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"YOU CAN'T SUSPEND ME" How the Courts Armed Students with Rights - and Attitude


"YOU CAN'T SUSPEND ME" How the Courts Armed Students with Rights - and Attitude

September 30, 1999
EducationPre K-12

Americans today are very confused about children, and nowhere is this more apparent than in the law. In many states a girl can get an abortion without telling her parents, but she must obtain a note from them in order to miss school on the day she goes to the clinic. A 17-year-old could be executed for killing a policeman, but he would have to ask his parents' permission to marry before the sentence is carried out. A 16-year-old might be able to run for parks commissioner, but she could not be held responsible for a contract she signed granting management of a concession stand.

At first glance, the public schools would seem to have escaped these legal inconsistencies by holding fast to old-fashioned notions of the adolescent as an ungainly child. After all, kids still have to go to school. Teachers and principals can search their lockers and give them random drug tests. They can censor their speech and, in many states, their newspapers. In a good number of states — as long as there is a witness and parents have been notified in writing — they can even paddle their backsides.

But by most accounts, the youth rights revolution that began in the late 1960s has had an enormous impact on the schools. Over the years, courts have helped to advance the misguided idea that children are innately equipped for freedom — that they are capable, autonomous beings endowed with all the qualities necessary for their entrance into the adult world. Judges, lawmakers, child development experts, "progressive" educators, and the media have all posited adolescents as rational, self-aware actors who stand apart from, and often in opposition to, the adult society into which they must move.

This "anticultural" set of beliefs is at the root of what has gone wrong with childhood in America. By embracing anticulturalism, our courts have rendered decisions that have armed students with both legal ammunition and "attitude." They have made it increasingly difficult for educators to shape students' character or to prepare them for responsible citizenship. And as disclosures in the wake of the Littleton massacre and other recent episodes of violence in schools strongly suggest, courts have made it difficult for school officials to even protect students from each other. Nowhere are the demoralizing consequences of the anticultural fallacy more prominently on display than in the disciplinary climate of today's schools.

The Legacy of Tinker and Goss

The reign of anticulturalism in the schools was inaugurated in 1969 with the Supreme Court's decision in Tinker v. Des Moines Independent Community School District. In 1965, a group of students from Des Moines, Iowa, donned black armbands in protest against the Vietnam War. The principal of the local school demanded that the students remove their armbands or else face suspension. One of them, a 15-year-old, sued and the Supreme Court took his side. "It can hardly be argued," wrote justice Abe Fortas for the majority, that students "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. ... Students in school ... are 'persons' under our Constitution."

Six years later, the Supreme Court followed up with another decision in this vein after riots in several Columbus, Ohio, schools resulted in the suspension of several students, at least one of whom claimed to be innocent. Goss v. Lopez granted kids the right to informal hearings when threatened with a suspension longer than 10 days.

A closer look at these cases might have foretold the troubles to come. The students in Tinker ranged from age 8 to 15, the younger age being one that might make even the most vociferous free speech supporter think twice. And hearings required by Goss were really not so informal. They had to include "effective notice," a chance for accused students to give their version of what happened, to summon the accuser, to cross-examine and to present their own witnesses, and possibly even to have legal representation. Fears of litigation fueled the growing anxiety of teachers and principals about supervisory disapproval as they warily watched their newly empowered students.

"You Can't Suspend Me"

Gerald Grant's book The World We Created at Hamilton High, a study of a city high school in the decade and a half following Tinker and Goss, provides a complex account of the rise of the rights-armed student and the fall of the socializing teacher. The new order had created a seriously demoralized, "just get through the day" institution. Simply put, teachers had come to fear their students.

"Assemblies often degenerated into catcalls and semiobscene behavior while teachers watched silently," Grant writes. "Trash littered the hallway outside the cafeteria, but it was a rare teacher who suggested a student pick up a milk carton he or she had thrown on the floor." Cheating was widespread, but "few adults seemed to care."

