Florida State University Law Review

                                  Summer, 1993

                            21 Fla. St. U.L. Rev. 35

LENGTH: 23948 words  

IS ANYONE LISTENING TO OUR STUDENTS? A PLEA FOR RESPECT AND 
INCLUSION

Stuart L. Leviton*  

   - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - 
   * I thank Greg Lensing for providing many useful comments on 
prior drafts of this Article and for challenging my ideas on just 
about everything; Professor Kevin Brown for shedding light on 
many ideas new to me, and for his patience, comments, and 
graciousness; and Patrick Frey for persistently challenging the 
thesis of this Article and forcing me to refine, re-articulate, 
and defend my position.
 
 - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
 
 - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   * Associate, Latham and Watkins, Los Angeles, CA (beginning 
Fall 1993). B.S., The Wharton School, University of Pennsylvania, 
1987; J.D., The University of Texas School of Law, 1993.
 
 - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

TEXT: [*36]    

   I. Introduction  

   TODAY'S youth bring many problems with them when they attend 
public school: sex, drugs, violence, and despair. In response to 
these problems, school administrators have increasingly 
restricted students' rights in the name of the greater good. The 
United States Supreme Court, initially a stalwart defender of 
students' rights, has submitted to this trend. At the heart of 
this Article is an exploration of the rhetoric used by the Court 
to justify its acquiescence to and facilitation of a trend away 
from a viewpoint hailing the United States Constitution as a 
baseline of protected students' rights, and toward a deferential 
approach to school administration that requires school 
administrators' n1 actions to be merely reasonable, regardless of 
the student right at issue.
 
 - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n1. The term "school administrator" is used broadly to include 
teachers, principals, and other school officials who interact 
with and supervise students.
 
 - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   Exploration of public high school students' rights n2 is 
hardly an original idea. However, this Article is different 
because it takes a broader look at the implications of the 
balancing test enunciated in New Jersey v. T.L.O., n3 a case that 
addressed, inter alia, the requisite level of suspicion needed to 
conduct a search in a public high school. While T.L.O. and its 
First Amendment cousins, Bethel School District No. 403 v. Fraser 
n4 (student speech) and Hazelwood School District v. Kuhlmeier n5 
(student press), give lip service to the notion of balancing the 
interests of the State and students in the context of the First 
and   [*37]   Fourth Amendments, they really enunciate a 
constitutional standard that requires an evaluation of a school 
administrator's actions only in light of a "reasonable educator" 
n6 standard. Today, if a school administrator concludes that a 
student or his or her belongings should be searched, or that a 
school newspaper should be censored, or that a student's speech 
should be silenced or sanctioned, the Court will defer to the 
administrator as long as a reasonable educator would search, 
censor, or silence that student.
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n2. This Article is limited to a discussion of students' 
rights in public secondary schools and does not include the 
rights of private secondary school students. This limitation is 
necessary because the Constitution is implicated in the school 
setting only because of State action. See New Jersey v. T.L.O., 
469 U.S. 325, 333-34 (1985) (holding that the Fourth Amendment's 
prohibition against unreasonable searches and seizures is 
applicable against public school officials through the Fourteenth 
Amendment).  

   n3. Id.  

   n4. 478 U.S. 675 (1986).  

   n5. 484 U.S. 260 (1988).  

   n6. Extrapolating from the Court's reasonableness standard in 
T.L.O., 469 U.S. at 341, a "reasonable educator" is defined as 
follows: A school administrator whose behavior, when evaluated 
under all of the circumstances, could be justified by a 
representative school administrator at its inception and is 
reasonable in scope in light of the particular facts and 
circumstances that warranted the behavior at the outset. For the 
T.L.O. standard, see infra text accompanying note 69.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   Parts II and III of this Article review the Court's de facto 
sanctioning of a broad range of discretionary searches, 
censorship, and silencing of students, and the lower courts' 
deference to school administrators to the detriment of students' 
rights. Some might argue that this is the correct path to take to 
address the reality presented in Part IV of this Article. n7 This 
reasoning is flawed for two reasons: (1) the lower courts and 
school administrators often disregard what the Court insists are 
students' constitutional rights in public schools; n8 and (2) the 
present approach is not working.
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n7. Cf. Howard L. Hurwitz, The Last Angry Principal 9 (1988):  

    Poverty workers and the New York Civil Liberties Union were 
united in protecting the right of the vilest miscreant to attend 
school. They invoked every conceivable procedure to harass me and 
other principals in the city. The easy out was to give in to 
them. And I must say sadly that it is the easy way out that has 
driven schools up and over the wall. I resisted them every inch 
of the way and was supported by the community.  

   n8. See infra text accompanying note 40 for one of the Court's 
pronouncements on students' constitutional rights.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   Part V proposes that the Court redefine the students' baseline 
of constitutional rights to require, at a minimum, a 
counterbalancing force to the reasonable educator in the form of 
a "reasonable student." n9 Under this new test, a true balancing 
of interests between the student and the school administrator 
would be required before a school administrator could restrict a 
student's rights. At the very least, this approach to balancing 
would require schools to respect the Court's dictate that public 
school students have constitutional rights. Furthermore, but 
perhaps secondarily for purposes of this Article, such a 
requirement has the potential to foster a dialogue between stu 
[*38]   dents and school administrators currently missing from 
our public schools. Perhaps by listening to our students, we can 
better understand what is truly troubling them, address these 
issues honestly, and work together for the mutual good.
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n9. Similar to that of a reasonable educator as defined supra 
note 6, a "reasonable student" is defined as follows: A public 
high school student whose behavior, when evaluated under all of 
the circumstances, could be justified by a representative public 
high school student at its inception and as actually carried out.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   II. The Legal Standard (as devised by the Court)  

   Some believe "the school-not the student-must prescribe the 
rules of conduct in an educational institution." n10 This view 
facilitates the reasonable educator standard n11 currently being 
employed by courts to evaluate students' rights. Courts justify 
reliance on the reasonable educator standard by pointing to the 
schools' responsibility to look after the welfare of their 
students. n12 This justification has not changed over the past 
fifty years, but what has changed is the rhetoric used by courts 
to support the increasing deference to school administrators, and 
the concomitant narrowing of students' rights. As a result of the 
lower courts' reliance on the reasonable educator standard, 
school administration has become increasingly dictatorial, or at 
a minimum, has begun exercising a student-exclusive form of 
student supervision and regulation.
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n10. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 692 
(1986) (Stevens, J., dissenting) (citing Arnold v. Carpenter, 459 
F.2d 939, 944 (7th Cir. 1972)); see also Board of Educ., Island 
Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 891 
(1982) (Burger, C.J., dissenting) ("We can all agree that as a 
matter of educational policy students should have wide access to 
information and ideas. But the people elect school boards, who in 
turn select administrators, who select the teachers, and these 
are the individuals best able to determine the substance of that 
policy." (emphasis added)).  

   n11. See supra note 6 for the definition of a reasonable 
educator.  

   n12. See infra text accompanying note 78 (discussing the need 
for protecting youth against violence, drugs, and other problems 
in schools).
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   This Part traces the development and downfall of students' 
First Amendment n13 and Fourth Amendment n14 rights in the public 
high schools by reviewing six United States Supreme Court cases: 
West Virginia State Board of Education v. Barnette, n15 Tinker v. 
Des Moines Independent Community School District, n16 Board of 
Education, Island Trees Union Free School District No. 26 v. 
Pico, n17 New Jersey v.   [*39]   T.L.O., n18 Bethel School 
District No. 403 v. Fraser, n19 and Hazelwood School District v. 
Kuhlmeier. n20 This part explores the development of students' 
constitutional rights, with the Court beginning on a highnote in 
Barnette, n21 establishing a constitutional baseline in Tinker, 
n22 carrying forward the dictate of Barnette in Pico, n23 
redefining the baseline in terms of a reasonableness test n24 in 
T.L.O., and balancing away students' rights in Fraser n25 and 
Kuhlmeier. n26 In reviewing this line of cases, it becomes 
evident that the Court has become increasingly willing to defer 
to school administrators on issues of student/administration 
interaction. This increasing deference becomes obvious upon 
observation of the current shift away from an implicit 
presumption favoring students' rights that was advocated in 
Barnette, Tinker, and Pico to one implicitly presuming deference 
to administrators in T.L.O., Fraser, and Kuhlmeier. The judicial 
branch's increasing passivity and implicit shift in presumptions 
will be the focus of this critique.
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n13. The First Amendment reads in part: "Congress shall make 
no law ... abridging the freedom of speech, or of the press...." 
U.S. Const. amend I. This Article looks specifically at students' 
rights with respect to speech and the press.  

   n14. The Fourth Amendment reads in part: "The right of the 
people to be secure in their persons, houses, papers, and 
effects, against unreasonable searches and seizures, shall not be 
violated...." U.S. Const. amend IV. The scope of searches and 
seizures is specifically addressed in this Article. See infra 
notes 121-29. 

   n15. 319 U.S. 624 (1943).  

   n16. 393 U.S. 503 (1969).  

   n17. 457 U.S. 853 (1982).  

   n18. 469 U.S. 325 (1985).  

   n19. 478 U.S. 675 (1986).  

   n20. 484 U.S. 260 (1988).  

   n21. See infra text accompanying notes 27-32.  

   n22. See infra text accompanying notes 33-42.  

   n23. See infra text accompanying notes 43-52.  

   n24. See infra text accompanying notes 62-74.  

   n25. See infra text accompanying notes 81-99.  

   n26. See infra text accompanying notes 100-08.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   A. Respect: Barnette, Tinker, and Pico  

   Barnette, Tinker, and Pico each have victorious students in 
common. Their theme is one of respect for students as individuals 
deserving constitutional protection regardless of the exigencies 
of the moment or of the surroundings. While each of these 
opinions contains caveats that limit students' rights, the 
underlying principle of each opinion is a warning to school 
administrators that limits exist on both the amount and the kind 
of regulations and restrictions that can be imposed on students.  

