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Michael C. Dorf

What Constitutional Rights Should Schoolchildren Have? Two Recent Cases Underscore the Ways in Which Children Are Not Simply Miniature Adults


Monday, March 23, 2009

Two 2008 federal appeals court rulings—one that may be on its way to the U.S. Supreme Court, and another that is already there—raise thorny questions of the extent to which schoolchildren enjoy the protections afforded by the Constitution to adults.

In Frazier v. Alexandre, the U.S. Court of Appeals for the Eleventh Circuit rejected a constitutional challenge to a Florida law requiring students to recite the Pledge of Allegiance unless they have previously received written permission from their parents excusing them from doing so. Yet the Supreme Court had appeared to hold in 1943, in West Virginia State Board of Educ. v. Barnette,that schoolchildren themselves have the right to decide whether to recite the Pledge, quite apart from their parents' wishes. Accordingly, there is a reasonable prospect that the Court will grant review of the Eleventh Circuit's decision if the plaintiff seeks it.

Meanwhile, in Redding v. Safford Unified School District,an en banc panel of the U.S. Court of Appeals for the Ninth Circuit allowed a lawsuit challenging the constitutionality of an Arizona middle school's strip search of "a thirteen-year-old girl accused by an unreliable student informant of possessing ibuprofen in violation of school rules" to proceed to trial. The Supreme Court will hear oral argument in Safford Unified next month.

These two cases, involving alleged violations of rights under the First and Fourth Amendments, respectively, highlight a potential source of confusion in our constitutional law of children's rights. Although it has long been accepted that children have constitutional rights, the law also acknowledges that, contrary to their sometimes creepy depiction in medieval art, children are not simply miniature adults. Rather, children differ from adults along multiple dimensions, and thus children's constitutional rights should not simply be a "lesser" version of adults' rights. The fact that a case involves schoolchildren thus can be a ground for granting children different rights from those we would grant to adults, but it should not automatically be a ground for granting children fewer rights than adults enjoy.

The Recent Flag Salute Case

In recent years, litigation challenging the recitation of the Pledge of Allegiance has sometimes focused on its inclusion of the words "under God." Finding a defect in the plaintiff's standing, the Supreme Court did not reach the merits of that challenge in the 2004 case of Elk Grove Unified School Dist. v Newdow. In that and other, similar cases brought under the First Amendment's Establishment Clause, the plaintiffs argued that the reference to the Deity renders the Pledge a form of prayer, and thus that public schools may not begin the school day with the Pledge, under Supreme Court precedents barring organized public-school prayer. The remedy sought by Newdow and others like him is to banish the "under God" Pledge entirely, even for willing participants.

But the words "under God" did not become part of the Pledge until 1954. The Pledge at issue in the 1943 Barnette case was, as it were, "God"-less. Nonetheless, the Court held that schoolchildren could not be required to recite that Pledge. The right they won was a right to opt out, even as public schools retained the power to conduct Pledge ceremonies for willing participants.

The Barnette opt-out was based on principles of freedom of speech. Although the particular plaintiffs in that case objected to saying the Pledge because doing so was, in their view, a form of idolatry prohibited by their religious faith, Justice Robert Jackson's majority opinion made clear that anyone could opt out of the Pledge for any reason, including secularly-based objections.

In some of the most stirring rhetoric in the Court's history, Justice Jackson declared: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us"

How and When Should Parental Wishes Count?

In its own recent flag-salute decision, the Eleventh Circuit did not deny the authority of the Barnette decision. Instead, its ruling was based on the discovery of an exceptional circumstance that supposedly had not occurred to Justice Jackson: The West Virginia law in Barnette did not permit an opt-out even with parental permission; by contrast, the Florida law does permit such parent-authorized opt-outs. Thus, the appeals court concluded that the right of parents to direct the upbringing and education of their children made the Florida case very different from Barnette. Reasoning that "a parent's right to interfere with the wishes of his child is stronger than a public school official's right to interfere on behalf of the school's own interest," the court upheld the Florida law.

