Student Rights in School: The Essential Facts You Need to Know
How much do you understand about student rights in school? If the answer is "very little," you're in good company. Many Americans are uninformed about their legal protections. In fact, in one survey, about one-third of respondents were unable to name any of the five rights guaranteed by the First Amendment.1
But having a solid grasp of your rights enables you to understand how you can and cannot exercise them. It also makes you better prepared to stand up for yourself if those rights are ever infringed upon.
So, what rights do students have in school? To a certain extent, that depends on what type of school you go to and how old you are. Rights like privacy and freedom of expression tend to feature prominently on any general list of human rights, and they also play a role in education. But many factors are involved. That's why, for instance, you can't simply say that every student has the right to free speech in school.
This article details five major areas of student rights and explains how they apply at both the K-12 and college levels. You will learn how student rights differ between public and private schools. And you'll get practical tips about what to do if your rights aren't being respected.
- Student rights related to:
- Student rights at private schools
- What to do if your rights are violated
Student Rights Related to Speech and Expression
Do students have freedom of speech in schools? The short answer is yes. Even children have First Amendment rights in school. However, they do not have the same level of constitutional protection as adults. Because most K-12 students are minors, schools must balance students' constitutional rights with the need to maintain orderly and safe learning environments.
A 1969 Supreme Court case made it famously known that public school students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."2 The decision of Tinker v. Des Moines was that school authorities could not prevent middle school students from wearing black armbands as a form of silent protest against the conflict in Vietnam. The court held that the students' actions qualified as a protected form of expression. This decision became a landmark ruling that defined the free speech rights of students.
Thus, the Tinker rule is that schools can restrict freedom of speech only if 1) the speech substantially or materially interferes with school operations or 2) the speech violates the rights of other people.
For example, one court held that a high school could prohibit a student from displaying a supportive message for a friend accused of trying to kill a police officer. The court said the ban was permissible because of the history of gang-related violence at the school.3
In the decades since Tinker, courts have established that public schools may also restrict student speech if it:
- Is lewd or vulgar.
- Is included in a school-sponsored publication that has an educational purpose. (However, some states have enacted specific laws that give student journalists a greater degree of free-speech protection.)
- Promotes criminal behavior or illicit drug use.
Schools can also curtail freedom of expression when it comes to clothing, although the courts have been divided in how they adjudicate such cases. For instance, one court upheld a school district's right to ban a student from wearing shirts emblazoned with the Confederate flag. In that case, the court held that because there had been a number of racial incidents at the school, permitting students to wear clothing with a Confederate flag would substantially disrupt the functioning of the school.4 However, courts have also ruled that students are free to express their political views through their choices of clothing (e.g., wearing a shirt that supports or opposes LGBTQ rights).
The First Amendment also protects public students' right to protest. So, for example, students cannot be compelled to recite the Pledge of Allegiance or stand for the national anthem. That said, students who participate in extracurricular activities, such as sports, may be subject to greater regulation. However, in at least one case, a federal court said that a school could not prohibit student athletes from kneeling in protest during the national anthem unless the kneeling met the Tinker standard of substantial disruption or interference with others' rights.5
Students can also participate in mass walkouts, as many did in the spring of 2018 to protest gun violence in the wake of the shootings at Marjory Stoneman Douglas High School in Parkland, Florida. Students who choose to protest this way cannot be reprimanded for their political views, but they can be disciplined for missing class. That's because, in most cases, students are legally required to attend school.
Free speech in college
Since most college students are adults, they can be expected to handle provocative messages that younger students cannot. (While K-12 schools are required to safeguard students' well-being and teach them how to behave in a civil manner, colleges are meant to be institutions that encourage the free exchange of ideas in the pursuit of intellectual growth.) In fact, in Healy v. James, the Supreme Court stated that the need for order notwithstanding, First Amendment protections should apply on college campuses just as they do in the community at large.6
However, many colleges and universities have enacted speech codes that seek to restrict offensive utterances directed at people based on factors like their religion, race, color, disability, or sexual orientation. Proponents say that such codes are necessary in order to discourage hate speech and foster a diverse and tolerant environment in which rational discourse can occur.