   It is a tribute to the Court that during a World War the Court 
would nevertheless strike down, in West Virginia State Board of 
Education v. Barnette, n27 parts of a state statute requiring 
students to salute the American flag. n28 The Court noted the 
importance of recognizing and protecting students' constitutional 
rights because the public schools "are educating the young for 
citizenship [and this] is reason   [*40]   for scrupulous 
protection of Constitutional freedoms of the individual, if we 
are not to strangle the free mind at its source and teach youth 
to discount important principles of our government as mere 
platitudes." n29 The Court reviewed the dangers of attempting to 
"coerce uniformity of sentiment in support of some end thought 
essential," n30 and concluded that "if there is any fixed star in 
our constitutional constellation, it is that no official ... can 
prescribe what shall be orthodox in politics, nationalism, 
religion, or other matters of opinion or force citizens to 
confess by word or act their faith therein." n31 This is one 
example of an implicit presumption of students' constitutional 
rights and the Court's resolve to preserve them.
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - 

   n27. 319 U.S. 624 (1943).  

   n28. Id. at 626 (citation omitted).  

   n29. Id. at 637. Note that Justice Jackson refers to students 
as the "young" or "youth," rather than children, as do later 
Courts. See, e.g., infra text accompanying note 70 (T.L.O.); 
infra text accompanying note 89 (Fraser). This reference is 
interpreted as affording more respect to students than the 
reference to children.  

   n30. Barnette, 319 U.S. at 640.  

   n31. Id. at 642 (footnote omitted).
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   The Court's defense of students' rights and its opposition to 
coercive tactics foster a view of the Constitution as a baseline, 
deviations below which we will not tolerate and above which we 
constantly strive. n32 While Barnette establishes the principle 
of a baseline, it does not clearly define it for all purposes. 
This uncertainty sparked a debate involving the following core 
issues which have been contested over the fifty years since 
Barnette: Exactly what does it mean to have a baseline, what is 
protected and what is not, and who decides? It is enough to 
mention at this point that Barnette indicated that students 
possess constitutional rights that must be respected by school 
administrators. Barnette also presented what is perhaps the most 
inclusive, respectful, and deferential view of students' rights-
according students powerful protection under the Constitution, 
and refusing to allow school administrators, even reasonable 
ones, to invade a sphere of protected students' rights.
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n32. Cf. Board of Educ., Island Trees Union Free Sch. Dist. 
No. 26 v. Pico, 457 U.S. 853, 864 (1982) ("We have necessarily 
recognized that the discretion of the States and local school 
boards in matters of education must be exercised in a manner that 
comports with the transcendent imperatives of the First 
Amendment.").
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   If Barnette established the principle of a constitutional 
baseline, Tinker n33 further refined it and provided an implicit 
balancing test for determining which rights are protected and 
which are not. In Tinker, several students attempted to express 
their disapproval of the Vietnam War by wearing black armbands to 
their respective schools. n34 The schools attempted to suppress 
the demonstrations by suspending the   [*41]   students involved. 
n35 The Court, in supporting the students' right to protest, held 
that proscription of speech and expression was justified only if 
a school could show that the proscribed speech or expression 
would "materially and substantially interfere with the 
requirements of appropriate discipline in the operation of the 
school," n36 or that the activity in question would "impinge upon 
the rights of other students." n37
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - 

   n33. 393 U.S. 503 (1969).  

   n34. Id. at 504.  

   n35. Id.  

   n36. Id. at 509 (quoting Burnside v. Byars, 363 F.2d 744, 749 
(5th Cir. 1966)).  

   n37. Id.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   Tinker's elaboration on and justification of protecting 
students' constitutional freedoms was powerful. n38 The Court 
began with a straightforward statement: "It can hardly be argued 
that either students or teachers shed their constitutional rights 
to freedom of speech or expression at the schoolhouse gate." n39 
The Court further noted:
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n38. See infra text accompanying notes 39-42. Some 
commentators acknowledge the long tradition of court-employed 
rhetoric, but discount its long-term significance, at least in 
the case of youth. See William S. Geimer, Juvenileness: A Single-
Edged Constitutional Sword, 22 Ga. L. Rev. 949, 949-50 (1988) 
("Supreme Court cases have been characterized by declarations, 
often accompanied by soaring rhetoric, that the constitutional 
guarantee at issue is indeed available to juveniles. However, the 
Court also employs what I call juvenileness' to reach the 
conclusion that the young person loses.") (footnote omitted). 
Geimer continues by stating:  

    Why the Court continues to insist that the Bill of Rights is 
facially applicable to juveniles is a mystery. The ingredients of 
juvenileness could easily form the rationale of a definitive 
opinion holding that, until adulthood, juveniles are committed to 
the sound discretion of adults, protected officially by the sound 
discretion of those bastions of orthodoxy, the state legislatures 
and the United States Congress. Such a pronouncement would have 
the virtue of candor, would enhance the integrity of 
constitutional discourse, and would more accurately reflect 
reality.  

   Id. at 953.  

   n39. Tinker, 393 U.S. at 506. This line has been adopted, in 
whole or in part, by each of the succeeding principle cases that 
are discussed in this Article. See New Jersey v. T.L.O., 469 U.S. 
325, 348 (1985) (Powell, J., concurring) ("In an often quoted 
statement, the Court said that students do not shed their 
constitutional rights ... at the schoolhouse gate."') (quoting 
Tinker, 393 U.S. at 506); Bethel Sch. Dist. No. 43 v. Fraser, 478 
U.S. 675, 680 (1986); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 
260, 266 (1988). Note that in Pico, Justice Brennan, citing 
Tinker, stated, " First Amendment rights, applied in light of the 
special characteristics of the school environment, are available 
to ... students."' Board of Educ., Island Trees Union Free Sch. 
Dist. No. 26 v. Pico, 457 U.S. 853, 866 (1982).
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

    In our system, state-operated schools may not be enclaves of 
totalitarianism. School officials do not possess absolute 
authority over their students. Students in school as well as out 
of school are "persons" under our Constitution. They are 
possessed of fundamental rights which the State must respect, 
just as they themselves must respect their obligations to the 
State. n40
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n40. Tinker, 393 U.S. at 511.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

    ....   [*42]    

    Under our Constitution, free speech is not a right that is 
given only to be so circumscribed that it exists in principle but 
not in fact. Freedom of expression would not truly exist if the 
right could be exercised only in an area that a benevolent 
government has provided as a safe haven for crackpots. n41
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n41. Id. at 513. A New Jersey Superior Court judge argued a 
similar point in T.L.O., in the context of the Fourth Amendment:  

    Although the trial judge in the opinion which has been 
adopted by my colleagues gave lip service to the Fourth 
Amendment, he applied the diminished standard of reasonableness 
in such a way as to render the protection of the Fourth Amendment 
virtually unavailable to juveniles in public schools who are 
suspected of violation of school regulations.  

   State ex rel. T.L.O., 448 A.2d 493, 494 (N.J. Super. Ct. App. 
Div. 1982) (Joelson, J.A.D., dissenting).
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   The Court concluded that "the vigilant protection of 
constitutional freedoms is nowhere more vital than in the 
community of American schools." n42
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n42. Tinker, 393 U.S. at 512 (quoting Keyishian v. Board of 
Regents, 385 U.S. 589, 603 (1967)). Justice Brennan preached the 
same message in T.L.O.; however, it fell on deaf ears:  

   Teachers, like all other government officials, must conform 
their conduct to the Fourth Amendment's protections of personal 
privacy and personal security.... This principle is of particular 
importance when applied to schoolteachers, for children learn as 
much by example as by exposition. It would be incongruous and 
futile to charge teachers with the task of embuing their students 
with an understanding of our system of constitutional democracy, 
while at the same time immunizing those same teachers from the 
need to respect constitutional protections. 

   T.L.O., 469 U.S. at 353-54 (Brennan, J., concurring in part 
and dissenting in part). Justice Stevens also echoed this 
sentiment in T.L.O.:  

   Schools are places where we inculcate the values essential to 
the meaningful exercise of rights and responsibilities by a self-
governing citizenry. If the Nation's students can be convicted 
through the use of arbitrary methods destructive of personal 
liberty, they cannot help but feel that they have been dealt with 
unfairly.  

   Id. at 373-74 (Stevens, J., concurring in part and dissenting 
in part) (footnotes omitted).
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   Tinker carried forward Barnette's emphasis on protecting 
students' rights, and enunciated a test by which these rights 
could be determined. While students were not given free reign in 
the public schools, they were included as an integral part of the 
school setting, and their views were to be tolerated, if not 
always respected. The Court understood that, as an educational 
institution, schools can teach as much by example as they can by 
what they expressly say. A school administrator's respect for 
students' rights demonstrates to students that it is important to 
respect the Constitution and its dictates, regardless of the 
circumstances of the moment.  

   Pico n43 is the last case discussed in which the students win. 
Pico involved a question of how much control a school board can 
exercise   [*43]   over the removal of books n44 from a public 
school's libraries. n45 The Court, after reviewing Barnette and 
Tinker, n46 stated that the rule which evolved from those cases 
is simply that "First Amendment rights, applied in light of the 
special characteristics of the school environment, are available 
to ... students." n47 The Court concluded that students' 
constitutional rights were "directly and sharply implicated by 
the removal of books from the shelves of a school library," n48 
that "the State may not, consistently with the spirit of the 
First Amendment, contract the spectrum of available knowledge," 
n49 and that students have a "right to receive information and 
ideas." n50
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n43. 457 U.S. 853 (1982).  

   n44. The following books were subject to the school board's 
removal: Eldridge Cleaver, Soul on Ice (1968); Alice Childress, A 
Hero Ain't Nothin' But a Sandwich (1973); Bernard Malamud, The 
Fixer (1966); Go Ask Alice, of anonymous authorship (1972); Kurt 
Vonnegut, Jr., Slaughterhouse Five (1969); The Best Short Stories 
by Negro Writers (Langston Hughes ed., 1967); Richard Wright, 
Black Boy (1945); Oliver LaFarge, Laughing Boy (1929); Desmond 
Morris, The Naked Ape (1967); Piri Thomas, Down These Mean 
Streets (1967); and A Reader for Writers (Jerome Archer ed., 
1962). Id. at 856-57 n.3.  

   n45. Id. at 863.  

   n46. Id. at 865-66.  

   n47. Id. at 866 (quoting Tinker v. Des Moines Ind. Sch. Dist., 
393 U.S. 503, 506 (1969)). 

   n48. Id.  

   n49. Id. (quoting Griswold v. Connecticut, 381 U.S. 479, 482 
(1965)).  

