1995); Michael Hallam, Note, A Casualty of the "War on Drugs": Mandatory, Suspicionless Drug Testing of Student Athletes in Vernonia School District 47J v. Acton, 74 N.C. L. REV. 833, 834-35 (1996) (discussing whether Acton would support a school-wide drug testing program); Kevin C. Newsom, Recent Development, Suspicionless Drug Testing and the Fourth Amendment, Vernonia School District 47J v. Acton, 115 S. Ct. 2386 (1995), 19 HARV. J. L. & PUB. POL'Y 209 (1995); Leslie G. Peters, Note, Message in a Bottle: Vernonia School District 47J v. Acton, 29 CREIGHTON L. REV. 861, 861 (1996); Constitutional Law Conference Probes Impact of Supreme Court's 1994-95 Term, 64 U.S.L.W. 2240, 2245 (Oct. 24, 1995) (providing a synopsis of Yale Kamisar's analysis of Acton provided during U.S. Law Week's Constitutional Law Conference held Sept. 8-9, 1995, in Washington, D.C.) [hereinafter Kamisar]. Some commentators have contended that school administrators and courts will read Acton to allow broader school searches, perhaps of the entire student body, or different kinds of searches, perhaps canine sniffs or searches of bookbags. See, e.g., Ira Mickenberg, Court Settles on Narrower View of Fourth Amendment, NAT'L L.J., July 31, 1995, at C8 (asserting that nothing in Acton prevents its reasoning from being applied to other student groups or to all students). Other commentators have cautioned school districts to tread carefully if they plan to expand the scope of student searches beyond athletes. See Walsh & Miller, supra note 15, at 23 (quoting Gwendolyn H. Gregory, Deputy General Counsel of the National School Boards Association).
31. See, e.g., Andrew T. Pittman & Mark R. Slough, Commentary, Drug Testing of High School Student Athletes After Vernonia, 104 EDUC. L. REP. 15, 17 (West 1995); Michael Hallam, Note, A Casualty of the "War on Drugs": Mandatory, Suspicionless Drug Testing of Student Athletes in Vernonia School District 47J v. Acton, 74 N.C. L. REV. 833, 834-35 (1996) (discussing whether Acton would support a school-wide drug testing program); Kevin C. Newsom, Recent Development, Suspicionless Drug Testing and the Fourth Amendment, Vernonia School District 47J v. Acton, 115 S. Ct. 2386 (1995), 19 HARV. J. L. & PUB. POL'Y 209 (1995); Leslie G. Peters, Note, Message in a Bottle: Vernonia School District 47J v. Acton, 29 CREIGHTON L. REV. 861, 861 (1996); Constitutional Law Conference Probes Impact of Supreme Court's 1994-95 Term, 64 U.S.L.W. 2240, 2245 (Oct. 24, 1995) (providing a synopsis of Yale Kamisar's analysis of Acton provided during U.S. Law Week's Constitutional Law Conference held Sept. 8-9, 1995, in Washington, D.C.) [hereinafter Kamisar]. Some commentators have contended that school administrators and courts will read Acton to allow broader school searches, perhaps of the entire student body, or different kinds of searches, perhaps canine sniffs or searches of bookbags. See, e.g., Ira Mickenberg, Court Settles on Narrower View of Fourth Amendment, NAT'L L.J., July 31, 1995, at C8 (asserting that nothing in Acton prevents its reasoning from being applied to other student groups or to all students). Other commentators have cautioned school districts to tread carefully if they plan to expand the scope of student searches beyond athletes. See Walsh & Miller, supra note 15, at 23 (quoting Gwendolyn H. Gregory, Deputy General Counsel of the National School Boards Association).
32. See, e.g., Andrew T. Pittman & Mark R. Slough, Commentary, Drug Testing of High School Student Athletes After Vernonia, 104 EDUC. L. REP. 15, 17 (West 1995); Michael Hallam, Note, A Casualty of the "War on Drugs": Mandatory, Suspicionless Drug Testing of Student Athletes in Vernonia School District 47J v. Acton, 74 N.C. L. REV. 833, 834-35 (1996) (discussing whether Acton would support a school-wide drug testing program); Kevin C. Newsom, Recent Development, Suspicionless Drug Testing and the Fourth Amendment, Vernonia School District 47J v. Acton, 115 S. Ct. 2386 (1995), 19 HARV. J. L. & PUB. POL'Y 209 (1995); Leslie G. Peters, Note, Message in a Bottle: Vernonia School District 47J v. Acton, 29 CREIGHTON L. REV. 861, 861 (1996); Constitutional Law Conference Probes Impact of Supreme Court's 1994-95 Term, 64 U.S.L.W. 2240, 2245 (Oct. 24, 1995) (providing a synopsis of Yale Kamisar's analysis of Acton provided during U.S. Law Week's Constitutional Law Conference held Sept. 8-9, 1995, in Washington, D.C.) [hereinafter Kamisar]. Some commentators have contended that school administrators and courts will read Acton to allow broader school searches, perhaps of the entire student body, or different kinds of searches, perhaps canine sniffs or searches of bookbags. See, e.g., Ira Mickenberg, Court Settles on Narrower View of Fourth Amendment, NAT'L L.J., July 31, 1995, at C8 (asserting that nothing in Acton prevents its reasoning from being applied to other student groups or to all students). Other commentators have cautioned school districts to tread carefully if they plan to expand the scope of student searches beyond athletes. See Walsh & Miller, supra note 15, at 23 (quoting Gwendolyn H. Gregory, Deputy General Counsel of the National School Boards Association).
33. See, e.g., Andrew T. Pittman & Mark R. Slough, Commentary, Drug Testing of High School Student Athletes After Vernonia, 104 EDUC. L. REP. 15, 17 (West 1995); Michael Hallam, Note, A Casualty of the "War on Drugs": Mandatory, Suspicionless Drug Testing of Student Athletes in Vernonia School District 47J v. Acton, 74 N.C. L. REV. 833, 834-35 (1996) (discussing whether Acton would support a school-wide drug testing program); Kevin C. Newsom, Recent Development, Suspicionless Drug Testing and the Fourth Amendment, Vernonia School District 47J v. Acton, 115 S. Ct. 2386 (1995), 19 HARV. J. L. & PUB. POL'Y 209 (1995); Leslie G. Peters, Note, Message in a Bottle: Vernonia School District 47J v. Acton, 29 CREIGHTON L. REV. 861, 861 (1996); Constitutional Law Conference Probes Impact of Supreme Court's 1994-95 Term, 64 U.S.L.W. 2240, 2245 (Oct. 24, 1995) (providing a synopsis of Yale Kamisar's analysis of Acton provided during U.S. Law Week's Constitutional Law Conference held Sept. 8-9, 1995, in Washington, D.C.) [hereinafter Kamisar]. Some commentators have contended that school administrators and courts will read Acton to allow broader school searches, perhaps of the entire student body, or different kinds of searches, perhaps canine sniffs or searches of bookbags. See, e.g., Ira Mickenberg, Court Settles on Narrower View of Fourth Amendment, NAT'L L.J., July 31, 1995, at C8 (asserting that nothing in Acton prevents its reasoning from being applied to other student groups or to all students). Other commentators have cautioned school districts to tread carefully if they plan to expand the scope of student searches beyond athletes. See Walsh & Miller, supra note 15, at 23 (quoting Gwendolyn H. Gregory, Deputy General Counsel of the National School Boards Association).
34. See, e.g., Andrew T. Pittman & Mark R. Slough, Commentary, Drug Testing of High School Student Athletes After Vernonia, 104 EDUC. L. REP. 15, 17 (West 1995); Michael Hallam, Note, A Casualty of the "War on Drugs": Mandatory, Suspicionless Drug Testing of Student Athletes in Vernonia School District 47J v. Acton, 74 N.C. L. REV. 833, 834-35 (1996) (discussing whether Acton would support a school-wide drug testing program); Kevin C. Newsom, Recent Development, Suspicionless Drug Testing and the Fourth Amendment, Vernonia School District 47J v. Acton, 115 S. Ct. 2386 (1995), 19 HARV. J. L. & PUB. POL'Y 209 (1995); Leslie G. Peters, Note, Message in a Bottle: Vernonia School District 47J v. Acton, 29 CREIGHTON L. REV. 861, 861 (1996); Constitutional Law Conference Probes Impact of Supreme Court's 1994-95 Term, 64 U.S.L.W. 2240, 2245 (Oct. 24, 1995) (providing a synopsis of Yale Kamisar's analysis of Acton provided during U.S. Law Week's Constitutional Law Conference held Sept. 8-9, 1995, in Washington, D.C.) [hereinafter Kamisar]. Some commentators have contended that school administrators and courts will read Acton to allow broader school searches, perhaps of the entire student body, or different kinds of searches, perhaps canine sniffs or searches of bookbags. See, e.g., Ira Mickenberg, Court Settles on Narrower View of Fourth Amendment, NAT'L L.J., July 31, 1995, at C8 (asserting that nothing in Acton prevents its reasoning from being applied to other student groups or to all students). Other commentators have cautioned school districts to tread carefully if they plan to expand the scope of student searches beyond athletes. See Walsh & Miller, supra note 15, at 23 (quoting Gwendolyn H. Gregory, Deputy General Counsel of the National School Boards Association).
35. See, e.g., Andrew T. Pittman & Mark R. Slough, Commentary, Drug Testing of High School Student Athletes After Vernonia, 104 EDUC. L. REP. 15, 17 (West 1995); Michael Hallam, Note, A Casualty of the "War on Drugs": Mandatory, Suspicionless Drug Testing of Student Athletes in Vernonia School District 47J v. Acton, 74 N.C. L. REV. 833, 834-35 (1996) (discussing whether Acton would support a school-wide drug testing program); Kevin C. Newsom, Recent Development, Suspicionless Drug Testing and the Fourth Amendment, Vernonia School District 47J v. Acton, 115 S. Ct. 2386 (1995), 19 HARV. J. L. & PUB. POL'Y 209 (1995); Leslie G. Peters, Note, Message in a Bottle: Vernonia School District 47J v. Acton, 29 CREIGHTON L. REV. 861, 861 (1996); Constitutional Law Conference Probes Impact of Supreme Court's 1994-95 Term, 64 U.S.L.W. 2240, 2245 (Oct. 24, 1995) (providing a synopsis of Yale Kamisar's analysis of Acton provided during U.S. Law Week's Constitutional Law Conference held Sept. 8-9, 1995, in Washington, D.C.) [hereinafter Kamisar]. Some commentators have contended that school administrators and courts will read Acton to allow broader school searches, perhaps of the entire student body, or different kinds of searches, perhaps canine sniffs or searches of bookbags. See, e.g., Ira Mickenberg, Court Settles on Narrower View of Fourth Amendment, NAT'L L.J., July 31, 1995, at C8 (asserting that nothing in Acton prevents its reasoning from being applied to other student groups or to all students). Other commentators have cautioned school districts to tread carefully if they plan to expand the scope of student searches beyond athletes. See Walsh & Miller, supra note 15, at 23 (quoting Gwendolyn H. Gregory, Deputy General Counsel of the National School Boards Association).
36. 393 U.S. 503 (1969).
37. For a more thorough discussion of the reconstruction and reproduction models, see infra notes 111-141 and accompanying text.
38. Tinker, 393 U.S. at 506. Some Supreme Court opinions before 1969 could be viewed as inaugurating the new era of student rights cases. See, e.g., Brown v. Board of Educ., 347 U.S. 483, 495 (1954) (declaring Fourteenth Amendment Equal Protection rights for students); West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (declaring a First Amendment right not to salute the flag); Meyer v, Nebraska, 262 U.S. 390, 400-01, 403 (1923) (implying rights of public school students by determining that the states cannot prohibit foreign language instruc-tion). I begin with Tinker, however, because it more clearly addresses the school's ability to keep order.
39. See Tinker, 393 U.S. at 504. One of the students, though not a petitioner, was only eight years old and in the second grade. See id. at 516 (Black, J., dissenting). The Tinker majority never questioned to what extent either little John Tinker or any of the other children was being exploited merely as a vehicle for his parent's political views. But see Robert A. Burt, Developing Constitutional Rights of, in, and for Children, LAW & CONTEMP. PROBS., Summer 1975, at 118, 124 (arguing that the facts of Tinker suggest that the armbands reflected the convictions of parents imposed on their children); cf. Wisconsin v. Yoder, 406 U.S. 205, 241 (1972) (Douglas, J., dissenting) (recognizing that the parents were seeking to vindicate their own free exercise claims).
40. See Tinker, 393 U.S. at 504-05.
41. See, e.g., Denno, supra note 5, at 53 (showing that Tinker severely limited the traditional broad power of school officials); Perry A. Zirkel et al., Commentary, Tinkering with the First Amendment Rights of Students, 37 EDUC. L. REP. 433, 433 (West 1987) (characterizing Tinker as a "stunning blow" to school authorities).
42. See Tinker, 393 U.S. at 514.
43. 478 U.S. 675 (1986).
44. Id. at 678-79, 683. Fraser gave the following speech: I know a man 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 finally - he succeeds. Jeff is a man who will go to the very end -even the climax, for each and every one of you. So vote for Jeff for A.S.B. vice-president - he'll never come between you and the best our high school can be. Id. at 687 (Brennan, J., concurring in the judgment) (internal quotation marks and alterations omitted).
