Monthly Archives: April 1977

1977.04.00: After Goss v. Lopez: Student Status as Suspect Classification? (Stanford Law Review)

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After Goss v. Lopez:

Student Status as

Suspect Classification?

Leon Letwin*

Much of American experience has been, and remains, a barrie to

convert the promise of equality under the law into a reality not merely for a

white, male, propertied elite but also for various ethnic minorities, women

and the poor who constitute a majority of American society.

Recent United States Supreme Court cases raise the issue of whether

that ideal of equality properly embraces minors as well as adult groups. To

this question the predominant, historic and reflexive response has been

simple and direct: Young people essentially are outside the universe of

“persons,” self-evidently “different” and unentitled to independent

rights, or at least to very many of them. 1

During the past decade, however, the courts, responding to changing

social values, 2 increasingly have been disposed to view the constitutional

• Ph.B. 1948, University of Chicago; LL.B. 1952, University of Wisconsin Law School;

LL.M. 1968, Harvard Law School. Professor of Law, University of California, Los Angeles. I wish

to thank Gary Schwartz, Richard Wasserstrom and Judy Wegner for their helpful criticisms.

1. Traditionally, children have been viewed either as the fortunate beneficiaries of a paternalistic

order or as adult property to be molded in accordance with the values and interests of their

parents or of the state. See text accompanying notes 19-32 infra.

2. Although few would dispute that a major social upheaval took place in the decade

beginning roughly with the mid-196o’s, characterizing the change is a difficult matter. One of its

features was a diminution of respect for traditional authority in all forms. Members of groups that

theretofore had accepted their conventionally assigned status sought to change their social positions

through both political and legal action. In rapid succession, prisoners, ex-felons, minors,

students, homosexuals, the aged, the mentally ill, the handicapped, the foreign born-not to

mention racial minorities and women-challenged their assigned status. For examples of the

phenomenon in litigation, see Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976)

(older persons); O’Connor v. Donaldson, 422 U.S. 563 (1975) (mentally ill); Pell v. Procunier,

417 U.S. 817 (1974) (prisoners); Doe v. Commonwealth’s Attorney, 403 F. Supp. 1199 (E. D.

Va. 1975), aff’d, 425 U.S. 901 (1976) (homosexuals); Kremens v. Bartley, 402 F. Supp. 1039

(E.D. Pa. 1975), prob. juris. noted, 96 S. Ct. 1457 (1976) (youth). Students were part of this



rights of the young as prima facie coextensive with those of adults. 3 The

Supreme Court’s recent decision in Planned Parenthood v. Danforth4 dramatically

illustrates this trend. The Court invalidated a statute conditioning a

woman’s constitutional right to an abortion upon the consent of her

husband if she was married or the consent of a parent if she was an

unmarried minor. Faced with the extraordinarily sensitive issue of whether

unmarried minors as well as adult women were free to make the abortion

decision themselves, the Court rejected any temptation to place minors

outside of the ambit of constitutional protections: “Constitutional rights

do not mature and come into being magically only when one attains the

state-defined age of majority. Minors, as well as adults, are protected by

the Constitution and possess constitutional rights. 5 To be sure, the Court

said that the state’s power over minors was “somewhat” broader than its

power over adults6 and that special restrictions might be permissible. 7 But

special restrictions required special justifications. To justify an extraordinary

veto power over the abortion decision of a minor would require a state

interest that was both “significant” and absent in the case of adults. 8

Finding none, the Court held the provision unconstitutional.

The significance of the Danforth decision for present purposes does not

lie in the details of evolving abortion doctrine. Rather, it lies in the Court’s

refusal to accept the traditional attitude toward the young. Instead of

casually fashioning different constitutional standards for minors and

phenomenon as well, and cases involving their claims are cited throughout this Essay. For a

legislative reflection of the changed values, see note 6o infra.

3· “Prima facie, the constitutional rights of minors … are coextensive with those of

adults. Where minors’ rights have been held subject to curtailment by the stare in excess of that

permissible in the case of adults it has been because some peculiar stare interest existed in the

regulation and protection of children, not because the rights themselves are of some inferior

kind.” State v. Koome, 84 Wash.2d 901, 904, 530 P.2d 260, 263 (1975Hdedaring unconstitutional

a state statute requiring parental consent for an abortion performed on· an unmarried

minor). 8111 see Erznoznik v. City of Jacksonville, 422 U.S. 205, 214 n. r 1 (1975), quoting Tinker

v. Des Moines Ind. Community School Disc., 393 U.S. 503, 515 (1969) (Stewart, J., concurring)

(first amendment rights of minors are not “co-extensive with those of adults”). See THE

RIGHTS OF CHILDREN (Ham Ed11c. Ret1• Reprint Series No. 9. 1974), for a collection of articles

discussing various aspects of the legal status of the young.

4· 96 S. Ct. 2831 ( 1976).

/d. at 284_~.

6. /d.

ld. at 2844· The Court cited its decision of the same day, Bellotti v. Baird, 96 S. Ct.

2H5 7 ( 1976), which had suggested that the principal evil of the law in Danforth was that it

conterred upon parents an absol11te veto power over the minor’s abortion decision. If the minor’s

power co elect an ;tbortion were not made to turn solely on parental consent but, in the event of a

dispute between parent and child, on a judicial determination of whether she possessed sufficient

maturity to make an “informed consent” or whether her best interests would be served by the

abortion. the statuce might be constitutionally acceptable.

8. 96 S. Ct. at 2844.


adults, the Court adopted “adult” standards as the presumptive starting

point for determining the constitutional rights of minors. This Essay

argues for the adoption of a similarly respectful attitude toward young

people and their constitutional rights in the special context of the· public


The Supreme Court has proceeded in piecemeal fashion, applying the

first amendment9 and the due process clause10 to the school situation in a

fashion paralleling its selective incorporation of the Bill of Rights into the

14th amendment. 11 Such a cautious approach is both understandable and

appropriate only if one begins with the assumption that students are

presumptively bereft of constitutional rights. Each advance then represents

a significant exception to a time-honored, generally satisfactory

status quo, and each requires its own meticulous justification. There is,

however, another, far more preferable, perspective that sees school children

as persons endowed with a full complement of constitutional rights.

Under this view, the imposition of differential restrictions would require

the meticulous and extraordinary justification; 12 students, then, would be

Tinker v. Des Moines Ind. Community School Dist., 393 U.S. 503 (1969).

10. Goss v. Lopez, 419 U.S. 565 (1975). See text accompanying notes 35-51 infra. See also

Wood v. Strickland, 420 U.S. 308 (1975) (holding school authorities answerable in damages

under the Civil Rights Act for knowingly violating the constitutional rights of students in school

expulsion proceedings).

1 1. See Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original

Untkrstanding, 2 STAN. L. REV. 5 (1949).

12. The three preceding sentences closely paraphrase rhe approach I suggested for considering

student entitlement ro first amendment protections in Letwin, Regulation of Undergrormd

Newspapers on Public School Campuses in California, 22 U.C.L.A. L. REv. 141, 213 (1974). This

Essay attempts ro universalize that approach ro rhe full range of student constitutional rights.

Some would regard an approach of mere presumptive equality a wholly inadequate recognition

of the rights of young people. For instance, John Holt argues for the proposition that “rhe

rights, privileges, duties, responsibilities of adult citizens be made available ro any young person,

of whatever age, who wants ro make use of them.” J. HOLT, EsCAPE FROM CHILDHOOD 1 (1974).

These rights include:

“1. The right to equal treatment ar the hands ofrhe law-i.e., rhe right, in any situation, ro

be treated no worse than an adult would be.

“2. The right ro vote, and take full parr in political affairs.

“3. The right co be legally responsible for one’s life and acrs.

“4. The right ro work, for money.

“5. The right ro privacy.

“6. The right ro financial independence and responsibility-i.e., the right co own, buy, and

sell. property, ro borrow money, establish credit, sign contracts, ere.

“7. The right ro direct and manage one’s own education.

“8. The right ro travel, ro live away from home, ro choose or make one’s own home.

“9. The right ro receive from the stare whatever minimum income it may guarantee co adult


“10. The right to make and enter inca, on a basis of mutual consent, quasi-familial

relationships outside one’s immediate family-i.e., the right to seek and choose guardians other

than one’s own parents and co be legally dependent on them.


deemed entitled to the protections of the Constitution in the myriad

contexts in which they daily confront the power of the state as exercised by

school authorities, including the right to free speech, 13 the right to due

process of law at the hands of school authorities, 14 the right to be

safeguarded from cruel and unusual punishment in the school setting, 15

the right to immunity from unreasonable searches or seizures on school

premises, 16 and the privilege against self-incrimination in disciplinary

proceedings. 17 In each instance, those rights would command the same

respect they receive in the outside, adult world.

This approach calls for abandoning the traditional policy of judicial

“hands off’ when student rights are at stake. To effect this change is no

simple matter. Fundamental attitudes about the status of minors and

about the nature of education oppose it. 18 These attitudes and the arguments

supporting them are not always clearly stated or even recognized.

They frequently merge into a confusing jumble of justifications that deny

constitutional protections on grounds that are neither more enlightening

nor satisfying than the proposition that students are “different.” Instead,

the rights of students should be set aside only when compelling state

purposes require it, and any such deprivation should be tailored carefully

“”1 1. The right to do, in general, what any adult may legally do.'”

/d. at 1-2.

13. See Tinker v. Des Moines Ind. Community School Dist., 393 U.S. 503 (1969).

14. See cases cited in note IOsnpra. Cf Ingraham v. Wright, 45 U.S.L. W. 4364 (April 19,

1977) (due process clause does not require hearing prior to infliction of even severe corporal

punishment in the public schools because of the traditional common law privilege permitting

teachers to punish children in their care and the availability of traditional common law remedies

for abuse after the fact).

1 5· But ue Ingraham v. Wright, 45 U.S.L. W. 4364 (April 19, 1977) (cruel and unusual

punishment clause held limited to criminal punishment and inapplicable to the infliction of

severe corporal punishment by school officials upon public school students).

r6. But see State v. Young, 234 Ga. 488, 216 S.E.2d 586 (1975) (public school officials

entitled to search students for marijuana on less than probable cause); br re Donaldson, 269 Cal. ·

App. 2d 509, 511-12, 75 Cal. Rptr. 220, 221-22 (3d Dist. 1969) (characterizing school administrator

as private person, hence not governed by fourth amendment in connection with a

locker search for illegal drugs). See generally Buss, The Fourth Amendment and Searches of Stmlents in

P11blic Schools, 59 IOWA L. REv. 739 (1974) (describing the current low estate offourth amendment

rights in the school context and arguing for broader protections).

17. B111 see Winston, Self-Incrimination in Context: Establishing Procedural Protections injnvenile

a11d Collexe Disciplinary Proceedings, 48 S. CAL. L. REv. 813, 845-51 (1975). Winston argues

against recognition of the privilege in college disciplinary proceedings, because of the context and

aims of higher education. These arguments presumably would apply a fortiori in the public school


18. This opposition is dramatically illustrated in Ingraham v. Wright, 525 F.2d 909 (5th

Cir.) (en bane), tljf”d. 45 U.S.L.W. 4364 (April 19, 1977), in which the court in the face of

student allegations of severe corporal punishment requiring hospital treatment or doctor’s care,

disavowed any dutr under the Constitution “to judge the wisdom of particular school regulations

governing matters of internal discipline.” ld. at 917·


to meet those compelling purposes at minimum cost to constitutional

values. This does not preclude the possibility that youthful age, educational

purpose or institutional reality, separately or in combination, may

justify special restrictions. But it does preclude generalized and unadorned

appeals to such considerations to justify discriminatory denial of rights to

students. Differential treatment should be accorded close, skeptical judicial

scrutiny and should be tolerated only if weighty justifications can be



Full recognition of student rights conflicts with traditional thought

about minors in the educational setting as embodied in the doctrine of in

loco parentis. 19 To capture the essence of the doctrine requires no extended

inquiry. Its conceptual niceties are far less important than its inevitable

consequences. Readers who matriculated before the mid-196o’s need only

recall their own implicit assumptions as public school pupils to remember

how unthinkable it would have been to claim that they possessed rights

and that school administrators were bound to respect those rights. “Unthinkable”

here is no figure of speech. The notion of “student rights” was

so contrary to prevailing assumptions about the natural order of things as

never to require conscious rejection. If the courts affirmed this proposition

infrequently, it was not because the proposition was in doubt but because

few persons had the audacity to challenge it. 20

A. The Early Modern Cases: Parents’ Rights or Children’s Rights?

Even the cases regarded as symbols of an enlightened, contemporary

stance toward young people contain enough residue of the old attitudes to

demonstrate the tenacity of the in loco parentis ideology. Two excellent

examples of this paradox are the classic decisions in West Virginia State

19. The in loco parentis doctrine gives rhe school rhe aurhoriry and rhe responsibility of rhe

parent during the time in which rhe child is in rhe school’s care. See gmerally Goldstein, The Scope

and Sources of School Board Artthority to Regulate Strident Condrtct and Status: A Noncomtitutional

Analysis, 117 U. PA. L. REv: 373, 377-84 (1969). For a discussion of the related docrrine of

parens patriae, under which the state assumes the power in family affairs to safeguard the “best

interests of the child,” see Prince v. Massachusetts, 321 U.S. 158 ( 1944); A. PLATT, THE CHILD

SAVERS (1969).