   n50. Id. at 867 (quoting Stanley v. Georgia, 394 U.S. 557, 564 
(1969)).
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   The Court's justification for this holding was that "just as 
access to ideas makes it possible for citizens generally to 
exercise their rights of free speech and press in a meaningful 
manner, such access prepares students for active and effective 
participation in the pluralistic, often contentious society in 
which they will soon be adult members." n51 The Court further 
noted that " students must always remain free to inquire, to 
study and to evaluate, to gain new maturity and understanding.' 
The school library is the principal locus of such freedom." n52
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n51. Id. at 868.  

   n52. Id. at 868-69 (citation omitted) (footnote omitted).
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   In summary, Barnette, Tinker, and Pico stand for these 
propositions: (1) public school students presumptively possess 
constitutional rights; (2) school administrators must respect 
these rights unless a student "materially and substantially" 
interferes with discipline generally n53 or "impinges upon the 
rights of other students"; n54 (3)school administrators cannot 
limit student activities for political reasons; and (4) there are 
valid educational purposes, such as setting the proper example, 
for respecting students' constitutional rights. These cases 
create a sphere of rights that must be respected. As an [*44]   
educational matter, they suggest that there is independent 
educational justification for respecting constitutional rights.
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n53. Tinker v. Des Moines Ind. Sch. Dist., 393 U.S. 503, 509 
(1969).  

   n54. Id.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   Chief Justice Burger's framing of the issue in his dissent in 
Pico can now be recognized as a harbinger of how the Court has 
evaluated school cases since Pico:  

   Stripped to its essentials, the issue comes down to two 
important propositions: first, whether local schools are to be 
administered by elected school boards, or by federal judges and 
teenage pupils; and second, whether the values of morality, good 
taste, and relevance to education are valid reasons for school 
board decisions.... n55
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n55. Pico, 457 U.S. at 885 (Burger, C.J., dissenting).
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   In T.L.O., n56 Fraser, n57 and Kuhlmeier, n58 the Court 
becomes increasingly deferential to school administrators. n59 
Students' enjoyment of a baseline of constitutional rights is 
diminished. The Court's deference to school administrators 
inevitably results in decisions that conclude-school wins, 
students lose. n60
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n56. New Jersey v. T.L.O., 469 U.S. 325 (1985).  

   n57. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986).  

   n58. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988).  

   n59. See Richard L. Roe, Valuing Student Speech: The Work of 
the Schools as Conceptual Development, 79 Cal. L. Rev. 1271, 1288 
(1991) ("The Kuhlmeier standard's protection of student speech is 
significantly more deferential to school authorities than the 
Tinker standard....").  

   n60. See id. at 1275 ("The practical effect of the judicial 
deference to school officials expressed in Kuhlmeier leaves 
little real protection for student expression not approved by 
school authorities." (footnote omitted)).
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   B. Disregard: T.L.O., Fraser, and Kuhlmeier  

   During the 1980s, except for Pico, the Court's attitude toward 
students' rights changed and the implicit presumption in favor of 
protecting students' rights shifted to one of deference to school 
administrators. Students started losing when "reasonableness" 
became part of the vernacular, which began with T.L.O. in the 
context of the Fourth Amendment, and continued in Fraser and 
Kuhlmeier in the context of the First Amendment. n61 Even more 
interesting than the   [*45]   reality of fewer students' rights 
is the justification the Court advances for allowing this new 
reality.
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n61. Some may argue that students should lose. Many see one 
function of schools as that of a value-inculcating institution. 
See, e.g., id. at 278 (Brennan, J., dissenting) ("The public 
school conveys to our young the information and the tools 
required not merely to survive in, but to contribute to, 
civilized society. It also inculcates in tomorrow's leaders the 
fundamental values necessary to the maintenance of a democratic 
political system...."') (citing Ambach v. Norwick, 441 U.S. 68, 
77 (1969)). As such, the school administrator should be allowed 
to shape and mold the minds of students. See, e.g., id. at 273 
("This standard [Kuhlmeier] is consistent with our oft-expressed 
view that the education of our Nation's youth is primarily the 
responsibility of parents, teachers, and state and local school 
officials, and not of federal judges."). While all of this might 
be true, it nevertheless ignores the dictate of Tinker, which re-
iterated the notion from Barnette that the Constitution 
represents a baseline for students' rights that must be 
respected. The present situation also ignores the test in T.L.O., 
which requires, at a minimum, a balancing of interests.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   New Jersey v. T.L.O. n62 introduced an explicit balancing test 
for evaluating students' constitutional rights. In T.L.O., an 
assistant vice principal searched a fourteen-year-old high school 
girl's purse because he suspected that she had been smoking in 
the rest room. n63 The search was initially intended to secure 
evidence that would show that T.L.O. had been smoking, and that 
she was lying to the assistant vice principal when she denied 
doing so. n64 The search went beyond this, however, and the 
assistant vice principal discovered cigarette rolling papers, a 
"small amount of marihuana, a pipe, a number of empty plastic 
bags, a substantial quantity of money in one-dollar bills, an 
index card that appeared to be a list of students who owed T.L.O. 
money, and two letters that implicated T.L.O. in marihuana 
dealing." n65 T.L.O. was suspended from school for three days for 
smoking in the rest room n66 and the state brought delinquency 
charges against her. n67
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n62. 469 U.S. 325 (1985).  

   n63. Id. at 328.  

   n64. Id.  

   n65. Id. The substantial amount of money was "$40.98 in single 
dollar bills and change." State ex rel. T.L.O., 428 A.2d 1327, 
1330 (N.J. Juv. & Domestic Rel. Ct. 1980). While one might 
concede that forty singles is unusual, it is this type of 
language, i.e., "substantial quantity of money," that lends 
credence to the notion that adults use hyberbole to support their 
points. See Geimer, supra note 38.  

   n66. T.L.O., 469 U.S. at 329 n.1.  

   n67. Id. at 329.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   The Court, unlike in previous cases in which it upheld 
students' constitutional rights, concluded that while schools 
must "accommodate the privacy interests of schoolchildren[, 
because of] ... the substantial need of teachers and 
administrators ... [to have the] freedom to maintain order in the 
schools [, the Constitution] does not require strict adherence to 
the requirement that searches be based on probable cause...." n68 
The Court enunciated a reasonableness test to define the new 
constitutional baseline:
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n68. Id. at 341.
 
 - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - 
-  

   The legality of a search of a student should depend simply on 
the reasonableness, under all the circumstances, of the search. 
Determining the reasonableness of any search involves a twofold   
[*46]   inquiry: first, one must consider "whether the ... action 
was justified at its inception[.]"... Second, one must determine 
whether the search as actually conducted "was reasonably related 
in scope to the circumstances which justified the interference in 
the first place." n69
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n69. Id. (quoting Terry v. Ohio, 392 U.S. 1, 20 (1968)). This 
is a very broad standard. As commentators have pointed out, this 
is troubling in light of the Court's uncertainty as to the 
applicability of an individualized suspicion requirement. See 
Martin R. Gardner, Student Privacy in the Wake of T.L.O.: An 
Appeal for an Individualized Suspicion Requirement for Valid 
Searches and Seizures in the Schools, 22 Ga. L. Rev. 897, 925-46 
(1988) (discussing the need for an individualized suspicion 
requirement and examining other potential dangers of requiring 
only a generalized suspicion).
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   The Court's willingness to re-examine the constitutional 
baseline and its formulation of the two interests balanced in 
T.L.O. represent a change in the conception of students' rights. 
On the one hand, the Court says that there must be an 
"accommodation of the privacy interests of schoolchildren," n70 
but on the other it says that this must be balanced against a 
"substantial need of teachers and administrators for freedom to 
maintain order in the schools." n71 The Court further notes that 
it has previously "recognized that maintaining security and order 
in the schools requires a certain degree of flexibility in school 
disciplinary procedures, and [it] has respected the value of 
preserving the informality of the student-teacher relationship." 
n72
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n70. T.L.O., 469 U.S. at 341 (emphasis added).  

   n71. Id. (emphasis added).  

   n72. Id. at 339-40 (citing Goss v. Lopez, 419 U.S. 565, 582-83 
(1975)).
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   The T.L.O articulation of the baseline of students' 
constitutional rights is a far cry from Barnette (a "fixed star 
in our constitutional constellation") n73 and Tinker 
("Students ... [do not] shed their constitutional rights ... at 
the schoolhouse gate."). n74 Arguably, the T.L.O. language could 
be interpreted as a reclassification of students' rights from a 
constitutional baseline to one of an accommodating grant. While 
the Court insists that students retain constitutional 
protections, if students' rights are merely accommodated, but are 
not based on a constitutional grounding, school administrators 
could easily argue that what has been given can be taken away.
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n73. 319 U.S. 624, 642 (1943) (footnote omitted).  

   n74. 393 U.S. 503, 506 (1966).
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   The change from Barnette, Tinker, and Pico to T.L.O. is most 
evident in the newfound reliance on "flexibility" in determining 
the constitutional baseline of students' rights. In Barnette, the 
Court was unwilling to be flexible in light of World War II, and 
refused to mandate forced salutation of the flag. The Tinker 
Court similarly was un  [*47]   willing to yield in light of the 
Vietnam Conflict and allow censorship of expression. Furthermore, 
the Pico Court was unwilling to accede to the conservative tide 
sweeping across the country during the early 1980s and permit 
suppression of ideas based on political ideology. Why should such 
flexibility be embraced now?  