45. Fraser v. Bethel Sch. Dist., 755 F.2d 1356, 1360 (9th Cir. 1985). The court's full description was that "[w]hile the students' reaction to Fraser's speech may fairly be characterized as boisterous, it was hardly disruptive of the educational process." Id.
46. See id. at 1359.
47. See Fraser, 478 U.S. at 679.
48. The incident occurred in 1983, see id. at 677, and the Supreme Court upheld the disciplinary action in 1986.
49. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).
50. Fraser, 478 U.S. at 683.
51. 484 U.S. 260 (1988).
52. See id. at 262-64, 267.
53. See id. at 262, 264. One article discussed the experience of three students with their pregnancies. The other discussed the impact of divorce on students. The principal excised the articles because he thought the pregnant girls might be identifiable from the text, because he believed the article's references to sexual activity and birth control might be inappropriate to some of the younger students, and because he believed that parents in the divorce story should have had a chance to respond to accusations that appeared in the article. See id. at 263.
54. Id. at 272-73 (footnote omitted).
55. Id. at 273 (footnote omitted); cf. Romano v. Harrington, 725 F. Supp. 687 (E.D.N.Y. 1989) (limiting Hazelwood's constraint on student expression to class newspapers).
56. 469 U.S. 325 (1985).
57. See id. at 328.
58. See id. at 328-29.
59. See id. at 329.
60. Certiorari was originally granted to examine if the exclusionary rule was applicable to searches conducted by school officials, an issue on which courts disagreed. After hearing argument on that issue, the Court ordered reargument to decide what limits the Fourth Amendment places on searches by school officials. See id. at 332 & n.2.
61. See id. at 336-37. In the T.L.O. litigation, the New Jersey trial court held that the reasonableness standard should be lower because of the application of the in loco parentis doctrine. See State ex rel. T.L.O., 428 A.2d 1327, 1333 (N.J. Juv. & Dom. Rel. Ct. 1980). The New Jersey Supreme Court rejected the application of the in loco parentis doctrine. See State ex rel. T.L.O., 463 A.2d 934, 938-39 (N.J. 1983).
62. See infra note 89.
63. See T.L.O., 469 U.S. at 340-41.
64. See id. at 341-42.
65. See id. at 347-48.
66. Vernonia Sch. Dist. 47J v. Acton, 115 S. Ct. 2386 (1995).
67. See T.L.O., 469 U.S. at 342 n.8.
68. 419 U.S. 565 (1975).
69. Id. at 579 (emphasis omitted).
70. 430 U.S. 651 (1977).
71. See id. at 682. The difference in the outcome in Goss and Ingraham is a result of Justice Potter Stewart changing sides. The Ingraham Court also determined that paddling at school did not constitute cruel and unusual punishment in violation of the Eighth Amendment. See id. at 664.
72. Goss, 419 U.S. at 569.
73. Id. at 581 n.9.
74. See id. at 569.
75. See id. at 569-70.
76. See id. at 570. Three additional plaintiffs were suspended without a hearing, but it was not clear on what information the decision was based. See id. at 570-71.
77. See id. at 574.
78. Id. (citation and internal quotation marks omitted). The following year, in Paul v. Davis, 424 U.S. 693, 712 (1976), the Court held that there is no liberty interest in reputation alone.
79. See Goss, 419 U.S. at 575-76; see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985) (holding that property "cannot be defined by the procedures provided for its deprivation"); Vitek v. Jones, 445 U.S. 480, 491-94 (1980) (holding that the transfer of a prisoner from a jail to a mental facility was a deprivation of liberty, and procedural requirements regulating the transfer were independent from the liberty interest held by the prisoner). But see Bishop v. Wood, 426 U.S. 341, 345-47 (1976) (holding that a public employee receives procedural due process protection only if the law or contract defining the job expressly states that the employee can be fired solely for cause).
80. Goss, 419 U.S. at 576.
81. See id. at 581. The Court stated that it was addressing only "the short suspension, not exceeding 10 days." Id. at 584. It cautioned that "[l]onger suspensions or expulsions . . . may require more formal procedures." Id.; cf. In re Gault, 387 U.S. 1, 31-57 (1967) (requiring formal due process standards and criminal constitutional protections in juvenile court proceedings).
82. See Ingraham v. Wright, 430 U.S. 651, 657, 674-82 (1977).
83. See id. at 664.
84. Id. at 674. The Court explicitly stated that the case did not involve a state-created property interest. See id. at 674 n.43.
85. See id. at 674-75.
86. See id. at 674, 683.
87. See id. at 680-81.
88. See Lawrence F. Rossow & Jacqueline Stefkovich, Vernonia School District v. Acton; Suspicionless Drug Testing, 5 EDUC. L.Q. 39, 49 (1996) (suggesting that the relationship between teacher and student may best be understood by envisioning a continuum).
89. The Court has also struggled with whether to import rights developed elsewhere for adults into the juvenile justice system. Compare McKeiver v. Pennsylvania, 403 U.S. 528, 545, 553 (1971) (plurality opinion of Blackmun, J., and concurrence of White, J.) (holding that there is no right to a jury in juvenile proceedings), with Breed v. Jones, 421 U.S. 519, 528-31 (1975) (holding that prosecution in adult court after juvenile court proceedings had determined that a minor was unfit for treatment as a juvenile violated the Double Jeopardy Clause).
90. Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 506 (1969) (emphasis added).
91. Not until Acton does the Court attempt to do so. See infra notes 265-307 and accompanying text.
92. Tinker, 393 U.S at 506.
93. Id. at 507.
94. See Lawrence M. Friedman, Limited Monarchy: The Rise and Fall of Student Rights, in SCHOOL DAYS, RULE DAYS 238,245 (David L. Kirp & Donald N. Jensen eds., 1986) (contending that after Tinker "the power of schools no longer derived from parental power").
95. Tinker, 393 U.S. at 514.
96. id. at 506. Compare Connick v. Myers, 461 U.S. 138, 146-47 (1983) and Pickering v. Board of Educ., 391 U.S. 563, 568 (1968), both of which held that a state's interests as an employer in regulating the speech of employees differs from those it possesses in connection with the regulation of the speech of citizenry in general.
97. Bethel Sch. Dist No. 403 v. Fraser, 478 U.S. 675 (1986).
98. See id. at 681.
99. See id. at 681-84.
100. Id. (internal quotation marks and citation omitted).
101. Id. at 685-86. The Court also noted the "marked distinction between the political 'message'" in Tinker and the "sexual content" of the speech in Fraser. Id. at 680.
102. Hazelwood Sch. Dist v. Kuhlmeier, 484 U.S. 260, 262 (1988).
103. See id. at 266-67.
104. See id. at 272-73.
105. Id. at 273 (footnote omitted).
106. 469 U.S. 325 (1985).
107. See id. at 332 n.2 (citing cases); see also Ranniger v. State, 460 S.W.2d 181, 182 (Tex. Civ. App. 1970) (deciding that a school principal stood in loco parentis "with the parent's duties, rights and responsibilities"). Sometimes courts do not embrace the in loco parentis doctrine fully, but they are influenced by it See, e.g., In re W., 105 Cal. Rptr. 775 (1973) (balancing in loco parentis status against reasonableness); People v. Jackson, 319 N.Y.S.2d 731 (N.Y. App. Div. 1971) (explaining that an in loco parentis relationship is critical in applying the Fourth Amendment reasonableness standard).
108. See T.L.O., 469 U.S. at 332 n.2 (citing State v. Mora, 307 So. 2d 317, 319 (La.) (concluding that school officials are within the full purview of the Fourth Amendment's prohibition), vacated, 423 U.S. 809 (1975), on remand, 330 So. 2d 900, 901 (La. 1976) (relying on both federal and state law to conclude that a principal and an instructor were functioning as government agents)); Picha v. Wieglos, 410 F. Supp. 1214, 1220-21 (W.D. Ill. 1976) (holding that when school officials search for evidence of a crime with substantial police involvement, the Fourth Amend-ment probable cause standard applies).
109. See T.L.O., 469 U.S. at 341-42.
110. See id. at 332-33 n.2 (citing cases); see also People v. Jackson, 319 N.Y.S.2d 731, 734-36 (Sup. Ct. App. Term. 1971) (explaining that the in loco parentis doctrine makes any search of students reasonable if based upon reasonable suspicion), aff'd, 284 N.E.2d 153 (N.Y. 1972).
111. T.L.O., 469 U.S. at 336.
112. See id. at 340-41.
113. Id. at 340; cf. National Treasury Employees Union v. Von Raab, 489 U.S. 656, 679 (1989) (permitting a warrantless, suspicionless drug testing search of employees who handle drugs or firearms by the Government when acting as an employer).
114. T.L.O., 469 U.S. at 348-49 (Powell, J., concurring).
115. Id. at 352 (Blackmun, J., concurring in judgment).
116. Id. at 353 (Blackmun, J., concurring in judgment).
117. Id. (Blackmun, J., concurring in judgment).
118. See id. (Blackmun, J., concurring in judgment). Justice Blackmun is more candid than other Justices in admitting that his views are drawn from his own experience that he surmises others have shared. He notes that "every parent knows" that children will test the boundaries of acceptable conduct and imitate misbehavior and assumes "[e]very adult remembers from his own schooldays the havoc a water pistol or pea shooter can wreak until it is taken away." Id. at 352. Having seen firsthand the necessity for the school to maintain order and having viewed how the school wielded its power (at least in removing the water pistol or pea shooter), he was less wary of a school with the power to search absent probable cause and a warrant.
119. Id. at 348 (Powell, J., concurring).
120. Id. at 350 (Powell, J., concurring).
121. Unlike Justices Powell and Blackmun, Justice Brennan did not perceive a special relationship between teacher and student; instead, he equated teachers with "all other government officials." Id. at 353 (Brennan, J., concurring in part and dissenting in part). Nevertheless, he acknowledged the special characteristics of the school setting, where students are confined in close proximity to each other and staff. See id. at 357. Given this special setting and the prevalence of drugs and violence, schools needed the power to search without a warrant. See id.
122. Goss v. Lopez, 419 U.S. 565, 582-83 (1975). The Court was concerned that imposing "even truncated, trial-type procedures" on the "countless" brief disciplinary suspensions that schools deal with "might well overwhelm administrative facilities" and divert resources, costing "more than it would save in educational effectiveness." Id.
123. See id. at 583.
124. See Ingraham v. Wright, 430 U.S. 651, 682 (1977).
125. See id. at 681-83.
126. See id. at 680.
127. See William B. Senhauser, Note, Education and the Court: The Supreme Court's Educational Ideology, 40 VAND. L. REV. 939, 959 (1987) (noting that the 5-4 decision in Goss showed sharp division in the Court over the proper role of education in society).
128. These Justices were the Goss majority and the Ingraham dissenters.
129. V.T. THAYER, FORMATIVE IDEAS IN AMERICAN EDUCATION: FROM THE COLONIAL PERIOD TO THE PRESENT 319 (1966) (quoting THEODORE BRAMELD, EDUCATION FOR THE EMERGING AGE 26 (1961)) (internal quotation marks omitted). Theodore Brameld coined the term "reconstructionism" to refer to his belief that "the mission of a philosophy of education is to point the way toward the reconstruction of a culture, 'which, left unreconstructed, will almost certainly collapse of its own frustrations and conflicts.'" Id. at 318-19 (quoting BRAMELD, supra, at 1).
130. See id. at 312.
131. See JOHN DEWEY, DEMOCRACY AND EDUCATION 92 (1916) ("[I]nstead of reproducing current habits, better habits shall be formed . . . .").
132. Dewey was perhaps the most influential American philosopher of the early twentieth century. Henry Steele Commanger called Dewey "the guide, the mentor, and the conscience of the American people," and he declared: "it is scarcely an exaggeration to say that for a generation no major issue was clarified until Dewey had spoken." HENRY STEELE COMMANGER, THE AMERICAN MIND 100 (1950), quoted in ROBERT B. WESTBROOK, JOHN DEWEY AND AMERICAN DEMOCRACY xiv (1991).
133. Dewey was perhaps the most influential American philosopher of the early twentieth century. Henry Steele Commanger called Dewey "the guide, the mentor, and the conscience of the American people," and he declared: "it is scarcely an exaggeration to say that for a generation no major issue was clarified until Dewey had spoken." HENRY STEELE COMMANGER, THE AMERICAN MIND 100 (1950), quoted in ROBERT B. WESTBROOK, JOHN DEWEY AND AMERICAN DEMOCRACY xiv (1991).
134. RICHARD HOFSTADTER, ANTI-INTELLECTUALISM IN AMERICAN LIFE 363 (1963); see also LAWRENCE A. CREMIN, THE TRANSFORMATION OF THE SCHOOL: PROGRESSIVISM IN AMERICAN EDUCATION 1876-1957, at 118 (1961) (positing that Dewey cast the school "as a lever of social change" and thrust the educator into the struggle for social reform). Of course, political conditions also had a part to play in social changes. See DEWEY, supra note 113, at 115; HOFSTADTER, supra, at 378. Dewey was not alone in this view. Many educators, disturbed by the disintegrating effects of the Depression upon American society, believed that the school should seize the initiative and proceed to educate "for a new social order more in harmony with" democratic principles. THAYER, supra note 111, at 314 (citing GEORGE S. COUNTS, DARE THE SCHOOLS BUILD A NEW SOCIAL ORDER? (1932)). Some reformers called on teachers to participate "actively in the task of reconstituting the democratic tradition and [to work] positively toward a new social order." Id. at 317 (quoting COMMITTEE ON SOC. AND ECON. PROBLEMS, PROGRESSIVE EDUC. ASS'N, A CALL TO THE TEACHERS OF THE NATION 18-19 (1933)) (internal quotation marks omitted); see also Hafen, supra note 4, at 676 (describing schools in the progressive era as "a source of social and political regeneration") (internal quotation marks and citations omitted).