It's true that First Amendment rights are not absolute. Certain types of speech are not protected. For instance, the Supreme Court has consistently ruled that so-called fighting words (i.e., those that are intended to result in immediate violence) can be censored. But many speech codes are so broad or vague that they prohibit students from saying things that people would normally be permitted to say off campus. Such codes have frequently been struck down by the courts as unconstitutional.
Some colleges have also designated "safe spaces" where like-minded students can gather to avoid being exposed to speech that they find offensive or harmful. Intended as a way to give marginalized students safe havens free of harassment and abuse, such spaces have been criticized as being threatening to free speech since they allow students to insulate themselves from different points of view.
The concept of trigger warnings is similarly controversial. Some professors provide advance notice when they are about to introduce course material that may cause distressing reactions in students who have been traumatized in some way. Having such a heads-up allows students to prepare themselves to engage with (or avoid) content that makes them uncomfortable.
But some people argue that safe spaces and trigger warnings are evidence of a larger problem: Colleges are going so far to protect students' emotions that they are placing a chilling effect on student speech. That's because students may not feel free to express opinions or pose questions that might be construed as hostile or disrespectful. And that stifles the free exchange of ideas that colleges are supposed to foster.
Many colleges have also instituted "free speech zones." These are designated physical areas in which students are permitted to stage protests, hand out flyers, and otherwise exercise their right to free expression. The intent of confining such activities to certain areas is to avoid disrupting the educational focus of the campus environment. In a 2019 survey, the Foundation for Individual Rights in Education (FIRE) found that around 10 percent of higher education institutions maintain free speech zones.7
Critics say that limiting free expression to designated areas is incompatible with a college's main function as a marketplace of ideas. Indeed, many free speech zones have been struck down by the courts, and a growing number of states are banning the establishment of such zones at public colleges and universities. The idea is that free speech must be welcome all over campus, not just in certain areas.
Colleges do have the right to set reasonable and narrow rules regarding the time, place, and manner that demonstrations are carried out in order to ensure that such demonstrations do not interfere too much with the educational process. For instance, colleges can impose noise limits or prohibit overnight demonstrations. However, they cannot ban a person from speaking just because they don't agree with what the person will say. In fact, some states are passing legislation aimed at preventing colleges from withdrawing invitations to speakers who espouse unpopular or controversial viewpoints.
Student Rights Related to Privacy
If you're a public school student, Bill of Rights protections do apply to you. The Constitution does not specifically mention a right to privacy, but the Fourth Amendment protects individuals against "unreasonable searches and seizures" by police officers or other agents acting on behalf of the government (such as public school officials).
But while minors are protected by the Bill of Rights, elementary, middle school, and high school students do not have the same privacy protections in a school setting as they do outside of school. That's because the Supreme Court has ruled that schools have an obligation to maintain order and keep their students safe. So in that sense, students lose rights at school.
The upshot is that schools can search students if they reasonably suspect they will find evidence that the students have broken either a law or a school rule. (Unlike the police, school officials do not need a warrant or probable cause to conduct a search. But the courts are divided on whether school resource officers count as school officials or as police officers for the purposes of student searches.)
A "reasonable suspicion" must be more than just a hunch. For example, a principal cannot demand to search your backpack for drugs simply because there's a bit of a bulge in your bag. But if the principal catches you smoking in the stairwell, he or she can ask you to empty your backpack because he or she could reasonably suspect that you have cigarettes in your bag.
As another example, a teacher can take your phone if you use it during class in violation of school policy. However, in most cases, the teacher cannot search the contents of your phone unless he or she has a reasonable suspicion that the search will turn up evidence of further wrongdoing. Specific regulations vary from state to state.
There are exceptions to the "reasonable suspicion" rule. For instance, if school officials receive an anonymous tip that a particular student may be carrying a loaded gun, they can search that student—in the interests of safety—to see if he or she does in fact have a dangerous weapon. Also, public schools are allowed to conduct random drug tests on students who participate in any kind of competitive extracurricular activity (not just sports). Students who test positive for drugs are generally banned from taking part in the activities, but test results are not turned over to police, so there usually aren't any legal consequences.
Of course, a student can refuse a search at school. Even so, the search may still go ahead. But if you say that you do not consent, you may be able to challenge the legality of the search later. Similarly, here's what to do if you're stopped by the police: Stay calm and remember that whatever you say can be used against you. If a police officer asks to search your bag or your car, make it clear that you don't consent, but don't do anything to physically resist the search.