Small wonder. Given the decisions now coming from the courts, teachers who accused kids of cheating found themselves feeling as if they were the ones who had done something wrong; they were required to produce documentation and witnesses to counter the "other side of the story." One teacher who had failed a boy for plagiarizing a paper had to defend herself repeatedly before a supervisor after being harassed by daily phone calls from the student's parents and the lawyer they had hired. Another teacher, when asked why she didn't report several students who were making sexually degrading remarks about her in the hallway, shrugged and replied, "Well, it wouldn't have done any good. ... I didn't have any witnesses." The phrase "you can't suspend me" became the taunt of many a disruptive student.

But more important, this new state of affairs is not merely a management and morale problem; it also serves to dumb down the curriculum already weakened by the forces of progressive theory. Another study of three high schools describes how in each institution a fear of new adolescent power drove administrators and teachers to keep classes amiable and nonthreatening — or, in other words, unchallenging. Teachers accepted talking, laughing, spitballs, and even card playing as long as they didn't get out of hand, for "the principal obligation of the teachers ... was to 'get along with the kids.' " Fearful of inspiring conflicts, all but a handful of charismatic teachers studiously avoided giving low grades, demanding homework, and challenging tests. The school curriculum degenerated into an assortment of faddish, gimmicky selections providing students free choice about what to study.

Disruptive and manipulative students benefit most from the new order. They quickly figure out that there's always a way to get around the rules. To suspend a student in Los Angeles, for instance, a principal has to go to the school system's Student Discipline Proceedings Unit, which then has to go to the board of education — if, that is, the case reaches the board before the statute of limitations expires. In 1995, school principals in Montgomery County, Md., recommended 1,090 expulsions. The superintendent and school board approved only three.

This is bad enough, but a more subtle and corrosive problem attending the arrival of the rights-bearing student affects more than just the kids; it bodes ill for all citizens in a democratic society. Tinker did less to advance political maturity than to empower the obsessions of the teen imagination. Tinker has indeed encouraged free expression — on the issues that really concern the Darwinian teen: sex and violence. Meanwhile, educators, forced to allow speech to flow freely and to remain neutral about its content, are rendered impotent in any attempt to instruct students in the responsibilities of democratic debate and rational deliberation or to enlarge their capacity to distinguish between momentary pleasure and long-term benefits.

"White, Middle Class Standards"

A 1986 Supreme Court case, Bethel School District v. Fraser, illustrates the problem perfectly. Matthew Fraser, a high school senior, was suspended for a speech filled with sexual innuendo that he gave during an assembly. When Matthew's father sued, the lower courts, citing Tinker, not only supported his son's free speech rights, but went so far as to question the Bethel district's efforts at "cementing white, middle class standards for determining what is acceptable and proper speech and behavior in the public schools."

Appalled at the results of their own handiwork, the Supreme Court justices reversed the decisions of the lower courts. Tinker had not meant to hold, wrote Chief Justice William H. Rehnquist, quoting Justice Hugo Black's dissent in that case, "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."

Many have viewed Bethel v. Fraser and several ensuing decisions that seem to dampen the spirit of student rights as a sign that the Supreme Court is ready to shift the balance of authority back from students to school officials. But regardless of their outcome, lawsuits that leave teachers unsure of the distinction between instructing kids in the norms of civil language and moral behavior and violating their rights to free speech or due process are a victory for the forces of anticulturalism.

And Bethel v. Fraser has hardly solved the problem. In 1997 a New York school district was permitted to suspend a senior for distributing articles urging students to urinate in hallways, scrawl graffiti on the walls, and riot when the police arrived — but only after two years of effort and enormous amounts of money finally brought the case to the attention of the state's highest court. In his dissent in Tinker, Justice Black had written that the majority's decision condemns "all the public schools in the country to the whims and caprices of their loudest mouthed, but maybe not their brightest, students." He was exaggerating, but not by much.

The Right to Mouth Off

Once teenagers think of being a loudmouth as a personal right, the entitlement itself becomes the chief good while the higher goal of free speech in educational settings fades into insignificance. "Rights talk," in Harvard law professor Mary Ann Glendon's phrase, ultimately has the effect of bestowing high moral purpose on adolescent obsessions and making the already difficult tasks of training teenagers' judgment and refining their sensibilities seem quaintly irrelevant. In San Francisco in the early 1990s, a student gave a speech alluding to the length of his penis. When the principal admonished him, he was duly informed by the rest of the student body that the boy had a right to free speech. Patricia Hersch in A Tribe Apart, a study of teenagers in suburban Northern Virginia, reports that many times when educators tried to cut short the inevitable adolescent tangents on sexual topics, kids would raise the flag of free speech. They "demand their rights. ... They refer to the First Amendment, hint at discrimination."