135. RICHARD HOFSTADTER, ANTI-INTELLECTUALISM IN AMERICAN LIFE 363 (1963); see also LAWRENCE A. CREMIN, THE TRANSFORMATION OF THE SCHOOL: PROGRESSIVISM IN AMERICAN EDUCATION 1876-1957, at 118 (1961) (positing that Dewey cast the school "as a lever of social change" and thrust the educator into the struggle for social reform). Of course, political conditions also had a part to play in social changes. See DEWEY, supra note 113, at 115; HOFSTADTER, supra, at 378. Dewey was not alone in this view. Many educators, disturbed by the disintegrating effects of the Depression upon American society, believed that the school should seize the initiative and proceed to educate "for a new social order more in harmony with" democratic principles. THAYER, supra note 111, at 314 (citing GEORGE S. COUNTS, DARE THE SCHOOLS BUILD A NEW SOCIAL ORDER? (1932)). Some reformers called on teachers to participate "actively in the task of reconstituting the democratic tradition and [to work] positively toward a new social order." Id. at 317 (quoting COMMITTEE ON SOC. AND ECON. PROBLEMS, PROGRESSIVE EDUC. ASS'N, A CALL TO THE TEACHERS OF THE NATION 18-19 (1933)) (internal quotation marks omitted); see also Hafen, supra note 4, at 676 (describing schools in the progressive era as "a source of social and political regeneration") (internal quotation marks and citations omitted).
136. RICHARD HOFSTADTER, ANTI-INTELLECTUALISM IN AMERICAN LIFE 363 (1963); see also LAWRENCE A. CREMIN, THE TRANSFORMATION OF THE SCHOOL: PROGRESSIVISM IN AMERICAN EDUCATION 1876-1957, at 118 (1961) (positing that Dewey cast the school "as a lever of social change" and thrust the educator into the struggle for social reform). Of course, political conditions also had a part to play in social changes. See DEWEY, supra note 113, at 115; HOFSTADTER, supra, at 378. Dewey was not alone in this view. Many educators, disturbed by the disintegrating effects of the Depression upon American society, believed that the school should seize the initiative and proceed to educate "for a new social order more in harmony with" democratic principles. THAYER, supra note 111, at 314 (citing GEORGE S. COUNTS, DARE THE SCHOOLS BUILD A NEW SOCIAL ORDER? (1932)). Some reformers called on teachers to participate "actively in the task of reconstituting the democratic tradition and [to work] positively toward a new social order." Id. at 317 (quoting COMMITTEE ON SOC. AND ECON. PROBLEMS, PROGRESSIVE EDUC. ASS'N, A CALL TO THE TEACHERS OF THE NATION 18-19 (1933)) (internal quotation marks omitted); see also Hafen, supra note 4, at 676 (describing schools in the progressive era as "a source of social and political regeneration") (internal quotation marks and citations omitted).
137. RICHARD HOFSTADTER, ANTI-INTELLECTUALISM IN AMERICAN LIFE 363 (1963); see also LAWRENCE A. CREMIN, THE TRANSFORMATION OF THE SCHOOL: PROGRESSIVISM IN AMERICAN EDUCATION 1876-1957, at 118 (1961) (positing that Dewey cast the school "as a lever of social change" and thrust the educator into the struggle for social reform). Of course, political conditions also had a part to play in social changes. See DEWEY, supra note 113, at 115; HOFSTADTER, supra, at 378. Dewey was not alone in this view. Many educators, disturbed by the disintegrating effects of the Depression upon American society, believed that the school should seize the initiative and proceed to educate "for a new social order more in harmony with" democratic principles. THAYER, supra note 111, at 314 (citing GEORGE S. COUNTS, DARE THE SCHOOLS BUILD A NEW SOCIAL ORDER? (1932)). Some reformers called on teachers to participate "actively in the task of reconstituting the democratic tradition and [to work] positively toward a new social order." Id. at 317 (quoting COMMITTEE ON SOC. AND ECON. PROBLEMS, PROGRESSIVE EDUC. ASS'N, A CALL TO THE TEACHERS OF THE NATION 18-19 (1933)) (internal quotation marks omitted); see also Hafen, supra note 4, at 676 (describing schools in the progressive era as "a source of social and political regeneration") (internal quotation marks and citations omitted).
138. HOFSTADTER, supra note 115, at 368; see also id. at 362-63 (noting that despite Dewey's post-Darwinian scientific positivism, Dewey's conception of the child drew largely from romanticism); ALBERT LYND, QUACKERY IN THE PUBLIC SCHOOLS 178 (1953) (noting the influence of Rousseau and Pestalozzi on Dewey). Compare Hofstadter's view with that of Richard Wightman Fox, who argues that "Dewey was not the child-centered romantic that conservative critics have made him out to be," Richard Wightman Fox, The Great Pragmatist, N. Y. TIMES, Aug. 6, 1995, at 21 (Book Review), and Alan Ryan, who is critical of Hofstadter's view of Dewey, but also acknowledges Dewey's "political conception" of education. ALAN RYAN, JOHN DEWEY AND THE HIGH TIDE OF AMERICAN LIBERALISM 296, 347-49 (1995); see also A.S. NEILL, SUMMERHILL: A RADICAL APPROACH TO CHILD REARING 4-8 (1960) (extolling a school where discipline, direction and suggestion are renounced in favor of student choice); Senhauser, supra note 109, at 945 (stating that under the romantic view, the school should allow the child's "social virtues to control the child's antisocial behavior") (footnote omitted). But see CREMIN, supra note 115, at 14, 18 (discussing the view of former U.S. Commissioner of Education William Torrey Harris (1889-1906), a student of Hegel, who believed "the school must lead the child to freedom by leading him away from his primitive self"); THAYER, supra note 111, at 344 (describing Walter Lippmann's criticism of Rousseau and Froebel and "the cult of the child").
139. HOFSTADTER, supra note 115, at 368; see also id. at 362-63 (noting that despite Dewey's post-Darwinian scientific positivism, Dewey's conception of the child drew largely from romanticism); ALBERT LYND, QUACKERY IN THE PUBLIC SCHOOLS 178 (1953) (noting the influence of Rousseau and Pestalozzi on Dewey). Compare Hofstadter's view with that of Richard Wightman Fox, who argues that "Dewey was not the child-centered romantic that conservative critics have made him out to be," Richard Wightman Fox, The Great Pragmatist, N. Y. TIMES, Aug. 6, 1995, at 21 (Book Review), and Alan Ryan, who is critical of Hofstadter's view of Dewey, but also acknowledges Dewey's "political conception" of education. ALAN RYAN, JOHN DEWEY AND THE HIGH TIDE OF AMERICAN LIBERALISM 296, 347-49 (1995); see also A.S. NEILL, SUMMERHILL: A RADICAL APPROACH TO CHILD REARING 4-8 (1960) (extolling a school where discipline, direction and suggestion are renounced in favor of student choice); Senhauser, supra note 109, at 945 (stating that under the romantic view, the school should allow the child's "social virtues to control the child's antisocial behavior") (footnote omitted). But see CREMIN, supra note 115, at 14, 18 (discussing the view of former U.S. Commissioner of Education William Torrey Harris (1889-1906), a student of Hegel, who believed "the school must lead the child to freedom by leading him away from his primitive self"); THAYER, supra note 111, at 344 (describing Walter Lippmann's criticism of Rousseau and Froebel and "the cult of the child").
140. HOFSTADTER, supra note 115, at 368; see also id. at 362-63 (noting that despite Dewey's post-Darwinian scientific positivism, Dewey's conception of the child drew largely from romanticism); ALBERT LYND, QUACKERY IN THE PUBLIC SCHOOLS 178 (1953) (noting the influence of Rousseau and Pestalozzi on Dewey). Compare Hofstadter's view with that of Richard Wightman Fox, who argues that "Dewey was not the child-centered romantic that conservative critics have made him out to be," Richard Wightman Fox, The Great Pragmatist, N. Y. TIMES, Aug. 6, 1995, at 21 (Book Review), and Alan Ryan, who is critical of Hofstadter's view of Dewey, but also acknowledges Dewey's "political conception" of education. ALAN RYAN, JOHN DEWEY AND THE HIGH TIDE OF AMERICAN LIBERALISM 296, 347-49 (1995); see also A.S. NEILL, SUMMERHILL: A RADICAL APPROACH TO CHILD REARING 4-8 (1960) (extolling a school where discipline, direction and suggestion are renounced in favor of student choice); Senhauser, supra note 109, at 945 (stating that under the romantic view, the school should allow the child's "social virtues to control the child's antisocial behavior") (footnote omitted). But see CREMIN, supra note 115, at 14, 18 (discussing the view of former U.S. Commissioner of Education William Torrey Harris (1889-1906), a student of Hegel, who believed "the school must lead the child to freedom by leading him away from his primitive self"); THAYER, supra note 111, at 344 (describing Walter Lippmann's criticism of Rousseau and Froebel and "the cult of the child").
141. HOFSTADTER, supra note 115, at 368; see also id. at 362-63 (noting that despite Dewey's post-Darwinian scientific positivism, Dewey's conception of the child drew largely from romanticism); ALBERT LYND, QUACKERY IN THE PUBLIC SCHOOLS 178 (1953) (noting the influence of Rousseau and Pestalozzi on Dewey). Compare Hofstadter's view with that of Richard Wightman Fox, who argues that "Dewey was not the child-centered romantic that conservative critics have made him out to be," Richard Wightman Fox, The Great Pragmatist, N. Y. TIMES, Aug. 6, 1995, at 21 (Book Review), and Alan Ryan, who is critical of Hofstadter's view of Dewey, but also acknowledges Dewey's "political conception" of education. ALAN RYAN, JOHN DEWEY AND THE HIGH TIDE OF AMERICAN LIBERALISM 296, 347-49 (1995); see also A.S. NEILL, SUMMERHILL: A RADICAL APPROACH TO CHILD REARING 4-8 (1960) (extolling a school where discipline, direction and suggestion are renounced in favor of student choice); Senhauser, supra note 109, at 945 (stating that under the romantic view, the school should allow the child's "social virtues to control the child's antisocial behavior") (footnote omitted). But see CREMIN, supra note 115, at 14, 18 (discussing the view of former U.S. Commissioner of Education William Torrey Harris (1889-1906), a student of Hegel, who believed "the school must lead the child to freedom by leading him away from his primitive self"); THAYER, supra note 111, at 344 (describing Walter Lippmann's criticism of Rousseau and Froebel and "the cult of the child").
142. HOFSTADTER, supra note 115, at 368. The notion of the "natural" child does not stem entirely from a romantic "child of nature" heritage. It also has roots in post-Darwinian "naturalism" and the idea of the "naturalistic" child who would use his mind "instrumentally to solve various problems presented by his environment." Id. at 362. Even Dewey refused to believe that the antithesis between the child and society was a finality, but "hoped to achieve a harmonious synthesis of the two." Id. at 374.
143. Id. at 369. But see THAYER, supra note 111, at 314-15 (quoting George S. Counts as criticizing this child-centered focus as lacking a theory of social welfare "unless it be that of anarchy of extreme individualism") (citation and internal quotation marks omitted).
144. See HOFSTADTER, supra note 115, at 382 (citing DEWEY, supra note 113, at 60).
145. Id. at 383; see also JOHN STUART MILL, ON LIBERTY 177 (Gertrude Himmelfarb ed., 1974) (1859) ("State education is a mere contrivance for molding people to be exactly like one another . . . .").
146. DEWEY, supra note 113, at 62.
147. See HOFSTADTER, supra note 115, at 373-74 ("[T]he concept of individual growth became a hostage in the hands of educational thinkers who were obsessed with the child-centered school.").
148. Id. at 374.
149. AMY GUTMANN, DEMOCRATIC EDUCATION 14 (1987) (describing "conscious social reproduction" as "the ways in which citizens are or should be empowered to influence the education that in turn shapes the political values, attitudes, and modes of behavior of future citizens"); cf. Senhauser, supra
150. Indeed, some educators, critical of the reformers who strove for a new social order, saw the school as an institution that could not construct new social ideas, but could only transmit those that were already accepted. See THAYER, supra note 111, at 318 (citing Nathaniel Peffer, Educators [Groping] for the Stars, 168 HARPER'S MAGAZINE 230, 232 (1934)); see also COUNTS, supra note 115, at 3 ("[S]chools, instead of directing the course of change, are themselves driven by the very forces that are transforming the rest of the social order."), reprinted in EDUCATION IN AMERICAN LIFE 168, 169 (W. Richard Stephens et al. eds., 1972).
151. CREMIN, supra note 115, at 11.
152. THAYER, supra note 111, at 323 (quoting I.B. BERKSON, THE IDEAL AND THE COMMUNITY 17 (1958)) (internal quotation marks omitted).