   Part of the reason behind the Court's holding in T.L.O. was a 
conflict among the Court's concerns for maintaining order in a 
chaotic world, upholding students' constitutional rights, and 
calling for relaxed procedural and substantive safeguards in 
administering the public schools. After highlighting problems in 
public schools, the Court concluded that informal measures were 
appropriate to combat this hostile environment. n75 It believed 
that the accompanying relaxation of student constitutional 
protections was minimal because the school administrators were 
acting in their students' best interests. n76 Note, however, that 
if informality were the solution, our schools should already be 
showing improvement because most courts prior to T.L.O. either 
had adopted a "reasonableness" approach to the Fourth Amendment 
or had held that the Fourth Amendment was inapplicable in the 
school setting. n77 If anything, the Court's formulation of 
reasonableness actually adds formality to the school search 
proceedings in many states.
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n75. See T.L.O., 469 U.S. at 339-40.  

   n76. See id. at 349-50 (Powell, J., concurring) ("Rarely does 
this type of adversarial relationship [similar to police and 
criminals] exist between school authorities and pupils. Instead, 
there is a commonality of interests between teachers and their 
pupils. The attitude of the typical teacher is one of personal 
responsibility for the student's welfare as well as for his 
education.") (footnote omitted).  

   n77. See id. at 332 n.2 (discussing the three approaches to 
Fourth Amendment jurisprudence relating to schools prior to 
T.L.O.).
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   Justice Blackmun may have captured best the bottom line in 
T.L.O.:  

   Because drug use and possession of weapons have become 
increasingly common among young people, an immediate response 
frequently is required not just to maintain an environment 
conducive to learning, but to protect the very safety of students 
and school personnel.... n78
  
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n78. Id. at 352-53 (Blackmun, J., concurring). Justice White, 
writing for the Court, commented similarly, stating, "By focusing 
attention on the question of reasonableness, the standard will 
spare teachers and school administrators the necessity of 
schooling themselves in the niceties of probable cause and permit 
them to regulate their conduct according to the dictates of 
reason and common sense." Id. at 343.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

    ....  

    ... Teacher[s,] having neither the training nor the day-to-
day experience in the complexities of probable cause that a law   
[*48]   enforcement officer possesses, ... [are] ill-equipped to 
make a quick judgment about the existence of probable cause. n79
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n79. Id. at 353 (Blackmun, J., concurring). But cf. Floyd G. 
Delon & Greg L. Gettings, The Post-T.L.O. Status of Search and 
Seizure Policies and Practices in Public Schools, 45 Educ. L. 
Rep. 461 (1988) (discussing the results of a survey conducted of 
high school principals in which a majority of respondents 
indicated that they were familiar with T.L.O. and the legal 
standard enunciated).
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   Is not Justice Blackmun implicitly saying that it is simply 
too complicated to embrace student concerns, and that deference 
to school administrators is easier to administer and therefore 
worthy of constitutional approval? The problem with this 
interpretation is the message it sends to students. While the 
Court cites the language in Barnette discussing the importance of 
protecting students' rights, n80 T.L.O. does not result in 
respect for students' rights.
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n80. See id. at 334. The Court cites to the Barnette language 
quoted in the text accompanying note 29.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   While T.L.O. introduced a balancing test for weighing 
students' Fourth Amendment constitutional rights, the Court's 
rhetoric became even more pronounced in Bethel School District 
No. 403 v. Fraser, n81 a case involving a high school student who 
delivered a nominating speech before about six hundred of his 
peers at a school assembly for a fellow student who was running 
for student office. n82 In characterizing the speech, the Court 
stated that "during the entire speech, Fraser referred to his 
candidate in terms of an elaborate, graphic, and explicit sexual 
metaphor." n83 After Fraser's speech, he "was ... informed that 
he would be suspended for three days, and that his name would be 
removed from the list of candidates for graduation speaker at the 
school's commencement exercises." n84 Interestingly enough, while 
the school was attempting to silence Matthew Fraser, his fellow 
students elected him to give the commencement address at 
graduation,   [*49]   which he eventually delivered. n85 Justice 
Stevens noted this twist of events in his dissent:
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n81. 478 U.S. 675 (1986).  

   n82. Id. at 677.  

   n83. Id. at 677-78. It was left to Justice Brennan, who 
concurred in the judgment, to tell us what Fraser actually said:  

    I know a man who is firm-he's firm in his pants, he's firm in 
his shirt, his character is firm-but most ... of all, his belief 
in you, the students of Bethel, is firm.  

    Jeff Kuhlman is a man who takes his point and pounds it in. 
If necessary, he'll take an issue and nail it to the wall. He 
doesn't attack things in spurts-he drives hard, pushing and 
pushing until finally-he succeeds.  

    Jeff is a man who will go to the very end-even the climax, 
for each and every one of you.  

    So vote for Jeff for A.S.B. vice-president-he'll never come 
between you and the best our high school can be.'  

   Id. at 687 (Brennan, J., concurring) (citing Appellant's Brief 
at 47).  

   n84. Id. at 678 (emphasis added).  

   n85. Id. at 679.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

    This respondent was an outstanding young man with a fine 
academic record. The fact that he was chosen by the student body 
to speak at the school's commencement exercises demonstrates that 
he was respected by his peers.... It indicates that he was 
probably in a better position to determine whether an audience 
composed of 600 of his contemporaries would be offended by the 
use of a four-letter word-or a sexual metaphor-than is a group of 
judges who are at least two generations and 3,000 miles away from 
the scene of the crime. n86
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n86. Id. at 692 (Stevens, J., dissenting) (footnote omitted).
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   The Court, however, concluded emphatically that "the 
determination of what manner of speech in the classroom or in 
school assembly is inappropriate properly rests with the school 
board." n87 This standard endorses nearly total deference to 
school administrators and embraces the reasonable educator as the 
test of permissible school administrator action. In a footnote, 
Justice Stevens chided the majority for not giving enough credit 
to the intelligence and ability of a high school audience to 
understand a message and implicitly argued that the Court was not 
giving sufficient weight to the "reasonable student." n88 Justice 
Stevens stated,
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n87. Id. at 683.  

   n88. Id. at 692 n.2 (Stevens, J., dissenting).
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

    In its opinion today, the Court describes respondent as a 
"confused boy," and repeatedly characterizes his audience of high 
school students as "children." When a more orthodox message is 
being conveyed to a similar audience, four Members of today's 
majority would treat high school students like college students 
rather than like children. n89
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n89. Id. (citation omitted) (citing Bender v. Williamsport 
Area Sch. Dist., 475 U.S. 534 (1986) (dissenting opinions)).
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   The Court attempts to justify its actions by discussing the 
"role and purpose of the American public school system," n90 but 
unsatisfactorily describes how this has changed sufficiently to 
alter the test of students' protected rights:
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n90. Id. at 681.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   Public education must prepare pupils for citizenship in the 
Republic.... It must inculcate the habits and manners of civility 
as   [*50]   values in themselves conducive to happiness and as 
indispensable to the practice of self-government in the community 
and the nation. n91
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n91. Id. (citing Charles A. Beard & Mary R. Beard, New Basic 
History of the United States 228 (1968)). For similar rhetoric, 
see Desmond Lee, Introduction to Plato, The Republic 11, 38 
(Desmond Lee trans., 2d ed. rev. 1974) ("Plato was as concerned 
to train the character as the mind, and throughout the account of 
the secondary stage of education he is insistent that its object 
is moral training as much as intellectual....").
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

    ....  

    Surely it is a highly appropriate function of public school 
education to prohibit the use of vulgar and offensive terms in 
public discourse. n92
 
 - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - 
-  

   n92. Fraser, 478 U.S. at 683.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   But what has changed since Barnette? The Barnette Court would 
probably have fully agreed with the Fraser Court's statement up 
until the word "surely." It also might have agreed with the 
prohibition on vulgarity and offensive language. But "vulgarity" 
and "offensive" are conclusions, not constitutional tests. 
Contrary to Fraser, however, the Barnette Court rejected the 
notion that a school or the State could enforce an orthodoxy on 
its students. n93 Was Fraser's sexual innuendo sufficiently more 
serious than World War II to change the Court's analysis of 
students' First Amendment rights? Was the alleged potential harm 
to adolescent females n94 more serious than the survival of our 
Nation? Something else is going on: a shift in deference to 
"reasonable" educators.
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n93. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 
624, 642 (1943).  

   n94. See text accompanying notes 95-99.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   The Fraser Court justified its deference to school 
administrators by patronizingly asserting what students think 
without allowing the students to speak for themselves. The Court 
postulated that "the pervasive sexual innuendo in Fraser's speech 
was plainly offensive to both teachers and students-indeed to any 
mature person." n95 The Court states that "by glorifying male 
sexuality, and in its verbal content, the speech was acutely 
insulting to teenage girl students." n96 The Court also suggested 
that "the speech could well be seriously damaging to its less 
mature audience, many of whom were only [fourteen] years old and 
on the threshold of awareness of human sexuality." n97
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n95. Fraser, 478 U.S. at 683. Arguably the speech could not 
have been too offensive to many students, given that Fraser 
ultimately delivered a commencement speech after being elected as 
a write-in candidate by his peers. Id. at 679.  

   n96. Id. at 683 (citing Appellant's Brief at 77-81). It is 
interesting that the Court should cite to the Appellant's brief 
to find a potential harm to justify intrusion on students' 
constitutional rights. If the Court allows the school to both 
define the harm and the remedy, students will be left with no 
rights at all.  

   n97. Id. (emphasis added).
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - 
[*51]    

    However, the Court could not document any harm to the 
students attending the assembly. n98 Justice Brennan, discussing 
the lack of evidence, states in his concurrence:
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n98. See id. at 689 (Brennan, J., concurring).
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

    The Court speculates that the speech was "insulting" to 
female students, and "seriously damaging" to 14-year-olds, so 
that school officials could legitimately suppress such expression 
in order to protect these groups. There is no evidence in the 
record that any students, male or female, found the speech 
"insulting." ... Indeed, to my mind, respondent's speech was no 
more "obscene," "lewd," or "sexually explicit" than the bulk of 
programs currently appearing on prime time television or in the 
local cinema. n99
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n99. Id. at 689 n.2 (Brennan, J., concurring). It is 
interesting that Justice Brennan refers to the arts. As discussed 
in the context of the television show Beverly Hills, 90210, infra 
Part IV, sex and sexuality are exactly what many youths are aware 
of and interested in.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   The result in Fraser is likely reflective of what reasonable 
educators think. The questions no one seems to be asking, 
however, are: (1) Is this reflective of reasonable students? and 
(2) Does it matter? If Barnette, Tinker, and Pico are taken 
seriously, these questions do matter. If Matthew Fraser's 
classmates are taken seriously in their vote for him as 
graduation speaker, this censorial result does not represent 
their views either. Matthew Fraser learned the lesson firsthand 
that under the reasonable educator standard, the school wins and 
the student loses.  

