Education and the Constitutional Rights of Children, in Thinking, Childhood and Education 6-16 (edited by Matthew Lipman, Dubuque, IA: Kendall/Hunt, 1993) (OCR)

Formatted PDF: 1993 – Leon Letwin – Education and the Constitutional Rights of Children, in Thinking, Childhood and Education 6-16 (edited by Matthew Lipman, Dubuque, IA Kendall:Hunt, 1993)

Education and the Constitutional Rights of Children, in Thinking, Childhood and Education 6-16 (edited by Matthew Lipman, Dubuque, IA:  Kendall/Hunt, 1993).

Page 11

Leon Letwin is Professor of

Law in the School of Law,

University of California

at Los Angeles.

Education and the Constitutional Rightof Children

As is well known, Supreme Court decisions over the past

decade have significantly expanded the stope of constitutional

protection available to public school students.

Children today enjoy the protections of the first amendment

in school by virtue of the Court’s decision in Tinker

v. Des Moines Independent Community School Distrlct1

and of the due process clause when school administrators

seek to discipline them, by virtue of the decision in Qoss

v. Lopez.2 These cases inevitably provoke the question:

“How far will – and should – this development go?Or

to put the matter somewhat more theoretically: To what

extent does the ideal of constitutional equality properly

extend to schoolchildren and entitle them the same range

of protections enjoyed by adults?

At the risk of oversimplification, one can today identify at

least two characteristically different responses to this

question. One builds upon the historic attitude that school·

children, both because they are young and because they

a re in school, are self-evidently “different” and unentitled

to such rights.

Those attuned to this view will regret the Supreme Court’s

expansion of students’ rights and they will be unsym·

pathetic to any further such expansions. They will, to one

degree or another, find themselves in sympathy with

traditional thought about the power of school officials

over their young charges as embodied in the doctrine of

In loco parentis.

by Leon Letwln

The essence of this doctrine may be captured without extended

or technical inquiry. Readers who matriculated

before the mid-1960’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 “rights” was so contrary to

prevailing assumptions about the natural order of things

as never to require conscious rejection.

The second approach – one which I regard as far preferable

– is sympathetic to the extension of constitutional

protections to students in the myriad contexts in which

they daily confront· state power as exercised by school

authorities, including the right to free speech, the right to

due process of law at the hands of school authorities, the

right to be safeguarded from cruel and unusual punishment

in the school setting,3 the right to immunity from

unreasonable searches or seizures on school premises,

and the privilege against selfincrimination in disciplin

ary proceedings.

This latter view does not depend on any conception that

children are merely adults whose growth has through

some hormonal quirk been physically stunted, such as

the children portrayed in the paintings of Brueghel.

Rather, it depends on the belief that for all their

differences, their development as informed, selfPage

12 Thinking, The ·Journal of Philosophy for Children, Volume 1, Number 1.



Wooster was brought before the board to “explain his motive.”

For the benefit of those insensitive to nuance, he ex·

plained that his rhetoric was “intended as a slam” at the

board. The board concurred and demanded an apology.

None was forthcoming and Wooster was expelled. The trial

court affirmed the board action and Wooster appealed.

Three things impress us more af?d more: one, the early The appeals court found in favor of the school board saying:

importance of parents in the academic socialization proh h I F th dd II lculated to enh

· f · r t’ marking policies (TJ e w o e tenor o e a ress was we ca . . .

cess; two, t .e var~.ety o Imp tea tons gender … in the minds of the students a feeling of disrespect For

have for children s expectation_s and school perfor- the defendants, and a secret if not an open hostility to their con·

– – – — mance; ·and three,-thecomplexttyofthe-wocld _when__ —trolofthestudentbody–andmanagementofschoolaffairs.Such ___ _

– – —vTewicT1ro iiithechild‘seyes.—- — –·- ——·—–·– — beirig ilienafuralterior andtenaencyof the plaintiffs-addr~ss. — –

-Doris R. Entwisle and Leslie Alec Hayduc, Too Great his conduct in making the same cannot be classed as. anyth~ng

E t t . Th A ademic Outlook of Young Children but a species of insubordination to constituted authonty, wh1ch

xpec a Ions. e c kl U 1 it p 1978) 186 required correction .. . in order that the discipline of the school

(Baltimore: Johns Hop ns n vers y ress, p. . might be maintained . . . .

confident, critical participants in a democratic society

necessitates much the same respect for their right to

share in the core values of the Bill of Rights as is

displayed toward adults.