153. See FRED M. HECHINGER & GRACE HECHINGER, GROWING UP IN AMERICA 58 (1975).
154. GUTMANN, supra note 124, at 23.
155. "In the place of a parent." BLACK'S LAW DICTIONARY 787 (6th ed. 1990).
156. See Anderson v. State, 40 Tenn. (3 Head) 455, 457 (1859) (noting the similar relationship of schoolmaster and scholar, parent and child, and master and apprentice). Indeed, even the name "schoolmaster," rather than teacher, connotes a master-apprentice relationship in the school setting.
157. PAUL MONROE, FOUNDING OF THE AMERICAN PUBLIC SCHOOL SYSTEM 7 (1940) (citing An Act Containing Divers Orders for Artificers, Labourers, Servants of Husbandry and Apprentices, 5 Eliz., ch. IV (1562) (Eng.) in IV Statutes at Large 159, 170 (Cambridge Univ. ed. 1763)) (internal quotation marks omitted).
158. See id. at 46 (pointing out that even in New England the earliest educational laws were apprenticeship laws, rather than school laws); THAYER, supra note 111, at 3 (explaining that the early legislation in New England that foreshadowed public responsibility for education was primarily apprenticeship law, "similar in design to English law and intended to remedy the great neglect in many parents and masters in training up their children in learning and labor and other employments which may be profitable to the commonwealth").
159. See MONROE, supra note 132, at 7.
160. See id. at 61.
161. 1 WILLIAM BLACKSTONE, COMMENTARIES *453. Even Blackstone did not view the tutor's power as being coextensive with the parent, but limited the power to that "as may be necessary to answer the purposes for which he is employed." Id.; see also Guerrieri v. Tyson, 24 A.2d 468, 469 (Pa. Super. Ct. 1942) (cautioning that a teacher has the status of parent to aid in education, not to treat a nonemergency injury or disease of a student); Lander v. Seaver, 32 Vt. 114, 122-23 (1859) (finding that the schoolmaster is not entrusted with all of the parent's authority); RESTATEMENT (SECOND) OF TORTS §§ 152, 154 (1965) (limiting in loco parentis authority to the purposes of the school's existence); Stephen R. Goldstein, The Scope and Sources of School Board Authority to Regulate Student Conduct and Status: A Nonconstitutional Analysis, 117 U. PA. L. REV. 373, 380-82 (1969) (explaining that school authorities do not completely displace parents); Paul O. Proehl, Tort Liability of Teachers, 12 VAND. L. REV. 723, 727 & n.24 (1959) (describing teacher authority as limited to situations under a teacher's control that are related to the purposes of education).
162. Public schools were considered extensions of the home in light of the culturally homogeneous local communities where the line between neighborhood and family was often blurred. See Bruce C. Hafen, Schools as Intellectual and Moral Associations, 1993 BYU L. REV. 605, 608.
163. See Heritage v. Dodge, 64 N.H. 297 (1886) (ruling that a teacher was justified in the use of corporal punishment against a student who coughed when the teacher believed it was to attract attention and cause disturbance and it was later claimed that the student had whooping cough, and stating that "[t]he law clothes the teacher, as it does the parent, in whose place he stands, with power to enforce discipline by the imposition of reasonable corporal punishment") (a slightly different version of the same case is reported at 9 A. 722 (N.H. 1887)); Lander, 32 Vt. at 123 (quoting Blackstone for the proposition that the schoolmaster "has such a portion of the powers of the parent") (emphasis omitted).
164. 1 WILLIAM BLACKSTONE, COMMENTARIES *453. See generally State v. Mizner, 45 Iowa 248, 250 (1876) (finding "no doubt" that a teacher may legally inflict reasonable discipline "for the maintenance of his authority").
165. Horace Mann, The Lecture on Education in JOY ELMER MORGAN, HORACE MANN: His IDEAS AND IDEALS 97-98 (1936). "In all nations, hardly excepting the most rude and barbarous, the future sovereign receives some training which is supposed to fit him for the exercise of the powers and duties of his anticipated station." Horace Mann, Twelfth Annual Report in THE REPUBLIC AND THE SCHOOL: HORACE MANN ON THE EDUCATION OF FREE MEN 92 (Lawrence A. Cremin ed., 1957).
166. See MORGAN, supra note 140, at 91; Rosemary C. Salomone, Free Speech and School Governance in the Wake of Hazelwood, 26 GA. L. REV. 253, 255 (1992) (describing Mann's view). Mann urged the creation of the public schools in the 1840s, at a time when his state, Massachusetts, was trying to assimilate large numbers of non-English immigrants. This explains his emphasis on the common schools for social reproduction. Dewey, on the other hand, was a progressive reformer, who wanted to reconstruct, not reproduce, society. See Salomone, supra, at 258.
167. Denno, supra note 5, at 60.
168. See Salomone, supra note 141, at 258 (noting that court decisions from the 1940s through the 1970s reflect the ideology exemplified by Dewey's writings, while later cases are concerned with "cultural transmission"); see also Senhauser, supra note 109, at 948, 979 (contending that the Court's support of a particular education ideology is sometimes result-oriented).
169. See, e.g., Mizner, 45 Iowa at 250 (explaining that "the criminality of a charge of assault and battery may be disproved by evidence showing that the act was lawful," as when a schoolmaster corrects his scholar in a reasonable manner).
170. See id. Courts also applied the in loco parentis doctrine to the relationship between college authorities and students. See, e.g., Gott v. Berea College, 161 S.W. 204, 206 (Ky. 1913) (stating that "[c]ollege authorities stand in loco parentis concerning the physical and moral welfare and mental training of the pupils," and authorities may make rules or regulations that parents could make for the same purpose). In the second half of the twentieth century, courts and commentators saw the doctrine as obsolete and began using contract law to characterize the student-university relationship. See Brian Jackson, Note, The Lingering Legacy of In Loco Parentis: An Historical Survey and Proposal for Reform, 44 VAND. L. REV. 1135, 1136 (1991). There is some dispute about the current state of in loco parentis in colleges. Compare James J. Szablewicz & Annette Gibbs, Colleges' Increasing Exposure to Liability: The New In Loco Parentis, 16 J.L. & EDUC. 453, 464-65 (1987) (arguing that in loco parentis is making a comeback in college tort and contract liability), and Philip M. Hirshberg, Note, The College's Emerging Duty to Supervise Students: In Loco Parentis in the 1990s, 46 WASH. U. J. URB. & CONTEMP. L. 189, 223 (1994), with Perry A. Zirkel & Henry F. Reichner, Is the In Loco Parentis Doctrine Dead?, 15 J.L. & EDUC. 271, 282 (1986) (positing that in loco parentis in the college context "has undergone a clear rise and complete demise"), and Theodore C. Stamatakos, Note, The Doctrine of In Loco Parentis, Tort Liability and the Student-College Relationship, 65 IND. L.J. 471, 490 (1990) (rejecting the contention that in loco parentis is making a comeback).
171. See Hobbs v. Germany, 49 So. 515, 517 (Miss. 1909) ("When the schoolroom is entered by the pupil, the authority of the parent ceases, and that of the teacher begins," but "[w]hen sent to his home, the authority of the teacher ends, and that of the parent begins.").
172. Lander v. Seaver, 32 Vt. 115, 120 (1859).
173. Id. at 123; cf. Vernonia Sch. Dist. 47J v. Acton, 115 S. Ct. 2386, 2397 (1995) (establishing a "reasonable guardian" standard).
174. Lander, 32 Vt. at 124-25 (reasoning that whether whipping with rawhide is excessive is a jury question, but noting that a schoolmaster has the advantage of being there to know all the circumstances); see also Vanvactor v. State, 15 N.E. 341, 343 (Ind. 1888) ("[If the teacher] really gave harder blows than ought to have been given, the error was one of judgment only . . . ."). But see Goss v. Lopez, 419 U.S. 565, 569-70, 582 (1975) (holding that a principal's direct observation of a student attacking a police officer did not alter due process requirements).
175. Massachusetts passed the first statewide compulsory attendance law in 1852. Mississippi passed the last one in 1918. See CREMIN, supra note 115, at 127.
176. See People v. Jackson, 319 N.Y.S.2d 731, 736 (Sup. Ct. App. Term. 1971) (stating that in loco parentis is "compelling in light of public necessity"), aff'd, 284 N.E.2d 153 (N.Y. 1972); see also Gonyaw v. Gray, 361 F. Supp. 366, 369 (D. Vt. 1973) ("Of necessity, parents must delegate some disciplinary authority over their school children to the teachers . . . ."); In re Donaldson, 75 Cal. Rptr. 220, 223 (Ct. App. 1969) ("The school stands in loco parentis and shares, in matters of school discipline, the parent's right to use moderate force to obtain obedience and that right extends to the search of the student's locker . . . .") (citations omitted); Andreozzi v. Rubano, 141 A.2d 639, 641 (Conn. 1958) (stating that a teacher stands in loco parentis and must maintain discipline); Calway v. Williamson, 36 A.2d 377, 378 (Conn. 1944) (stating that "[a] teacher in a limited sense is in loco parentis over the pupil"); People v. Ball, 317 N.E.2d 54, 56 (Ill1. 1974) (noting the Illinois statute providing that "[teachers] stand in the relation to parents and guardians of the pupils" in all matters relating to discipline and conduct); Mercer v. State, 450 S.W.2d 715, 717 (Tex. Civ. App. 1970, no writ) ("The principal in dealing with [the student] acted in loco parentis, not for an arm of the government, when he demanded that [the student] disclose the contents of his pockets."); McLean Indep. Sch. Dist. v. Andrews, 333 S.W.2d 886, 890-91 (Tex. Civ. App. 1960, no writ) (justifying rulemaking authority in part based on in loco parentis). 152 Jackson, 319 N.Y.S.2d at 736.
177. If it is truly compulsory school laws that are the primary theoretical problem with the concept of parental delegation of power, the advent of home schooling statutes may again allow for the theory of parental delegation. See Amy Kaslow, Learning at Home, CHRISTIAN SCI. MONITOR, Feb. 26, 1996, at 9 (discussing statutes or case law in all 50 states that allow home schooling). The parents who decide to educate their child at a school, rather than at home, affirmatively choose to delegate the duty to educate and the concomitant parental power to someone else. See infra notes 284-286 and accompanying text.
178. See School Bd. Dist. No. 18 v. Thompson, 103 P. 578, 581 (Okla. 1909) (questioning whether the "mere act" of sending a child to school amounts to a delegation of parental authority); Proehl, supra note 136, at 726-27 (arguing that when a parent sends a child to school because law so directs, the parent delegates no power to use corporal punishment and that the validity of the in loco parentis doctrine has ceased).
179. William G. Buss, The Fourth Amendment and Searches of Students in Public Schools, 59 IOWA L. REV. 739, 767 (1974); see also McLeod v. Grant Co. School Dist. No. 128, 255 P.2d 360, 362 (Wash. 1953) (en banc) ("[T]he protective custody of teachers is mandatorily substituted for that of the parent."); M.R. Sumption, The Control of Pupil Conduct by the School, 20 LAW & CONTEMP. PROBS. 80, 80 (1955) (arguing that the power to control the pupil is part of the power of the state).
180. Some states confer teacher authority statutorily. See, e.g., FLA. STAT. ANN. § 232.256(1) (West 1989); 105 ILL. COMP. STAT. ANN. 5/34-84a (West 1993 & Supp. 1996); see also Goldstein, supra note 136, at 384 n.44 (claiming it is unclear if legislation preempts in loco parentis authority; cases that state that school boards have only powers statutorily granted to them exist alongside cases that recognize an in loco parentis basis for school board authority).
181. Proehl, supra note 136, at 727 (footnotes omitted).
182. See Denno, supra note 5, at 60 (stating that a new meaning of public schools is evident from the Tinker opinion); Senhauser, supra note 109, at 955 (stating that the Tinker Court implicitly adopted a progressive philosophy).
183. See Hafen, supra note 4, at 679 (noting how the counterculture of the 1960s "shook public confidence in the schools and in traditional teaching methods by portraying the schools as enemies of true learning and instrumentalities of social control").
184. Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 512 (1969) (emphasis added).
185. See supra notes 115-123 and accompanying text
186. Tinker, 393 U.S. at 509.
187. Id. at 514. Compare the Court's standard with the standard set forth by the district court: whether "a disturbance in school discipline is reasonably to be anticipated." Tinker v. Des Moines Indep. Sch. Dist., 258 F. Supp. 971, 973 (S.D. Iowa 1966), aff'd, 383 F.2d 988 (8th Cir. 1967), rev'd, 393 U.S. 503 (1969).
188. Senhauser, supra note 109, at 957.
189. See Tinker, 393 U.S. at 511.
190. Id.
191. Id.
192. Id. at 508.
193. Id. at 511.
194. Id. at 508.
195. Compare the Court's description here with that of the social reconstruction model, supra notes 111-123 and accompanying text.
196. Tinker v. Des Moines Indep. Sch. Dist., 258 F. Supp. 971, 973 (S.D. Iowa 1966), aff'd, 383 F.2d 988 (8th Cir. 1967), rev'd, 393 U.S. 503 (1969). Indeed, one commentator went so far as to state that after Tinker, students are protected until "open interruption within classrooms" occurs or students "'undertake incitement to riot" or similar overt action." Denno, supra note 5, at 55 (quoting Feiner v. New York, 340 U.S. 315, 321 (1951)).