To make matters worse for educators, some parents have also come to believe that the right to self-expression should preempt all concern for intellectual or moral seriousness. As long as kids are speaking up, it must be a good thing — no matter how difficult it makes the task of education. In 1994, eighth-graders in a Hershey, Pa., school engaged in a disruptive protest when they learned they had to go to school for several extra days in June to make up for snow days. Parents supported their children rather than the school because they were "good kids [who] ... just wanted to make a statement." This situation is minor compared to a case in Half Moon Bay, Calif. There, a 15-year-old was suspended for writing several disturbing English compositions — one about torching the school library and beating up the school principal and another, called "Goin' Postal," about taking a gun to school and putting seven bullets into the principal's body. His parents sued the principal and the school district for damages and to have the boy's suspension expunged from his record. They found support among many of their fellow parents, who believed the school had overreacted.

Examples like these begin to suggest how much is at stake when kids are never taught the responsibilities that accompany the right to free speech. Speech can be dangerous. It can wound and it can provoke. A democratic society relies on its citizens' comprehension of the dangers as well as the more constructive uses of free speech. But when will the next generation have the opportunity to learn this lesson? Only when words have turned to sticks and stones. In a Colorado high school, a principal, forced to respect the law as determined in Tinker, could not stop a student from wearing Ku Klux Klan insignia to school. That is, until a black student punched the student. Only then, when the Klansman's "speech" could clearly be construed as threatening school order, could the principal call the insignia a danger and therefore forbid it.

In Springfield, Ore., 15-year-old Kip Kinkel gave a report in science class on how to build a bomb, and in his literature class he read from his journal about his dreams of killing. No one made particular note of what in another era would have been clear red-flag behavior. "He was a typical 15-year-old," the Springfield superintendent of schools said — until the boy shot and killed his parents and two classmates in a rampage. School officials noted that classroom talk of murder is common, a truth borne out by reports that Dylan Klebold and Eric Harris made videos about shooting up their school before they did precisely that in Littleton, Colo. In other words, given free rein to say whatever they want, kids talk casually of murder, bombs, and suicide — and adults do nothing about it until someone gets hurt.

Given all this anticultural paralysis, it shouldn't be surprising that public school students find discipline more ineffective than do their disenfranchised private school counterparts. The increase in public school violence has been widely documented. In a number of jurisdictions kids caught with guns are suspended for a week, only to return to school or, at most, be transferred to another school. What is more surprising is that public school students also find their schools more unfair. Some child advocates of the 1960s and '70s referred to schools as prisons, but it is only after several decades of the supposedly liberating forces of anticulturalism that resentful students must march through metal detectors, get sniffed for guns by trained dogs, give up the privacy of lockers and book bags (because they are effective places to hide weapons), look out at the street from barred windows, and watch police and security guards patrolling the hallways.

This all goes to prove the sociological truth that as informal cultural controls disappear, raw, police-like power steps into the breach. The irony of the legal revolution that turned students into "citizens" is that authority in the school has not been made more intelligible. Authority has been shaped into what for kids are alien, legalistic forms. As the school becomes less of a flexible training environment where adults intuitively induct students into the norms of their culture, it becomes more of a technical and legalistic institution like any other government agency. When the presumption is, in author Gerald Grant's words, that "children are adults capable of choosing their own morality as long as they do not commit crimes," they are turned into fake adults, subject to the same rules as their elders. Anything goes except the outright illegal.

Thus it is that the anticultural assumptions behind decisions like Tinker and Goss, far from advancing freedom, threaten its foundations. A free society rests on a contract between intentional, responsible selves and a state which they support and which, in turn, respects their competent autonomy. When we lose a shared understanding of when or how that self is achieved — or, to put it another way, of when or how the child becomes an adult — we undermine the terms of the contract. Today's children and adolescents may be guaranteed rights to due process, to privacy, and to free speech, but not for a responsible, democratic future.