20. The consequences of such conditioning are enormous. Adults so conditioned in adolescence

find ir hard to imagine an alternative. Even if rhey can imagine an alternative, those who

have experienced and survived a stern tradition nor infrequently become irs warmest proponents.

Other factors no doubt contribute to rhe tenacity of rhe traditional view. For example, people

ruled by large, impersonal organizations too intricate co understand or influence may develop a

sense of frustration and disappointment “that makes them unwilling to grant each other–or their

children–a measure of autonomy.” E. ERIKSON, IDENTITY, YOUTH AND CRISIS I 14 (1968).


Board of Education v. Barnette21 and In re Gault. 22 Each decision circumscribed

the power of the state over young people without advancing

substantially the status of young people as “persons” with independent


Barnette, for example, held that requiring pupils to engage in a flag

salute observance invaded the parents’ first amendment freedom of belief.

The Barnette Court neither addressed nor even noted what independent first

amendment rights the children, as opposed to parents, might have. To be

sure, that case did not force the Court to choose between the two interests,

since the record discloses no divergence between the views of parent and

child. But the point is that no one thought to ask. The Court viewed the

contest as bipolar, with parents or perhaps organized religion and the state

representing the poles. 23

Not until 1971 did a member of the Court explicitly frame the

“interesting and important”24 question: Whose rights of conscience does the .first

amendment protect as between parent and child? The occasion was Wisconsin v.

Yoder, 25 a case involving the prosecution of Amish parents for refusing to

21. 319 U.S. 624 ( 1943). Barnelle was cited in Tinker v. Des Moines Ind. Community

School Dist., .’93 U.S. 503, 507 (I969), as establishing the “unmistakable holding of this

Court” that studencs enjoyed first amendment rights in the school concexr. /d. at 506.

22. _,87 U.S. I (1967).

2_,. The majority opinion did not discuss the issue of whose right was involved. Interestingly,

the designated plaintiffs in the suit were nor the children, but their parents, complaining

about the state’s restrictions on the “liberty of [the parents’] choice and direction in the upbringing

of their children.” Record at 1 I, West Virginia State Bd. ofEduc. v. Barnette, 319 U.S. 624

( 194 _, ). They also complained in their own names and in behalf of their children about the

abridgment of the rights of each to worship freely.

The paramount role of the parencs was recognized explicitly by Justice Frankfurter in

dissent, when he argued against parental objections to the Rag salute requirement on the ground

that “[p ]armis have the privilege of choosing which schools they wish their children to attend

. . . . [The question is] whether the pupils in [public] . . . schools may be relieved from these

[reasonable] requiremencs if they run counter to the consciences of their parents.” /d. at 657

(emphasis added). He saw the issue as a conflict between parents and state, with the children as

passive objects.

Justice Fortas· subsequent suggestion in Tinker v. Des Moines Ind. Community School

Disc .. _w_, U.S. so_,, 506-07 (1969), that the free speech rights of students affirmed in that case

were simply a modest and predictable extension of cases like Barnelle must be read with some


More recently, the value of “parental direction of the religious upbringing and education of

their children in their early and formative years” was stressed by the Court in Wisconsin v. Yoder,

406 U.S. 205. 2q-14 (1972) (upholding parental refusal to send children to school because of

religious beliefs). See also Prince v. Massachusetts, 32 I U.S. 1 58, 166 ( 1 944): “It is cardinal with

us that the custody, care and nurture of the child reside first in the parents, whose primary

funetion and freedom include preparation for obligations the state can neither supply nor hinder.”

The record in p,·i11a: makes clear, however, that the child, aged 9, affirmatively desired to

distriburc the \Y’,ttcbtoli’l:r magazine and shared the parents’ claim to do so as an incidenc of

religious liberty. in the t;Ke of a state statute prohibiting minors from selling newspapers.

24. Wisconsin v. Yoder, 406 U.S. 205, 237 (1972) (Stewart, J, concurring).

25. 406 u.s. 205 ( 1972).


send their children to school as required by the state’s compulsory attendance

law. For the Court’s majority, the issue was whether the parents’

right to control the religious upbringing of their child outweighed the

state’s demand for compliance with its educational requirements. 26 The

majority held that it did and overturned the conviction. For Justice

Douglas, however, the issue was 3-cornered, with state, parent and child

the contenders. Unlike the majority, Justice Douglas was prepared to put

the child at the apex with a power of autonomous choice once the child was

mature enough to express potentially conflicting desires. When that state

was reached, the Justice believed, the child should not be compelled to

accept the parents’ religious values. 27 There·the matter remains, since the

Court has not had occasion to consider this issue since Yoder.

In re Gault28 extended due process protections to minors enmeshed in

the juvenile justice system and rejected the prevailing paternalism under

which the young were denied rights routinely conferred upon criminal

defendants. The Court did this, however, not so much from a principled

belief that young people were entitled to rights as from a recognition that

the paternalistic system had not delivered on its promise: The young were

often worse off as “wards of the court” than they would have been as

criminal defendants. 29 Although the recognition of this bit of social reality

was no small accomplishment, it constituted less than a clarion call for

new ways of thinking about young people. 30

Tinker v. Des Moines Independent Community School District3 1 provided the

occasion for the Supreme Court to begin reexamining underlying attitudes

toward the rights of the young in the school context. The Court upheld the

first amendment right of students to wear black armbands to school in

symbolic opposition to the war in Vietnam. For the first time a Supreme

Court decision acknowledged that rights were something that students

unambiguously possessed rather than fictional devices used to justify adult

manipulation of children. 32

26. /d. ar 214-15.

27. /d. at 241-42 (Douglas, J., dissenting in parr). Cf. Planned Parenthood v. Danforth,

96 S. Cr. 2831, 2842-44 ( 1976) (striking down stare stature denying minors the right ro an

abortion without parental consent).

28. 387 U.S. I ( 1967).

29. “Juvenile Court history has again demonscr~red that unbridled discretion, however

benevolently motivated, is frequently a poor substitute for principle and procedure . . . . The

absence of substantive standards has nor necessarily meant rhar children receive careful, compassionate,

individualized treatment. The absence of procedural rules based upon constitutional

principle has nor always produced fair, efficient and effective procedures. Departures from established

principles of due process have frequently resulted nor in enlightened procedure, bur in

arbitrariness.” I d. ar 18-19.

30. See, e.g., McKeiver v. Pennsylvania, 403 U.S. 528, 545, 550 ( 1971) (reiterating the

paternalistic ideal as a basis for refusing ro recognize a right ro jury trial on the parr of juveniles).

31. 393 u.s. 503 (1969).

32. See Burt, Developing Constitutional Rights Of, In, and For Children, 39 LAw & CONTEMP.


Although Tinker inaugurated a new way for the Supreme Court to view

the young, the traditional attitudes have not yet been fully interred. 33

Nonetheless, the most recent recognition of student rights by the Court,

Goss v. Lopez, 34 represents an important way station in the Court’s waver-

PROB. 118, 122-24 ( 1975). Professor Burt argues that students exercising rights of speech may

nor be acting autonomously, but rather as parental pawns. Therefore, he suggests, school restrictions

of the type found unconstitutional in Tinker would be justified if they simply expressed a

stare preference for “tolerance, diversity of thought, individual autonomy–against parental

impositions on children.” /d. at 124.

This view is provocative but, I believe, wrong. It is not wrong in suggesting that on

occasion student views will reflect parental convictions more than their own, although the

student’s views are as likely to represent rebellion against those views. Instead, Professor Bun’s

view is wrong because it ignores a fundamental reality of democratic and educational process.

Suppose, as he says, that children’s views are sometimes uncritical and derivative, as is often true

of adults as well. It does not follow that intellectual liberation requires s11pprmion of those views

by the state. An enlightened educational system should provide an opportunity for students to

have their say, hear the objections and questions of fellow students and face the need to justify

chose views in a forum of their peers. The values of “tolerance, diversity of thought, [and]

individual autonomy” are not served by permitting school authorities to impose a blanket of

silence because, in their judgment, the student is “really” expressing the views of the parents.

33· The Court’s pose-Tinker decisions relating to obscenity are excellent examples. In

Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975), the Court stated: “It is well settled that a

State or municipality can adopt more stringent controls on communicative materials available to

youths than on chose available co adults.” /d. at 212. But the Court went on to recognize that

under Ti11ker, “minors are entitled to a significant measure of First Amendment protection” and

that government may restrict the flow of materials protected under the first amendment to

juveniles “only in relatively narrow and well-defined circumstances …… /d. at 212-13. The

Court has not addressed the question of what those circumstances may be, but it continues to cite

Ginsberg v. New York, 390 U.S. 629 (1968), which reviewed a New York law that permitted

broader restricrions on “obscene” speech when addressed to children than were constitutionally

permissible in the case of adults. The Court upheld this variable definition of obscenity upon

highly equivocal evidence that any harm, much less special harm, would befall children exposed

co the material. The case is often cited for the view that the rights of children are nor coextensive

with those of adults and that the state need offer no convincing demonstration of harm to justify

differential restrictions upon the young. But it need not and should not be read broadly. Ic can be

seen as expressing an extraordinary concern with insulating children from obscenity. Even those

who have argued strongly that obscenity is entitled to first amendment protection have tended to

make an exception in the case of children. E.g., Paris Adult Theatre I v. Slaton, 413 U.S. 49,

10.~-08 (1973) (Brennan, J., dissenting); Bloom v. Municipal Court, 16 Cal. 3d 71, 93, 545

P.2d 229,243. 127 Cal. Rptr. 317,331 (1976)(Tobriner,j., dissenting). See Emerson, Touoard

,, Gmeral Theory of the First Amendment, 72 YALE L.J. 877, 939 (1963).

Outside the area of obscenity, the Court has been reluctant to read Ginsberg expansively even

in respect to sexually oriented material. See, e.g., Erznoznik v. City of Jacksonville, 422 U.S.

205, 2 1.~ ( 1975); Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 790 (1968). Moreover,

Gimbe1iJ apparent indifference to the quality of the proof that obscenity was harmful to children

should not be emulated in nonobscenity cases. It reflects a similar indifference when adults are

involved. See, r.f.! .• Paris Adult Theatre I v. Slaton, 413 U.S. 49, 6o-63 (1973). In the area of

obscenity, more than most other first amendment areas, vague and undifferentiated fears have

carried the day whether the audience consists of adults or of children. In short, Ginsberg need not

be converted into a general warrant for reduced constitutional protections in the case of children.

The mood of the case, however, regrettably facilitates disrespect for the constitutional claims of

children .

. ~4· 419 u.s. 565 (1975>.


ing route to a new, bolder attitude toward minors, education and the

Constitution. Moreover,” it provides an occasion for a more explicit recognition

of the relevant arguments and assumptions about student rights

than previously has been given by the Court.

B. Goss v. Lopez: A Student-Oriented Approach

Goss represented the Supreme Court’s first visit to the student scene

since Tinker was decided in I 969. 35 The case arose out of a period of

“widespread student unrest”36 during which several schools in Columbus,

Ohio “were affected by racial confrontation, demonstrations and problems

of various sorts. “37 Over 7 5 students were suspended for their involvement

in disruptive demonstrations. Although the circumstances surrounding

the suspensions varied, they shared one common feature: No hearing was

provided in which the students could protest their suspensions.

Nine of the suspended students joined in a class action38 challenging

the Ohio statute that allowed suspension by school authorities for up to I o

days without notice or hearing. A 3-judge federal district court found that

these procedures violated the students’ rights to due process of law,

reasoning that suspension for even I o days or less was unconstitutional

where no hearing was provided.