197. CHARLES E. SILBERMAN, CRISIS IN THE CLASSROOM: THE REMAKING OF AMERICAN EDUCATION 24 (1970). Sociologist Robert A. Nisbet has asserted that the most dangerous intellectual aspect of the 1960s was the refusal "to distinguish between authority and power." Robert A. Nisbet, The Twilight of Authority, THE PUBLIC INTEREST, Spring 1969, at 3, 5, quoted in SILBERMAN, supra, at 25. One was viewed as being as much a threat to liberty as the other - a view Nisbet called "madness," for "[t]here can be no possible freedom in society apart from authority." Id. Nisbet contended that authority is "built into the very fabric of human association," stemming from the relationships and loyalties of the members of a group - family, church, school or state - and derived from the function that group or institution performs. Id. There also exists authority of "learning and taste; of syntax and grammar in language; of scholarship, of science, and of the arts." Id. "Above all, there is the residual authority of the core of values around which Western culture has been formed," including the values of "justice, reason, equity, liberty, [and] charity." Id.
198. See SILBERMAN, supra note 173, at 26; see also Hafen, supra note 4, at 676-77 (noting the "profound change in overall social attitudes that shattered public confidence" in public schools).
199. Pub. L. No. 88-352, 78 Stat. 241 (codified as amended at 42 U.S.C. §§ 1971, 1975a-d, 2000a to 2000h-6 (1994)).
200. See SILBERMAN, supra note 173, at 27 (quoting Paul Goodman, The New Reformation, N.Y. TIMES MAGAZINE, Sept. 14, 1969, at 32, 33).
201. 347 U.S. 483 (1954).
202. See Hafen, supra note 4, at 676 (calling school desegregation in mid-1950s "the heaviest social burden the public schools had yet been asked to bear").
203. See Edward T. Ladd, Allegedly Disruptive Student Behavior and the Legal Authority of School Officials, 19 J. PUB. L. 209, 227-28 (1970) (discussing loss of trust in school officials and school boards because of their attempts to evade implementing Brown).
204. See Kevin Brown, Has the Supreme Court Allowed the Cure for De Jure Segregation to Replicate the Disease?, 78 CORNELL L. REV. 1, 73 (1992) (stating that the Court's de jure segregation jurisprudence "has had profound impact on professional educators' beliefs about education").
205. Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 526 (1969) (Harlan, J., dissenting); see id. at 518 (Black, J., dissenting).
206. Id. at 518 (Black, J., dissenting).
207. See id. at 522 (Black, J., dissenting).
208. Id.
209. Id.
210. Id. at 524.
211. Id.
212. Id.
213. Id.
214. 419 U.S. 565 (1975).
215. Id. at 579 (emphasis omitted).
216. See id. at 583 (stating that "[b]rief disciplinary suspensions are almost countless").
217. Id.
218. Id. at 578 (quoting Epperson v. Arkansas, 393 U.S. 97, 104 (1968)).
219. Kirp, supra note 12, at 851.
220. See J. Harvie Wilkinson, III, Goss v. Lopez: The Supreme Court as School Superintendent, 1975 SUP. CT. REV. 25, 63 (cautioning that the Court's recent decisions had done damage to public schools that would not be "easily repaired or reversed").
221. Goss, 419 U.S. at 579.
222. See id. at 584; see also Kirp, supra note 12, at 860 ("Goss signals an erosion of the confidence which has historically been placed in the fairness (if not the rightness) of [school officials'] decisions and the supplanting of a relationship based on trust with one adversarial in nature.") (footnote omitted).
223. Goss, 419 U.S. at 584.
224. See id. at 569,584. But cf. Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 526 (1969) (Harlan, J., dissenting) (stating that it would be more appropriate to place the burden on those complaining to show that actions of school officials were motivated by other than legitimate school concerns).
225. Goss, 419 U.S. at 581 n.9.
226. Id. at 569.
227. Id. at 584; see also Kirp, supra note 12, at 852 ("The majority opinion may not have adopted what John Dewey termed a 'democratic' model of school governance in which decision-making is a shared responsibility, but its position differs markedly from the widely prevalent hierarchical model, which treats students as the recipients of commands.") (footnote omitted).
228. Goss, 419 U.S. at 580; see Note, Due Process, Due Politics and Due Respect: Three Models of Legitimate School Governance, 94 HARV. L. REV. 1106, 1121 (1981) (noting the distrust of school officials evident in Goss).
229. Goss, 419 U.S. at 580 (internal quotation marks and citations omitted). Compare id. (viewing student input into factual disputes as helpful), with Board of Curators v. Horowitz, 435 U.S. 78, 87-88 (opinion of the Court), 95 n.5 (Powell, J., concurring) (1978) (viewing student input into academic judgments that involve at least some questions of "objectively determinable fact" as unnecessary). See also Note, supra note 204, at 1117-18 (discussing the Court's treatment of factual questions in academic and disciplinary dismissals).
230. Goss, 419 U.S. at 580.
231. Id. at 582-83 (cautioning that notice and hearing should follow as soon as practicable).
232. See Ingraham v. Wright, 430 U.S. 651, 676 (1977) (balancing the student's interest in personal security and the "traditional view" of education); Goss, 419 U.S. at 594 & nn. 12-13 (Powell, J., dissenting) (characterizing the teacher-student relationship as nonadversarial). Justice Powell served as chairman of both the Richmond School Board and the Virginia State Board of Education. See JOHN C. JEFFRIES, JR., JUSTICE LEWIS F. POWELL, JR. 2 (1994).
233. Goss, 419 U.S. at 590-91 (Powell, J., dissenting).
234. HOFSTADTER, supra note 115, at 383.
235. Goss, 419 U.S. at 591 (Powell, J., dissenting).
236. See id. at 593 (Powell, J., dissenting) (stating that at student must understand the "meaning and necessity of discipline" as it pertains not only to the "shaping of his own character," but also as it provides the student an "understanding of the relevance to the social compact of respect for the rights of others").
237. Id. at 593-94 (Powell, J., dissenting).
238. Id. at 594 (Powell, J., dissenting).
239. Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 511 (1969).
240. Goss, 419 U.S. at 580.
241. Id. at 594 n.12 (Powell, J., dissenting).
242. Id. at 595 (Powell, J., dissenting).
243. Id. at 595 n.14 (Powell, J., dissenting).
244. Id. at 593 (Powell, J., dissenting) (quoting Tinker, 393 U.S. at 524 (Black, J., dissenting)) (internal quotation marks omitted). Dewey and those who subscribed to the social reconstruction-adversarial model saw conformity as "arising only from adult society and from its surrogate, the teacher." HOFSTADTER, supra note 115, at 382. Dewey abhorred conformity because it led to "aversion to progress, and dread of the uncertain and the unknown." Id. at 383 (quoting DEWEY, supra note 113, at 60) (internal quotation marks omitted). Thus, both conformity and the institutions that inculcated conformist habits like the schools should be challenged.
245. 430 U.S. 651 (1977).
246. Justice Stewart changed sides between Goss and Ingraham. Chief Justice Burger and Justices Blackmun and Rehnquist sided with Justice Powell in both decisions.
247. See Ingraham, 430 U.S. at 683. In 1975 the Court affirmed, without opinion, a three-judge district court panel ruling that the state's interest in maintaining order was sufficient to sustain the right of teachers and school officials to administer reasonable corporal punishment for disciplinary purposes despite parental objection. See Baker v. Owen, 423 U.S. 907 (1975), aff'g 395 F. Supp. 294, 301 (M.D.N.C. 1975).
248. Tinker, 393 U.S. at 511.
249. Ingraham, 430 U.S. at 670.
250. See id. In addition, many schools have guidance counselors, nurses, and parent volunteers who may witness and protest instances of mistreatment.
251. Id. at 677.
252. See id. at 677-78.
253. See id. at 678; cf. Tinker, 393 U.S. at 526 (Harlan, J., dissenting) (stating that it would be more appropriate to place the burden on those complaining to show that the school officials' action was motivated by other than legitimate school concerns).
254. See Ingraham, 430 U.S. at 678 & n.46. Justice Powell was referring to the Eighth Amendment's protection against cruel and unusual punishment. See id. at 670. Justice Powell also emphasized that Fourteenth Amendment due process concerns were satisfied by the state's preservation and codification of common law constraints and remedies regarding corporal punishment. See id. at 674-80.
255. 469 U.S. 325 (1985).
256. See supra notes 89-92 and accompanying text.
257. T.L.O., 469 U.S. at 336. The Court further stated that, given Tinker and Goss, it was "difficult to understand" why school authorities "should be deemed to be exercising parental rather than public authority" when conducting school searches. Id. Moreover, the T.L.O. Court emphasized a theoretical problem that had been acknowledged in Ingraham: " 'the concept of parental delegation' as a source of school authority is not entirely 'consonant with compulsory education laws.' " Id. (quoting Ingraham, 430 U.S. at 662).
258. See, e.g., Anable v. Ford, 653 F. Supp. 22, 38 (W.D. Ark.) (observing that the T.L.O. Court "rejected the notion that school officials act in loco parentis in their dealings with students"), remedy modified, 663 F. Supp. 149 (W.D. Ark. 1985); Martin R. Gardner, Student Privacy in the Wake of T.L.O.: An Appeal for an Individualized Suspicion Requirement for Valid Searches and Seizures in the Schools, 22 GA. L. REV. 897, 912-13 (1988) (stating that the T.L.O. Court rejected the concept of educators assuming essentially parental roles); Robert J. Goodwin, The Fifth Amendment in Public Schools: A Rationale for Its Application in Investigations and Disciplinary Proceedings, 28 WM. & MARY L. REV. 683, 690-91 (1987) (stating that the Court "put to rest" use of in loco parentis in Fourth Amendment context "once and for all"); Robert Berkley Harper, School Searches - A Look into the 21st Century, 13 Miss. C. L. REV. 293, 294 (1993) (stating that the T.L.O. Court decided that "the common law doctrine of in loco parentis has no application to public school officials conducting searches of students"); Betsy Levin, Educating Youth for Citizenship: The Conflict Between Authority and Individual Rights in the Public School, 95 YALE L.J. 1647, 1671 (1986) (asserting that the notion that teachers are in loco parentis "is no longer a viable one" after T.L.O.); Stephen Faberman, Note, The Lessons of DeShaney: Special Relationships, Schools & the Fifth Circuit, 35 B.C. L. REV. 97, 132-33 (1993) (observing that the T.L.O. court rejected the in loco parentis doctrine); The Supreme Court, 1984 Term -Leading Cases, 99 HARV. L. REV. 120, 235 n.13 (1985) (noting the T.L.O. Court's rejection of in loco parentis).
259. T.L.O., 469 U.S. at 339. The Court also took judicial notice of the difficulty of maintaining discipline in the public schools "today." Id. at 338. The Solicitor General's Amicus Brief supporting the school had informed the Court of "the extent to which the disorder in the nation's public schools now transcends the traditional difficulties of focusing a child's attention on learning." Brief for the United States as Amicus Curiae at 22, New Jersey v. T.L.O., 469 U.S. 325 (1985) (No. 83-712) (citing to statistics on violence from a 1978 study by the National Institute of Education), available in LEXIS, Genfed Library, Briefs File. The Solicitor General informed the Court that many schools "are in such a state of disorder that the very safety of students and teachers is imperiled." Id. at 7.
260. See T.L.O., 469 U.S. at 352-53 (Blackmun, J., concurring in the judgment) (pointing out that due to increased drug use and possession of weapons at school, teachers need to be able to respond to problems quickly, not only to preserve the education environment, but to protect the safety of students and school personnel).
261. The Court observed that although prisoners had no legitimate expectation of privacy, it was not yet ready to hold that schools and prisons need be equated. See id. at 338.
262. See supra notes 162-163 and accompanying text.
263. See supra note 207 and accompanying text.
264. T.L.O., 469 U.S. at 346 (quoting United States v. Cortez, 449 U.S. 411, 418 (1981)).
265. See Goss v. Lopez, 419 U.S. 565, 580 (1975) (cautioning that the risk of error when school officials act on reports of others is not trivial, and "it should be guarded against if that may be done without prohibitive cost or interference with the educational process").
266. T.L.O., 469 U.S. at 378 (Stevens, J., concurring in part, dissenting in part) (emphasis omitted).
267. See id. at 342 n.9.
268. Id. at 341-42 (quoting Terry v. Ohio, 392 U.S. 1, 20 (1968)) (footnote omitted). The Court added that "[s]uch a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction." Id. at 342 (footnote omitted).
269. Id. at 342 n.9.
270. Id. at 350 (Powell, J., concurring).
271. Id. at 352 (Blackmun, J., concurring in the judgment).
272. Id. at 353 (Blackmun, J., concurring in the judgment).
273. 478 U.S. 675 (1986); see James C. Dever, III, Note, Tinker Revisited: Fraser v. Bethel School District and Regulation of Speech in the Public Schools, 1985 DUKE L.J. 1164, 1167-68 (documenting examples of students using Tinker "to challenge the actions of public school authorities concerning dances, demonstrations, discipline, student body elections, school searches, hair length, library books, movies, school plays, prayer meetings, textbook selection and school newspapers") (footnotes omitted).