Privacy rights of college students
Like any other adults, college students enjoy Fourth Amendment protections against unreasonable searches. But if you live in a dorm at a public college or university, your right to object to a search of your room may be limited depending on the housing agreement you signed. For example, most colleges retain the right for staff to enter and inspect dorm rooms for maintenance or safety issues. However, police officers cannot enter your dorm room without your consent unless they have a search warrant. (Just keep in mind that if you share a room with someone, he or she can give consent for a search of the room if you aren't there to object.)
A drug test is another type of search. In 1994, the California Supreme Court ruled that the National Collegiate Athletic Association (NCAA) can compel college athletes to submit to random drug testing as a condition of participation in its athletics programs. The court reasoned that student athletes voluntarily submit to close monitoring of their bodily conditions and, thus, have a lowered expectation of privacy. Since then, colleges and universities across the country have instituted random drug testing of their athletes.
Some colleges have gone even further, requiring drug tests for all incoming students. However, that type of blanket policy has been successfully challenged in court. According to a 2011 class-action suit filed by the American Civil Liberties Union (ACLU), student rights under the Fourth Amendment precluded colleges from conducting suspicion-less drug tests of all students. A federal court agreed. However, the court said specific programs that involved risks to human safety (such as aviation maintenance and heavy equipment operations) could compel students to undergo drug testing.
College students also have privacy rights related to their education records (e.g., records of their grades, attendance, financial status, disciplinary actions, etc.). Under the Family Educational Rights and Privacy Act (FERPA), which applies to all institutions that accept federal money, a college generally cannot share such records with third parties—including parents—without the student's written consent. That's true even if the parents are paying the student's tuition.
Student Rights Related to Sexual Harassment and Discrimination
Schools that accept federal money—from the elementary level right through to college—are bound by Title IX, a federal law that bans sex discrimination in educational programs. That means students have the right to be free from sexual harassment and bullying in school. (However, Title IX does not apply to military training schools, and private religious schools can receive exemptions if the regulations conflict with tenets of their faiths.)
Title IX does not specifically mention sexual orientation, but the courts have held that harassment based on gender nonconformity is covered. So, for instance, if you are harassed because you are a boy who wears makeup, you may have recourse under Title IX. In addition, several states have enacted specific laws that protect public school students from harassment or discrimination based on their sexual orientation or gender identity.
A federal court in Virginia ruled that it is illegal to deny a student the bathroom on the basis of gender identity. In that case, a high school student whose biological gender was female but who identified as male, sued his school board for not letting him use the boys' restrooms. In May 2018, the court held that the school board's actions amounted to sex discrimination and were therefore unlawful under Title IX.
But the U.S. Department of Education is in the process of changing the regulations governing the implementation of Title IX. The proposed rules would alter the way schools handle complaints of sexual assault or harassment. For instance, "sexual harassment" would be defined more narrowly than it currently is, and those accused of misconduct would be given the right to cross-examine their accusers. However, a final version of the rules has not been issued. A 60-day period of public comment on the proposed regulations ended in January 2019, and the department is now reviewing all submissions before finalizing the rules.
Student Rights Related to Disabilities
At the K-12 level, a student with a disability has the same right to education as any other student. The federal Individuals with Disabilities Education Act (IDEA) covers students in federally funded schools until they graduate from high school or turn 22, whichever happens first. It stipulates that students with disabilities are entitled to a free appropriate public education (FAPE) in the least restrictive environment (i.e., a regular classroom as much as possible).
In order to meet the requirements of FAPE, public K-12 schools must provide special accommodations and services that are tailored to the unique needs of each qualifying student. For example, a student might receive speech therapy, be given extra time to finish an exam, or be allowed to complete assignments by typing on a computer rather than writing them out by hand.
IDEA also requires schools to create Individualized Education Programs (IEPs) for eligible students. An IEP is a written plan that outlines the services to be provided, sets specific goals, and tracks student progress. The plan is updated at least once a year. Parents have the right to be involved in the development of an IEP. The student also has the right to attend IEP meetings. In fact, from age 16 on, the student is required to attend.
