(Crystal A. Proxmire, March 22, 2017)
Ferndale, MI – Can a principal strip search a student if they believe they have drugs on them? Can a student flip off a teacher at a restaurant? Can a school censor items in the student-run school paper?
These and many other issues were discussed at a March 14 presentation given by Attorney Lisa Schmidt of Ferndale, who is partner in Schmidt and Long PLLC and serves on the Board of the ACU of Michigan. The presentation was aimed at teaching teens their rights in schools.
“Your rights don’t stop at the schoolhouse door,” Schmidt said.
She noted that kids have fewer rights than adults because some rights are in the hands of parents (such as what religion the family is, and what school the student attends). Schools also have more leniency in searching students because of the concentration of youth in their care.
Yet students do have rights that sometimes they may not realize. They are protected under the First Amendment of the Constitution for free speech, assembly, press and religion. The Fourth Amendment protects people from unreasonable search and seizure, a right that students do have, but not to the extent of adults.
And the Fifth Amendment affirms the people have the right to be silent.
“When you are arrested the police have to inform you of your rights, including the right to remain silent,” Schmidt said. “But teachers do not have to tell you your rights. You have the right to remain silent. They don’t get to use the fact that you are not answering against you. You have the right to call your parents. You may not want to call them, but it’s better to get mom or dad in to school to protect you.”
Schmidt cautioned students against “insubordination,” which means not doing what somebody says. Insubordination can be vague and it is included in many school policies. “Be polite and tell them why you’re doing it. You can say ‘I’m not answering because I’m invoking my Constitutional rights.’ Give a reason, stay polite, and wait for your parent.”
Schmidt said that for any suspension over 5 days students must be given notice and an opportunity to present their side of the story. “The Student Code of Conduct gives the rules, but it also outlines your rights,” Schmidt said.
For example, a student-run newspaper sued after the school refused to let them run a story about teen pregnancy. “The court ruled that schools can restrict speech that is or appears endorsed by the school, such as the school paper,” she said.
She told the youth that they could indeed give the middle finger to a teacher at a restaurant. However, they could not create an online social media account to mock them or post accusations about them online. “It’s a matter of what disrupts the learning environment at school,” she said. “If something is posted online it is reasonable that it will be shared at school and cause a disruption.”
Students also have the right to refuse to say the Pledge of Allegiance.
As far as dress code, the dress code can be item specific (like no hats), but not message specific (like denying political tee shirts). Profanity and drug imagery can be banned though because it could disrupt the educational environment.
Students may also wonder what schools can and cannot do in terms of how they treat students.
Searches are an area where rights are not as strong in school as out of school. Additionally the trend of having a “school resource officer” gives a way for police to be involved in searches without the traditional requirement of a warrant. “School administrators need reasonable suspicion to do a search, but it’s a really low burden,” Schmidt said. “A police officer must have probable cause, even at school they have to believe that it is more than 50% likely that you have drugs or a gun etc. With school resource officers the rules apply as they do for teachers, not for police. They get the same low standard of suspicion because they are acting as a school official and not as a police officer, even though they are wearing the officer uniform.”
Schools do have a right to do suspicion-less searches, such as requiring metal detectors and having drug dogs in the schools.
Schools also often put in their Code of Conduct that lockers are school property and can be inspected at any time.
Schmidt discussed a case where a teen was suspected of having drugs. A basic pat down did not reveal any, but the principal wanted to be sure so he strip-searched the teen. The teen sued and the court determined that a strip-search by a same-gender administrator was acceptable if there was a special need such as finding drugs or weapons.
Another case determined that schools can use two way mirrors in the sink area of a bathroom. However two way mirrors in locker rooms are not permitted.
Students wondered about the privacy of their cell phones. “Administrators cannot search cell phones because there is no way to tell if contents of cell phone were made on school property,” she said. “However, if you are using the school’s wifi on your phone that may be part of the Code of Conduct that they are allowed to check it because you were using their system to create the content.”
Schmidt is an attorney specializing in representing juveniles as well as other aspects of family law and civil rights. She will be doing other presentations on legal topics at the Ferndale Area District Library in the coming months. Learn more about student rights and future presentations at http://schmidtandlong.com/services/family-law/ferndale-family-lawyer/.