This contrast in perspective can be largely explained in

terms of the conflicting assumptions concerning children,

education and the relationship between the two, which

underlie the contending viewpoints. One school of thought

tends toward the view that where children are involved,

educational values and constitutional values are in implacable

conflict; the other inclines toward the view that

the very ends of education demand respect for the rights

of those being educated.

It is these conflicting attitudes about children and educa

·tion, particularly as manifested in some court decisions,

that I wish to explore in this paper.

To better understand the In loco parentis ideology, or at

least one variant of it, it is useful to start with the littleknown

case of Wooster v. Sunderland.4 That case, decided

some 60 years ago, is notable for capturing so neatly one

set of mind toward children and toward education. The

case arose when Earl Wooster, a Fresno high school student,

addressed his fellow students during a school assembly.

He opened his remarks with the complaint that

various schoolrooms were fire hazards and that the exits

were inadequate. In somewhat “caustic” terms he denounced

the school board for compelling students to

assemble in such rooms. Shifting to another complaint,

he denounced the school board for prohibiting a student

event known as a “donkey fight.” The activity was not

described but must have amounted to a mildly attenuated

form of mayhem. He then wove these seemingly disparate

complaints into a common theme of school board irrationality.

It was unfair to prohibit donkey fights in which “boys

took their own chances of being injured, and force them to

take chances of being injured in a firetrap.” Finally, in the

court’s words, he “closed and climaxed his incendiary address

by offering a resolution … requesting the [school

board) … to ‘no longer talk about bonds, but to do all in its

power to put such a bond issue before the people of the


It occurred to no one – school authorities, the court, or

even to Wooster himself – that his speech should enjoy

constitutional protection; his appeal was therefore cast in

narrowly technical terms. The predominant attitudes toward

education and the young made it incongruous, even

bizarre, to suppose that Wooster might possess “rights”

enforceable against school officials, even assuming such

speech would have enjoyed protection in the society at

large. The prevailing view of education saw its central

purpose as the transmission of those facts and skills students

would someday need to play a useful role in society;

the cultivation of critical, independent thought was not a

proper schoolhouse activity. I

Given the conception of education as a oneway conduit

from teacher to pupil – as product rather than process –

it was logical to view student criticism of authority as sand

in the machinery of education, undermining discipline and

distracting students from the main task of absorbing


Moreover, the dominant view of life and educa·ion regarded

unquestioning obedience to official dictates, or as the

Wooster court described it with such unselfconscious

candor, the “subordinationby students to “constituted

authority,” as practical training of a high order. Adult life,

after all, often required the unquestioning, even amiable

acceptance of things as they were, however irrational they

might have appeared. (I encountered this attitude a number

of years ago during a parentstudent discussion in a Los

Angeles junior high school concerning the validity of the

hair-length regulations then in force. One parent conceded

he could find no justification for a rule regulating the hair

length of male students only. He concluded however that

not all things in society were rational. Therefore the rule

should be retained so that students would learn to accept

such irrational rules.)

Quite apart from such functional justifications, restrictions

on student speech were warranted simply because

“disrespect” and “insubordination” were immoral. Their

suppression required no further justification.

Given the prevailing sentiments it is not surprising that the

school authorities did not consider less repressive re·

sponses to Wooster’s criticisms. They might, for example,

have simply laughed off the incident because Wooster’!