   Hazelwood School District v. Kuhlmeier n100 is the final case 
in this line and represents the greatest deference to the 
reasonable educator. Kuhlmeier "concerned the extent to which 
educators may exercise editorial control over the contents of a 
high school newspaper produced as part of the school's journalism 
curriculum." n101 Kuhlmeier has been more succinctly, and perhaps 
more accurately, described as a case "upholding censorship of a 
school-sponsored student newspaper." n102 One of the stories 
[ultimately editorially-controlled out of publication] "described 
three Hazelwood East students' experiences with pregnancy; the 
other discussed the impact of divorce on students   [*52]   at 
the school." n103 One justification for the principal's 
exercising such editorial control was that "he ... believed that 
the articles' references to sexual activity and birth control 
were inappropriate for some of the younger students." n104
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n100. 484 U.S. 260 (1988).  

   n101. Id. at 262. Note the use by Justice White of the 
euphemism "editorial control," rather than the more precise and 
exact term "censorship," which is ultimately at issue in this 
case. See id. at 278 (Brennan, J., dissenting) (concluding that 
the principal in this case "violated the First Amendment's 
prohibitions against censorship of any student expression that 
neither disrupts classwork nor invades the rights of others, and 
against any censorship that is not narrowly tailored to serve its 
purpose").  

   n102. Bush ex rel. Bush v. Dassel-Cokato Bd. of Educ., 745 F. 
Supp. 562, 565 (D. Minn. 1990).  

   n103. Kuhlmeier, 484 U.S. at 263.  

   n104. Id.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   The Court enunciated the following standard in Kuhlmeier: 
"Educators do not offend the First Amendment by exercising 
editorial control over the style and content of student speech in 
school-sponsored expressive activities so long as their actions 
are reasonably related to legitimate pedagogical concerns." n105 
Applying this standard, the Court concluded,
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n105. Id. at 273.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

    In sum, we cannot reject as unreasonable Principal Reynolds' 
conclusion that neither the pregnancy article nor the divorce 
article was suitable for publication in Spectrum. Reynolds could 
reasonably have concluded that the students who had written and 
edited these articles had not sufficiently mastered those 
portions of the Journalism II curriculum that pertained to the 
treatment of controversial issues and personal attacks, the need 
to protect the privacy of individuals whose most intimate 
concerns are to be revealed in the newspaper, and "the legal, 
moral, and ethical restrictions imposed upon journalists within 
[a] school community" that includes adolescent subjects and 
readers. Finally, we conclude that the principal's decision to 
delete two pages of Spectrum, rather than to delete only the 
offending articles or to require that they be modified, was 
reasonable under the circumstances as he understood them. 
Accordingly, no violation of First Amendment rights occurred. 
n106
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n106. Id. at 276.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   It is difficult to quibble with the Court over whether 
Principal Reynolds acted as a reasonable educator would have 
acted in this situation. Or is it? Is there any evidence of 
actual harm? Is the potentiality of any such harm now sufficient 
to censor student speech? n107 As with Fraser, the issue of 
teenage sexuality is very real, and one which students are 
talking about or acting out. It is ironic, however, that the 
Court in Kuhlmeier should cite issues of student privacy to 
justify cen  [*53]   sorship when, in T.L.O., the privacy rights 
of students are discounted. n108
 
 - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - 
-  

   n107. The concept of potentiality was classically stated by 
Justice Douglas, in the context of economic regulation, in 
Williamson v. Lee Optical Co., 348 U.S. 483 (1955). Justice 
Douglas discussed what the "legislature might conclude," or what 
the "legislature might think," id. at 490, without offering any 
actual evidence of legislative intent. This conjecture was enough 
to sustain economic regulations having a rational basis. Is this 
the level of protection students can now expect?  

   n108. 469 U.S. 325, 357-82 (1985).
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   Furthermore, what message is being sent to students when they 
are told that school administrators can act in furtherance of any 
"legitimate pedagogical concerns?" n109 Do they understand what 
that means? Does anyone? Government and school administrators are 
not benevolent dictators. They must be limited by some guiding 
principle recognizing students' constitutional rights in light of 
a balance between the reasonable educator and the reasonable 
student.
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n109. Kuhlmeier, 484 U.S. at 273.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   III. The "Real World" (as defined and (mis)interpreted by the 
courts)  

   Evidence that the reasonable educator is indeed the standard 
today, and more importantly, that the bottom line in most cases 
is that courts will sustain a school's action out of deference to 
school administrators, is found in the lower courts' 
interpretation and application of the legal rules of T.L.O., 
Fraser, and Kuhlmeier. n110 Schools have taken T.L.O.'s 
reasonableness standard and the related concepts of 
reasonableness in Fraser and Kuhlmeier, and have liberally 
applied them to myriad fact patterns. n111 Although a few courts 
have reversed school administrator's actions, n112 the vast 
majority of courts defer to school administrators, n113 resulting 
in the constitutional baseline being nearly meaningless.
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n110. Early commentators were unsure how Fraser and Kuhlmeier 
would play out in the lower courts. See, e.g., C. Thomas Dienes 
and Annemargaret Connolly, When Students Speak: Judicial Review 
in the Academic Marketplace, 7 Yale L. & Pol'y Rev. 343, 395 
(1989) ("How Fraser and [Kuhlmeier's] hands-off policy will play 
in the educational marketplace and in the lower courts remains to 
be seen."). This is not a problem today. See infra notes 111-42 
and accompanying text.  

   n111. See Stuart L. Leviton, The Fourth Amendment in Texas 
Public High Schools: Friend or Foe? A Question of Perspective, 6 
State Bar (Texas) Section Report: Juvenile Law 5, 12 (Dec. 1992) 
(reviewing the results of a survey of Texas public high school 
principals related to school searches, and relating the comment 
of one high school principal: "With the crisis today in schools 
regarding weapons and drugs-I-like many principals-take 
reasonable cause to the bank and interpret it liberally to ensure 
the safety of our students.").  

   n112. See, e.g., Slotterback ex rel. Slotterback v. Interboro 
Sch. Dist., 766 F. Supp. 280 (E.D. Pa. 1991) (reversing 
limitations on the right to distribute nonschool materials on 
school property); In re Appeal in Pima County Juvenile Action No. 
80484-1, 733 P.2d 316 (Ariz. Ct. App. 1987) (reversing a 
delinquency adjudication because the principal did not have 
reasonable suspicion to conduct the search); In re Dumas, 515 
A.2d 984 (Pa. Super. Ct. 1986) (suppressing evidence because a 
search was too expansive).  

   n113. See infra notes 114-42 and accompanying text.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - 
[*54]    

    Cases decided subsequent to T.L.O., Fraser, and Kuhlmeier 
involve restrictions on student press n114 and student 
expression. The expression cases can be categorized loosely as 
follows: pure speech restrictions, n115 protection of student 
"whistle blowers," n116 enforcement of dress codes, n117 
restrictions on artistic productions, n118 control of student 
elections, n119 and restrictions on school symbol selection. n120 
Once the Court allowed the baseline to be determined by mere 
reasonableness, school administrators and lower courts seized on 
this new flexible standard and applied it to restrict student 
rights in a variety of contexts. While the Court still insists 
that students possess constitutional rights, it is difficult to 
see what those rights are.
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n114. See, e.g., Leeb v. DeLong, 243 Cal. Rptr. 494 (Ct. App. 
1988) (citing Kuhlmeier) (upholding the right of a school to 
censor a student newspaper on the grounds that the material in 
question may be defamatory).  

   n115. See, e.g., Nelson v. Moline Sch. Dist. No. 40, 725 F. 
Supp. 965 (C.D. Ill. 1989) (citing T.L.O.) (upholding a general 
policy of prior approval by the principal of the distribution of 
non-school materials by students on school grounds based on time, 
place and manner restrictions, but striking down specific 
regulations that prohibit the distribution of religious or 
political literature); Bystrom v. Fridley High Sch., 686 F. Supp. 
1387, 1392 (D. Minn. 1987) (citing T.L.O.) (granting the 
defendants motion for summary judgment in this 1983 action, 
holding that the student's First Amendment rights were not 
violated when students were suspended for distributing an 
unofficial school newspaper, a suspension justified by school 
officials on the grounds "that distribution of Tour de Farce 
materially disrupted school activities, that the publication 
contained vulgar and indecent language, and that the publication 
advocated violence against teachers."). But see Slotterback, 766 
F. Supp. at 299 (citing T.L.O.) (striking down in part 
regulations limiting a student's right to distribute nonschool 
materials on school property).  

   n116. See Newsome v. Batavia Local Sch. Dist., 842 F.2d 920 
(6th Cir. 1988) (citing T.L.O.) (upholding the dismissal of a 
complaint, holding that a student's due process rights were not 
violated, even though he was denied, inter alia, the right to 
know the identity of his student accusers and cross-examine 
school administrators who investigated the alleged drug-
trafficking incident that led to his expulsion). 

   n117. See Olesen v. Board of Educ. of Sch. Dist. No. 228, 676 
F. Supp. 820 (N.D. Ill. 1987) (citing Fraser) (upholding the 
constitutionality of a school anti-gang rule that prohibited the 
wearing of earrings by male students).  

   n118. See Bell v. U-32 Bd. of Educ., 630 F. Supp. 939 (D. Vt. 
1986) (citing Fraser, Kuhlmeier) (upholding the school board's 
right to prevent students from putting on a production of 
Runaways).  

   n119. See, e.g., Bull v. Dardanelle Pub. Sch. Dist. No. 15, 
745 F. Supp. 1455, 1460 (E.D. Ark. 1990) (citing Kuhlmeier) 
(dismissing a student complaint challenging the constitutionality 
of the student council elections in which he was kept off the 
ballot because of "legitimate pedagogical concerns").  

   n120. See Crosby ex rel. Crosby v. Holsinger, 852 F.2d 801 
(4th Cir. 1988) (citing Kuhlmeier) (upholding the right of a 
principal to ban the use of the "Johnny Reb" symbol).
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   A second line of cases relies on T.L.O. and involves Fourth 
Amendment search issues. These cases include searches of all 
sorts of student possessions, including students' lockers, n121 
auto-mobiles, n122 "fanny   [*55]   packs," n123 clothing, n124 
book bags, n125 purses, n126 and the students themselves. n127 
Strip searches n128 and drug  [*56]   testing n129 are sometimes 
allowed.
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n121. See, e.g., R.D.L. v. State, 499 So. 2d 31 (Fla. 2d DCA 
1986) (citing T.L.O.) (upholding a search initiated because a 
student was suspected of stealing a school clock, but in which 
over $3,000 worth of stolen school lunch tickets were 
discovered); In re S.C. v. State, 583 So. 2d 188 (Miss. 1991) 
(citing T.L.O.) (upholding a search discovering handguns). But 
see In re Dumas, 515 A.2d 984 (Pa. Super. Ct. 1986) (citing 
T.L.O.) (affirming the suppression of evidence of marijuana 
possession, holding that while the initial search for cigarettes 
was warranted, once the assistant principal obtained the 
cigarettes, it was unreasonable to continue the search that led 
to the discovery of the marijuana). Note that the court in In re 
Dumas came to the opposite result of the Court in T.L.O. See New 
Jersey v. T.L.O., 469 U.S. 325 (1985).  