On direct appeal the Supreme Court affirmed by a vote of five to four. 39

The threshold issue was the applicability of the due process clause to school

disciplinary procedures. The Court found that suspension did indeed affect

“property” and” liberty” interests protected by the r 4th amendment40 and

35· On grounds of moomess, the Court had declined to decide rhe constitutionality of

censorship by school officials of”underground newspapers” in Board of School Comm’rs v. Jacobs,

420 U.S. 128 (1975). The lower courts, however, had been active in entertaining student due

process claims in both the public school and college contexts in the decade preceding Grm, with

varying results. See cases cited in Gou, 419 U.S. at 576-78 n.8.

36. ld. at 569.

37· BriefforAppelleear 3, Gossv. Lopez, 419 U.S. 565 (1975).

38. Eight were high school students; one was a junior high school student. 419 U.S. at

569-71. It is worth noting that here, as in Tinker, the Court drew no distinction between junior

high school students and high school students in terms of the scope of their constitutional rights.

39· Justice White’s opinion for the Court was joined by Justices Douglas, Brennan,

Stewart, and Marshall. Justice Powell’s dissenting opinion was joined by Chief Justice Burger and

Justices Blackmun and Rehnquist.

40. 419 U.S. at 572-76. The Court held char a right to education conferred by stature was a

“property right” and that the right ro protect one’s reputation was a “liberty” interest. The

property right and liberty interest were infringed in GoJJ by the suspensions and by the adverse

disciplinary records, respectively. The Court rejected the argument that school attendance was a

“privilege.” See generally Van Alstyne, The Demise of the Right-Privilege Distinction in Constit11tirma/

Law, 81 HARV L. REv. 1439 (1968). Actually, the minority appears ro have found reports of the

demise of the right-privilege distinction somewhat exaggerated, 419 U.S. at 586-87, although it

does, at one point, endorse the Court’s abandonment of the ” ‘wooden distinction’ between

‘rights’ and ‘privileges.’ “419 U.S. at 599. q11oting Board of Regents v. Roth, 408 U.S. 564, 571



that public school students as a group were not somehow outside the

amendment’s guarantees. 41

The Court next addressed the question of what process was due, laying

down a number of what it characterized as “rudimentary” requirements. 42

These requirements reduced themselves to “some kind of notice” and “some

kind of hearing. “43 As will be seen, the Court’s characterization of its

requirements involved no false modesty: rudimentary they were indeed.

The Court found no need for “delay between the time ‘notice’ is given

and the time of the hearing. “44 The notice need only identify the offending

conduct so that the student would have “an opportunity to explain his

version of the facts, “45 but it need not accord him an opportunity for

preparation. And as to the required hearing, the Court held that the

procedure need not be encumbered by the customary accouterments of a

fair hearing. 46 The hearing, therefore, could be described more accurately

as a “discussion. “47 To illustrate its meaning, the Court gave apparent

endorsement to an informal scheme in effect in one of the schools involved

in the case. That scheme, said the Court, was “remarkably similar to that

which we now require.”48 Under that scheme, a teacher observing misconduct

would co~plete a form describing the occurrence and send the

student, with the form, to the principal’s office. There, the principal

would obtain the student’s version of the event and, if it conflicted with the

teacher’s written description, would send for the teacher to hear the

teacher’s own version, apparently in the presence of the student. If a

discrepancy still existed, “the teacher’s version would be believed and the

principal would arrive at a disciplinary decision based on it. “49

41. The Court also rejected the contention that a 10-day suspension was a de minimis

deprivation undeserving of judicial concern. 419 U.S. at ~)76.

42. “[W]e have imposed requirements which are, if anything, less than any fair-minded

school principal would impose upon himself in order to avoid unfair suspensions.” Id. at 583.

43· Id. ac 579·

44· Id. ac 582. In exigent circumstances, the Court noted, postponing the hearing until a

time after the suspension, and “as soon as practicable,” would be permissible. Id. ac 583. The

trial court had set the maximum delay for hearing at 72 hours. Id. at 572.

45· Id. at 582.

46. E.g, the right to representation by counsel, to confrontation and cross-examination or to

compulsory process. Id. at 583.

47· ld.

48. Id. Unfortunately, that school’s procedure had not been followed on the occasion in


49· Id. ac 568 n.2 (emphasis added). The Court did not make expressly clear that the

“remarkably similar” scheme referred to in text accompanying note 48 supra is che one described

here, buc it scarcely could have had anything else in mind. This endorsement, to be sure, need not

be viewed as a holding, but as merely an “illustration.” Yec che face chat such a procedure could

receive even passing approval is striking.

The Court, of course, was describing only ics view of the constitutional minimum. School

principals would be free, if they wished, to summon the accusers, permit cross-examination and


The Court’s approval of this scheme for due process purposes suggests

that there are two ways to think about Goss: first, in terms of the protections

it actually provided; second, in terms of its underlying viewpoint

concerning youth, education and constitutional rights.

In terms of the first perspective Goss is surely much ado about very

little. Given the miniscule opportunities it provides for a student’s defense

and the automatic resolution of credibility issues against that student, Goss

is remarkable not for its innovation but for the fact that it was so long in

coming, so vigorously contested en route, so narrowly affirmed when it

finally came, and so parsimonious in the rights it recognized upon arrival.

Such prodigious labor, one might say, to achieve so little. 50

What renders Goss significant, however, is its underlying promise.

There are two aspects to that promise, one modest, one expansive. The

modest aspect arises from the fact that the punishment involved was a mild

one requiring mild protections. In the case of more severe penalties,

allow students to present their own witnesses. Id. at 584. But, consistent with its view that the

disciplinarian is free to take the official’s version of the facts as conclusive, the Court noted that the

hearing would “add little to the facdinding functions where the disciplinarian himself has

witnessed the conduct forming the basis for the charge.” I d.

so. Justice Powell is noc far from the mark when he says in dissent that the majority’s due

process “hearing” does not “appear to provide significantly more protection than that already

available” under state law. Id. at 596. This is not to say that the specific protections provided by

the decision are wholly trivial. First, the mere opportunity to face one’s accuser, even if unaccompanied

by the right to cross-examine, is not without value, because one premise underlying the

right of confrontation is that it enhances the likelihood of truthful testimony. See C. McCoRMICK,

EviDENCE 6os-o6 (2d ed. 1972). But this effect may be of limited value: “Given a

choice between supporting the teachers or the students, most school officials have no difficulty

recognizing their natural allies. Among the school administrators we interviewed, one told us

candidly he would never support a student in a dispute with a teacher, but would only try to

convey an impression of fairness ‘to prevent parents from getting involved.’ ” Haney & Zimbardo,

The Blackboard Penitentiary-It’s Tough to Tell a High School from a Prison, PsYCHOLOGY TODAY,

June 1975, at 26, 29-30.

An additional benefit afforded by the Court’s modest requirements arises from the fact that

the accused student simply may have been “misunderstood” by the teacher. The teacher’s version

of the raw facts, even if uncontestable, might not add up to what the teacher has made of them,

and Goss does provide the sn~denc an opportunity to explain or to “demur” to the teacher’s

complaint, if not to challenge its factual basis. Thus, the Court noted: “Requiring that there be at

least an informal give-and-cake between student and disciplinarian, preferably prior to the suspension,

will add little to the factfinding function where the disciplinarian himself has witnessed

the conduct forming the basis for the charge. But things are not always as they seem to be, and

the student will at least have the opportunity to characterize his conduct and put it in what he

deems the proper context … 419 u.s. at s84.

Third, the hearing provides an opportunity for the official to state the reasons for his decision

so that punishment, should it be forthcoming, is less apt to look like a simple exercise of naked

power. That such attenuated procedural protections could be considered progress provides sad

commentary upon prevailing school practices. But see Kirp, ProceduraliJm and Bureaucracy.· Dr1e

Process in the School Selling, 28 STAN. L. REv. 841 (1976) (arguing that the Goss hearing may be

valuable in the school setting precisely because of its informality).


expulsion, for example, Goss should require a good deal more. 51

Yet even this modest promise misses the potential importance of the

case. The Court’s threshold determination that due process applied at all in

the school setting is surely the case’s most crucial indication of new

attitudes toward student rights. In this respect Goss directly challenges the

time-honored exclusion of students from the reach of constitutional protections.

It affirms that Tinker is neither a constitutional relic of a bygone

political era nor a special doctrine limited to first amendment cases. This

point was lost on no one, and it probably accounts for the fact that Goss

provoked a dissent out of all proportion to the narrow rights recognized in

that case. In the dissent, the crucial point was that “there are differences

which must be accommodated in determining the rights and duties of

children as compared with those of adults. “52

The next part of this Essay considers those differences and the importance

of the overlapping arguments. These arguments are important ones,

reflecting fundamental attitudes toward childhood and education. Though

these views clearly did not persuade the majority, they were neither

decisively nor explicitly rejected by it. At crucial points they were not even

expressly confronted. At other points, they were rejected only tentatively,

cautiously or by implication and then only by a bare majority. The

minority’s concerns, based on the nature of childhood or of education,

cannot be dismissed casually; to a degree they are based on reality. As an

initial criticism, it is important to note, however, that these arguments are

exaggerated. Furthermore, the minority does not demonstrate adequately

why its perceptions, even to the degree they are accurate, require the denial

of the rights of students. The minority’s conclusion ultimately rests on the

belief, sanctioned by tradition, that schools and children are “different” and

that this difference justifies the differential treatment. Its approach is

flawed not because it strikes a balance, in this case adverse to students’

5 1 . For a thorough consideration of the aspects of a full due process hearing in the school

context, see Buss, Procedural Due Process For School Discipline: Probing the Constitutional Outline, 1 19

U. PA. L. REv. 545, 577-639 (1971), sympathetically discussing such matters as the right to

receive notice, present evidence, cross-examine witnesses, retain counsel, appear before an impartial

tribunal, and obtain a record and review. 8111 see Kirp, srtpra note 50, at 859-70 (discussing

the possible value of a less formal understanding of due process rights).

In anempting co determine the specific protections required by due process, courts traditionally

and appropriately take account of the gravity of the interest at stake. See Cafeteria

Workers v. McElroy, 367 U.S. 886, 895 (1961) (“The very nature of due process negates any

concept of inflexible procedures universally applicable to every imaginable situation.”). But this

consideration should be given no different weight than it would in other environments presenting

like features. That is, there should be no discounting of due process protections just because

young people or schools are involved, unless it can be demonstrated tangibly that these features

require differential treatment.

52. 419 U.S. at 59 1 (Powell, ]. , dissenting).


rights, but because it presumptively places students outside the .scope of

constitutional protections and thus avoids the issue of specific justification.



The arguments against enlarging the scope of student rights may be

divided into two categories. The first is based on a theory of childhood:

Students, being minors, require a network of paternalistic restrictions.

The second argument rests on a theory of education rather than on the age

of the participants: The very nature of education implies a relationship

between student and teacher that is incompatible with the recognition of

students’ rights. Injecting legal considerations into the relationship would

imperil paramount educational values even in an educational setting

populated exclus.ively by adults. The failure to distinguish and to analyze

these arguments has encouraged their uncritical acceptance and has precipitated

a tendency to deny constitutional rights to students when sounder

reasoning might counsel otherwise.

A. Arguments Based on Theories of Childhood

1 . Incompetence and paternalism.

The notion that children are incompetent provides the foundation for

the classic in loco parentis view of the public schools. 53 This view rests on a

syllogism of beguiling simplicity: Only those who possess certain

capabilities are entitled to share in generally held rights; school children

lack some of those capabilities. The ineluctable conclusion is that children

may be denied many rights taken for granted by adults. Children are the

paradigm case of the “weak, the uninformed, the unsuspecting, and the

gullible”54 who require protection “from the exercise of their own volition.

55 The argument, however, is neither as simple nor as compelling as

it first appears, and both premises of the syllogism must be qualified


First, the proposition that children are incompetent requires substantial

modification in order to approximate the real world. Although history

clearly teaches that children are “different, “56 it has spoken over time with

53· For a review of the paternalistic views of Hobbes, Locke and Mill, see Worsfold, A

Philosophical justification For Children’s Rights, in THE RIGHTS OF CHILDREN 29 (Harv. Educ. Rev.

Reprint Series No. 9, 1974).

54· Paris Adult Theatre I v. Slaton, 413 U.S. 49, 64 (1973).

55· /d.