274. See supra note 30 and accompanying text. Note the reconstruction motif in the Ninth Circuit opinion: We fear that if school officials had the unbridled discretion to apply a standard as subjective and elusive as indecency in controlling the speech of high school students, it would increase the risk of cementing white, middle-class standards for determining what is acceptable and proper speech and behavior in our public schools. Fraser v. Bethel Sch. Dist. No. 403, 755 F.2d 1356, 1363 (9th Cir. 1985), rev'd, 478 U.S. 675 (1986).
275. Fraser, 478 U.S. at 686. "I wish therefore, . . . to disclaim any purpose . . . to hold that the Federal Constitution compels the teachers, parents, and elected school officials to surrender control of the American public school system to public school students." Id. at 686 (quoting Tinker, 393 U.S. at 526 (Black, J., dissenting)).
276. See Fraser, 478 U.S. at 681; see also Goss v. Lopez, 419 U.S. 565, 593-94 (1975) (chastising the majority for thinking of the school's relationship to students in "traditional judicial terms of an adversary situation") (Powell, J., dissenting).
277. Justice Stevens had remarked on the inculcative role of the public school in his dissent in T.L.O. See New Jersey v. T.L.O., 468 U.S. 325, 373 (1985) (Stevens, J., concurring in part, dissenting in part). He observed that "[s]chools are places where we inculcate the values essen-tial to the meaningful exercise of rights and responsibilities by a self-governing citizenry." Id. (footnote omitted). He focused in particular on the value of personal liberty, stressing that if students can be convicted through the use of arbitrary methods destructive of personal liberty, they will feel that they have been dealt with unfairly. See id. at 373-74 (footnote omitted). In Fraser, Chief Justice Burger also stressed the inculcative role and purpose of public schools. See Fraser, 478 U.S. at 681 (citation omitted). But instead of stressing personal liberty as the value that was "necessary to the maintenance of a democratic political system," id., Chief Justice Burger emphasized the inculcation of the "habits and manners of civility," id. (internal quotation marks and citation omitted), the "shared values of civilized social order," id. at 683, and the "essential lessons of civil, mature conduct." Id. He expressed dismay over the effect the speech had on teachers and other students, in essence, subordinating Fraser's right to expression to the rights of others in the community. See id. at 683-84. The school's role in "teach[ing] by example the shared values of a civilized social order" gave the school the power to disassociate itself from a student who showed such disregard for civility. Id. 254 Id. at 684. Justice Brennan concurred in the judgment, but stressed that the school could discipline Fraser not because the speech was vulgar, but because school officials concluded it was disruptive. See id. at 689 (Brennan, J., concurring in the judgment). Justice Marshall refused to accept the statements of teachers and administrators who witnessed the speech and claimed that it was disruptive. See id. at 690 (Marshall, J., dissenting).
278. Hazelwood Seh. Dist. v. Kuhlmeier, 484 U.S. 260, 272 (1988).
279. Id. at 270.
280. Id. at 271.
281. Id. at 266 (quoting Fraser, 478 U.S. at 685) (internal quotation marks omitted).
282. Id. at 272 (quoting Fraser, 478 U.S. at 683) (internal quotation marks omitted).
283. Id. at 273 (footnote omitted).
284. See id. at 270-71.
285. Justice Brennan and the dissenters endorsed the reconstruction model and would have set a different standard - closer to Tinker - on the school power continuum. The dissenters did not believe school officials needed the power to restrain student expression unless it " 'materially disrupt[ed]' a legitimate curricular function." Id. at 283 (Brennan, J., dissenting) (quoting Tinker, 393 U.S. at 513). Justice Brennan denned that function narrowly as the "skills" the course was designed to teach. Id. at 284 (Brennan, J., dissenting). The dissent further stated that the principal's decision could not possibly have been based on any "lesson" involving responsible journalism. Id. at 285 (Brennan, J., dissenting). Justice Brennan did not dispute outright that the principal reasonably could have concluded that one of the deleted articles did not sufficiently protect the anonymity of the pregnant girls discussed. Indeed, Justice Brennan could not: a teacher had testified that she could identify at least one girl. See id. at 274. Instead, Justice Brennan was more concerned that the publishing students did not receive an explanation from the principal before the newspaper was printed without the article in controversy (the principal testified that he believed there was no time), see id. at 263, and that the principal's post-publication explanation was not detailed enough. See id. at 285 (Brennan, J., dissenting). His quarrel then, was apparently not with the principal's reasons for deletion, but with his methods. The dissent asserted, consistent with the reproduction model, that teachers were the adversaries of the students and if given the chance would act as "thought police," would "assume an Orwellian guardianship of the public mind," and would "transform students into closed-circuit recipients" of state-approved topics. Id. at 285-86 (Brennan, J., dissenting) (internal quotation marks and citations omitted). To avoid the "brutal censorship" and "unthinking contempt" for individual rights of the adult oppressor, high school students - despite their presumed emotional immaturity and lack of experience with regard to the legal, moral, and ethical journalistic standards - should determine what is responsible journalism for a school-sponsored newspaper. Id. at 289-90 (Brennan, J., dissenting). According to the dissenters, the school did not need and should not have the power to make that determination.
286. 115 S. Ct. 2386 (1995).
287. See id. at 2388-89. Under the policy, students who wish to play sports "must sign a form consenting to the testing and must obtain the written consent of their parents." Id. at 2389. Student athletes are tested once at the beginning of their sport season. Additionally, once each week of the season, 10% of the athletes are randomly chosen for testing. After the students produce a urine sample, an independent laboratory whose procedures are 99.94% accurate tests the samples for amphetamines, cocaine, and marijuana. See id. at 2389. A positive test entitles the student to a second test. If the second test is negative, the school takes no further action. If the second test is positive, the parents are notified. Then, at a meeting with student and parents, the principal gives the students the option of participating in a six-week assistance program (including weekly urinalysis) or suspension from athletics for the remainder of the season and the next season. Suspension penalties increase for second and third offenses. See id. at 2390.
288. Id. at 2391 (internal citation and quotation marks omitted). For a discussion of the special needs doctrine, see generally Kenneth Nuger, The Special Needs Rationale: Creating a Chasm in Fourth Amendment Analysis, 32 SANTA CLARA L. REV. 89 (1992).
289. Acton, 115 S. Ct. at 2391-93.
290. Id. at 2392, 2397.
291. Id. at 2391. By inserting the numbers "(1)" and "(2)," the Court indicates that these elements are to be analyzed separately. Thus, children who are not in the temporary custody of "the State as Schoolmaster" have different expectations of privacy. See Stuart C. Berman, Note, Student Fourth Amendment Rights: Defining the Scope of the T.L.O. School Search Exception, 66 N.Y.U. L. REV. 1077, 1123 n.249 (1991) (citing statutes and cases giving Fourth Amendment protection to minors outside the school).
292. See Acton, 115 S. Ct. at 2391.
293. Id.
294. Id.
295. Id.
296. See id. at 2397 (describing school power as that of a "reasonable guardian").
297. Id. at 2391.
298. Id.
299. Id. (quoting 1 WILLIAM BLACKSTONE, COMMENTARIES *453) (internal quotation marks omitted).
300. See Kamisar, supra note 17, at 2246 (noting the Court's emphasis on the fact that a drug detection policy involved minors "over whom school personnel stand in loco parentis" and questioning whether the entire student body could be tested under in loco parentis or some other justification); Rossow & Stefkovich, supra note 70, at 49 (stating that Acton "invigorated" in loco parentis); Drug Testing: High Court Gives Schools' Adults Freedom to Make the Rules, CINCINNATI ENQUIRER, July 5, 1995, at A6 (stating that the "Court held that schools serve 'in loco parentis' for the children entrusted to their care"); Mickenberg, supra note 17, at C8 (noting Court's 'heavy reliance on the schools' in loco parentis responsibility"); Supreme Court, in School Case, Upholds Random Drug Testing, DRUG DETECTION REP., July 5, 1995, at 1 (explaining that the Court based its opinion in part on the fact that children are "under control of school officials as stand-ins for their parents").
301. See JAMES S. COLEMAN ET AL., HIGH SCHOOL ACHIEVEMENT: PUBLIC, CATHOLIC, AND PRIVATE SCHOOLS COMPARED 179-80 (1982) (finding that private schools "produce better cognitive outcomes than public schools" even when "family background factors that predict achievement are controlled"); see also JAMES S. COLEMAN & THOMAS HOFFER, PUBLIC AND PRIVATE HIGH SCHOOLS: THE IMPACT OF COMMUNITIES (1987) (noting "strong evidence of greater growth in Catholic schools than in public schools, in both verbal skills and mathematics"); Kaufman, supra note 9, at A1 (noting the better performance of students in private schools).
302. See THAYER, supra note 111, at 324 (noting that the school "as the servant of more than one master" is called upon to help students "resolve the conflicting claims of the local community, the larger society, and the accepted principles and ideals of a still higher authority").
303. Acton, 115 S. Ct. at 2391 (emphasis added).
304. See id. at 2392. Justice Scalia was not entirely correct here. In discussing the conflict with compulsory education laws, the T.L.O. Court actually stated that "the concept of parental delegation as a source of school authority is not entirely consonant with compulsory education laws." New Jersey v. T.L.O., 469 U.S. 325, 336 (1985) (emphasis added) (internal quotation marks and citation omitted). Indeed, one commentator observed that after T.L.O. "courts cannot possibly view public school officials as anything but 'state' actors when examining their conduct vis-a-vis students." Goodwin, supra note 234, at 691 (emphasis added). The T.L.O. Court also stated, however, that "school officials act as representatives of the State, not merely as surrogates for the parent." T.L.O., 469 U.S. at 336. But if Justice Scalia was attempting to clear up the ambiguity in T.L.O., he should have stated that he was doing so instead of claiming that the T.L.O. Court had set forth a straightforward analysis.
305. Acton, 115 S. Ct. at 2392 (emphasis added).
306. But see Levin, supra note 234, at 1680 (arguing that school is not extension of parent, but of government).
307. See Kaslow, supra note 153, at 9. See generally Jon S. Lerner, Comment, Protecting Home Schooling Through the Casey Undue Burden Standard, 62 U. CHI. L. REV. 363, 374-75 (1995) (describing different types of home schooling regulations).
308. See 1 WILLIAM BLACKSTONE, COMMENTARIES *453 (stating that a parent may delegate part of his parental authority to the schoolmaster, who then has the power of restraint and correction "necessary to answer the purposes for which he is employed").
309. See School Dist. of Abington Township v. Schempp, 374 U.S. 203, 242 (1963) (Brennan, J., concurring) ("Attendance at the public schools has never been compulsory; parents remain morally and constitutionally free to choose the academic environment in which they wish their children to be educated . . . [either] a public secular education . . . [or] some form of private or sectarian education . . . .").
310. See supra note 267 and accompanying text.
311. in Schall v. Martin, 467 U.S. 253 (1984), the Court authorized pretrial detention of juveniles and stated that "juveniles, unlike adults, are always in some form of custody." Id. at 265 (citations omitted). According to Acton, during school hours this custody is committed to teachers and school officials. See Vernonia Sch. Dist 47J v. Acton, 115 S. Ct. 2386, 2392 (1995). But cf. Ingraham v. Wright, 430 U.S. 651, 670 (1977) (observing that students are "not physically restrained from leaving school").
312. Justice Scalia used the term "guardian" twice. See Acton, 115 S. Ct. at 2396 ("The most significant element in the case is . . . that the Policy was undertaken in furtherance of the government's responsibilities, under a public school system, as guardian and tutor of children entrusted to its care.") (footnote omitted); id. at 2397 ("[W]hen the government acts as guardian and tutor the relevant question is whether the search is one that a reasonable guardian and tutor might undertake.").
313. The Court merely quoted T.L.O.'s statement that a proper educational environment requires close supervision and rules against conduct that would be permissible if undertaken by an adult. See id. at 2392.
314. Id. (quoting New Jersey v. T.L.O., 469 U.S. 325, 339 (1985)).
315. 489 U.S. 189 (1989). Joshua DeShaney, a four year old child, sued social workers who failed to do anything about repeated beatings by his father. The beatings left Joshua with permanent brain damage and profoundly retarded. See id. at 193. The Court refused to find that the State had an affirmative duty enforceable under the Due Process Clause to protect Joshua. See id. at 198. Nonetheless, the Court stated that "when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being." Id. at 199-200 (citation omitted).
316. See, e.g., J.O. v. Alton Community Unit Sch. Dist. 11, 909 F.2d 267, 272 (7th Cir. 1990) (finding no duty to protect school children from a sexually abusive teacher).
317. Acton, 115 S. Ct. at 2392 (quoting DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 200 (1989)). For an argument that the affirmative duty analysis should be based on a certain level of state involvement (some state contribution giving rise to the claim) and on the defendant's state of mind (whether the defendant's knowledge of the circumstances amount to deliberate indifference to the victim's need for help), see Thomas A. Eaton & Michael Wells, Government Inaction as a Constitutional Tort DeShaney and its Aftermath, 66 WASH. L. REV. 107, 111 (1991).