Education and the Constitutional Rights of Children- Leon Letwln Page 13

Tinker v. Des Moines Independent Community School

WHAT CLAIMS CAN CHILDREN MAKE? District. This case, decided in 1969, marked a major jud

The justification of children’s rights under Rawls’s icial reassessment of the Wooster attitude toward minors,

theory has one major emphasis: children have a right to schools, and freedom of speech. Students had worn black

make just claims, and adults must be responsive to armbands to school in symbolic protest against the war in

these claims. This conception of the just society, if Vietnam. School officials promptly banned the conduct and

·widely accepted, would lead to a change in attitude on

the part of adults. In according rights to children, the suspended those who disobeyed the ban. The case compeltheory

makes adults more accountable to children. They led the Supreme Court to confront squarely the issue

can no longer assume it is only at their pleasure that whether speech on school premises was entitled to first

children are permitted to make claims and exercise free- –· amendmen_Lp.rQlee.tion~lt _concluded .thaLstudentsdidnot _

.~JfOrns.“A fiotmnlfl]JJ§. n.e Vl:con~Miiiii .O.f..c.Jf/Ji1Le.ii_s_r/9fits~~ leavetheirconstitutional rl,.,htsar·thn-tn-–··–t ·-·-·

would In itself be an tmportant reform. ~ e sc 00 ouse ga e,


from VIctor l. Worsfold, “A Philosophical Justification

for Children’s Rights,” In The Rights of Children

(Cambridge: Harvard Educational Review, 1974) p. 44.

comments had not seriously interfered with school life. Or

they might have engaged him in dialogue about his complaints,

because the issues he raised were more important

than the perhaps intemperate way in which he raised them.

Or they might have welcomed his forthright criticism of

constituted authority as an excellent example of citizen

participation in the political process. Or, finally, they might

have regarded his speech as offering a unique educational

opportJ.Jnity to explore, in microcosm, effective techniques

for social change in a democratic society. To state these alternatives

is to recognize that they were unthinkable under

the thenprevailing conceptions of relationships between

young people and “constituted authority.”

Now one might be tempted to treat this case as a historic

relic, interesting to one with an antiquarian bent but of no

contemporary practical significance. To be sure, few courts

would decide the case the same way today. But the attitudes

underpinning that decision have yet to be interred. One suspects

that the nerve fibers of many a school administrator

and judge, too, would flutter sympathetically to the law-andorder

rhythms of the Wooster decision.

It is instructive also that even some judges who are deeply

committed to constitutional rights in general are prepared

to read students out of the ambit of their protection because

of a view they hold about the “special nature” of school

children. Justice Hugo Black exemplified this view. His

fierce dedication, as a member of the Supreme Court, to the

first amendment in general needs no testimonial for those

with a passing knowledge of his record. Yet in Tinker, he opposed

the extension offirst amendment rights to students in

a bilious dissent, saying that schoolchildren have “not yet

reached the point of experience and wisdom which {enable!

them to teach all of their elders . . . taxpayers send children

to school … to learn, not teach.” Furthermore, to acknowledge

that schoolchildren have a right of speech would be to

subject “all the public schools in the country to the whims

and caprices of their loudest-mouthed, but maybe not their

brightest, students.”

With this background as a frame of reference, one can appreciate

the change of view represented by several of the

Supreme Court decisions of the last decade, to which we

now turn.

IIJn our system, undifferentiated fear or apprehension of disturbance

Is not enough to overcome the right to freedom of expression.

Any departure from absolute regimentation may cause

trouble. Any variation from the majoritys opinion may Inspire

fear. Any word spoken in class, in the lunchroom, or on the

campus, that deviates from the views of another person may start

an argument or cause a disturbance. But our Constitution says

we must take this risk . . . and our history says that it is this sort

of hazardous freedom – this kind of openness – that is the basis

of our national strength and of the Independence and vigor of

Americans who grow up and live in this relatively permissive,

often disputatious, society.

One striking facet of the case is how extraordinarily modest

were the rights claimed by the students. The student expression

could not plausibly be viewed as “incendiary,” “disrespectful,”

or “insubordinate.” The wearing of armbands

“caused discussion outside of the classrooms, but no interference

with work and no disorder.” The fact that it took a

landmark Supreme Court decision to establish even the

modest rights at issue underscores the historic absence of

student rights.