56. Recent theories suggest that the idea of childhood itself is a relatively modern phenomenon

of Western culture. “In medieval society the idea of childhood did not exist; this is not to


a remarkable cacophony of voices as to who are “children.” Indeed, that

dependent state between childhood and adulthood called adolescence is an

invention of modern industrialized society. 57 Even given a culture that

takes extended adolescence for granted, its proper duration is subject to

reasonable dispute and to revision. Many states, for example, have lowered

the age of majority from 2 I to r8. 58

The problem, however, is not simply that the dividing line between

childhood and adulthood needs downward adjustment. Any inflexible,

uniform dividing line between the two is of doubtful validity, furnishing

too blunt a test for determining entitlement to rights. 59 More refined

suggest that children were neglected, forsaken or despised. The idea of childhood is not to be

confused with affection for children: it corresponds to an awareness of the particular nature of

childhood, that particular nature which distinguishes the child from the adult, even the young

adult. In medieval society this awareness was lacking. That is why, as soon as the child could live

without the constant solicitude of his mother, his nanny or his cradlerocker, he belonged to adult

society …. ” P. ARIES, CENTURIES OF CHILDHOOD 128 (1962).

For a sharp criticism of some of Aries’ views, see deMause, The Evolution of Childhood, in THE

HISTORY OF CHILDHOOD 4-6 (L. deMause ed. 1974).

57. Skolnick, The Limits of Childhood: Concepti~ns of Child Development and Social Context, 39

LAW & CONTEMP. PROB. 38, 61-63 (1975).

58. California, for instance, draws the line between minority and majority at age 18. CAL.

Clv. CoDE § 25 (West Supp. 1977).

59· The law may indeed require individualized determinations in a variety of contexts. A

state, for example, may not subject an unmarried minor’s right to obtain an abortion to absolute

parental veto, Planned Parenthood v. Danforth, 96 S. Ct. 283I (I976), and is probably required

to furnish a mechanism for individualized determination of the minor’s best interest or maturity

when she elects an abortion in the face of parental objection. Bellotti v. Baird, 96 S. Ct. 2857,

2865-66 (I 976). See text accompanying notes 3-8 supra. Similarly, individualized determination

is the traditional method for deciding the competency of children to testify as witnesses in court.

See CAL. Evro. CODE § 70I (West 1966).

The rejection of unbending age classifications is similar to the “conclusive presumption”

cases, which found conclusive, but unsupported, legislative presumptions violative of procedural

due process. See, e.g., Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 65 I (1974) (striking

down mandatory maternity leave rules on due process grounds “because of their use of unwarranted

conclusive presumptions that seriously burden the exercise of protected constitutional

liberty”); Vlandis v. Klein, 412 U.S. 44I ( I973) (invalidating on due process grounds a statutory

classification denying certain persons the benefits of reduced tuition at state universities as

non-residents, solely on the basis that their legal address was outside the state at the time of their

application to the university, without permitting the applicant an opportunity to demonstrate

other factors bearing on the issue); Stanley v. Illinois, 405 U.S. 645 (1972) (invalidating a statute

that automatically deprived unwed fathers of custody of their illegitimate children when the

mother died, without permitting the father to demonstrate his fitness as a parent). See also Tribe,

Childhood, S/IJpect Classifications, and Conclruive Presumptions: Three Linked Riddles, 39 LAw &

CONTEMP. PROB. 8, I0-11, 32-34 (1975). Bill if. Weinberger v. Salfi, 422 U.S. 749 (I975)

(sustaining constitutionality of Social Security Act provision denying benefits to mother and child

when their relationship to wage earner existed for less than 9 months prior to his death, attacked

under the “conclusive presumption” analysis).

For an excellent discussion of”those taken-for-granted and often unstated assumptions about

children that influence both research and policy-making,” see Skolnick, supra note 57, at 43· This

study questions the assumption of childhood incompetence by first “challenging the rationality of


analysis would produce a varying set of legal rights expanding through the

successive levels of education and age. The law currently is adapting to

developmental conceptions that see the young maturing earlier than before

and, at all events, maturing at different ages for different purposes. 60 The

time has passed when one could speak of “children” as a monolithic group.

More fundamentally, the major premise of the syllogism-the notion

that entitlement to share in generally held constitutional rights depends on

certain capabilities or competence-is flawed. Competency is at times

relevant and even decisive for the determination of rights; at other times it

is not. Competency is relevant to those rights principally aimed at

maximizing the free choice of persons, as opposed to those principally

intended to safeguard the individual against governmental abuse. 61

Rights of the first category should be limited to those possessing the

indispensable capability of avoiding serious harm to themselves or others

through the exercise of those choices. Thus, society has the strongest case

for attributing decisive weight to certain incapacities when the injury

feared from permitting a child to exercise a particular choice would be

great, when the likelihood of occurrence of injury would be high, when the

opportunity for the child’s learning process or for adult intervention to

moderate the danger once the child has acted would be low, and when the

injury, should it occur, would be irreversible. Driving cars and using guns

are examples of this sort: A momentary indiscretion may unleash terrible

linking childhood and adolescence to infancy and failing to draw sharper distinctions between

early and later ages of children. Second, it questions the notion that the course of child development

as we observe it-and the familiar division of the life cycle into stages of infancy, childhood,

adolescence, and adulthood-represents a ‘natural’ or biologically-based process inherent in the

human condition, rather than one shaped by social and cultural influences.” ld. Finally, the study

questions whether contemporary social attitudes coward childhood in fact operate to the child’s

welfare. See also Ladd, Civil Liberties for Stt~dents-At What Age?, 3 J.L. & EDUC. 25 I (1974).

6o. Thus, for example, in California persons under 18 may marry under certain circumstances.

CAL. CIV. CODE § 4101 (West 1970). A 16-year-old may drive a car, CAL. VEH.

CODE§ 12507 (West 1971), and in some instances even a q-year-old may have that privilege.

CAL. VEH. CODE§§ 12513, 12514 (West 1971). A 15-year-old may, with parental consent,

donate blood, CAL. Civ. COJ?E § 25.5 (West Supp. 1977), and an unmarried minor of any age

may obtain an abortion without parental consent. CAL. C1v. CODE§ 34·5 (West Supp. 1977).

The doctrine of emancipation reflects partial recognition of the inadequacy of viewing youth

as a monolithic entity. See CAL. Civ. CoDE § 34.6 (West Supp. 1977). See generaiiy Katz,

Schroeder & Sidman, Emancipating 011r Children-Coming of Legal Age in America, in THE

YOUNGEST MINORITY 287 (S. Katz ed. 1974).

61. The primary function of constitutional protections such as substantive due process and

the right of privacy is to prevent unwarranted interference with the exercise of free choice. But

each protection probably serves, in complex ways, to safeguard the individual against governmental

abuse as well. The distinction proposed in the text requires no more chan a recognition that the

varying constitutional protections, in different degrees, serve purposes chat are independent of the

competency of the people claiming them. If chis fact does nor always render competency irrelevant,

it greatly reduces irs significance as a criterion for entitlement.


consequences that can neither be checked nor undone. The child’s immaturity

militates against recognizing the claim to free choice. The same

applies in varying degrees to a wide range of autonomous choices taken for

granted in the adult world: the right to marry, leave home, quit school,

contract, drive cars, work 10 hours a day, use dangerous tools, own guns,

smoke, drink, and, perhaps, vote. Each involves dangers; each is appropriately

conditioned on certain capabilities connected with age.

But with respect to other rights, the “competency” of the claimant

bears little or no relationship to the issue of entitlement, primarily where

the liberties involved are aimed not at maximizing free choice but at

civilizing the process and instruments of state compulsion.

Due process of law and the right to be free of cruel and unusual

punishment represent archetypical examples of such rights. 62 They do not

deny the legitimacy of governmental interference with free choice on the

part of the citizenry. Rather, they regulate the terms of that interference.

Procedural due process does not immunize persons against deprivations of

life, liberty or property; it simply insists on a degree of fairness and

humanity. Similarly, the eighth amendment does not prevent punishment;

it regulates the ways in which government visits its unpleasantness

upon people. To that degree the capacity of children has nothing to do with

their right to be treated fairly, decently and humanely by their government.

They are entitled to such treatment not because they are competent

but because they are persons. 63

One might reason, however, that other constitutional rights do hinge

on possession of adult competency. The right of free speech might be

offered as a prime example. One of its central functions, after all, is to

facilitate the exercise of free choice by that portion of the population

regarded as competent to exercise choice. But that argument, too, breaks

down. Only a loose connection joins the right to speak and the right to act

on that speech; the latter does not determine the former. 64 In the school

context, the right to exchange ideas, specifically recognized in Tinker, 65

need not depend on students’ immediate right to act. The fact that choices

may be foreclosed to them until they reach a certain age hardly precludes

62. See no res 14 & 1 5 s11pra.

63. The same logic governs to some degree other constitutional rules such as those against

unreasonable searches and seizures and against compulsory self-incrimination.

That students are involved in education is all the more reason for assiduously protecting their

rights. The treatment accorded them by the governmental authorities closest at hand, school

officials, will convey volumes of information to them about the nature of their society with good

or ill effecr. See text accompanying notes 85-86 infra.

64. See Brandenburg v. Ohio, 395 U.S. 444 (1969).

65. 393 u.s. at 51 r.


their right to think, speak, debate, and dissent about those choices. 66

If a factual case can be made that students’ incompetence to exercise

certain constitutional rights creates intolerable risks to themselves or to

others, restriction may be warranted. The presumptive starting point,

however, should be rejection of any such claim. The burden should lie

where it generally does when constitutional rights are at stake: on the party

seeking to curtail those rights. Experience suggests that often the state can

present nothing more to overcome such a presumption than the bare

assertion that curtailment is necessary. 67

2. The “unity of interest” between school artthorities and students.

The paternalism argument rests not only on assumptions of student

incompetence but also on a companion view that school authorities can and

do protect student interests, thus negating the need for legal protections.

Justice Powell, speaking for the Goss minority, described the relation

between the interests of students and officials as “[u]nlike the divergent

and even sharp conflict of interests usually present where due process rights

are asserted” and “essentially congruent. “68 The adversary stance that

makes sense in the world outside of the schoolroom makes none at all

within that benign setting, where “the experience, good faith, and dedica-

66. Free speech is jusrified in parr on nonurilitarian grounds: It is “both . . . an end and

. a means.” Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring).

Yet another argument might be offered to support “incompetence” as a basis for denying

some or all of the constitutional rights considered above. This view focuses on the incompetence

of the other students in the school milieu who might face harm if the claimant’s rights were

recognized. This possibility of harm to other students due to their relative incapacity and their

“captive” status in school would justify restricting the rights claimed by the few. This argument

was rejected in the specific context of the first amendment in Tinker. 393 U.S. at 512. Both

speaker and audience were seen as entitled to free speech protection. Moreover, to the degree the

argument is valid, it rarely requires a generic downgrading of constitutional protections. Many of

the constitutional rights provide broad protective standards that by their own terms or by judicial

interpretation permit taking account of time, place and circumstances.

Important choices are inescapable even for the young. In this respect, free speech and debate

perform their classic role of illuminating alternatives and permitting informed choice. How, for

example, should children think about their peers of other races and sexes? How should they adjust

to the competitive values that permeate our society? How should they evaluate the network of

ideas and values they are exposed to in school? How should they chink about authority-its

legitimacy and irs limits? How should they go about selecting their future education and careers?

Schools are, or should be, a training ground for informed, intelligent decisionmaking, whether

the decisions are to be made now or in the future. Students, therefore, must be permitted access to

ideas and arguments that stir the society at large, even if they are permitted only limited

participation in decisionmaking. The educational process cannot be deferred until the child

reaches age 18.

67. See, for example, the arguments in Tinker. 393 U.S. at 509-10.

68. 419 U.S. at 591.


tion”69 of the school staff safeguard student interests. 70

The Goss majority presented one response to this view: Even assuming

the coincidence of interest postulated by the minority, officials may make

mistakes. No one believes that the school”disciplinary process [is] a totally

accurate, unerring process, never mistaken and never unfair. “71 The

majority here stands on firm ground. Recognition that shared interests do

not guarantee justice simply acknowledges the gap between aspiration and

reality. In re Gault12 was surely right in emphasizing that neither commonality

of interest, commitment of experienced authorities to help the

young nor “good faith” efforts by officials insures just results. Paternalistic

systems can go astray, converting the objects of their beneficence into

abject victims.