318. Acton, 115 S. Ct. at 2392 (internal quotation marks, alterations, and citations omitted) (emphasis added); see Rossow & Stefkovich, supra note 70, at 49 (maintaining that in loco parentis is "invigorated" in Acton); Peters, Note, supra note 17, at 869 (stating that "the Court stated that teachers and administrators stand in loco parentis with respect to the children"). But see Levin, supra note 234, at 1680 (stating that in loco parentis is no longer relevant).
319. Acton, 115 S. Ct. at 2391.
320. Id. at 2392 (quoting Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 506 (1969)).
321. According to the Court, student athletes have even less of a legitimate expectation of privacy. See id. at 2392.
322. Id. at 2397.
323. Id.
324. Id. at 2404 (O'Connor, J., dissenting).
325. 1 WILLIAM BLACKSTONE, COMMENTARIES *460.
326. Uniform Guardianship & Protective Proceedings Act § 2-109, quoted in 39 AM. JUR. 2D Guardian and Ward § 17.5 (Supp. 1996); see also 39 C.J.S. Guardian and Ward § 3 (1976) (stating that a general guardian of the person of a minor virtually occupies the position of a parent, but the legal relationship is not identical with that of a parent) (footnotes omitted); id. at § 55 ("A guardian of the person of a minor stands in loco parentis, being vested with general power of control, and should supply the watchfulness, care, and discipline essential to the young . . . .") (footnotes omitted); 39 AM. JUR. 2D Guardian and Ward § 65 (1968) (guardian stands in loco parentis to ward) (footnote omitted). Although different types of guardians have legal recognition - statutory or testamentary guardians, public guardians, and general guardians, the Court did not specify any particular class guardianship; thus I state the powers thereof only in general terms.
327. BLACK'S LAW DICTIONARY 384 (6th ed. 1990).
328. 59 AM. JUR. 2D Parent and Child § 23 (1987) (footnote omitted); see, e.g., GA. CODE ANN. § 15-11-2(5) (1994) ("'Custodian' means a person, other than a parent or legal guardian, who stands in loco parentis to the child . . . ."); N.Y. EDUC LAW § 3212(1) (McKinney 1995) (stating that a custodian stands in "parental relation").
329. See LA. CIV. CODE ANN. art. 2333 (West 1995) ("Unless fully emancipated, a minor may not enter into a matrimonial agreement without the written concurrence of his father and mother, or of the parent having his legal custody, or of the tutor of his person."); LA. CODE CIV. PROC. ANN. art. 4261 (West 1961) ("The tutor shall have custody of and shall care for the person of the minor [and] shall see that the minor is properly reared and educated in accordance with his station in life."). In Louisiana a "tutor's" duties can also be similar to those of a trustee. See LA. CODE CIV. PROC. ANN. art. 4262 (West Supp 1996) ("The tutor shall take possession of, preserve, and administer the minor's property . . . . He shall act at all times as a prudent administrator, and shall be personally responsible for all damages resulting from his failure so to act."); see also Rossow & Stefkovich, supra note 70, at 49 (describing tutelary power as somewhat less than in loco parentis but allowing "far more control" than government generally has against adults).
330. Instead of being shaded by Tinker, one lower court has used Acton as support for holding that a search of a student by a public school "liaison police officer" was permissible. See People v. Dilworth, 661 N.E.2d 310, 317, 318, 321 (Ill.), cert. denied, 116 S. Ct. 1692 (1996). Another court has used Acton to uphold a generalized search of all male students if a metal detector has sounded; the students are asked to remove jackets, shoes, and socks, as well as empty their pockets and submit to a pat down. See Thompson v. Carthage Sch. Dist., 87 F.3d 979, 982 (8th Cir. 1996); see also Wojcik v. Town of N. Smithfleld, 76 F.3d 1, 3 (1st Cir. 1996) (using Acton to support a determination that school officials did not violate the Fourth Amendment's prohibition against unreasonable seizure by transporting a student thought to be abused to another school to be interviewed with a sibling); Wallace v. Batavia Sch. Dist. 101, 68 F.3d 1010, 1013 (7th Cir. 1995) (implying that Acton limited rights of students: "We know that students do not completely surrender their constitutional rights at the schoolhouse gate [citing Tinker], but 'the nature of those rights is what is appropriate for children in school' [quoting Acton]"); Cheema v. Thompson, 67 F.3d 883, 892 (9th Cir. 1995) (Wiggins, J., dissenting) (stating that Acton "reaffirmed that in the interest of safe school environments, students enjoy fewer rights than adults, or even than children outside of classrooms"); Moule Through Moule v. Paradise Valley Unified Sch. Dist No. 69, No. 94-17021, 1995 U.S. App. LEXIS 25187, at *1 (9th Cir. July 10, 1995) (upholding school drug testing policy based on Acton). Commentators have observed that Acton may have provided the rationale for "re-empowering" school authorities. Rossow & Stefkovich, supra note 70, at 49. Nonetheless, there remains the possibility, of course, that some future majority will confine Acton to its specific facts.
331. The lower courts have also sent confusing signals. For example, in the Acton litigation the district court upheld the school's drug testing policy, Vernonia Sch. Dist. 47J v. Acton, 796 F. Supp. 1354, 1365 (D. Ore. 1992), the Ninth Circuit reversed, 23 F.3d 1514, 1527 (9th Cir. 1994), and then the Supreme Court vacated and remanded, 115 S. Ct. 2386, 2397 (1995). The federal courts outside the Ninth Circuit were also split on the school drug testing issue. Compare Schaill by Kross v. Tippecanoe County Sch. Corp., 864 F.2d 1309, 1324 (7th Cir. 1988) (allowing drug testing), with Brooks v. East Chambers Consol. Indep. Sch. Dist., 730 F. Supp. 759, 766 (S.D. Tex. 1989) (holding that a drug testing program was unconstitutional), aff'd, 930 F.2d 915 (5th Cir. 1991). Similar confusion has reigned in other cases. See, e.g., Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 264-66 (1988) (reversing the Eighth Circuit, which had reversed the District Court, which had held that the principal's action did not violate students' First Amendment rights).
332. 420 U.S. 308 (1975), limited on other grounds, Harlow v. Fitzgerald, 457 U.S. 800, 815 & n.25 (1982).
333. Id. at 322. The students claimed their due process rights were violated when they were suspended for violating a school regulation prohibiting the use or possession of intoxicating beverages at school or at school activities. The Court held that although public school officials have a qualified good faith immunity from liability for damages under 42 U.S.C. § 1983, a school official is not immune "if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected." Id.
334. "[T]eachers and counselors have become consistently unwilling to exert authority, in part because they fear litigation, but also because they 'are no longer sure that they know what is right, or if they do, that they have any right to impose it.'" Hafen, supra note 4, at 686 (quoting Grant, supra note 4, at 41).
335. JEROME FRANK, COURTS ON TRIAL: MYTH AND REALITY IN AMERICAN JUSTICE 40 (1950).
336. "[T]he amorphous 'reasonableness under all the circumstances' standard freshly coined by the Court today will likely spawn increased litigation and greater uncertainty among teachers and administrators." New Jersey v. T.L.O., 469 U.S. 325, 365 (1985) (Brennan, J., concurring in part, dissenting in part). Students also sue school officials regarding the reasonableness of school "seizures." See, e.g., Wallace v. Batavia Sch. Dist. 101, 68 F.3d 1010, 1011 (7th Cir. 1995) (addressing a claim in which a teacher and a school district were sued when a teacher momentarily grasped a student's wrist and elbow to escort the fighting and cursing student out of the classroom); Hassan v. Lubbock Indep. Sch. Dist., 55 F.3d 1075, 1078 (5th Cir.) (considering a suit in which a school district, a principal, and a teacher were sued for disciplining a disruptive student on a field trip to a detention center when they placed the student in a holding room so that other students could continue the tour without distraction), cert. denied, 116 S. Ct. 532 (1995). The Acton Court recognized that testing based only on the reasonable suspicion standard of T.L.O. would generate lawsuits charging that the testing was imposed without reason or claiming that greater process was necessary before the testing could occur. See Acton, 115 S. Ct. at 2396.
337. Students have used cases like Tinker and Goss to challenge a wide variety of decisions by teachers and principals. For examples of the kinds of lawsuits that schools and teachers have been forced to defend in federal court, see Wiemerslage Through Wiemerslage v. Maine Township High Sch. Dist 207, 29 F.3d 1149, 1150-51 (7th Cir. 1994) (claiming that restricting access to an area adjacent to school gate violated the First Amendment right to assembly); Poling v. Murphy, 872 F.2d 757, 758, 760-61 (6th Cir. 1989) (challenging a decision to disqualify a student from running for student council president when the student gave a campaign speech to the student body that was "admittedly 'discourteous' and 'rude'" toward the assistant principal); Mitchell v. Board of Trustees, 625 F.2d 660, 661 (5th Cir. 1980) (challenging mandatory expulsion for violating a rule prohibiting weapons on campus); Hill by and through Hill v. Rankin County, Mississippi Sch. Dist., 843 F. Supp. 1112, 1114-15 (S.D. Miss. 1993) (claiming a due process violation when a student with a history of disciplinary problems was expelled after striking another student without provocation, knocking him down, and assaulting and cursing a school secretary); Broussard by Lord v. School Bd., 801 F. Supp. 1526,1527,1530 (E.D. Va. 1992) (claiming a one-day suspension for wearing a "Drugs Suck!" t-shirt violated the First Amendment and Due Process Clause); Draper v. Columbus Pub. Schs., 760 F. Supp. 131, 131, 134 (S.D. Ohio 1991) (alleging a procedural due process violation despite an informal hearing with a principal, written notice of a formal hearing and right to appeal sent to parents, and representation by an attorney at an appellate hearing); Dickens by Dickens v. Johnson County Bd. of Educ., 661 F. Supp. 155, 156-57 (E.D. Tenn. 1987) (claiming temporary placement in a "timeout" area that was segregated from other students violated due process); Haverkamp v. Unified Sch. Dist. No. 380, 689 F. Supp. 1055, 1056 (D. Kan. 1986) (claiming a due process violation for removal from a varsity cheering squad); Student Doe v. Pennsylvania, 593 F. Supp. 54, 56 (E.D. Pa. 1984) (challenging exclusion from a gifted class); Karnstein v. Pewaukee Sch. Bd., 557 F. Supp. 565, 566-67 (E.D. Wis. 1983) (challenging denial of admission to the National Honor Society on due process grounds); Bernstein v. Menard, 557 F. Supp. 90, 91 (E.D. Va. 1982) (challenging dismissal from a high school band), appeal dismissed, 728 F.2d 252 (4th Cir. 1984).
338. Goss v. Lopez, 419 U.S. 565, 580 (1975); see Kirp, supra note 12, at 863-64 (noting that defensive behavior by school officials is a likely reaction to Goss); id. at 874 (pointing out that a teacher will be reluctant to undertake "a course of action that best serves child if they are obliged openly to defend it"); see also Ronald A. Cass, Damage Suits Against Public Officers, 129 U. PA. L. REV. 1110, 1133-74 (1981) (discussing the costs and effects of official liability); Eaton & Wells, supra note 294, at 131 (noting the problem of overdeterrence: "Faced with the prospect of tort liability for their errors, officials may become too cautious."). Cases allowing suits against schools under Title IX for student-on-student sexual harassment, see, e.g., Davis v. Monroe County Bd. of Educ., 74 F.3d 1186 (11th Cir. 1996), may have led to the suspension of a young boy who was accused of kissing girls. See No Bliss from Boy's Kiss, WASH. POST., Sept. 25, 1996, at A2.
339. Kirp, supra note 12, at 874.
340. Judge Wilkinson now sits on the United States Court of Appeals for the Fourth Circuit.
341. Wilkinson, supra note 196, at 68; see also Kevin Brown, Termination of Public School Desegregation: Determination of Unitary Status Based on the Elimination of Invidious Value Inculcation, 58 GEO. WASH. L. REV. 1105, 1138 (1990) (noting the Goss Court's "sizeable intrusion into what had previously been the exclusive province of educators").
342. Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 512 (1969). Note the comparison between Justice Fortas's assertion and the emphasis the social reconstructionists placed on focusing attention upon the child and the importance of her interests. See supra notes 111-123 and accompanying text; see also THAYER, supra note 111, at 313; id. at 336-37 (quoting ROBERT MAYNARD HUTCHINS, A CONVERSATION ON EDUCATION 11 (1963) (criticizing the American educational system for becoming "a program of accommodating the young until we are ready to have them go to work")) (internal quotation marks omitted).
343. THAYER, supra note 111, at 338 (quoting HUTCHINS, supra note 319, at 1) (internal quotation marks omitted). For an account of Hutchins's disagreements with Dewey, see RYAN, supra note 116, at 276-281. For different views about the ability of students to obtain a serious education in America's public schools, compare CHARLES J. SYKES, DUMBING DOWN OUR KIDS: WHY AMERICA'S CHILDREN FEEL GOOD ABOUT THEMSELVES BUT CAN'T READ, WRITE, OR ADD 10 (1995) (contending that too much emphasis on self-esteem leaves little room for acquiring knowledge), with DAVID C. BERLINER & BRUCE J. BIDDLE, THE MANUFACTURED CRISIS: MYTHS, FRAUD, AND THE ATTACK ON AMERICA'S PUBLIC SCHOOLS 3, 4 (1995) (arguing that critics of public education are engaged in a deliberate disinformation campaign).