It is not obvious, however, that the Supreme Court that decided Barnette would have considered the parental rights aspect of the Florida case significant. Barnette alsoinvolved schoolchildren, and Justice Jackson specifically rejected the parents' attempt to frame the case as primarily presenting an issue of religious liberty—a context in which parents traditionally have substantial control over their minor children's upbringing. By viewing the case as a matter of the free speech of citizens, the Barnette Court seemed to put the focus on individuals, including young individuals, rather than families.

That said, parents do have legal rights that sometimes override the rights and interests of their minor children. For example, a parent can decide that a young child should receive a vaccination even if the child vehemently objects. (Decisions to avoid vaccination are more complicated because they implicate public health more broadly.) Likewise, many school districts require a parent's permission for a child to participate in various extracurricular activities. Is the flag salute so different?

The answer to that question should depend on the reasons why, in each context, we prefer the decision of the parent to the decision of the child in cases of conflict. Typically, the answer has to do with decision-making capacity. A six-year-old who is squeamish about needles lacks the foresight to weigh the immediate but momentary pain of the injection against the risk of the future but very serious effects of the disease against which vaccination is sought.

Likewise, a teenager will typically over-value the benefits of what he imagines as his glorious football career, while underestimating both the potential health risks and the cost in time available for his studies. That is not to say that athletics and other extracurriculars would necessarily undermine academic performance; in many instances, these activities provide valuable training in teamwork and discipline, while occupying time the teenager might otherwise spend in affirmatively harmful pursuits. By allocating the ultimate decision about how to strike this balance to parents, school districts recognize that teenagers often lack the maturity to strike it wisely.

The flag salute is arguably quite different. It is hard to argue that being forced to recite a credo in which she does not believe is good for a student, in the way that a vaccination or more time spent practicing the piano, rather than playing football, could be said to be good for a student. Perhaps a parent who denies permission for his child to opt out of the flag salute does so because he fears that the child would be ostracized or ridiculed if she opted out, but often it will be because the parent simply disagrees with the child about what beliefs are appropriately affirmed. And favoring the parent's view on such matters does come uncomfortably close to imposing a state-enforced orthodoxy. After all, parents are not given the option of custom-crafting a Pledge for their own children.

To be sure, we might think it improbable that very young children would have sufficiently developed views even to know whether they object to saying the Pledge. Many seven-year-olds believe they are pledging allegiance to an "invisible" (rather than "indivisible") Nation. For this reason, we might think that very young schoolchildren ought not to be excused from the Pledge except upon the instructions of their parents (although one might then question the wisdom of requiring any schoolchildren to recite a Pledge they do not comprehend).

The Eleventh Circuit may have thought that the Florida statute could be validly applied to very young schoolchildren and that therefore it should not be struck down in its entirety. And indeed, the Eleventh Circuit opinion hints in this direction by noting the difficult burden a plaintiff must satisfy to have a law held invalid on its face, rather than merely as applied to some circumstances. However, facial invalidation may have been a better approach because it is very hard for a court to say exactly how old a student must be to be able to invoke his or her own rights, rather than just those of a parent. Age twelve? Eleven? Given the Florida law's problems for older children, perhaps the wiser course would have been for the court to invalidate the law in its entirety and leave the line-drawing to the Florida legislature in the first instance.

For now, at least, the Florida Pledge law remains enforceable. (A different aspect of the law, which required non-saluting students to stand, rather than sit, during the Pledge, was held invalid by the Eleventh Circuit.) Should the case ultimately reach the Supreme Court, one hopes that the Justices will pay more attention to the particulars of the parental-rights argument. The fact that parents have rights complicates, but does not by itself resolve, the constitutionality of the Florida Pledge law.

The Strip-Search Case

In the strip-search case currently pending before the Supreme Court there is no conflict between the rights of parents and the rights of children. Rather, in this case, as in most Fourth Amendment cases in the schools, the main justification for allowing some official searches that would be impermissible if conducted on adults in most other settings, is the need to maintain order. The leading Supreme Court case is New Jersey v. T.L.O. There, the Justices rejected the argument—advanced by the state—that public- school students had no greater rights than prisoners, but they accepted the broader principle that the peculiar institutional imperatives of a school entitle the authorities to greater leeway than is afforded to police investigating the general public.