But the dissent’s easy equation of the interests of students and school

officials also contains a more fundamental flaw: The “unity of interest” does

not exist. School teachers, principals, school superintendents, and school

boards have a variety of interests-personal, bureaucratic and politicalthat

may clash with those of the child. The interest of school officials in job

advancement, political approval, county funds, peer recognition, ego

gratification, or a work atmosphere free of student “disrespect” is not

necessarily the child’s interest. 73

69. Id. ac 595· “[A] high degree of … protection [is implicit in the office of a teacher]

since a teacher has responsibility for, and a commitment co, his pupils chat is absenc in ocher due

process contexts.” /d. ac 595 n. 14.

Perhaps the minority is influenced by an unrealistic image of school. Justice Powell, for

example, speaks warmly of the ongoing teacher-pupil relationship in which the teacher occupies

many roles, including that of friend, advisor and parent subscituce./d. at 594· When he thinks of

a public school, does he visualize a one-building rural school? Assuming, for the sake of argument,

chat it would be bizarre to impose a due process requirement upon such a model, that

model has little co do with the contemporary urban school, which often enrolls thousands of

students and employs hundreds of reachers and administrators. Such schools bear more resemblance

to a moderate size American ciry than co a little red schoolhouse. One wonders whether

the authorities in Goss even knew the 75 students they suspended.

70. Parenthetically, the argument might proceed, swelling the class of potential litigants

by adding millions of students seems almost perverse in our increasingly litigious society. See text

accompanying notes 97-103 infra.

71. 4I9 U.S. ac 579 n.8o.

72. 387 U.S. I (I967). See also Breed v. Jones, 42 I U.S. 5 I9, 528 (I975).

73· The Los Angeles Times recently described a California scare testing program of high

school students. According co the report, California high schools are beginning to test potencial

graduates for their knowledge of”fundamenrals”; passing grades will eventually become a graduation

requirement. The passing level for these rests, however, is creating a “remarkable anomaly.”

Because of “the policies of public education,” rhe level of accomplishment required of seniors will

probably be lower than chat required of second- and third-year students who want to avail

themselves of the opportunity they now have co graduate before their senior year, based on test

scores. If the same cest were used for seniors, probably half of them would fail. A representative of

the Srace Department of Education is reported co have asked, “Can you imagine the outcry?” On

the ocher hand, if the relatively simple rest proposed for seniors was given the early graduates, the


Furthermore, the very process of adjudication implies a clash of interest

between the contending parties. Assume for the sake of argument that

Justice Powell is correct in observing that the state’s “generalized interest”

in an orderly school is compatible with the student’s “individual interest.

74 Even so, when that generalized interest is particularized by focusing

on an individual as wrongdoer, the interests of the two necessarily and

rapidly diverge, just as they would in a criminal prosecution in the

nonschool world. 75

This divergence of interest is aggravated, of course, when the disciplinary

issues arise out of political controversy, and students find themselves

challenging, criticizing and thereby offending the very school authorities

who sit in judgment upon them. It strains credulity to suppose that

students in such a context would perceive the disciplinarian’s stance as

“disinterested” or would see the interests of the two as “congruent.”

Rationally speaking, why should they?

The argument that “rights” are a superfluous commodity when students

deal with school officials, that trust can be reposed in school officials

because the interests on both sides are congruent, is either fond hope or

rationalization but not reality. Conceding this, one might argue, nonetheless,

that the necessary check on school officials would come more appropriately

from sources other than students wielding “rights,” such as

concerned parents, community groups or professional colleagues reviewing

the work of educational officials. This view is but another form of

argument based on student incompetency, neither stronger nor better than

vast majority would pass and great numbers might leave. The article continues: “~·Khan exodus

could cost thousands of teachers and administrators their jobs. And what would be done about the

surge of teenagers entering the labor market?” According ro a state legislator, this would generate

opposition from too many persons, including “school officials who would lose state aid as

attendance declines·and labor leaders who don’t want former students competing in the job

market and parents who don’t want their children around. ‘Essentially, there’s a helluva lot of

people who want co pay professional educators co take the kids our of their hair,’ he said.” L.A.

Times, March J4, 1977, § 1, ar 3, col. 5 & at 18, col. 6.

74· 419 U.S. at 592-93··

75· This point is essentially the argument of In re Gault, 387 U.S. 1 (1967). It disputes

the Goss minority’s view chat any conflict of interest between student and official will be attenuated,

chat disciplinary mistakes will be infrequent and chat when they occur they will be

correctable informally, i.e., without due process or judicial review.

The. minority is led ro these views by “common sense.” 419 U.S. at 594.h concludes that to

impose a clutter of due process paraphernalia because infrequent cases might warrant it is to

provide a cure worse than rhe disease. The majority, on rhe ocher hand, presumably also relying

on “common sense,” finds rhe risk of error “nor at all trivial.” /d. ar 580. This conflicting

resolution of an “empirical” issue without recourse to evidence illustrates, if the point needs

illustration, the crucial importance of whether the burden of justifying the distinctive treatment

accorded students is allocated co student or state. Whoever succeeds in disowning the burden

wins the argument.


those already considered in the preceding section. 76 For present purposes,

therefore, it is reasonable to conclude that students should not be denied

rights on the euphoric view that the educational setting is devoid of

conflicting interests between student and teacher.

3. The young have not earned certain rights.

Arguably, certain rights are denied the young not only because they

lack rational capacity, but also because the rights have not been earned. For

example, this justification might be offered as part of the reason for

denying the young the right to vote. 77 Because they have not shouldered

adult responsibilities such as self-support, paying taxes and fighting in

wars, minors have not earned the right to vote. Denial of the right is the

quid pro quo for their privileged status as children. Moreover, because they

are relieved of adult burdens, there is no unfairness in denying children a

voice in the allocation of such burdens. This position is the converse of the

no-taxation-without-representation argument.

But the young are not immune from countless legal requirements,

including the duties to pay taxes and to obey the laws. Furthermore, the

right to vote is conferred upon numerous adults whose claim to entitlement

may be no stronger than that of many minors-for example, those

who also do not support themselves, earn enough to pay taxes or fight in

wars. Finally, the arguments are fatally similar to the long-discredited

conception 78 of the right to vote as a privilege of the propertied class.

More important, whatever validity these arguments are said to have

with respect to the right to vote, they cannot apply to the protections of the

Bill of Rights. The requirements of fair treatment at the hands of government,

of humane punishment, of privacy, or of free speech are protected

not because they are earned, but because they preserve essential aspects of

human dignity and are necessary limitations upon government in a democratic

society. 79

B. Arguments Based on Theories of Education

Theories of education long have been the basis for arguments against

extending constitutional rights to students in the public schools. Such

76. See text accompanying notes 53-67 supra.

77· CAL. CONST. art. 2, § 2, extends the right to vote to 18-year-olds. See also Oregon v.

Mitchell, 400 U.S. 1 12 ( 1970) (affirming congressional power to lower voting age from 21 to 18

for federal, but not state, elections). See also U.S. CONST. amend. XXVI.


186o, at 92-116 (1960).

79· See text accompanying notes 61-66 supra.


theories combine traditional assumptions about routine institutional needs

with factors peculiar to the educational process to produce an amalgam of

arguments. The next section examines the more legitimate examples of

these arguments. The discussion criticizes one set of judicial attitudes

toward the nature of education and offers alternative attitudes that would

support a broad extension of constitutional rights to school children. 80

r . Obedience as educational imperative.

One view of the relationship between children and adult authority

considers a high degree of deference by children indispensable to their

proper moral and practical growth. Thus, the Goss minority postulates an

incompatibility between due process and a student’s understanding of” the

necessity of rules and obedience thereto. “81

But the students in Goss claimed no immunity from the “rules. “82

They merely sought an opportunity to challenge an administrator’s decision

that the rules had been violated and that they, the students, had

violated them. To deny them a hearing on this point may or may not

produce a desirable lesson in obedience, but surely the lesson cannot be

So. I do not suppose I have proved that mine are right and those of others wrong. I content

myself with the observation that judges deciding disputes in the educational arena inevitably

bring with them attitudes about ”proper” education. Often these have not been proved; they

may, in the nature of things, be incapable of proof. Even if viewed as strictly factual questions,

these problems often are extraordinarily complex. One example is the question of the effect of

judicial attitudes toward discipline on student-teacher relationships and on school discipline, and

thus on the student’s ability to learn. But of course these are not purely factual questions. They

inevitably involve value judgments about what is worth learning, or perhaps the relative importance

of different things that might be learned, depending on how the school atmosphere is

varied. Justice Brennan’s comment in Craig v. Boren, 97 S. Ct. 4 5 I, 460 (I 976), is pertinent

here: “It is unrealistic to expect either members of the judiciary or state officials co be well versed

in the rigors of experimental or statistical technique. But this merely illustrates that proving

broad sociological propositions by statistics is a dubious business, and one that inevitably is in

tension with the normative philosophy that underlies the Equal Protection Clause.” Despite their

ambiguity, these factors are no less potent as bases for decision.

Sr. 419 U.S. at 593·

S2. Apparently, specific rules were not even invoked by the school authorities in Goss.

Instead, those in charge seem to have relied on their “inherent powers.” The lower coun’s opinion

indicates that the school authorities argued that their power did not derive from Ohio statute, but

rather depended on their ” ‘historical inherent power’ to discipline students.” Lopez v. Williams,

372 F. Supp. 1279, 1293 (S.D. Ohio 1973). The Supreme Court stated only that each of

the schools involved has “formally or informally described the conduct for which suspension could

be imposed.” 419 U.S. at 56S. If specific rules of conduct, whether in statutory or regulation

form, were involved in Goss, neither the Supreme Court nor the lower court opinions identified


For discussion of the constitutionality of punishment in the school context without specific

rules giving adequate notice of the proscribed conduct, see Letwin, supra note 12, at 179-So, and

authorities cited in id. at I 79 n. I 55.


characterized as one of obedience to rules. Obedience to administrative fiat

would be closer to the mark.

The minority, nonetheless, felt that this nonreciprocal approach to rule

compliance contributed to the moral development of the child:.

In an age when the home and church play a diminishing role in shaping the character

and value judgments of the young, a heavier responsibility falls upon the schools.

When an immature student merits censure for his conduct, he is rendered a disservice

if appropriate sanctions are not applied or if procedures for their application are so

formalized as to invite a challenge to the teacher’s authority . . . . 83

But what result if the student doubts “censure” is “merited”? The minority,

with startling simplicity, eliminated the issue by assuming what it

should have been proving, that censure was merited. The dissenters hoped

to teach the young the meaning of “the social compact of respect for the

rights of others. “84 But these methods teach only that those wielding

governmental powers are not to be challenged and that “respect for the

rights of others” is a mildly disguised code phrase for a unidirectional

“respect” for adult authority no matter how arbitrary it may be.

The history of official behavior, especially as revealed in recent years,

offers precious little that would make one want to teach this version of

the “social compact.” Surely, a better lesson would be to teach precisely

the reverse: Even the young and powerless enjoy rights, and legal restraints

bind the governors as well as the governed. 85 From this perspective,

one might regard a student’s desire to rebel against “arbitrary”

authority as an impulse that society should prize and as a tribute of sorts

to the best of society’s cultural influences.

An alternative argument for the virtues of unquestioning obedience to

authority might be couched in practical rather than moral terms. Students

need to learn this lesson as part of their socialization to adult life.

To learn to accept authority, sometimes even irrational authority, is to

prepare for the real world. 86 If this accurately describes the real world,

education might well seek to encourage reflection about that world, the

nature of the social organization that produces it, its implications, and

possible alternatives to it, rather than merely to promote the practical

advantages of accommodation. To the degree that public education promotes

“realistic accommodation” of this sort, it contributes to the reality

83. 4I9 U.S. at 593·

84. /d.

85. See, e.g., Tinker v. Des Moines Ind. Community School Dist., 393 U.S. 503, 5 I I

(I 969): “Students . . . are possessed of fundamental rights which the State must respect, just as

they themselves must respect their obligations co the State.”

86. See, e.g., Bowles, Understanding Unequal Economic Opportunity, 63 AM. ECON. REv. 346



just described and abandons more noble ideals of public education: the

development of a citizenry capable of understanding, questioning and

evaluating society and of a citizenry that is self-confident, thoughtful and

critical in its confrontations with authority.

2. Student rights as incompatible U’ith school disciplinary req11irements.

Uncomplaining obedience may commend itself not as an ideal but

rather as a concession to the harsh realities of the school world in which

teachers are increasingly beset by disrespect, disobedience and violence. 87

Due process, for example, has no place in this “real” world if educators

are to survive, much less to educate. Mentioning rights, in this view, is

like waving a red flag to students who above all else need more discipline,

not more license, in the schools.

