Students' rights: A haze of precedents

Daniel Nadler

Under the U.S. Constitution, how may a district investigate
a student thought to have stolen a school computer, smoked cigarettes in a
school’s back stairwell, or bullied a youngster online? It depends on the
location of the district. In Richmond,
, and other parts of the Fourth Circuit, district personnel may opt to
seize and search the student’s cell phone, accessing potentially incriminating
text messages. In Boulder, CO,
and other communities within the Tenth Circuit, inquisitive staffers may do the
same thing—but only with student or parent permission.

Which method is just? Constitutionally sound? Is a school
like a parent, with legal protections to read its children’s text messages? Or
is it instead like a neighbor, who would face charges for opening the mail of
the person next door without consent, or for looking through his email?

These are but a few of the thousands of questions federal
courts must answer in the fog that is the field of students' rights litigation.

Students’ rights law—with its strong implications for school
safety—is perhaps the most visible element of American educational
jurisprudence. And, thanks to the Supreme Court’s vague and sometimes
contradictory decisions on this front, it’s also the most contentious. The High
Court first weighed in on students’ rights in 1969, declaring in their Tinker ruling that “it can hardly be
argued that either students or teachers shed their constitutional rights to
freedom of speech or expression at the schoolhouse gate.” Since then,
educators—and state and local officials—have wrestled with what exactly the
Court had in mind.

Now, more than forty years later, district administrators
and state policymakers still find little guidance in Supreme Court opinions.
Instead of offering concrete precedent, Tinker
and other High Court opinions have left ample room for lower courts to diverge
in their interpretations—and, as is the case in Boulder and Richmond, these
lower courts have embraced this opportunity wholeheartedly.

To understand the
variation of appellate court decisions on this issue, I assembled the first
comprehensive dataset of federal cases dealing with students’ rights in public
schools (from 1969 to 2009), with an eye to answer one key question: whether
judges’ interpretations and holdings are significantly influenced by the
federal circuits (with their contrasting political make-up) to which they are

It turns out that there is enormous cross-circuit divergence
in students’ rights case outcomes—more, even, than noted legal scholar Cass
Sunstein found in the touchy areas of race and sex discrimination.

Over this forty-year period, the rate of U.S. appellate-court
case outcomes that were pro-student (when a student plaintiff was granted some
relief by the court) varied by as much as 56 percent, depending on which
circuit tried the case (see Figures 1 and 2). Overall, the national average of
pro-student case outcomes was roughly 42 percent. Students in the First
and Fourth Circuits saw favorable court-case outcomes 75 and 67 percent of the
time, respectively; those in the Eleventh and Sixth Circuits, just 30 and 19
percent of the time, respectively. At least four of the eleven circuits produce
case outcomes that vary from the national average by more than a full standard

Figure 1: Summary of
Student Rights Case Outcomes by Circuit

From another
perspective, these variances in circuit court rulings represent a dramatic
regional bias associated with the judicial outcomes. In the (more liberal)
Northeast, Mid-Atlantic, and West Coast, courts favor students in a majority of
cases: In the (more conservative) southern and central states, students can
expect a favorable outcome less than a third of the time. This means that landmark
students-rights decisions at the national level, like Tinker, play out very differently across America’s regions. In the
nation’s four biggest states—California, Florida, New York, and Texas—roughly
40 percent of the variance in all case outcomes of student rights claims can be
accounted for by geographic situation alone.

Figure 2: Regional
Variation in Student Rights Rulings, 1969-2009

These variant Appellate Court interpretations set a moving
bar for educators across the country. A ruling from the California-based Ninth
Circuit may not see the same conclusion in the Georgia-based Eleventh Circuit.
Without clarity, the scope of school-leader authority lingers in a legal mist.
Our national judicial system is grounded in the supposition that court rulings
objectively determine statute. These findings hammer at the bedrock of that

Daniel Nadler is a
graduate student studying the political economy of the United States at the
Harvard University Department of Government.

This piece is an
adaptation of an academic-length paper entitled
Regional Heterogeneity in U.S. Courts of Appeals Case
Outcomes Over Time: A Review of Existing Studies & New Data from the Field
of Student Rights and supported by the
Thomas B. Fordham Institute as part of our Fordham Scholars program