The Expansion of Constitutional Rights to Public School Pupils Through the Due Process Clause of the Fourteenth Amendment
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University of Massachusetts Amherst ScholarWorks@UMass Amherst Doctoral Dissertations 1896 - February 2014 1-1-1972 The expansion of constitutional rights to public school pupils through the due process clause of the fourteenth amendment. Hubert E. Saunders University of Massachusetts Amherst Follow this and additional works at: https://scholarworks.umass.edu/dissertations_1 Recommended Citation Saunders, Hubert E., "The expansion of constitutional rights to public school pupils through the due process clause of the fourteenth amendment." (1972). Doctoral Dissertations 1896 - February 2014. 2624. https://scholarworks.umass.edu/dissertations_1/2624 This Open Access Dissertation is brought to you for free and open access by ScholarWorks@UMass Amherst. It has been accepted for inclusion in Doctoral Dissertations 1896 - February 2014 by an authorized administrator of ScholarWorks@UMass Amherst. For more information, please contact [email protected]. ) THE EXPANSION OF CONSTITUTIONAL RIGHTS TO PUBLIC SCHOOL PUPILS THROUGH THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT A dissertation Presented By Hubert E. Saunders Submitted to the Graduate School of the University of Massachusetts in partial fulfillment of the requirements for the degree of DOCTOR OF EDUCATION 197 2 ,11mlTdi. _ _ (month) (year Major Subject Education TEE EXPANSION OF CONSTITUTIONAL RIGHTS TO PUBLIC SCHOOL PUPILS THROUGH THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT A Dissertation by Hubert E. Saunders Approved as to style and content by: Committee Member Director of Graduate Studies Dean School of Education University of Massachusetts Amherst , Massachusetts August, 1972 ) ( c Hubert E. Saunders II 1972 All Rights Reserved Digitized by the Internet Archive in 2016 https://archive.org/details/expansionofconstOOsaun This work is dedicated to Gail Suzy Stephie Don ACKNOWLEDGMENTS I would like to thank the members of my dissertation committee. Dr. William E. Griffiths, Dr. Roger Peck, Dr. A. Donn Kesselheim, and Dr. Mark Rossman for their help and cooperation. A special thanks should go to Dr. William Griffiths, the chairman of my committee, for his time, pat- ience, and intellectual guidance. Finally, I would like to thank my wife, Gail and my three children, Suzanne, Stephanie, and Don who put up with me during the whole thing. o © TABLE OF CONTENTS CHAPTER I Page INTRODUCTION Need for the Study 0 ... 0 4 Purpose of the Study.... 5 The Approach oooo.o«. 00 6 Delimitations o .... <>... 7 Related Literature 8 CHAPTER II THE EXTENs ION OF CONSTITUTIONAL RIGHTS THROUGH THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMEND- MENT Intro ciu ctxon...oo..o...oo......o.o...o..oo. 12 Historical Background of the Fourteenth Amendment.ooo«..o......®.oo....o.o..«®&oooo 13 The Growth of First Amendment Rights 0 » <> o 0 » o 2 3 The Warren Court o ®o.oo....o..o...o.ooo.ooo. 31 The Expansion of Constitutional Rights i n the 1960*s..o.»o.o.oo.o.®o..o.o.....oooo 3^r Summary o».o.«»»o.».o«.««oo.o«»ooo.o.»oooooo 44 CHAPTER III THE EVOLUTION OF STUDENT CONSTITUTIONAL RIGHTS Societal Pressures and the Public Schools Today ...... O ..«««o...»«.»»»oo.oo...ooooo»o 45 Past Judicial Attitudes Toward Student Suits . * 51 5b Landmark Student Suits 192 3-1961 ..... 0 ... <= o 3 Landmark Student Suits 1961-1969 0 0 .... * e . 6 o Summary «•••.. ••.••••o*o»oo.o.«»»«»oooo»«o.o f1 ^ . Page CHAPTER IV FREE EXPRESSION AS A STUDENT FIRST AMENDMENT RIGHT Syrabo He Spee ch ..o.o..o*o.«..*........« 0 .*oo 71 Limits on Free Expression 0 o. 0 74 Burnside and Blackwell . 0 e . o . o » s . « o . » . o . 78 Tinker o ooo***oooo*oooo*ooooooo*o*o 81 Recent Decisions Upholding Student Acts of Free Expression 88 Recent Decisions Limiting Student Acts of Free Expression 96 Free Expression in a Racially Tense School Situation o . « o 104 Summary. 0 ©•••*••••• •©•••©•••••••c>o«« 108 CHAPTER V PUBLIC SCHOOL PUPILS AND FREEDOM OF THE PRESS Legal Guidelines for the Press in General... 110 Student Suits Alleging Violation of Free Press 116 Summary 132 CHAPTER VI REGULATION OF OFF-CAMPUS SECRET SOCIETIES Introduction 133 School Board Regulations Prohibiting Secret Societies and Recent Court De- cisions Granting Students First Amend- ment Rights c*»o.«.«o«**»oo»o#*oo»»»o*»««o«o* 13 **1 142 Svirrirn y o«*o»o*o«««*****o • ••••••••©•••••CO . .• Page CHAPTER VII FOURTH AMENDMENT: SEARCHES AND SEIZURES Introduction . © © . © • . 144 Student Suits Raising the Fourth Amendment.. 146 Summ ar y.o.9..«o.*...o...«.o..o.o...o......oo 158 CHAPTER VIII PROCEDURAL DUE PROCESS Introdu cti on . o . o ................. o . o . o .. o o o o ISO Procedural Due Process and College Students. 163 The Right to Counsel 0 .. © .. ©..© 166 Notice and Hearing 169 Con f ron cation ...©....© 175 The Length of Suspensions and Procedural Due Process ©.... ©©. 176 Summary ..o..a.o.«o«...o». ...©..