To be sure, school officials occasionally may confront disciplinary

emergencies requiring temporary restrictions of rights. But excessive

deference to officials on this score is dangerous. However sincere, officials

may tend to see “exigencies” when the disinterested observer will detect

only “undifferentiated fear or apprehension”88 or an inappropriate response

to admittedly difficult problems.

Moreover, the presumed benefits of an authoritarian school regime

may not be worth their price. In an effective educational setting “most of

the objectionable behavior of students-their idiosyncratic tendencies,

their expressions of opinion on many subjects, the disturbances and

“distractions caused by their actions, their statements, and even their

appearance-is actually grist for the educational mill. ”89 A system predicated

on hostility to student rights runs the risk not only of forfeiting this

educational opportunity but of exacerbating the very difficulties it is

seeking to cure. Such a system both undermines the moral claims of

87. “It is common knowledge that maintaining order and reasonable decorum in school

buildings and classrooms is a major educational problem, and one which has increased significantly

in magnitude in recen~ years.” 419 U.S. at 591-92 (Powell, J., dissenting). See also id.

·at 592 nn.9 & 10; Ingraham v. Wright, 525 F.2d 909, 916-20 (5th Cir.) (en bane), aff’d, 45

U.S.L.W. 4364 (April 19, 1977).

88. Tinke~ v. Des Moines Ind. Community School Disc., 393 U.S. 503, so8 (1969).

rhe Goss majority was fully prepared to recognize the claims of exigency, concluding that

special circumstances might warrant deferring the hearing required by due process until after the

suspension decision. 419 U.S. at 582-83. See also Braxcon v. Municipal Court., 10 Cal. 3d 138,

145, 514 P.2d 697, 70D-OI, 109 Cal. Rptr. 897, 900 (1973) (upholding a statute permitting

college authorities to banish students from campus temporarily for certain activity, without a

prior hearing, where the college administrator reasonably finds exigent circumstances threatening

significant injury to persons or property).

89. Ladd, Allegedly Disruptive Student Behavior and the Legal Authority of School 0/ficia/J, I 9 J.

PUB. L. 209, 2 36 ( 1970).


authority and diverts attention from the genuine evils that frequently

underlie school disciplinary problems: racial segregation, staffing

deficiencies, overcrowded classrooms, inadequate physical plant, defects

of school policy, and the hopelessness bred by lack of opportunity. 90

Schools adopting this route are likely to end up with the worst of both

worlds: the authoritarian environment without the hoped-for peace.

Peaceful or not, the educational prospects of schools run on the model

of an authoritarian regime are dubious. Such schools are less educational

institutions than institutions for custodial confinement whose principal

assignment is to keep the young off the streets, out of trouble and off the

labor market. 91 The resulting atmosphere is likely to prove incompatible

with either learning or teaching. 92

None of the arguments advanced above, however, is intended to

dispute the fact that schools, like most other institutions, need certain

accommodations and conventions of behavior on the part of their participants

in order to accomplish their mission. Thus, a classroom need not be

treated as an unstructured public forum in which all persons are free to

say what they will, when they will, on whatever subject strikes them. 93

90. The focus on che school as parr of the proble~ is “almost a cliche in educational

literature.” Ports, Student Suspension and Expulsion: An Overview and Comment, 3 j. L. & EDUC. 489,

5 19 n. I 32 ( 197 4). Poets quotes the PRESIDENT’s COMMISSION ON I.A W ENFORCEMENT AND


behavior is obviously connected with the individual’s motivation and personality, misbehavior in

school is the result of interaction between pupils and the school. Efforts coward change should

therefore be directed coward both the pupil and the system. In most schools, however, the

behavior control system operates as though misbehavior results entirely from the characteristics of

the students. Many of the school’s efforts to cope with misbehaving students are ineffective largely

because they seek changes in the student and overlook the faults of the system.” Id. at 367.

9 I . See note 7 3 s11pra.

92. To whatever degree schools conform with this description, the very underpinnings of

compulsory public education come into question. Various critics of public education have atracked

compulsory attendance requirements. See, e.g., G. DENNISON, THE LIVES OF CHILDREN

88 (I969);). HOLT, ESCAPE FROM CHILDHOOD (1974).

Today considerable constitutional doubt exists as to the legitimacy of institutionalizing

mentally ill, nondangerous persons as a matter of social convenience. See O’Connor v. Donaldson,

422 U.S. 563 (I 975). Similar doubts, too, must afflict the involuntary confinement of the young

for the convenience of ochers. Cf. Bartley v. Kremens, 402 F. Supp. I039 (E. D. Pa. I975)

(3-judge court) (holding that children under the age of I9 who were committed involuntarily to

scare mental hospitals at their parents’ direction were entitled to procedural due process guarantees),

prob. juris. noted, 96 S. Ct. 1457 ( I976). A court that shared these doubts would focus on

reforming the schools as the remedy rather than freeing their students. But the issue of justifying

mandatory attendance in a noneducaring school is a real one.

93· Conventional education, at any rare, presupposes the orderly consideration of subject

matter under the guidance of a knowledgeable instructor. This no doubt describes the dominant

model in American education, though nor the only one. Other models, identified with the Dewey

tradition, would place less emphasis on the “orderly” development of the subject and more on the


Neutral time, place and manner rules are justified. 94 Similarly, the fact

that in the school setting thousands of people are confined in a closed area

might justify a search without a warrant for dangerous contraband in a

student locker that would not be permissible elsewhere. 95

Significantly, neither age nor sophisticated educational theories are

essential underpinnings for such restrictions. The need would exist more

or less equally in a university or an institution of adult education, though

virtually all the participants would be over 18. Nor is this a unique truth

about schools. The argument applies in varying ways to courts, hospitals,

libraries, legislative bodies, business offices, and theaters-in short, to

most institutions. Emphasis on age and educational goals adds little that

is legitimately relevant to the issue of routine institutional order. The

danger is that such talk will provide a psychologically potent bit of

rhetoric for justifying a host of unwarranted restrictions.

So far as routine, purely institutional, requirements are concerned, a

college or university would furnish a presumptively appropriate model

for drawing the proper balance between constitutional rights and institutional

needs, unencumbered by reflexive assumptions that either age or

educational objectives defeat constitutional claims. 96 A more restrictive

regime for public school students cannot be justified by simple appeals to

routine or other generic institutional considerations if such considerations

would be unpersuasive in the context of adult education. Any differential

treatment should require compelling justification.

student’s own definition of what is to be learned and how. See, e.g., J. DEWEY, DEMOCRACY AND


94· See Tinker v. Des Moines Ind. Community School Dist., 393 U.S. 503 (1969).

95. However, searches for marijuana on less than probable cause are not warranted simply

because school children are involved. See Buss, supra note 16 at 769-72 (1974). But see cases cited

in note I 6 supra.

96. In loco parentiJ essentially has been rejected at the college level. See Soglin v. Kauffman,

295 F. Supp. 978, 988 (W. D. Wis. 1968), affd, 418 F.2d 163 (7th Cir. 1969); Van Alstyne,

Procedural Due Prows and State University Studmts, 10 U.C.L.A. L. REV. 368 (1963). There is

today no “dual standard” for first amendment protections in the state colleges or universities, and

the first amendment applies wirh full vigor. Papish v. University of Mo. Curators, 410 U.S. 667,

671 (1973). See also Healy v. James, 408 U.S. 169 (1972); Gay Students Org. of Univ. of

N.H. v. Bonner, 509 F.2d 652, 658 (Ist Cir. 1974); Braxton v. Municipal Court, 10 Cal. 3d

138, 514 P.2d 697, 109 Cal. Rptr. 897 (1973).

In addition, the California Legislature recently provided that any evidence seized by state

college or university personnel in violation of the fourth amendment is inadmissible in school

disciplinary proceedings and that any waiver of fourch amendment rights by students as a

condition of procuring a college dormitory room is contrary to public policy. CAL. PENAL CODE §

626.1 1(a)-(b) (West 1975). The legislature’s findings emphasized that “students in school as well

as out of school are ‘persons’ under the Constitution and … they are possessed of fundamental

rights which the state must respect, just as they themselves must respect their obligations to the


3. Student complaints as educational diversion .

The 11/oodgates” theory. If rights are granted to students, school officials

arguably will be compelled to spend much of their time commuting to

and from the local courthouse responding to the complaints of their

litigious charges. 97 As the Goss minority pointed out, administrators

regularly make decisions of serious consequence to students-in grading,

in imposing curricular requirements, in “tracking” them, and the

like-to which “due process” claims as plausibly might attach as in the

case of the short-term suspension. 98 Did the Court’s decision, the dissenting

Justices asked, imply that all these heretofore professional decisions

were now to be transformed into decisions for judges?99 The minority

feared that unless Goss could be confined to its facts, courts would

displace school officials as the supreme arbiters of the educational community.

One response to this concern is that compelling authorities to justify

their use of power in terms of applicable legal standards may not be so

bad after all, despite the fears of some courts100 and countless school

authorities. Education still would occur, but partly in the setting of the

judicial system. By observing the operations of such a system, assuming

it were sensitive to the constitutional issues involved, students and

administrators alike might receive a powerful lesson in the rule of law.

Moreover, the predicted volume of complaints itself may be exaggerated.

For a number of reasons college students do not appear to have rushed

to court to take advantage of the due process system that dawned on the

state …. [T]he right to privacy and other related rights are fundamental.” 1975 Cal. Scats.

ch. 867, § 2.

97. See note 1 oo infra.

98. 419 U.S. at 597-600.

99· Id. at 599·

xoo. “[I]f hearings were required for a substantial percentage of short-term suspensions,

school authorities would have time co do little else.” Goss v. Lopez, 419 U.S. 565, 592 (1975)

(Powell, J., dissenting). See also Eisner v. Stamford Bd. ofEduc., 440 F.2d 803 (2d Cir. 1971)

(upholding che constitutionality of a prior censorship scheme applied to high school “underground”

newspapers). One issue was whether school authorities could restrain distribution on

their own authority or were compelled to proceed by way of injunctive relief from the courts, as

would be required in most contexts by Freedman v. Maryland, 380 U.S. 51 (1965) (movie

censorship). The court refused to require the school authorities to seek judicial approval, noting

“it would be highly disruptive to the educational process if a secondary school principal were

required to cake a school newspaper editor to court every time the principal reasonably anticipated

disruption and sought co restrain its cause.” 440 F.2d at 810. I have argued elsewhere that the

court’s reference co the principal’s “reasonable anticipation” of disruption is question-begging.

Lecwin, s11pra note 1 2, at 167-68.

For a somewhat similar expression of distaste for student initiated litigation, see Shanley v.

Northeast Ind. School Disc., 462 F.2d 960, 966 n.2 (5th Cir. 1972).


American university more than a decade ago. 101 The money and energy

so prodigiously consumed in litigation are beyond the reach of most

students. Judicial sympathy for frivolous claims is unlikely. Finally,

many college students who face school discipline are perfectly happy to be

treated paternalistically. When they are charged with traditional offenses,

such as plagiarism, cheating on an examination or shoplifting

from the university bookstore, what they want is sympathy, understanding

and a second chance rather than “rights,” due process and litigation.

102 The exceptions have come mainly from students disciplined for

politically related activity, but even these students have sought judicial

review only infrequently, after losing in the campus hearing.

The fears about a tidal wave of litigation thus seem exaggerated.

Rather, th~ opposite should be feared: Students acculturated to the Goss

dissenters’ “social compact” may be so conditioned to a “realistic” assessment

of bureaucratic power that they will give in to it too readily.

In sum, although no one doubts that the activity of teaching requires

school authorities to exercise broad discretionary powers, particularly in

the area of nondisciplinary issues, this discretion need not preclude challenges

to the fairness of the mechanism or the rationality of the decisions.

101. The advent of this system can be dated roughly from the decision in Dixon v. Alabama

State Bd. ofEduc., 294 F.2d 150 (5th Cir.), cert. denied, 368 U.S. 930 (1961) (requiring notice

and opportunity for hearing before expulsion from tax-supported college).