Accordingly, in T.L.O., the Court ruled that the Fourth Amendment does not require probable cause or a warrant for school searches of students, but instead merely requires that a search be "reasonable" in light of all the relevant circumstances. The application of this principle in T.L.O. indicates that the level of suspicion, the gravity of the alleged wrong, and the intrusiveness of the search are all relevant to its reasonableness, and thus to its legality.

The T.L.O. Court upheld the search of a student's purse by a school principal—with the delightfully Dickensian name of Theodore Choplick—on the authority of a report by a teacher who had directly observed the student smoking in the restroom, in violation of school rules. Principal Choplick was looking for cigarettes, which he found, along with rolling papers, a small quantity of marijuana, and indirect evidence that the student was dealing marijuana to other students.

It is not hard to see why the Ninth Circuit thought that the strip search of then-thirteen-year-old eighth-grade honor student Savanna Redding failed the test set forth in T.L.O. Whereas Principal Choplick had a reliable eyewitness to T.L.O.'s smoking, the only reason that Assistant Principal Kerry Wilson suspected Redding of possessing ibuprofen (in violation of a school rule requiring prior approval for prescription and non-prescription drugs) was that another student, who was apprehended in possession of knives, a lighter, and a cigarette, fingered Redding as the alleged source of her own ibuprofen tablet. In addition, unlike the cigarettes possessed by T.L.O., the ibuprofen that Redding was thought to possess is not a dangerous substance. And most importantly, the strip search to which Redding was subject—in which she was required to expose her breasts and to pull out her underwear at the crotch—was substantially more intrusive than Principal Choplick's opening of T.L.O.'s purse.

Will the Drug War Distract the Supreme Court in the Strip-Search Case?

How should the Supreme Court resolve the strip-search case? Echoing a dissent in the Ninth Circuit, the Justice Department has filed an amicus brief arguing that the search itself violated the Fourth Amendment, but that the defendants enjoy qualified immunity against damages because, at the time the search occurred, its unreasonableness was not clearly established by prior cases. Yet the Court has emphasized that the unreasonableness of a course of conduct can be clearly established even if no identical prior case has been decided. Here, simply to state the facts appears to establish the unreasonableness of what the school authorities did to Savanna Redding.

There are nonetheless two reasons to fear that the Supreme Court will hold otherwise. One is the fact that this case technically involves a "drug." The Supreme Court's recent school cases show the Justices to be susceptible to the same fears of drugs that politicians and the general public have expressed. Thus, in the 2007 case of Morse v. Frederick, the Court appeared to create a new exception to the First Amendment for messages "that can reasonably be regarded as encouraging illegal drug use." In Safford Unified the school district seeks to characterize the strip-search of Redding simply as one seeking drugs—even though Redding was at most suspected of possessing a prescription-strength ibuprofen equivalent to the dosage typically taken in over-the-counter form for a headache. Should the Justices accept the school district's characterization of the search, it could fall into the emerging "Constitution-free school zone" for drug-related cases.

Second, there is a risk that the Justices will fall into the trap of thinking that because the standard for judging the reasonableness of a search is more forgiving for school authorities than for the police, the privacy interests of schoolchildren are necessarily of lesser moment than for adults.

Granted, there may be contexts in which schoolchildren do have less of a right to privacy than adults. For example, the Supreme Court in T.L.O. itself left open the possibility that searches of student lockers might not even be subject to the requirement of reasonableness, because students lack the privacy interests in their lockers that adults have in analogous closed spaces. Yet the same cannot fairly be said about a strip search. Indeed, if anything, the strip search of a girl of thirteen—a point in life when adolescents are typically very self-conscious about their changing bodies—is more intrusive than a strip search of an adult.

Children are not miniature adults and their constitutional rights, though often different from those of adults because of their different capacities, are not necessarily less than those of adults. Let us hope that the Supreme Court recognizes as much.

Michael C. Dorf, a FindLaw columnist is the Robert S. Stevens Professor of Law at Cornell University. He is the author of No Litmus Test: Law Versus Politics in the Twenty-First Century and he blogs at

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