   n122. See, e.g., State v. Slattery, 787 P.2d 933 (Wash. Ct. 
App. 1990) (citing T.L.O.) (upholding a search for marijuana 
inside a locked briefcase located in an automobile, which 
followed two other searches including one of the student's 
pockets, which turned up $230 and a pager, and one of the 
student's locker, which turned up nothing incriminating).  

   n123. See In re Dubois, 821 P.2d 1124, 1126 (Or. Ct. App. 
1991) (citing T.L.O.) (upholding a search of a student's fanny 
pack for a gun because the student supervisor had "more than 
reasonable suspicion" to conduct the search).  

   n124. See, e.g., Berry v. State, 561 N.E.2d 832, 835, 840 
(Ind. Ct. App. 1990) (citing T.L.O.) (upholding a search of a 
student's jacket that turned up two one-dollar bills and three 
cassette cases, one of which contained eight marijuana 
cigarettes. The student was convicted of attempted dealing in 
marijuana on school property, received a five-year sentence, 
which was enhanced by three additional years because of 
aggravating factors (two juvenile offenses and one adult 
offense)); In re Devon T., 584 A.2d 1287, 1289 (Md. Ct. Spec. 
App. 1991) (citing T.L.O.) (affirming a search of a student's 
pockets that resulted in the discovery of heroin, the search 
being conducted in the presence of an assistant principal and 
with a security guard directing the student). But see In re 
Appeal in Pima County Juvenile Action No. 80484-1, 733 P.2d 316, 
317 (Ariz. Ct. App. 1987) (citing T.L.O.) (reversing a 
delinquency adjudication for possession of cocaine, noting that 
"the principal in this case had no personal knowledge regarding 
the minor's conduct and had received no specific reports which 
give rise to a reasonable suspicion that the minor's pockets 
would contain cocaine").  

   n125. See Coffman v. State, 782 S.W.2d 249 (Tex. Ct. App. 
1989) (citing T.L.O.) (upholding a search for a weapon).  

   n126. See New Jersey v. T.L.O., 469 U.S. 325 (1985). But see 
T.J. v. State, 538 So. 2d 1320, 1322 (Fla. 2d DCA 1989) (citing 
T.L.O.) (reversing a conviction for possession of cocaine by a 
fifteen-year-old eighth grader, holding that the search for a 
weapon in the student's purse did not justify "examining the 
plastic bag in a side pocket which clearly contained no weapon," 
and further stating that "while school safety may readily justify 
a basic search for weapons, the student's interest in privacy 
should preclude a scavenger hunt after the basic search has 
produced no weapons").  

   n127. See, e.g., In re Alexander B., 270 Cal. Rptr. 342, 342-
43 (Ct. App. 1990) (citing T.L.O.) (upholding a search that 
resulted in the discovery of what has been alternatively 
described as a "dirk," "dagger," and "machete knife"); In re 
Frederick B., 237 Cal. Rptr. 338, 340-41 (Ct. App. 1987) (citing 
T.L.O.) (A security guard discovered a pistol in the front of 
Frederick's waistband while in the process of bodily restraining 
him. Frederick was then wrestled to the ground, handcuffed, and 
taken to the dean's office and searched. In addition to a loaded 
firearm, "Frederick was found to be carrying a number of baggies 
containing a white substance, $27 in cash, and a half-smoked 
hand-rolled butt of a cigarette."). But see In re William G., 709 
P.2d 1287 (Cal. 1985) (citing T.L.O.) (reversing a lower court 
decision upholding a search of a student and his calculator case, 
which contained marijuana, because mere "furtive gestures" do not 
generate sufficient suspicion to rise to the required level of 
reasonableness). Interestingly, Chief Justice Bird concurred in 
the judgment in William G., but dissented from the analysis and 
argued for the retention of the probable cause standard, as 
Justice Brennan had argued in T.L.O. Id. at 1298-99 (Bird, C.J., 
concurring in part and dissenting in part).  

   n128. See, e.g., Williams ex rel. Williams v. Ellington, 936 
F.2d 881, 884 (6th Cir. 1991) (citing T.L.O.) (rejecting a 1983 
claim, upholding a search and seizure policy that is "facially 
valid," and concluding that the search in this case "was 
performed in accordance with this constitutionally valid strip 
search policy"). Note that Justice Stevens in T.L.O. specifically 
expressed reservations about the permissibility of strip 
searches. See T.L.O., 469 U.S. at 382 n.25 (Stevens, J., 
concurring in part and dissenting in part) ("One thing is clear 
under any standard-the shocking strip searches that are described 
in some cases have no place in the schoolhouse.").  

   n129. See Schaill ex rel. Kross v. Tippecanoe County Sch. 
Corp., 864 F.2d 1309 (7th Cir. 1988) (citing T.L.O.) (upholding a 
student athlete drug testing program on the grounds of 
reasonableness under the Fourth Amendment and that procedural 
challenges built into the program satisfy due process concerns). 
But see Brooks v. East Chambers Consol. Indep. Sch. Dist., 730 F. 
Supp. 759 (S.D. Tex. 1989) (citing T.L.O.) (striking down a 
school policy of drug testing students engaged in extra-
curricular activities without an individualized suspicion 
requirement); Odenheim ex rel. Odenheim v. Carlstadt-E. 
Rutherford Regional Sch. Dist., 510 A.2d 709, 713 (N.J. Super. 
Ct. Ch. Div. 1985) (citing T.L.O.) (holding that the school's 
drug testing policy "violates [the student's] rights to be free 
of unreasonable search and seizure, violates [their] rights to 
due process and violates [their] legitimate expectation of 
privacy and personal security").  

   Note that the Court in T.L.O. reserved judgment on whether 
individualized suspicion is required. See New Jersey v. T.L.O., 
469 U.S. 325, 342 n.8 (1985) ("We do not decide whether 
individualized suspicion is an essential element of the 
reasonableness standard we adopt for searches by school 
authorities."). Note further that some commentators have called 
for an individualized suspicion requirement. See Gardner, supra 
note 69.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   While the facts of many of the above cases are related to 
issues addressed in T.L.O., Fraser, and Kuhlmeier, the applicable 
tests from these Supreme Court cases have been extracted and 
applied to cases that involve facts not quite so related. 
Examples include those cases that involve student discipline, 
n130 detention, n131 student confessions, n132 off-campus field 
trips, n133 restrictions on off-campus recrea  [*57]   tion, n134 
restrictions on the distribution of nonschool materials, n135 
restrictions on the use of school facilities, n136 and 
commingling search responsibilities between school and police 
officials. n137 At least one court has condoned the disclosure to 
school officials of evidence ob  [*58]   tained by undercover 
police engaged in sting activities in public schools. n138
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n130. See, e.g., Wise v. Pea Ridge Sch. Dist., 855 F.2d 560 
(8th Cir. 1988) (citing Kuhlmeier) (upholding the use of corporal 
punishment and in-school suspension, and finding no substantive 
due process violations); Brands v. Sheldon Community Sch., 671 F. 
Supp. 627, 629 (N.D. Iowa 1987) (citing Fraser) (upholding the 
suspension of a student wrestler from the wrestling team because 
he engaged in conduct that was "detrimental to the best interests 
of the Sheldon Community School District," (allegedly engaging in 
off-campus sexual activity between several male students and a 
female student)); Boster v. Philpot, 645 F. Supp. 798 (D. Kan. 
1986) (citing Fraser) (granting the defendant's motion for 
summary judgment, holding that the students' due process rights 
had not been violated when the students were suspended for three 
days because of their admitted vandalism of school property). But 
see State v. Reyes, 700 P.2d 1155 (Wash. 1985) (en banc) (citing 
Fraser) (striking down a statute prohibiting insulting or abusing 
a teacher because of overbreadth and as being void for 
vagueness).  

   n131. See, e.g., Edwards ex rel. Edwards v. Rees, 883 F.2d 882 
(10th Cir. 1989) (citing T.L.O.) (affirming a summary judgment in 
favor of the vice principal and the school district in this 1983 
action, allowing the detention of a student for twenty minutes 
while investigating bomb threats); In re Shannon B., 505 N.Y.S.2d 
179 (N.Y. App. Div. 1986) (citing T.L.O.) (upholding a detention 
pursuant to truancy laws). 

   n132. The only case on this point actually excluded the 
confession. See State v. M.A.L., 765 P.2d 787 (Okla. Crim. App. 
1988) (citing T.L.O.) (upholding the exclusion of a confession of 
a fourteen-year-old who was being investigated in connection with 
school burglaries because of violations of state law).  

   n133. See Webb v. McCullough, 828 F.2d 1151, 1154 (6th Cir. 
1987) (citing T.L.O.). The Webb court held that (1) summary 
judgment should not have been granted in this 1983 case with 
respect to the reasonableness of the principal's search, in 
T.L.O. terms, of the student's hotel room because it involves 
issues of material fact; (2) summary judgment should be affirmed 
with respect to the search on the grounds that the search could 
be deemed reasonable under the notion of in loco parentis; and 
(3) whether the principal violated the student's constitutional 
rights when he broke through a locked bathroom door, knocking the 
student against the wall, then "grabbing [the student] from the 
floor, throwing her against the wall, and slapping her" involved 
disputed facts and should be decided by a trier of fact, thereby 
precluding summary judgment on this point. Id. Note how quickly 
courts are willing to re-invigorate the lesser standard of in 
loco parentis, even though the Supreme Court specifically 
rejected that standard in T.L.O. See New Jersey v. T.L.O., 469 
U.S. at 336-37.  