The conclusion that students will not rush to court is at least confirmed by the experience at

the University of California, Los Angeles, a campus of about 30,000 students located in the

litigious environs of southern California. That campus produces approximately 350 to 400

student disciplinary cases per year. Of these, the overwhelming number are settled through

discussion between a dean and the affected student. Only about 4 to 6 cases a year do not yield to

“amicable solution.” These invariably arise out of “socio-political” conflicts, of the type familiar

during the late 196o’s and early 1970’s, and eventually result in a formal due process hearing

before a campus hearing board. Letter from Byron Atkinson, Assistant Vice Chancellor, UCLA,

to author(February 4, 1976). See also UCLA Daily Bruin, Feb. 3, 1976, at 1, col. 2. During the

period of some 7 years since this system has been inaugurated, the first student has yet to

challenge a campus disciplinary decision in court. Id. Even allowing for somewhat different

experiences on other college campuses, it seems fair to say that the advent of due process has not

heralded a blizzard of formal campus hearings, much less of subsequent ~ppeals to the courts.

Can reasonable expectations about the public school be inferred from the college experience?

There are differences, of course. Public school students are captives of a given institution in a way

that college students, with their legal freedom and physical mobility, are not, a fact that may give

a public school student greater incentive to take a complaint to litigation. But powerful pressures

operate in the opposite direction. Public school students lack the financial capacity and the

psychological independence to engage easily in litigation. The evidence as to the consequences of

Goss is not yet in, but it is reasonable to expect the level of litigation to be far less than in the

analogous college context. But see 419 U.S. at 6oo n.22, where theGoss minority detects a “flood

of litigation” by school children alleging violation of their constitutional rights in the aftermath

of Tinker.

102. Most students prefer the “in house” settlement. UCLA Daily Bruin, supra note 101, at

1, col. 2.


A heavy burden may be placed upon the student,l03 but appropriate

avenues for challenge unquestionably should be recognized.

The harm of “constitutionalizing” teacher-student relationships. Justice

Powell hinted at deeper implications than greatly increased litigiousness

if due process rights are extended to students. He described “the reality

of the normal teacher-pupil relationship,104 as “rarely adversarial, ” 105

suggesting that the “constitutionalization, 106 of that relationship not

only will fail to secure due process to the student but irreparably will

damage the relationship as well. Under this theory, the adversary atmosphere

generated simply by speaking of “rights, is objectionable: Students

need to focus not on their “rights” but on what the teacher has to teach.

A related argument begins with the observation that students need

103. For example, teachers should not casually be required to answer either before an “in

house” reviewing body or a court of law for the grades they give, both because formulating

satisfactory standards for external review is so difficult and because the gain in precision, if any,

generally would not be worth the energy required to achieve it. Though courts commonly have

given almost absolute deference to school authorities in their grading decisions and other decisions

applying academic standards, they have not excluded the possibility that judicial intervention

would pe appropriate upon a “clear showing that the officials acted arbitrarily or have abused

the discretionary authority vested in them.” Gasper v. Bruton, 513 F.2d 843, 850 (1oth Cir.

1975). Br1t cf. Greenhill v. Bailey, 378 F. Supp. 632, 635 (S.D. Iowa 1974) (school officials’

absolute discretion to dismiss a student for failure to meet academic standards will not be

reviewed absent showing of bad faith); Connelley v. University of Vt. and State Agric. College,

244 F. Supp. 156, 161 (D. Vt. 1965) (court may review student dismissal only upon allegation of

bad faith or arbitrariness on part of the instructor). See also Kirp, Schools as Sorters: The Constitutional

and Policy Implications of Student Classification, 121 U. PA. L. REv. 705 (1973); McClung,

School Clanification: Some Legal Approaches to Labels, 14 INEQUALITY IN Eouc. 17-24 (1973). The

issue of whether college students are entitled to a due process hearing before dismissal for

nondisciplinary reasons is presently pending before the Supreme Court. Board of Curators of

Univ. of Mo. v. Horowitz, 538 F.2d 1317 (8th Cir. 1976), cert. granted, 45 U.S.L.W. 3686

(April 18, 1977).

At the University of California, Los Angeles, until recently there was no reviewing authority

with the power to change the grade given a student by a faculty member; grading authority rested

exclusively with the individual faculty member. The Academic Senate did have the authority to

determine that a faculty member had inappropriately applied “criteria not directly reflective of

course performance,” Faculty Code of Conduct, Part II(AXI), or discriminated “against a student

on political grounds, or for reasons of race, religion, sex or ethnic origin, or for other arbitrary or

personal reason.” !d. at Part II(AX2). But this power was limited to recommendations for

disciplinary action; it did not embrace a change in the actual grade. Recently, the Academic

Senate empowered the reviewing committee itself to change the student’s grade if it found that

the faculty member had violated the above standards. Academic Senate Divisional Regulation

A-3o6(0), adopted January 17, 1977.

For a suggestion that disciplinary decisions may require different models of due process than

placement decisions, see Mills v. District of Columbia Bd. of Educ., 348 F. Supp. 866, 88o-83

(D.D.C. 1972).

104. 419 U.S. at 594 (Powell, J., dissenting).

105· ld.

106. ld. at 595·


structure and limits. 107 Without these controls, anarchy reigns, and

anarchy is incompatible with education. This theory’s apparent assumption

that rights imply anarchy is hardly the premise upon which our

general political system stands. An advocate of this argument, however,

might offer it not as a general truth about the world but as a special truth

about the young: They cannot function in the intermediate zone between

absolutism and anarchy. If thrust into it, they will react like Pavlov’s

dogs responding to inconsistent signals. This view is simply another,

more specific, form of argument for differential treatment based on incompetence.

108 Rules, however, can be defined with sufficient precision

so that neither students nor teachers are enveloped by an asphyxiating

cloud of doubt. Even very young children can and should learn the

importance of both rights and obligations. A genuine commitment to

both will produce inevitable tensions. But educators should avoid the

parody of education that results when they seek to exorcise the unavoidable

tensions between rights and obligations by insisting on the obligations

and denying the rights.



A. The Utility of Equal Protection Analysis

Because traditional attitudes toward the education of the young have

inhibited the development of appropriate constitutional protections, the

question arises as to the most appropriate doctrinal route for overcoming

the inertia. Several possibilities exist. This Essay argues that the equal

protection clause of the 14th amendment supplies a particularly useful


An alternative to that route would be to rely simply and directly on

the various constitutional provisions found in the Bill of Rights and

applied to the states through the 14th amendment. A court simply would

examine the constitutional right at stake; if it found the right to apply to

young people in the school context, it would so apply of its own force

without need for additional constitutional support from the equal protection

clause. Thus, if it is wrong to deny students freedom of speech or due

process of law, it is wrong not, for example, because others receive those

protections, but simply because students do not. Rights of a constitutional

107. “One who does not comprehend the meaning and necessity of discipline is handicapped

not merely in his education but throughout his subsequent life.” I d. at 593·

108. See text accompanying notes 53-67 supra.


order require no “ad hoc determination”109 of societal importance. Their

significance is given, and equal protection analysis may be superfluous

when constitutional rights operate of their own force. It is worth noting

that the Court in Goss 110 required no equal protection underpinnings to

conclude that students were entitled to due process of law; nor were they

required in Tinker 111 to conclude that students were entitled to first

amendment rights. The primary constitutional rights involved each

proved sufficient for the purpose.

Nonetheless, even assuming that equal protection analysis is logically

superfluous, it could serve an invaluable psychological purpose when

students are the claimants. Students’ constitutional claims are often inadequate

to overcome the reflexive suppositions that children are different

and somehow beyond the pale of constitutional protections. Thus, they

often find themselves denied prot~ctions not because of an indifference to

liberty in general, but because of an indifference to their claim to equality

in particular. This phenomenon is revealed nowhere better than inJustice

Black’s attitude in the first amendment area. His general commitment to

109. San Antonio Ind. School Dist. v. Rodriguez, 411 U.S. I, 32 (I973>· Justice Powell

made this comment in reference to Shapiro v. Thompson, 394 U,S. 6I8 (I969) (striking down a

state’s I-year residency requirement as a precondition co receiving AFDC benefits on the ground

that it violated the right to engage in interstate travel), as part of his attempt to demonstrate that

the interests previously protected by strict scrutiny were “explicitly or implicitly” recognized in

the Constitution. He quoted Justice Stewart’s opinion in Shapiro to similar effect: “The Court

today does not pick out particular human activities, characterize them as ‘fundamental,’ and give

them added protection . . .. To the contrary, the Court simply recognizes, as it must, an

established constitutional right, and gives to that right no less protection than the Constitution

itself demands.” 4I I U.S. at 31, quoting Shapiro v. Thompson, 394 U.S. 6I8, 634 (I969). As

Justice Marshall pointed our, this analysis renders the “concept of fundamental interests in the

context of equal protection analysis superfluous, for the substantive constitutional right itself

requires that this Court strictly scrutinize any asserted state interest for restricting or denying

access to any particular guaranteed right,” 4I r U.S. at IOO n.59 (Marshall, J., dissenting), a

proposition that Justice Stewart apparently endorsed: “[A] law that provided that newspapers

could be published only by people who had resided in the Stare for five years could be superficially

viewed as invidiously discriminating against an identifiable class in violation of the Equal Protection

Clause. But more basically, such a law would be invalid simply because it abridged the

freedom of the press.” ld. at 61. (Stewart, J., concurring).

110. Goss v. Lopez, 419 U.S. 565 (I975>·

111. Tinker v. Des Moines Ind. Community School Dist., 393 U.S. 503 (I969). However,

Justice Forras’ opinion does make passing reference to the fact that the school authorities had

permitted other students to wear Iron Crosses. ld. at 510. But compare Police Dep’t v. Mosley,

408 U.S. 92 ( 197 2), in which the Court employed equal protection grounds to declare a Chicago

ordinance unconstitutional because it permitted labor picketing next to schools while denying the

right to the public generally, and Williams v. Rhodes, 393 U.S. 23 (I968). See also Karst,

Eq11alit)’ a.s a Cmtr’til Pri11dple i11 the First Amendment, 43 U. CHI. L. REV. 20 (I975), bringing the

equal protection anJ first amendment analysis together with the observation that the principle of

equal lil1erry “is nor just a peripheral support for the freedom of expression, but rather part of the

‘central mean in~ of the First Amendment.’ ” I d. at 21.


first amendment values requires no demonstration, of course. Yet in his

Tinker dissent, 112 he saw no irony whatever in reading school children out

of that provision’s ambit. For him, students were a class apart, selfevidently

unentitled to those rights that in other contexts he regarded as

nothing less than “absolute.” Proponents of the in loco parentis tradition

also tend to take this difference for granted. They see the young as a

“natural class” obtained by “carving the universe at a natural joint. ” 113 An

equal protection approach that stressed the suspiciousness of any differential

treatment of students could provide an important counterweight to

this dangerously reflexive in loco parentis reaction against student rights.

Thus, although equal protection analysis in itself cannot change ingrained

patterns of thought, it can assist the process by focusing attention

on the question: “Why should students not be accorded the same constitutional

rights as others?”-rather than the reverse. 114 This change in

emphasis would not preclude appropriate adjustments to account for the

routine institutional needs of schools, such as are made in the college

context. But any departure from that test, justified on grounds of the

students’ age or the nature of public education, should undergo skeptical

assessment. The virtue of this approach is that it focuses attention precisely

where it is needed: on the legitimacy of different treatment, that is, of

diminishing students’ constitutional rights simply because they are young

and because they are being educated. This refocusing of the problem

contrasts with the traditional approach that avoids the issue of justification

by simply assuming that students are outside the scope of constitutional


B. Equal Protection: Setting a Level of Scrutiny

I. Suspect classification.

The question remains as to precisely how strict a scrutiny to invoke

when the state proposes to accord students an attenuated level of constitutional

protection. There are, of course, competing formulae. It is familiar

doctrine that the Supreme Court nominally employs two equal protection

standards. Classifications that burden “suspect” groups or involve funda-

112. Tinker v. Des Moines Ind. Community School Dist., 393 U.S. 503, 515, 522-24

( 1 969) (Black, J., dissenting).

113. Tussman&tenBroek,TheEqua/ProtectionoftheLaws, 37CALIF. L. REv. 341,346

(1949). However, the authors regard the concept of “natural class” as invalid.