Qoss v. Lopez. This case arose out of a period of widespread

student unrest during which several schools in Columbus,

Ohio, were affected by racial confrontation, demonstrations

and problems of various sorts. Over 75 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 contest

their suspensions.

Some of the students challenged the law that allowed their

suspension by school authorities for up to 1 0 days without

notice or hearing. The lower court found that these procedures

violated the students’ rights to due process of law,

reasoning that suspension for even 10 days or less was unconstitutional

where no hearing was provided.

On appeal the Supreme Court affirmed by a vote of five to

four. The threshold issue was the very applicability of the

due process clause to school disciplinary procedures. The

Court found that it did apply, that public school students

were not somehow outside the amendment’s guarantees.

·What then were the requirements of due process? The Court

laid down a number of what it characterized as “rudimentary”

requirements. These requirements reduced themselves

to “some kind of notice” and “some kind of hearing.” As

will be seen, the Court’s characterization of its requirements

involved no false modesty: rudimentary they were indeed.

For to illustrate its meaning, the Court gave apparent en

Page 14 Thinking, The Journal of Philosophy for Children, Volume 1, Number 1.

• • . the proposition that children are incompetent

requires substantial modification in order

to approximate the real world.”

dorsement to an informal scheme in effect in one school. 1• Incompetence and paternalism.

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

that which we now require.” A teacher observing misconduct

would complete 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; if it conflicted with the teacher’s written description,

the principal 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.”5

From one perspective, the Court’s approval of this scheme

suggests that Goss is much ado about very little. Given the

miniscule oppqrtunities it provides for a student’s defense,

Goss is remarkable not for its innovation but for the fact

that it was so long in coming, so vigorously contested, so

narrowly affirmed, and so parsimonious in the rights it recognized

upon arrival. That such attenuated protections

could be considered progress provides yet another sad commentary

upon historic school practices. Nevertheless, Goss

did directly cha1lenge the time-honored exclusion of students

from constitutional protections. It affirmed that Tinker

was neither a constitutional relic nor a special rule limited

to first amendment cases.

I turn now to some of the arguments of the dissenters, i.e.,

those members of the court who opposed the extension of

due process protections to students. Though these views

clearly did not persuade the majority, they were neither deci~

ively nor explicitly rejected by it. The dissenters’ views,

both those expressed and those implicit, represent a resid·

ual legacy of Wooster v. Sunderland; they stand as obstacles

to the further recognition of the rights of students .

The notion that children are incompetent is one of the pit~

Iars of the classic In loco parentis view of the public schools.

This view rests on a syllogism of beguiling simplicity: Only

those who possess certain capabilities are entitled to share

in generally held rights; schoolchildren lack some of those

caps:sbilities. The conclusion is that children may be denied

rights take for granted by adults.

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

as it first appears; 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 th1t

children are “different,” it has spoken over time with a :emarkable

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.6 Even given a culture that takes extended

ado)escence for granted, its proper duration is

subject to reasonable dispute and to revision.

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, to be sure, at

times relevant and even dec_isive for the determinat:‘- 11 of

rights; but 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.

Rights of the first category ought to be limited to those who

have the capacity of avoiding serious harm to themselves

or others as they go about exercising their choices. Thus,

we have the strongest case fnr ~”‘!nying rights to children


Education and the Constitutional Rights of Children- Leon Letwln Page 15

on the ground of their incapacity when the injury we are to act on that speech. And the fact that choices may be

concerned with is great, when the likelihood of its occur- foreclosed to children until they reach a certain age hardly

renee is high, when the opportunity for the child’s learn- precludes their right to think, speak, debate, and dissent

ing process or for adult intervention to moderate the about those choices.

danger once the child has acted is low, and when the injury, Furthermore, important choices are inescapable even for

if it occurs, is irreversible. Driving cars and using guns are the young. How, for example, should children think about

examples: A momentary indiscretion may unleash terrible their peers of other races and sexes? How should they adconsequences

that can neither be checked nor undone. The just to the competitive values that permeate our society?