   n134. See Bush v. Dassel-Cokato Bd. of Educ., 745 F. Supp. 562 
(D. Minn. 1990) (citing Kuhlmeier) (upholding a school 
restriction prohibiting students from attending parties where 
alcohol is served).  

   n135. See, e.g., Bystrom ex rel. Bystrom v. Fridley High Sch., 
Indep. Sch. Dist. No. 14, 822 F.2d 747, 750 (8th Cir. 1987) 
(citing Kuhlmeier) (upholding the right of a school to prior 
review of student distributed nonschool materials, and finding 
the rule, as applied, not impermissibly vague given the desired 
distribution of an underground newspaper described as 
"pervasively indecent or vulgar"). But see Burch v. Barker, 861 
F.2d 1149 (9th Cir. 1988) (striking down as overly broad a 
content-based prior restraint rule requiring submission and 
approval of any materials distributed at a high school); 
Slotterback ex rel. Slotterback v. Interboro Sch. Dist., 766 F. 
Supp. 280 (E.D. Pa. 1991) (citing Kuhlmeier) (striking down in 
part regulations limiting a student's right to distribute 
nonschool materials on school property); Rivera v. East Otero 
Sch. Dist., 721 F. Supp. 1189 (D. Colo. 1989) (citing Fraser, 
Kuhlmeier) (striking down an outright ban on distribution of 
materials advocating a particular religious or political view, 
but denying a motion for summary judgment because material facts 
remained undetermined as to whether the distribution of the 
materials involved in this case was disruptive).  

   n136. See, e.g., Clark v. Dallas Indep. Sch. Dist., 671 F. 
Supp. 1119 (N.D. Tex. 1987) (upholding a school's policy of not 
allowing student groups to use school facilities for religious 
purposes), order amended, 701 F. Supp. 594 (N.D. Tex. 1988), 
appeal dismissed, 880 F.2d 411 (5th Cir. 1989) (citing Fraser). 
But see, e.g., Board of Educ. of the Westside Community Sch. v. 
Mergens ex rel. Mergens, 496 U.S. 226 (1990) (citing Kuhlmeier) 
(upholding the rights of students to use school facilities for a 
Christian club).  

   n137. See, e.g., Cason v. Cook, 810 F.2d 188 (8th Cir. 1987), 
cert. denied, 482 U.S. 930 (1987) (citing T.L.O.) (affirming a 
directed verdict for defendants in this 1983 case, holding that 
the search of the student was reasonable even though a police 
liaison official was present during the search. The court held 
that since the search was initiated by school officials, this was 
sufficient to meet the reasonableness standard); Martens ex rel. 
Martens v. District No. 220 Bd. of Educ., 620 F. Supp. 29, 31 
(N.D. Ill. 1985) (citing T.L.O.) (granting the defendant's 
summary judgment motion in a suit based on a search of a student 
who was told by a sheriff's deputy "that based on his experience 
it would be better to cooperate with school officials," whereupon 
the student complied with a request to empty his pockets and a 
pipe with marijuana residue was found). But see In re F.P., 528 
So. 2d 1253 (Fla. 1st DCA 1988) (citing T.L.O.) (reversing a 
lower court decision allowing a "school official exception" to 
the probable cause standard for searches and seizures when the 
school official acted at the request of the police).  

   Note that the Court in T.L.O. reserved judgment on the issue 
raised in Martens. See New Jersey v. T.L.O., 469 U.S. at 341 n.7 
(1985) ("This case does not present the question of the 
appropriate standard for assessing the legality of searches 
conducted by school officials in conjunction with or at the 
behest of law enforcement agencies....").  

   n138. See Legaux v. Zimmerman, Civ. A. No. 86-0354, 1987 WL 
20114 (E.D. La. 1987) (citing T.L.O.) (dismissing a student's 
1983 suit against sheriff's officials for invasion of privacy 
resulting from an undercover officer's observing the student 
smoking marijuana, his subsequent arrest for possession and 
distribution of marijuana, and the disclosure of this information 
by the sheriff's department to school officials, leading to the 
expulsion of the student).
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   Whether it be student press or expression, a search issue, or 
some other student right, some of these cases would probably turn 
out the same regardless of the standard applied. n139 However, it 
is questionable whether it should be sufficient to cite 
"legitimate pedagogical reasons" for prohibiting a student from 
participating in a student ballot. n140 Under the Kuhlmeier test, 
and in light of the Court's deference to school administration, 
it is sufficient. n141 Nevertheless, at a minimum, a court should 
explore the student interest at stake and how a reasonable 
student would act before condoning such actions.
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n139. See, e.g., Coffman v. State, 782 S.W.2d 249 (Tex. Ct. 
App. 1989).  

   n140. See supra note 119 and accompanying text.  

   n141. See supra note 105 and accompanying text.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   While many of these cases are disturbing, most of them contain 
some reasoning underlying their decisions, even if the reasoning 
is ultimately unsatisfactory. The Florida Third District Court of 
Appeal, however, represents an extreme example. It liked T.L.O. 
so much that between August 20, 1985, and January 7, 1986, it 
issued three per curiam decisions affirming lower courts that 
relied upon, inter alia, T.L.O., without further explanation. 
n142 This is perhaps the greatest danger of allowing 
"flexibility": it precludes student reliance on any absolute 
level of constitutionally protected rights and allows courts to 
not even bother with balancing competing interests.
 
 - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - 
-  

   n142. See T.G. v. State, 481 So. 2d 101 (Fla. 3d DCA 1986) 
(per curiam); W.A. v. State, 478 So. 2d 890 (Fla. 3d DCA 1985) 
(per curiam); D.C. v. State, 474 So. 2d 16 (Fla. 3d DCA 1985) 
(per curiam).
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   School administrators are continuously challenged to find ways 
to instill more socially-acceptable values in our youth. This 
recitation of cases proves the point. Arguably, if school 
administrators were doing anything less, they would not be doing 
their jobs. Nevertheless, many of these lower court cases are 
inconsistent with the notion that the Constitution is a baseline 
that preserves and protects students' rights. These decisions 
also undermine the authority of Barnette, Tinker, and Pico, which 
should be taken seriously because: (1) the value of respecting 
students' constitutional rights first articulated in Barnette 
continues to be articulated by the Court through Kuhlmeier; and 
(2)the Court has failed to provide an adequate justification for 
shifting from what was previously a very respectful view of 
students' con  [*59]   stitutional rights toward a view that is 
deferential to the authority of school administrators.  

   IV. Students Cry Out: The Media and the Arts as Proxies for 
the Real "Real World"  

   The rhetoric courts use concerning students does not match the 
reality of what students are facing and dealing with on a daily 
basis. The best proof of this would be to talk to students 
directly and find out if their feelings match the courts' 
assertions. Unfortunately, while students are occasionally heard 
from, n143 broad access to students is limited, n144 and 
alternative outlets for student opinion often face resistance. 
n145 Not allowing students to speak for themselves results in 
inaccurate characterizations by others, especially the courts, of 
what students are saying, thinking, and doing. n146
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n143. See, e.g., Felicia R. Lee, Running Schools and Homework 
Assignments, N.Y. Times, Sept. 9, 1992, at B3 (profiling a 
student representative on the New York City Board of Education); 
Karen S. Peterson, USA Today's Teen Panel, USA Today, July 24, 
1992, at 8D (profiling fifteen teenagers and seeking their 
comments on a variety of issues facing teenagers today).  

   n144. One example of limited access is the policy of the Texas 
Association of Student Councils not to release the names of 
student council presidents in order to protect them. While this 
might be a concern, it illustrates the difficulty, even for those 
pursuing academic interests, in gaining access to student 
opinion. See Letter from Eddie G. Bull, Assistant Executive 
Director, Texas Association of Student Councils, to Stuart L. 
Leviton (July 6, 1993) (on file with the Florida State University 
Law Review).  

   n145. See Zeke MacCormack, 7 Students Punished for Newsletter, 
Austin Am.-Statesman, May 22, 1993, at B1 (discussing the 
suspension of students for distributing an unauthorized 
newsletter on school property and quoting a student who stated 
that when he argued before the principal that he was exercising 
his constitutional rights, the principal responded that "we 
[students] forfeit all rights when we enter the school"); Barbara 
Kate Repa, Reports of the First Amendment Have Been Greatly 
Exaggerated, Student Lawyer, Dec. 1992, at 36 (discussing the 
suspension of two students for reciting the following Mark Twain 
quotation, reprinted in A Teachers' Treasury of Quotations, over 
the school public address system as the "Inspirational Thought 
For the Day": "In the first place, God created idiots. This was 
for practice. Then he made school boards."); James S. Hirsch, 
Underground High School Papers Thrive as Teen-Agers Rebel Against 
Censorship, Wall St. J., June 8, 1992, at B1 (discussing the 
frustration of students in both getting information and 
communicating with one another, and citing instances when 
students have started underground newspapers and have been 
suspended from school for critical comments regarding schools and 
school officials); supra notes 114-15 (reviewing cases that 
restrict student publications); supra note 135 (reviewing cases 
discussing distributional restrictions on nonschool materials). 
But see, Tim Lott, School Columnist Cuts Trustees Down to Size, 
Austin Am.-Statesman, May 11, 1993, at B1 (profiling an outspoken 
high school newspaper columnist who, although critical of school 
board officials, is allowed to voice his opinion); Kimberly 
Garcia, Bridging the Gap, Austin Am.-Statesman, May 1, 1993, at 
B1 (discussing a symposium attended by students and city leaders, 
and quoting one city council member as saying, "I never dreamed 
in my wildest dreams that there'd be this much [student] 
involvement"); Rosalinda Guerrero, Students Require Information, 
Support From Schools, Austin Am.-Statesman, April 27, 1993, at A9 
(taking the opportunity as a guest columnist to express the 
concerns and views of a high school senior).  

   n146. See Roe, supra note 59, at 1344 n.364 ("Students have 
considerably greater capacity for meaningful thought than 
historically or presently ascribed to them by the Court, so that 
the value accorded to student speech rights should be 
increased.").
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - 
[*60]    

    A more accurate or realistic view of students can be obtained 
by reviewing various media accounts discussing issues facing 
teenagers today. The arts can also be used as a proxy for student 
opinion, although, concededly, this may be stretching it a bit. 
n147 Even though the arts are often created by adults and may 
simply be creations of the imagination, the consumers of this art 
are often students, which must indicate that they relate to it on 
some level. n148
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n147. It might only be stretching it for adults. USA Today ran 
a story under a glossy picture captioned "What's Pop Culture 
Teaching Our Kids?" USA Today, Mar. 16, 1992, at D1. Parents are 
concerned about what they perceive as the "negative images" of 
"racist hate in rap music, sexist violence in videos, [and] 
sexual irresponsibility on TV." Anita Manning, Parents Fear Reign 
of Sex and Violence, USA Today, March 16, 1992, at B1-B2. 
However, students perceive television much differently. One 
student, summarizing the role of television, states,  

   Kids like TV that shows realistic situations.... They portray 
what's going on and they're just gutsy enough to do it, and 
that's what shocks parents.... But that's what goes on in life, 
that's what goes on in peoples' houses. Students like that, they 
like seeing what goes on between guys and girls. 