344. See THAYER, supra note 111, at 315-16 ("[G]rowing up involves of necessity a high degree of imposition and indoctrination of the young."); Levin, supra note 234, at 1649 (noting the conflict between creating an ordered environment and the rights of individual students).
345. See Marci A. Hamilton, Art Speech, 49 VAND. L. REV. 73, 84-85 (1996) (illustrating how the First Amendment "enshrines the most effective means of challenging the ever-entrenching institutionalization of a government that is inherently separate from the people themselves") (footnote omitted); Marci A. Hamilton, The First Amendment's Challenge Function and the Confusion in the Supreme Court's Contemporary Free Exercise Jurisprudence, 29 GA. L. REV. 81, 84-94 (1994) (examining the First Amendment's historical development as a tool to challenge tyranny).
346. See Marci A. Hamilton, Art Speech, 49 VAND. L. REV. 73, 84-85 (1996) (illustrating how the First Amendment "enshrines the most effective means of challenging the ever-entrenching institutionalization of a government that is inherently separate from the people themselves") (footnote omitted); Marci A. Hamilton, The First Amendment's Challenge Function and the Confusion in the Supreme Court's Contemporary Free Exercise Jurisprudence, 29 GA. L. REV. 81, 84-94 (1994) (examining the First Amendment's historical development as a tool to challenge tyranny).
347. Tinker, 393 U.S. at 515 (Stewart, J., concurring) (internal quotation marks and citation omitted).
348. Hafen, supra note 4, at 666; see also id. at 712 (noting the First Amendment interests of both students and society in sustaining the institutional authority of the school in fulfilling the broad educational goals of the public school system).
349. See Mark V. Tushnet, Anti-Formalism in Recent Constitutional Theory, 83 MICH. L. REV. 1502, 1542-43 (1985) (describing the social base for the Framers' republicanism and stating that citizens must have "sufficient education in public matters and in their republican traditions to understand the virtues of the republican polity, in order that they be able to resist its subversion from
350. Hafen, supra note 4, at 693 (stating that "the most fundamental interest young people have in the values of the first amendment" is "the right to receive a serious education").
351. See MORGAN, supra note 140, at 97-98 ("The qualification of voters is as important as the qualifications of governors, and even comes first, in the natural order . . . . As the children now are, so will the sovereigns soon be.") (quoting Horace Mann's Lecture on Education, supra note 140); Suzanna Sherry, "Without Virtue There Can Be No Liberty", 78 MINN. L. REV. 61, 77-78 (1993) (arguing for education that makes one capable of participation as "a virtuous republican citizen"); cf. PAUL M. SNIDERMAN & THOMAS PIAZZA, THE SCAR OF RACE 13 (1993) (suggesting that those with the least amount of formal education are more likely to make racial judgments).
352. See Hafen, supra note 4, at 665 (cautioning that "[e]xcessive student autonomy can impair the most fundamental learning processes"); see also THAYER, supra note 111, at 361 (noting that Walter Lippmann "attributed the failures of the western democracies in large measure to the fact that educators have substituted the 'cult of the child'" for an "emphasis upon informing and disciplining man's rational nature"); cf. RYAN, supra note 116, at 348 (describing the two views of education as "those who thought the aim of education was to get the child to master an intellectual discipline" and "those who thought of the 'needs' of the child").
353. Tinker v. Des Moines Indep. Community Sch. Dist., 258 F. Supp. 971,9 72-73 (S.D. Iowa 1966), aff'd, 383 F.2d 988 (8th Cir. 1967), rev'd, 393 U.S. 503 (1969).
354. See id. at 973.
355. Id.
356. See THE PEOPLE'S CHRONOLOGY 1107 (James Trager ed., 1979).
357. Tinker, 258 F. Supp. at 972.
358. For the standard of care for teachers, see, for example, Baird v. Hosmer, 347 N.E.2d 533, 537 (Ohio 1976) (reasonable care), Eastman v. Williams, 207 A.2d 146, 148 (Vt. 1965) (due care), and Payne v. North Carolina Dep't of Human Resources, 382 S.E.2d 449, 451 (N.C. Ct. App. 1989) (asking what degree of care "a person of ordinary prudence, charged with teacher's duties, would exercise in the same circumstances"). See also Chris Hutton, School as Good Parent: Symbolism Versus Substance in Drug and Alcohol Testing of School Children, 21 J. L. & EDUC. 33, 59 (1992) (noting a case in which a school adopted a drug testing program in response to accusations by students and their parents that the school board was failing to respond to the school's drug problem effectively).
359. See David A. Diamond, The First Amendment and Public Schools: The Case Against Judicial Intervention, 59 TEX. L. REV. 447, 485 (1981) (stating that there are different forms of educational disruption).
360. See id. (suggesting that disruption can be nonphysical). Moreover, Justice Fortas was not clear whether the standard is met if conduct or speech merely causes others to be disruptive or if the conduct or speech must also be disruptive in and of itself.
361. See generally Diane Felmlee et al., Peer Influence on Classroom Attention, 48 SOC. PSYCHOL. Q. 215, 223 (1985) ("Our quantitative analysis suggests that a distracting comment or action does indeed have a statistically significant effect on the probability an individual becomes inattentive at a later point in the lesson, even when controlling for a number of individual and group characteristics.").
362. As Professor Hafen observed, "At one time a student may need the temporary repression of discipline in order to develop the skills necessary for genuine freedom. At other times, that same student may need to be left completely free (perhaps even pushed to break free) to try his or her creative wings." Hafen, supra note 4, at 667-68.
363. Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 518 (1969) (Black, J., dissenting).
364. Diamond, supra note 335, at 486 (footnote omitted).
365. See Kirp, supra note 12, at 855.
366. Id. (emphasis and footnote omitted).
367. Id. (quoting Charles E. Bidwell, Students and Schools: Some Observations on Client Trust in Client-Serving Organizations, in ORGANIZATIONS AND CLIENTS 37, 50 (William R. Rosengren & Mark Lefton eds., 1970)).
368. Id.
369. See Vernonia Sch. Dist. 47J v. Acton, 115 S. Ct. 2386, 2393-94 (1995).
370. See Mary Beth Alexander, Prop. 187 Opposed by Schools, Enrollment Decline, Higher Costs Feared, L.A. DAILY NEWS, Oct. 16, 1994, at AV1 (quoting a school superintendent who feared that school employees would become "police agents" if forced to turn in potential illegal alien children as required by then-pending California Proposition 187). Moreover, an expert on drug abuse in the Acton case stated that, without drug testing, even specially trained teachers would still miss more than 90% of impairment caused by drugs and alcohol. Testimony of R.L. DuPont, M.D., Deposition Testimony at 32, Acton v. Vernonia School Dist. 47J, 796 F. Supp. 1354 (D. Ore. 1992) (No 91-1154MA) (April 24, 1992), quoted in Brief Amicus Curiae of National Sch. Bds. Ass'n, at 17-18, Vernonia Sch. Dist 47J v. Acton, 115 S. Ct. 2386 (1995) (No. 94-590) (available in LEXIS, Genfed Library, Briefs File).
371. See Kirp, supra note 12, at 855 (noting the importance of "the formation of relationships between students and teachers premised on trust" to the success of the educational enterprise); cf. Wyman v. James, 400 U.S. 309, 323 (1971) ("The [welfare] caseworker is not a sleuth but rather, we trust, is a friend to one in need.").
372. Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 525 (1969) (Black, J., dissenting); see also MORGAN, supra note 140, at 49 ("The mobs, the riots, the burnings, the lynchings, perpetrated by the men of the present day, are perpetrated, because of their vicious or defective education, when children.") (quoting Horace Mann's Lecture on Education, supra note 140).
373. See Tinker, 393 U.S. at 526 (Harlan, J., dissenting).
374. Assuming no physical or sexual abuse.
375. Tinker, 393 U.S. at 526 (Harlan, J., dissenting).
376. Id. (Harlan, J., dissenting).
377. The Hazelwood Court hinted at Justice Harlan's theory when it stated that the school principal had power to control student speech if the restraint was "reasonably related to legitimate pedagogical concerns." Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988) (footnote omitted). But the Court acknowledged that power only because the newspaper in question was part of a school-sponsored activity in a journalism class. Pedagogy is much more than what goes on in a particular classroom activity. It is in the atmosphere that exists throughout the entire school - in the hallways, at the lockers, and anywhere that students meet teachers and each other. See Diamond, supra note 335, at 478 n.4.
378. See Marci A. Hamilton, Discussion and Decisions: A Proposal to Replace the Myth of Self-Rule with an Attorneyship Model of Representation, 69 N.Y.U. L. REV. 477, 483 (1994).
379. Id. at 529 (footnote omitted).
380. Id. at 523.
381. See id. at 534.
382. Id. at 533-34.
383. Id. at 535 (footnote omitted).
384. See id. at 536.
385. See id. at 538.
386. See id. at 540-41; cf. Ingraham v. Wright, 430 U.S. 651, 670 (1977) (reasoning that the "openness of the public school and its supervision by community afford significant safeguards against" abuse).
387. Cf. Mark G. Yudof, Legalization of Dispute Resolution, Distrust of Authority, and Organizational Theory: Implementing Due Process for Students in Public Schools, 1981 Wise. L. REV. 891, 893 (arguing that community control, rooted in expanding patterns of democratic participation, may represent still another mechanism - inconsistent with the legalization model - for controlling government discretion).
388. Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 526 (1969) (Harlan, J., dissenting); see also Hafen, supra note 4, at 723 (explaining that Justice Harlan's dissent would "discourage courts from second-guessing even 'unwise' educational judgments and would encourage courts to resolve questions of fact or law in favor of educational policy makers, while still providing for protection" from extreme decisions); Note, supra note 204, at 1122 (interpreting the opinion in Board of Curators v. Horowitz, 435 U.S. 78 (1978), as the Court's acceptance of the "constraining effects that professional training will bring to the exercise of official power") (footnote omitted).
389. See Alvin L. Goldman, The University and the Liberty of its Students: A Fiduciary Theory, 54 KY. L.J. 643, 665-75 (1966) (arguing that fiduciary theory best defines the university-student relationship).
390. Cf. Elizabeth S. Scott & Robert E. Scott, Parents as Fiduciaries, 81 VA. L. REV. 2401 (1995) (exploring the notion that the "parent's legal relationship to the child is shaped by fiduciary responsibilities . . . rather than by inherent rights derived from status") (footnote omitted).
391. See COLEMAN ET AL., supra note 278; COLEMAN & HOFFER, supra note 278.
392. See COLEMAN ET AL., supra note 278, at 180-81; see also COLEMAN & HOFFER, supra note 278 (pointing out that black and Hispanic children of parents with lower education levels who attend private Catholic high schools perform significantly better than similar students in public schools).
393. See, e.g., Deborah Anderluh, Disheartened Parents Choose Private Schools, SACRAMENTO BEE, June 18, 1995, at A1 (reporting that middle and working class parents are spending past and future savings to avoid a public school system in which they have lost faith); Sean Griffin & Susan Gordan, Private or Public? Two Schools of Thought, NEWS TRIB., June 1, 1994, at 1 (special section) (citing a poll in two counties of Washington State in which two-thirds of the respondents said they would prefer private school or home school education for their children if they could afford it); Kaufman, supra note 9, at A1 (citing a nationwide survey where six in ten parents said they would send their children to private school if they could afford it). One study showed that 59% of public school teachers with an annual family income of greater than $70,000 sent their own children to private schools. See William Pack, Public School Teachers, Private School Parents, SUNDAY ADVOCATE, July 23, 1995, at 1A.
394. See, e.g., Deborah Anderluh, Disheartened Parents Choose Private Schools, SACRAMENTO BEE, June 18, 1995, at A1 (reporting that middle and working class parents are spending past and future savings to avoid a public school system in which they have lost faith); Sean Griffin & Susan Gordan, Private or Public? Two Schools of Thought, NEWS TRIB., June 1, 1994, at 1 (special section) (citing a poll in two counties of Washington State in which two-thirds of the respondents said they would prefer private school or home school education for their children if they could afford it); Kaufman, supra note 9, at A1 (citing a nationwide survey where six in ten parents said they would send their children to private school if they could afford it). One study showed that 59% of public school teachers with an annual family income of greater than $70,000 sent their own children to private schools. See William Pack, Public School Teachers, Private School Parents, SUNDAY ADVOCATE, July 23, 1995, at 1A.
395. See, e.g., Deborah Anderluh, Disheartened Parents Choose Private Schools, SACRAMENTO BEE, June 18, 1995, at A1 (reporting that middle and working class parents are spending past and future savings to avoid a public school system in which they have lost faith); Sean Griffin & Susan Gordan, Private or Public? Two Schools of Thought, NEWS TRIB., June 1, 1994, at 1 (special section) (citing a poll in two counties of Washington State in which two-thirds of the respondents said they would prefer private school or home school education for their children if they could afford it); Kaufman, supra note 9, at A1 (citing a nationwide survey where six in ten parents said they would send their children to private school if they could afford it). One study showed that 59% of public school teachers with an annual family income of greater than $70,000 sent their own children to private schools. See William Pack, Public School Teachers, Private School Parents, SUNDAY ADVOCATE, July 23, 1995, at 1A.
396. Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 526 (1969) (Harlan, J., dissenting).