child’s immaturity certainly argues against free choice. How should they evaluate the network of ideas and values

_____ BuLwith respect-to other rights, -‘~competency” is notthethey are-exposed to in sehool? How sheuldthey thinkabout

—- —appropnate tescl·navein niiricftnoseri”gntsaimednoCso auU1ority·-.=5 leglffmacy ana1fslimits?A0ws noiildmuch

at maximizing free choice but at civilizing the pro- they go about selecting their future education and careers?

cesses and instruments of state compulsion. Schools are, or should be, a training ground for informed,

Due process of Jaw and the right to be free of cruel and un- intelligent resolution of ~uch issues, whether the decisions

usual punishment are archtypical examples. They do not are to be made ~ow or m the fu_ture. Students, therefore,

deny the legitimacy of governmental interference with a s~ould be ~erm1tted access to _Ideas and argu~ents that

citizen’s free choice. Rather, they regulate the terms of that s_t1r. the soc1_e~y a~ la~ge, e~e~ 1f the~ are p~rm1tted. only

interference. Procedural due process does not immunize hm1ted part1c1pat1on m dec1s1o~makm~. Th1s educat1onal

persons against deprivations of life, liberty or property; it process cannot be deferred until the ch1ld reaches age 18.

simply insists on a degree of fairness and humanity. Sim- 2. The “unity of Interest” between school

ilarly, the eighth amendment ban on cruel and unusual authorities and students.

punishment does not prevent punishment; it regulates the

ways in which government visits is unpleasantness upon

people. To that degr_ee, 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.

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 free choice by

that portion of the population regarded as competent to

exercise choice. But that argument, too, breaks down. For

in our society the right to speak is far broader than the right

The paternalism argument rests not only on assumptions

of student incompetence but on a companion view that

school authorities can and do protect student interests.

Why then do they need legal protections? Justice Powell,

speaking for the Goss minority, described the relation between

the interests of students and officials as “lu)nlike the

divergent and even sharp conflict of interests usually

present where due process rights are asserted.” In the

school context, he found those interests “essentially congruent.”

Accordingly, 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 dedication” of the school staff safeguard

student interests.

“Students should be permitted access to ideas

and arguments that stir the society at large,

even if they are permitted only limited

participation in decision-making.”

Page 16 Thinking, The Journal of Philosophy for Children, Volume 1, Number 1.

”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 asP-ects Qf hunytn ~~g~i~y _________ _ —————–·— —– aridarenecessary rfmifat1oiisupon ______________ _

government in a democratic society.”

The Goss majority, in upholding the students’ claim to due

process rights, presented one response to this view. Even

assuming the coincidence of interest postulated by the

minority, officials may make mistakes. No one, said the

Court, believes that the school “disciplinary process [is]

a totally accurate, unerring process, never mistaken and

never unfair.” The majority here stands on firm ground.

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” is partial at best. School teachers,

principals, school superintendents, and school boards have

a variety of interests- personal, bureaucratic and political

– that 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 best interest.

This divergence of interest is aggravated, or 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 disciplin·

arian’s stance as “disinterested” or would see the interests

of the two as “congruent.” Why should they?

3. The young have not earned certain rights.

Arguably, certain rights are denied the young not only be·

cause they lack rational capacity, but also because the

rights have not been earned. For example, this justifica·

tion might be offered as part pf the reason for denying the

young the right to vote. 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-rep·

resentation argument.

But the young are no 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 do not support themselves, earn enough to pay taxes

or fight in wars. Finally, the arguments are fatally similar

to the long-discredited conception 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 ~ecause they preserve essential

aspects of human dignity and are necessary limitations

upon government in a democratic society.

4. 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.”

But the students in Goss claimed no immunity from the

“rules.” 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 characterized as one of obedience to rules. Obedience to

administrative fiat would be closer to the mark.