«««««. »»..o.. 132 CHAPTER IX NINTH, AND STUDENT RIGHTS UNDER THE EIGHTH , TENTH AMENDMENTS Cruel and Unusual Punishment... 184 Rights Reserved to the People 0 • © © . o © ... © • o 187 CHAPTER X "LONG-HAIR" AND PUBLIC SCHOOL PUPILS Introduction©. ......... o ....... o ... o . o .... o 190 Appellate Court Decisions Favoring Students « © ......... o . o ..*• o . © .«•••••••••••• 193 Appellate Court Decisions Favoring S choo 1 Boards. »•••©•©••• 1-^^ 199 Summary. ..©©...© 4. m + 4 + 00***o*e***oo**»*»**oo Page CHAPTER XI CONCLUSION Impact on Students. 0 201 Impact on School Officials 0 203 The Need for Further Research 206 BIBLIOGRAPHY Books 208 Pamphlets « «. 208 Periodicals.. 209 Table of Cases 212 CHAPTER I INTRODUCTION The idea that members of a society should be treated justly and fairly under the law is a fundamental tenant of legal philosophy. In order to guarantee this idea of fair- ness, the concept of due process of law has evolved. Due process of law can be found in the Fifth Amendment of the United States Constitution as the framers of this great docu- ment saw the need to restrain the Federal Government from de- priving its citizens of life, liberty, or property, without due process of law. However, the use of the due process clause of the Fourteenth Amendment as a device to guarantee other constitutional rights is of fairly recent vintage. The importance of the due process clause today cannot be overstated. It has been used by courts as the vehicle to extend constitutional protection to rich and poor, black and white, and young and old alike. Especially important in the eyes of the highest court has been the constitutional protec- tion of "fundamental freedoms", such as free speech, process, religion, and assembly. Through a general expansion of the due process clause of the Fourteenth Amendment, the Supreme Court of the United States has ruled that most aspects of the to Bill of Rights in the Federal Constitution are applicable impingement. all citizens against state as well as federal coa " These far-reaching decisions mean that the rundamentai . , ^ 2 cepts of fairness found in the Bill of Rights are sacrosanct and beyond any government's denial, as a matter of due pro- cess of law. Bernard Schwartz says of the Fourteenth Amendment, "In the century since it became a part of the fundamental law, the Amendment has become, practically speaking, perhaps our most important constitutional provision - not even second in significance to the original basic document itself. On the subject of the due process clause, Justice Felix Frankfurter, one of the Supreme Court's most accomplished scholars asserted, "Due process is, perhaps the least frozen concept of our law - the least confined to history and the most absorptive of powerful standards of a progressive so- ciety.'^ He also wrote that the, "Due process clause of the Fifth and particularly of the Fourteenth Amendment comes as close to providing a mechanism for dealing with the versatil- ity of circumstance as is to be found in the Constitution The mechanism for dealing with the versatility of cir- cumstance, mentioned by Justice Frankfurter has given the Con- stitution the flexibility necessary for changing times. Jus- Operation: A 1. Bernard Schwartz, "The Amendment in Historical Overview," The 1 4 th Amendment Centennial Vol ume Edited by Bernard Schwartz (New York: New York Press, 1970), p. 29 U.S. 12, 20 (1956) 2* Griffin v. Illinois . 351 Frankfurter Scholar on 3. Helen Shirlev Thomas, Felix , p.150. the Bench (Baltimore: John Hopkins Press, I960;, 3 tice Brandeis recognized this problem fifty years ago when he wrote, "Our Constitution is not a straightjacket. It is a living organism. As such it is capable of growth, of expan- sion and of adaptation to new conditions. Growth implies changes, political, economic, and social. Growth which is significant manifests itself rather in intellectual and moral conceptions than in material things." 4 This concept of "growth" of our Constitution suggested by Justice Brandeis has been accomplished in the area of individual rights to a considerable extent through a broad interpretation of the due process clause of the Fourteenth Amendment. Whether it is a judicial philosophy of constitutional "growth" or the use of due process as a vehicle for dealing with versatility of circumstance, constitutional rights have been extended to a greater number of society's members in re- cent years. Within this broad legal framework which has seen the blanket of constitutional protection reaching many hereto- fore ignored, profound changes have resulted in the legal status of school students. Once the Supreme Court declared in the 1967 Gault case that, "Neither the Fourteenth Amendment nor the Bill of Rights is for adults alone," 5 new relation- ships between the student and the institutions of society in- evitably developed. Children could, after 1967, no longer be U.S. 433 (1922) 4 „ United States v. Moreland . 258 U.S. 1 (1967) 5. !n Re Gault , 287 4 treated as non-citizens by the state.