1 14. Justice Harlan opted for a “constitutional rule” that would “cast upon those complaining

[of speech restrictions on students] the burden of showing that a particular school measure was

motivated by other than legitimate school concerns …… Tinker v. Des Moines Ind. Community

School Dist., 393 U.S. 503, 526 (1969) (Harlan, J., dissenting). Absent a showing of

bad faith nothing would suffice to overturn decisions of school authorities.


mental interests trigger a strict scrutiny and are struck down unless the

state can show a compelling interest that requires the discriminatory

scheme. On the other hand, a classification that involves neither suspect

groups nor fundamental interests is permissible so long as it bears a mere

rational relationship to a legitimate state interest. 115 Under this 2-tier

scheme, student classification, when offered to justify diminished constitutional

rights, plausibly might be viewed as a “suspect” classification;

any differential treatment would be required to pass the highest level of

scrutiny. 116

No doubt this proposition would encounter strenuous objections. It

might be argued, for example, that classifications based on student status

differ radically from racial discrimination, the archetypical suspect classification.

11 7 Students are not treated discriminatorily because of a historical,

pervasive belief in their inherent inferiority or a desire to exploit them,

but because of a desire to confer special benefits: the opportunity to learn

coupled with postponement of adult responsibilities and drudgeries. To

view such manifestations of civility as the occasion for suspicion, some

would say, is closer to paranoia than to sound intuition. 118

Nonetheless, a good case could be made for strict review because of the

importance of the rights involved and because these rights have been

denied students lacking the political power to rectify their condition.

Deeply held cultural attitudes of questionable contemporary merit have

115. SeeSanAntoniolnd. School Disc. v. Rodriguez, 4II U.S. I, I6(I973). Thescopeof

“fundamental rights” and “suspect classes” for equal protection purposes is, however, not large

and does nor appear to be expanding. Though the 2-riered analysis called for by the new equal

protection remains the articulated description of the equal protection test, Justice Marshall’s

conclusion that the Court “has apparently lost interest in recognizing further ‘fundamental’ rights

and ‘suspect’ classes” is difficult to dispute. Massachusetts Bd. of Retirement v. Murgia, 427

U.S. 307, 318-19 ( I976) (Marshall, J., dissenting) (holding age not a suspect classification in the

context of a state statute requiring police officers co retire at age 50). See Gunther, The Supreme

Co11rt. 1971 Ter111-Forward: In Search of Evolving Doctrine 011 a Changing Court: A Model for a Newer

Eq11al Protectio11, 86 HARV. L. REV. 1 (I972).

I I 6. As already noted, the suspect classification support for this proposition is technically

superfluous once constitutional rights are involved. See text accompanying notes 109-14 supra.

I 17. See, e.g., San Antonio Ind. School Disc. v. Rodriguez, 4I I U.S. 1, 61 (1973)

(Stewart, J., concurring).

I I 8. In this respect the psychology of discrimination against children may be seen as more

like that of sex discrimination than of racial discrimination. Thus, our male-dominated society

often thought the charges of sexism perverse because, at least in the case of middle and upper class

women, the distinctive way of treating women “relieved them of the responsibility to work,”

“placed them on a pedestal,” “surrounded them with privilege,” “treated them with chivalry,”

accorded them, that is, a wholly “enviable” existence in the home.

Of course, our society is presently in the throes of reevaluating the virtues of these arrangements.

As with Ibsen’s Nora, many have come to view the life of supposed “privilege” as more

like putting women in a “cage” than on a “pedestal.” Sail’er Inn, Inc. v. Kirby, 5 Cal. 3d 1, 20,

485 P.2d 529, 54I, 95 Cal. Rptr. 329, 341 (1971).


permitted students to be stereotyped and relegated to a position of constitutional

inferiority. The traditional classification is “likely to be used

without pausing to consider its justification,”119 and “habit rather than

analysis” 120 is likely to be its principal prop. Put another way, students

possess many of the characteristics of a “discrete and insular” minority. 121

They are a class saddled with disabilities; they have suffered a history of

purposeful unequal treatment based on tenacious assumptions of incapacity;

as long as they are minors, they possess an unalterable trait over which

they have no control and for which they are not responsible. 122 Realistically,

they cannot resort to the political process to seek redress of their


One possible response to this argument in favor of suspectness is that

student status, unlike race, for example, is not an unalterable trait. By

ineluctable natural process, young people will move toward adulthood and

political power. Neither, however, is student status an ephemeral or an

immediately and voluntarily changeable condition. Pervasive discrimination

based on student status is sufficiently durable and the consequences

sufficiently powerful to warrant strict judicial review. 123 For example, not

only may unfair disciplinary actions affect a student’s education and

employment opportunities long past high school, but they permanently

I I9. Mathews v. Lucas, 96 S. Cc. 2755, 2769 (1976) (Stevens, J., dissencing).

120. Id.

121. United States v. Carolene Prod. Co., 304 U.S. 144, I52-53 n.4 (I938). But see

Oregon v. Mitchell, 400 U.S. I I2, 295 n. I4 (1970) (Stewart, J., dissenting): “The establishment

of an age qualification {to vote] is not state action aimed at any discrete and insular


122. In San Antonio Ind. School Dist. v. Rodriguez, 411 U.S. I, (I973), a suspect class

was said co be one “saddled with . . . disabilities, or subjected to such a history of purposeful

unequal treatment, or relegated to such a position of political powerlessness as to command

extraordinary protection from the majoritarian political process.” ld. at 28. See Karst, lnvidiorts

Discrimination: justice Douglas and the Ret11rn of the “Natural-Law-Due-Process Formula,” I 6

U.C.L.A. L. REV. 7I6, 724-25 (1969); Developments in the Law-Equal Protection, 82 HARV. L.

REv. 1065, I 125-27 (I969).

123. Even granting this proposition, one might argue that the political interests of young

people are vicariously attended to by adults who once were children and therefore possessed of a

capacity to empathize with them. Tribe, supra note 59, at 9, contests this assumption. This

might be said to contrast with the case of white people, for example, who are less able to

empathize with Blacks whose life experiences they never have shared and never cottld share. But

while members of the older generation indisputably were once young, they do not face the

remotest prospects of again suffering the disabilities of the young (or, regrettably, regaining their

benefits). Judging from the record, their powers of empathy have not guaranteed sufficient respect

for the rights of the young.

In any event the alterability of a trait has not always proved decisive to the determination of a

suspect class. The fact that an individual could move toward citizenship and political power from

a condition of alienage has not deterred the Court from insisting that “{a]liens as a class are a

prime example of a ‘discrete and insular’ minority” and according alienage the status of a suspect

classification. Graham v. Richardson, 403 U.S. 365, 371-72 (197 I).

66o STANFORD LAW REVIEW [Vol. 29: 627

and fundamentally may affect the student’s attitude toward self, school and

society. 124

To acknowledge students as a suspect class undoubtedly would spell an

end to the tradition of extreme deference to the decisions of school officials

affecting students’ constitutional rights. The most telling argument

against application of strict scrutiny in the student setting is that the test,

although “strict in theory,” is “fatal in fact,” 125 since under this test, the

ability of educators to justify any denial of constitutional rights accorded

adults would be questionable. It may prove too Draconian a standard as a

matter of sound principle, not to mention as a working principle likely to

be adopted by courts.

2. Semisuspect classification.

The stark results of strict scrutiny make appealing an intermediate level

of scrutiny. ·126 Justice Marshall, for example, has identified the fatal nature

of the strict scrutiny test as the reason for the Court’s reluctance to expand

the number of suspect classifications127 and has argued that the Court

should not be a prisoner of its own model: “It cannot be gainsaid that there

remain rights, not now classified as ‘fundamental’ that remain vital to the

flourishing of a free society, and classes, not now classified as ‘suspect,’ that

are unfairly burdened by invidious discrimination unrelated to the individual

worth of their members.” 128

As an alternative to strict scrutiny or no scrutiny at all, Justice Marshall

proposed a sliding scale in which the Court would take into account the

nature of the classification, the importance of the interest or right denied

and the importance of the state interest offered in justification for the

classification. 129 Applied to students, this analysis would require a level of

scrutiny sufficiently flexible to take account of routine educational needs of

I24. Tribe, s11pra note 59, at 32-35.

I 25. Gunther, s11pra note I I 5, at 8.

I 26. A number of commentators have insisted that the Court actually has applied various

intermediate flexible levels of review and have proposed various models for a “newer” equal

protection analysis. See, e.g. , Gunther, supra note I I 5, at I 7-20; Nowak, Realigning the StandardJ

of Review Under the Eqrtal Protection Guarantee-Prohibited, Neutral and Permissive Classifications, 62

GEO. L.J. I07 I ( I974). Similarly, see Justice Marshall’s argument for a sliding-scale approach

coward judicial review in his dissents in Massachusetts Bd. of Retirement v. Murgia, 427 U.S.

307, 317 (I976) and San Antonio Ind. School Disc. v. Rodriguez, 4I I U.S. I, 98 (1973). The

idea of viewing childhood as a semisuspect classification has been suggested by ochers. E.g.,

Tribe, srtpra note 59·

I27. Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 319 (I976) (Marshall, J.,


I 28. I d. at 320.

I 29. I d. at 3 I 8. See also San Antonio Ind. School Disc. v. Rodriguez, 411 U.S. I, 98

(I 97 3) (Marshall, ). , dissenting).

April 1977] AFTER GOSS V. LOPEZ 661

the school, the extent to which restrictions of the right in question aided or

hindered the achievement of educational ends, the general level of competence

of the particular age group involved, the extent to which competence

was or was not a valid precondition to exercise of the right, the nature and

seriousness of the harm that could be expected from the students’ exercise

of the disputed right, and the importance of the right itself. But even

under this intermediate form of review, one associated with a view of

student status as semisuspect, the presumptive stance achieved would be

to clothe students in constitutional protections available to those in the

nonschool world.

In sum, whether one adopts a “flexible” intermediate standard or an

,.inflexible” strict standard is not nearly as important as whether the

analysis begins with an appreciation of the defects in the traditional view of

students and of the importance of extending to them the constitutional

protections of our society.

To some, questioning the system of paternalism toward the young by

requiring either level of review borders on the outrageous. Yet it is also

true that, until recently, questioning the ideology of a male power structure

would have seemed equally bizarre. 130 Now, of course, the system of

traditional beliefs about the appropriate status of women is crumbling. An

analogous skepticism toward conventional wisdom about the young and

their education is likewise warranted.

Finally, judges often find themselves “deferring” to school policies

with which they agree. 131 ,.Deference,” to be sure, need not be a cynical

disguise for effectuating the judge’s own policy preferences. But most

judges, like other adults, were nurtured on a tradition hostile to student

rights. Realism suggests that “deference” often will signify a judge’s

passive agreement with a result acceptable to the judge as parent or as a

I 30. James Mill, for example, was not alone in suggesting that adult males were “the

natural representatives of the whole population,” and that women and children could be denied

the franchise “without inconvenience,” because their interests coincided with those of the husband

or father. Mill, An E.ssay on Government, in THE ENGLISH PHILOSOPHERS FROM BACON TO

MILL 876 (E. Burtt ed. I939). Mill develops his point as follows: “[I]f the community itself were

the choosing [voting] body, the interest of the community and that of che choosing body would

be the same. The question is, whether that of any portion of the community, if erected into the

choosing body, would remain the same?

“One thing is pretty clear, that all those individuals, whose interests are indisputably

included in chose of other individuals, may be struck off without inconvenience. In this light may

be viewed all children, up to a certain age, whose interests are involved in those of their parents.

In this light, also, women may be regarded, the interest of almost all of whom is involved either

in that of their parents or in that of their husbands.” I d. See also note I I 8 supra.

I 3 I. For example, Justice Black in his Tinker dissent urges deference to the educational

expertise of school administrators, and then warmly defends the particular educational values to

which he wished the majority co defer. Tinker v. Des Moines Ind. Community School Dist., 393

U.S. 503, 526 (I969) (Black,]., dissenting).


former student under the traditional regime, rather than genuine deference

to school authorities based on neutral reasons unrelated to the judge’s

personal preferences. Thus, judicial “deference” toward school authorities

itself warrants a degree of suspicion.


Constitutional rights express fundamental postulates about the respect

due to human beings and about indispensable limitations on government

in a democratic society. These commitments should furnish the basis for

adjudicating the rights of minors even as they do the rights of adults. If the

case can be made for circumscribing particular rights of the young because

they are young, or because educational needs require it, let the case be

made and not simply proclaimed or assumed.

Treating student status as a suspect or at least a semisuspect classification

provides a framework for insisting upon such justification. It offers

a way to focus attention on genuine institutional or educational needs and

to reject “undifferentiated fear or apprehension”132 as a predicate for

restricting rights. It abandons a tradition that permits the automatic,

uncritical reliance on student or youth status as a trump card to justify the

denial of rights. In so doing, it would bring public school students into the

constitutional mainstream, according them the protections to which they

are entitled.

132./d. at508.