Students’ Rights: Do They Have Any?

Written By: Arthur F. Licata, Esq.

Arthur F. Licata, P.C.

Boston, Massachusetts

What is the reach of the law inside a grammar school? Can a policeman go into a grammar school without the permission of the principal? Does it make a difference if the grammar school is a private school instead of a public school? If the school is a high school are the students’ legal rights more extensive than they were in grammar school? Is there a difference between public and private high schools.? In colleges and universities are student rights more expansive than they were in high school?

One of the earliest legal concepts applied to students while at school was the Latin phrase “in loco parentis” It translates into English as “in place of a parent.” The legal premise was that students were required to listen and to obey their teachers and principal as if these educators were taking the place of their parents while at school. This authority was diminished during the student rights movement of the 1960s. Today , this concept has all but been abandoned in colleges and universities although it still has some resonance in private institutions and in public grammar and high schools. “In loco parentis” allows educational institutions to act in the best interests of their students as they see fit. The pendulum may be swinging back toward reintroducing a modified form of ‘in loco parentis” in the wake of the shooting and killing of students at Columbine High School and Virginia Tech University.

The 1942 Supreme Court case that was responsible for the limitation of ” in loco parentis” was West Virginia State Board of Education v. Barnette. The court ruled that students cannot be forced to salute the American flag. However, in 1969 the Supreme Court decided the case of Tinker v. Des Moines Independent Community School District in which the court held that “conduct by the student, in class or out of it, which for any reason – whether it stems from time, place, or type of behavior – materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.” In 1985, in the case of New Jersey v. T.L.O. the Supreme Court upheld the search of lockers and other personal space while on school property. It indicated the court’s thinking that students are not afforded the same rights as adults while they are at school. In the 1989 decision of Hazelwood School District v. Kuhlmeier the Supreme Court ruled that ” [f]irst Amendment rights of students in the public schools are not automatically coextensive with rights of adults in other settings, and must be applied in light of the special characteristics of the school environment.” Schools may sensor school sponsored publications, such as a school newspaper, if the content is “…inconsistent with its basic educational mission.” Some form of “in lococ parentis” continues to be applied in primary and secondary education; it has been diminished in higher education.

In 1961, the Supreme Court, in a landmark decision, held in the case of Dixon v. Alabama that Alabama State College could not summarily expel students without due process. Some of the issues that currently arise with practically all students in all types of schools, public or private, are the following: underage drinking, security, privacy and social media, roommate behavior, drugs, mental health issues, suicide; and the concern of parents to know what is happening to their child at college versus the student’s expectations to be treated as an adult with the right of privacy and confidentiality. Each of these issues is handled differently depending upon whether the student is in grammar school, high school or college and whether the educational institution is public or private. The germinal case in Massachusetts concerning college security is Lisa Mullins vs. Pine Manor College 389 Mass. 47 (1982). The Supreme Judicial Court held that colleges have a duty to take reasonable measures to protect their students against foreseeable criminal acts of third parties. Under Massachusetts law, the college was considered a charitable institution. Its liability on damages was capped at $20,000 but the security officer of the college was also sued in his individual capacity. The court held that an officer of a charitable institution is not immune from liability for negligence in the performance of a discretionary function. The court stated that the defendants were negligent in permitting certain deficiencies in the college’s security system.

Arthur F. Licata