In addition, IDEA requires schools to identify students with potential disabilities and provide free evaluation services. But to receive services under IDEA, a student must have a disability that falls within one of the 13 recognized categories, such as learning disabilities or hearing or visual impairments. Also, the disability must affect the child's educational performance to such a degree that special services are required in order for the child to progress in school. So, for example, if a student who has autism is succeeding academically, he or she might not qualify for services under IDEA.
Students with disabilities are also protected by the Americans with Disabilities Act (ADA) as well as Section 504 of the Rehabilitation Act. Both of these laws ban federally funded schools from discriminating against students on account of a disability.
Section 504 mandates that schools provide reasonable and appropriate accommodations in order to allow students who have a disability to fully participate in educational programs. Notably, "disability" is more broadly defined under Section 504 than under IDEA. Under Section 504, a disability is any impairment that significantly restricts a person's ability to perform a major life activity. It is not limited to the 13 categories of IDEA.
Students who qualify under Section 504 are eligible for a 504 plan. Unlike IEPs, there are no prescribed standards for 504 plans. However, they typically outline the adaptations and services that will be provided.
From elementary through high school, students with disabilities have the right to a free public education, and the onus is on the schools to identify and accommodate such students. But things are different at the post-secondary level, when IDEA no longer applies.
Section 504 and the ADA do apply, so colleges and universities that receive federal money (including private institutions that allow their students to use federal financial aid) cannot discriminate against students on the basis of having a disability. For instance, you can't be denied admission just because you have dyslexia. However, you must still meet the same admission requirements as any other student. (For example, if you haven't completed required prerequisites or your test scores are below the standard set by the college, the school can refuse to admit you.)
Colleges must provide reasonable accommodations to ensure that students with disabilities have the same access to educational opportunities as any other student. Such accommodations can include things like a reduced course load, priority registration for classes, or extra time to complete exams. And if a college has dorms, accessible buildings and rooms must be available.
Because college students are adults, they are responsible for seeking out the help they need. That means it's up to you to request the necessary accommodations and provide the relevant documentation that supports your request. Every college has its own requirements, so be sure to check with your school's disability services office. In most cases, a high school IEP is not enough. And if further testing or evaluation is required, you will have to cover any costs involved.
You should also know that post-secondary schools will not modify their academic requirements to accommodate students with disabilities; all students must meet the same standards. In addition, colleges are not obligated to provide things like tutors or personal care attendants. They can also refuse an accommodation if it would require them to spend an excessive amount of money.
Student Rights Related to Discipline
The responsibilities of a student are laid out in each school's code of conduct (and sometimes in local or state laws). If a student violates the code, he or she is subject to disciplinary action.
What that action consists of varies depending on the circumstances. For instance, teachers can keep students after school, bar students from participating in extracurricular activities, or compel students to write apology letters.
For more serious offenses, students may be suspended or expelled. Different states and school districts have different rules about when such actions are warranted, but typical grounds include bringing a weapon to school, using drugs at school, harassing other students, fighting, or damaging property. At the college level, students can be suspended for a range of reasons, including plagiarizing someone else's work, cheating on an exam, harassing another student, or engaging in criminal behavior (e.g., stealing, selling drugs, drinking while underage, etc.).
In most cases, before you are suspended, the school must advise you of the reason for the suspension, explain the evidence it has against you, and give you an opportunity to defend yourself or challenge the suspension. The school can suspend you immediately if you pose a danger to other students, but it must hold a hearing very soon afterward.
Keep in mind that students have constitutional rights in school. Public schools can't institute any rules that discriminate against a student on the basis of color, race, or national origin. So, for instance, a black student cannot receive a harsher punishment than a white student for similar behavior. And if a student with a disability is involved in a disciplinary proceeding, officials must determine whether the misbehavior was caused by the disability. If it was, that student cannot be disciplined the same way as other students.
Federal policies on school discipline have undergone changes recently. Under Obama-era guidelines issued in 2014, schools were encouraged to favor restorative justice strategies over exclusionary tactics like suspensions and expulsions. The guidelines also warned schools that their federal funding was at risk if they implemented disciplinary practices that had a disparate impact on certain racial groups.