The minority, nonetheless, felt that this nonreciprocal ap·

preach to rule compliance contributed to the moral devel·

opment 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 ap·

proprlate sanctions are not applied or If procedures for their ap·

plication are so formalized as to Invite a challenge to the teach·

er’s authority …

Education and the Constitutional Rights of Children- Leon Letwln Page 17

But what is to happen when, as in Goss, the student doubts 5. Student rights as Incompatible with school

that “censure” is merited? The minority, with startling disciplinary requirements.

simplicity, eliminated the issue, in the quotation above, by Uncomplaining obedience may commend itself not as an

assuming the very question to be proved: that censure was ideal but rather as a concession to the harsh realities of the

merited. The dissenters hoped thereby to teach the young school world in which teachers are increasingly beset by

the meaning of “the social compact of respect for the rights disrespect, disobedience and violence. In this view, for exof

others.” But these methods teach only that those wield- ample, due process has no place in the “real” world if

ing governmental powers are not to be challenged and that educators are to survive, much less to educate. Call1ng the

“respect for the rights of others” is a mildly disguised code students’ attention to “rights” is then_l!~~~;:~y i l’}g_!!_ red ___ _

.-:.-·–:. – pfirase fc)r _a untCiireCficinal-:.’~resped~’::Joradul[authorityno:::nag::to~persons :WhoaboveaTfei se needmorediscipline;-

matter how arbitrary it may be. not more license.

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: that

even the young and powerless enjoy rights, and that legal

constraints bind the governors as well as the governed.

From this perspective; one might regard a student’s desire

to rebel. against “arbitrary” authority as an impulse that

society should prize.

An alternative argument for the virtues of unquestioning

obedienc~ to authority might be couched in practical rather

than moral terms. Students need to learn this lesson a~

part of their socialization to adult life. To learn to accept

authority, sometimes even irrational authority, is to pre·

pare for the real world. But if this accurately describes the

real world, educators might well seek to encourage reflec·

tion 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 educa·

tion promotes “realistic accommodation” of this sort, it

contributes to the reality just described and abandons more

noble ideals of public education: the development of a

citizenry capable of understanding, questioning and eva I·

uating society and one that confronts authority in a selfconfident,

thoughtful and critical way.

Now one must concede that school officials may confront

disciplinary emergencies requiring temporary restrictions

of rights. But excessive deference to officials on this ~core

is itself dangerous. However sincere, officials may tend to

see “exigencies” when the disinterested observer will detect

only an inappropriate response to admittedly difficult


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.”7 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 authority and diverts attention form 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.

Schools adopting this route are likely to end up with the

worst of both worlds: the authoritarian environment without

the hoped-for peace.

“In an effective educational setting ‘most of the obje.ctionable

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’.”

Page 18 Thinking, The Journal of Philosophy for Children, Volume 1, Number 1.

Peaceful or not, the educational prospects of schools run

on the model of an authoritari~n regime are dubious. Such

schools are primarily custpdial institutions whose principal

assignment is to keep ttie young off the streets, out of

_trouble and off the labor market. The resulting atmosphere

is likely to prove incompatible with either learning or

teaching . ..

Nothing said thus far is intended to dispute the fact that

schools,like-mosLothe[JDstituti~ms_, __ need certain conven· . ·

l ions of behavior on the- partof theirparticipant~:j-;;order~ ==–==-=~=~=-==-:::====~=—:-..:::::::.::.-::-.::::-:=-:-~=–=–=-~=-=====-=—-==

to accomplish their mission. Conventional education presupposes

the orderly consideration of subject matter under

the guidance of a knowledgeable instructor. This view of

education dictates that a classroom not be treated as an

unstructured public forum in which all persons are free to

say or do what they will, when they will, on whatever subject

strikes them. The crucial point, however, is that neither

age nor special theories about educating the young are essential

underpinnings for such rules of decorum and order.

The need would exist more or less equally in a university

or an institution of adult education, though all the particip·

ants were over 18. Nor is this even a unique truth about

schools. Similar needs exist for courts, hospitals, libraries,

business offices, and theaters- in short, for most institutions.

Emphasis on age and educational goals· adds little

that is legitimately relevant to the argument for maintaining

institutional order. The danger is that such talk will

provide a psychologically potent bit of rhetoric for justifying

a host of extraordinary restrictions because of a pre·

sumed but unwarranted view that children and the needs

of schools are “different.So far as routine institutional

requirements are concerned, a college or university would

furnish a presumptively appropriate model for drawing the

proper balance between constitutional rights and lnstitu·

tional needs, unencumbered by reflexive assumptions that

either age or educational objectives defeat constitutional

claims. The argument I advance for students’ constitutional

rights, then, is quite compatible with a recognition of the

need for routine institutional order.

6. Student complaints as educational diversion.

a. The .. floodgates” theory. If rights are granted to students,

it is said, school officials will be compelled to spend

much of their time c0mmuting to and from the local courthouse

responding to the complaints of their litigious

charges. Administrators regularly make decisions of sericus

consequence to students – in grading, in imposing

curricular requirements, in “tracking” them, and the like –

to which “due process” claims as plausibly might attach

a~ in the case of the short-term suspension. 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? The minority feared that unless

Goss could be rigidly contained, courts would displace

school officials as the authority in 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. [ducation still wou!ri

Education, coercion and children’s rights

Concerning the extension of the law of equal freedom to

children, we must therefore say, that equity commands It,

and that expediency recommends it. We find the rights of

children to be deducible from the same axiom and by the

same argument as the rights of adults; whilst dental of them

Involves us In perplexities out of which there seems to be no

escape. The association between filial subservience and barbarism

– the evident kinship of filial subservience to social

and martial slavery – and the fact that filial subservience

declines with the advance of civilization, suggest that such

subservience Is bad. The viciousness of a coercive treatment

of children Is further proved by Its utter failure to accomplish

the chief end of moral education – the culture of

the sympathies; by Its tendency to excite feelings of an·

tagonlsm and hate; and by the check which It necessarily

puts upon the development of the all-Important faculty of

self-control. Whilst, on the other hand, a non-coercive treat·

ment being favourable to, and almost necessitating, cons·

tant appeals to the higher feelings, must, by exercising

.those feelings, Improve the character; and must, at the same

time, accustom the child to that condition of freedom In

which Its after-life Is to be passed. It turns out, too, that the

very need for a moral training of children Is but temporary

and that, consequently, a true theory of the filial i’elatlonshlp

must not presuppose like the command-and obedience

theory that such a need Is permanent. Lastly, we find reason

to attribute whatever of Incompatibility there may be bet·

ween these conclusions and our dally experience, not to any

error In them, but to the necessary Incongruity between the

perfect law and an Imperfect humanity.

– Herbert Spencer, Soc/a/ Statics (New York: D. Appleton

and Company, 1873), p. 213.

“To what extent does the ideal of

constitutional equality properly exten

to schoolchildren and entitle them th

same range of protections enjoyed

by adults?”

Education and the Constitutional Rights of Children- Leon Letwln Page 19

occur, but partly in the setting of the judicial system. By limitations on government in a democratic society. These

observing the operations of such a system, assuming it commitments should furnish the basis for thinking about

were sensitive to the constitutional issues involved, stud- the rights of minors even as they do the rights of adults.

ents and administrators alike might receive a powerful If the case can be made for circumscribing particular rights

lesson in the rule of law. of the young because they are young, or because education-

Moreover, the predicted volume of complaints itself may al needs require it, let the case be made and not simply

be ex~gge~ated. For a number of reasons coll~g~ students proclaimed or assumed. The tradition that permits the

do not appear to have rushed to court to take advantage of automatic, uncri~ical_ reliance o~ stud~nt or ~outh status as

the due process system that dawned on the American a trump c~rd t~_J~~t~_!Y_~he_ ~~!’·~~ ()!_~•~~~~!~~~ly~~~~.!:ves_ _ _