However, some critics argued that restricting school officials' use of suspensions resulted in risks to student safety. And after the Federal Commission on School Safety issued its final report in December 2018, the Department of Education and the Department of Justice rescinded the 2014 guidelines.
Student Rights at Private Schools
The First Amendment and all other provisions of the Bill of Rights safeguard the rights of individuals against infringement by the government. But because private schools are not agents of the government, they are not bound by the strictures of the federal Constitution.
Instead, private schools are governed by contract law. They are free to set their own policies regarding things like free speech and disciplinary procedures, but they are contractually obligated to deliver what they promise. Each school's student handbook outlines the regulations that all students are expected to follow. And when you enroll, you sign a legal contract acknowledging that you've read the handbook and will adhere to its rules.
Attending private school is your own choice; if you fundamentally disagree with any of the school's policies, you can elect not to go there.
That said, if private schools receive any sort of federal funding (such as technology grants, school lunch program assistance, or student financial aid), they must abide by federal anti-discrimination laws. That means they cannot refuse to admit students on the basis of color, race, or national origin. They must also comply with Title IX. (Federal law does not require private schools to admit LGBTQ students, but some states have their own laws that specifically ban discrimination on the basis of sexual orientation or gender identity.)
Private schools will usually provide students with disabilities with accommodations such as extra time to finish tests. However, students with disabilities who opt to attend private school do not have the same rights as they would in public schools. That's because private schools are not bound by IDEA.
However, part of the funding that public school districts receive under IDEA must be earmarked for providing "equitable services" to students with disabilities whose parents elect to place them in private schools. That means such students may receive special education services paid for by the public district, though they may not receive as many services as they would in a public school.
The rules are a bit different for private religious schools. These types of schools can refuse to admit students of differing religions. And even if they receive federal funds, they can exempt themselves from Title IX compliance by claiming that the Title IX regulations do not align with their religious doctrine. Religious schools are also not covered by the Americans with Disabilities Act, but if they receive any federal funds, they must adhere to Section 504.
What to Do If Your Rights Are Violated
If you attend college, start by contacting your school's Office of Student Rights and Responsibilities. Officials there can answer your questions about the school's code of conduct and guide you through the process of reporting any violations.
All schools that are bound by Title IX must have a Title IX Coordinator who is responsible for making sure that the institution complies with the regulations. So if you attend one of these schools and feel you have experienced sexual discrimination or harassment, contact the designated coordinator.
If you believe that you have been illegally discriminated against because of your sex, religion, race, color, national origin, or disability, you can file a complaint with the Department of Justice (DOJ) or the Department of Education's Office for Civil Rights (OCR). It isn't necessary to have experienced the discrimination yourself; you can file on behalf of another person, such as a child.
OCR complaints must be filed within 180 days of the incident. If you go through your school's grievance process first and then choose to file a complaint with the OCR, you must do so within 60 days of the end of the school's process.
There is no time limit on filing complaints with the DOJ, but keep in mind that the department does not investigate every complaint it receives. Also, it's important to note that unlike the OCR, the DOJ has the power to investigate allegations of disability discrimination in private K-12 schools that don't receive federal funding.
Another option is to sue a school for violating your rights. Consult an attorney to find out how to proceed.
Know Your Rights and Keep Moving Forward
It's important to understand the issues surrounding student rights in school so that you know when and how to stand up for yourself. After all, being able to assert yourself is a key life skill.
Of course, you also need other skills to create the future you want. So why not explore the streamlined training offered by trade schools and vocational colleges? These types of schools offer career-focused programs that can help you prepare for a wide range of rewarding occupations. Just type your zip code into the search tool below to generate a list of convenient options!
1 Newseum Institute, The 2015 State of the First Amendment, website last visited on February 13, 2019.
2 Tinker v. Des Moines Independent Community School Dist.," website last visited on February 13, 2019.
3 Brown v. Cabell County Board of Education, website last visited on February 13, 2019.
4 Hardwick Hardwick v. Heyward," website last visited on February 13, 2019.
5 V.A. v. San Pasqual Valley Unified School District, website last visited on February 13, 2019.
6 Healy v. James, website last visited on February 13, 2019.
7 Foundation for Individual Rights in Education, "Spotlight on Speech Codes 2019," website last visited on November 27, 2019.