·-:-:-_~ ::_l:rniV_erstty _rTiore::tRan_:ii ~CiecadE!- ago .. Ma nyc61Tege-=5tudent5 _!_9_-_l?~~abandon~J,i. ____ —————- ———–·- ···——

who face school discipline are perfectly happy to be treated It is, moreover, misguided to see constitutional values as

paternalistically. When they are charged with traditional of- fundamentally at war with educational values. The capacity

fenses, such as plagiarism, cheating on an examination, or and willingness of the young to think independently, to

shoplifting from the university bookstore, what they want is question and to challenge constituted authorities and essympathy,

understanding and a second chance rather that tablished ways, are not superfluous luxuries. The develop”

rights,” due process and litigation. The exceptions have ment of such talents ought to be central objectives of

come mainly from students disciplined for politically re- educational policy.

lated activity, but even these students have infrequently

sought judicial review.

Rather than fearing a tidal wave of litigation, the opposite

should be feared: Students acculturated to the Qoss 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 f!Ondisciplinary issues,

this discretion should not preclude challenges to

the fairness of the mechanism or the rationality of the


b: The harm of “constitutionallzing” teacher-student relationships.

In opposing due process rights for students,

Justice Powell hinted at greater dangers than merely increased

litigiousness. He described the normal teacherpupil

relationship as “rarely adversarial,” suggesting that

the “constitutionalization” of that relationship not only

will fail to secure due process to the student but will irreparably

damage the relationship as well. Under this

theory, the very adversary atmosphere generated 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 structure and limits. Otherwise anarchy reigns, and

anarchy is incompatible with education.

But rules 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, of course, produce occasional

tensions. But educators should surely 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.


Constitutional rights express fundamental postulates about

the respect due to human beings and about Indispensable

“It is … misguid.ed to

see constitutional values

as fundamentally at war

with educational values.”


This article largely based on articles published elsewhere with

extensive citations to legal authorities: After Goss v. Lopez:

Student Status as Suspect Classification?, 29 Stan. L. Rev. 627

(1977); Regulation of Underground Newspapers on Public

School Campuses In California, 22 U.C.L.A. L. Rev. 141 (1974).

1.393 u.s. 503(1969).

2. 419 U.S. 565 (1975). This case and Tinker are each discussed


3. Though this Is a view thus far rejected by the Supreme Court.

Consult Ingraham v. Wright, 97 S. Ct. 1401 (1977).

4. 27 Cal. App. 51, 148 P.959 (1st Dis!. 1915).

5. Emphasis added.

6. Skolnick, The Limits of Childhood: Conceptions of Child Development

and Social Context, 39 Law & Contemp. Prob. 38,

61-63 (1975).

7. Ladd, Allegedly Disruptive Student Behavior and the Legal

Authority of School Officials, 19 J. Pub. L. 209, 236 (1970).

8. In Bd. of Curators v. Horowitz, 98 S. Ct. 948 (1978), the Supreme

Court declined to decide whether a medical school student dismissed

on academic, rather than disciplinary, grounds was entitled

to due process protections. The court held, however, that

assuming the student was so entitled, the procedures employed

had satisfied due process requirements because they permitted

her the Informal opportunity to discuss the matter with the

administration and to make her side of the Issue known, even

though she was not granted a formal hearing by the medical


One response to “Education and the Constitutional Rights of Children, in Thinking, Childhood and Education 6-16 (edited by Matthew Lipman, Dubuque, IA: Kendall/Hunt, 1993) (OCR)

  1. Hello Michael, I read the article in the Los Angeles Times about the loss you and your family had of your father. I want to send my condolences to you, your brothers, and your extended family. I worked for your father between my sophomore and junior years in college (1968). I and a Brentwood housewife (Elizabeth Byers) were the staff – public relations, admissions, curriculum prep, etc. (and I was the social director) for the first Council on Legal Education/Legal Education Opportunity Program. I remember your Dad and his vision after all these years.The experience was positive and I learned a lot. (I do have to say, however, I decided at that time law school was not for me, so what did I do? medical school). Take care. Shanah Tovah

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