   Id.  

   n148. People magazine ran a cover story on the past fifty 
years of teen idols. Whole Lot of Faintin' Goin' On, People, July 
27, 1992, at 43. The article explained the relevance and 
importance of teen idols:  

   Like video games and the atomic bomb, teen idols are one of 
the defining inventions of our time....  

   What do teenagers want in a teen idol? A glimpse of heaven 
without adult supervision. They may not be philosophers, but 
adolescents still have a philosopher's yearning for the ideal....  

    ....  

   These idols help us find our way too. They take our earliest 
notions of passion, love, devotion, and cast them on a wide 
screen....  

   Id.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   Even if one is doubtful as to the utility of reviewing reality 
through the eyes of the media and the arts, one should not forget 
the purpose of this exercise. The purpose is not to articulate 
with precision exactly what students believe, but rather to 
demonstrate that notions of a reasonable educator and a 
reasonable student, while not mutually exclusive, are not the 
same. A review of what students are watching, reading, and 
listening to gives further insight into what students are 
thinking and feeling.  

   One reporter has commented, "Crank up adolescent frustration 
to the breaking point, and it can come back three ways: as 
cynicism, as morbid fantasy and as spite laced with insecurity." 
n149 Unfortunately, while this assessment might be correct for 
some youth, for many others there are less abstract, more 
serious, and potentially more dangerous issues. The following is 
a discussion of four major issues facing students and youth 
today: (1) sex; (2) drugs; (3) violence; and (4) a general notion 
of despair. n150
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n149. Jon Pareles, A Battle of 2 Headliner Bands, N.Y. Times, 
July 20, 1992, at C1.  

   n150. See Laura Sessions Stepp, Youthful Optimism Has Turned 
to Pessimism, Austin Am.-Statesman, Feb. 12, 1993, at C1 ("If 
there is one group of people in need of ... hope, it's today's 
adolescents. Recent surveys reveal that a majority of Americans 
ages 12 to 17, about 20 million youths, are increasingly 
pessimistic about this country's future and, to a lesser extent, 
their own."). Cf. Hirsch, supra note 145 (discussing the growth 
of alternative outlets for student opinion, and quoting one 
student's description of the shortcomings of her high school's 
newspaper: "There's no drugs, there's no sex, kids don't get 
pregnant, and everyone gets good grades.").
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - 
[*61]   

    A. Reality Check Number 1: Sex  

   School administrators have a preoccupation with the topic of 
sex. n151 As such, this fixation deserves special attention. The 
reality is that whether society likes it or not, students are 
sexually aware, n152 and many are sexually active. n153 A recent 
survey by the federal Centers for Disease Control n154 reports 
that in the aggregate, fifty-four percent of high school students 
have engaged in sexual activity. n155 There also is evidence that 
more and more students become sexually active each day. n156
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n151. Note that notions of sex, sexuality, and sexual autonomy 
were relevant in Fraser and Kuhlmeier. See supra notes 81-109 and 
accompanying text.  

   n152. Seventeen magazine has done several articles to assist 
its mostly adolescent female readership in better understanding 
sex, sexuality and the implications of sexual activity. See, 
e.g., Debra Kent, Sex & Your Body: The No of the 90s-Sexual 
Decision-Making in a New Age, Seventeen, Jan. 1991, at 32-35 
(interviewing teenage girls who are abstaining from sexual 
activity, and discussing the major health risks of pregnancy, 
AIDS, STDs and future infertility); Debra Kent, Sex & Your Body: 
Talking to Your Parents about Sex, Seventeen, Apr. 1990, at 100-
05 [hereinafter Kent, Talking to Your Parents] (giving advice to 
young women on how to talk to their parents about sex); Kathy 
McCoy, Quiz: Are You Ready to Have Sex?, Seventeen, Jan. 1989, at 
12 (attempting to present questions young women should ask in 
determining whether they are ready to have sex).  

   n153. See infra notes 154-56 and accompanying text.  

   n154. See 54% in High School Say They've Had Sex, Dallas 
Morning News, Jan. 4, 1992, at 1A [hereinafter 54% in High 
School]. Note that while this report attempts to present 
objective information on the sexual activity of youth, other 
attempts have been blocked by special interests. See, e.g., id. 
at 9A ("In July, federal Department of Health and Human Services 
officials postponed plans for a larger and more detailed survey 
of teen sex habits. That study came under fire from conservatives 
who called it wasteful and intrusive, citing questions about 
homosexual behavior, among others.").  

   n155. See 54% in High School, supra note 154. Breaking down 
the aggregate figure, the report says that 40% of ninth-graders 
reported having had sex, 48% of tenth-graders, 57% of eleventh-
graders, and by the twelfth grade, fully 72% reported already 
having had sex. Id.  

   n156. See Manning, supra note 147, at B1 (noting that "every 
day, 8,441 teens become sexually active"). But see Karen S. 
Peterson, Virginity May be Gaining a New Cachet, USA Today, July 
24, 1992, at D1-D2 (noting that there are early signs of a 
renewed teen interest in either remaining virgins, returning to 
abstinence if previously sexually active, or delaying sexual 
activity).
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   Paralleling the rise in youth sexual activity is the concern 
and fear of sexually-related health problems. These 
considerations include teen pregnancy, n157 sexually transmitted 
diseases (STDs), n158 and AIDS. n159 In   [*62]   fact, AIDS 
affecting youth has become such a major concern that Newsweek ran 
a cover story on the issue. n160
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n157. See Peterson, supra note 156, at D2 (noting that youth 
fear pregnancy the most when contemplating sexual activity).  

   n158. See, 54% in High School, supra note 154, at 9A (noting 
that one out of every twenty-five responding students said that 
they had contracted an STD); see also Kent, Talking to Your 
Parents, supra note 152.  

   n159. See Peterson, supra note 156, at D2. One student 
commented, "You can be rid of a pregnancy. You can't get rid of 
AIDS.... That is what is keeping most of us away from sex." Id.  

   n160. See Barbara Kantrowitz et al., Teenagers and AIDS, 
Newsweek, Aug. 3, 1992, at 45-49.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   Condom manufacturers, recognizing the rise in teenage 
sexuality, have actually started specifically targeting the 
teenage market. n161 While not everyone is enthusiastic about an 
advertising campaign aimed at youths fourteen and older, n162 
this campaign does seem to be a market-driven response to the 
realities of the day.
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n161. See Company Targets Teens with New Brand of Condom, 
Austin Am.-Statesman, Nov. 28, 1991, at E10 [hereinafter Condom] 
(discussing a condom manufacturer's repackaging of its condoms 
using a "marketing mix aimed at teens-a $3 price, a compact six-
condom package with neon graphics, free condom key chains or rub-
off tattoo kits inside and advertising on MTV").  

   n162. Id. (noting that some feel the "Safe Play Condoms for 
Young Lovers" will encourage teens to have sex). A better 
educated youth, however, should at least have a greater chance of 
preventing some of the serious health repercussions unprotected 
sex can lead to, should he or she choose to take precautions. At 
least one study has found that education can work. See, 54% in 
High School, supra note 154 (discussing a survey by Girls Inc. 
which found that teen pregnancy fell 50 percent once teens were 
educated).
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   Marketers are not the only ones to recognize that students are 
interested in sex. The arts also address this issue as one of 
many that affect teenagers. One television program that has 
become popular with the young is Beverly Hills, 90210. n163 The 
show, which focuses on teenagers in Beverly Hills, "has become 
more than a hit series; it is a social phenomenon of worldwide 
proportions." n164 The show has "managed to tap into real 
concerns of contemporary teens: dating, parents, friends, sex." 
n165 Dylan McKay, a central character in the show, "has become a 
touchstone for the American public: he's Everyteen, a youngster 
who, growing up quite cognizant of the frightening age in which 
he lives-AIDS, drugs, family, and now urban violence-retains not 
only a cool resolve but also a cooler integrity." n166
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n163. See Zip Code Heaven, People, July 27, 1992, at 102 
(noting that Beverly Hills, 90210 "is watched by more teens than 
any other series on TV").  

   n164. Kevin Sessums, Wild About Perry, Vanity Fair, July 1992, 
at 96. See id. at 151 (discussing the popularity of the show in 
the United States and noting that new episodes shown during the 
summer of 1991 attracted 69 percent of the female teenage 
audience).  

   n165. Richard Zoglin, Revenge of the Androids, Time, July 20, 
1992, at 78.  

   n166. Sessums, supra note 164, at 96.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   Many students, frustrated with a lack of free and open outlets 
to explore issues relevant to their lives, are turning to shows 
like Beverly   [*63]   Hills, 90210 as an alternative means of 
exploring matters such as sex. n167 This show is important 
because it provides insight into the subjects our students are 
interested in. The arts also demonstrate that, despite the 
Court's rhetoric, n168 students are not so naive, or so innocent, 
that they are unable to handle issues, such as sex, that they 
face daily. Luke Perry, who plays Dylan McKay, has stated, "I try 
to reiterate to these people writing the show that these kids 
ain't stupid. They see. They know.  Don't be afraid to talk to 
them about real issues on a real level, because they are fucking 
way ahead of you."' n169 While this might not be the most 
eloquent articulation of an approach to relating to youth, it is 
brutally honest.
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n167. Id. at 152. A network executive, discussing the show, 
stated,  

   I think that the kids in some cases look to it to begin a 
dialogue with their parents about things. If you look at the 
demographics of who is watching, it's not just teens. It's teens 
going all the way up into the mid-to late forties. So that says 
to me that it's teens probably with their parents. It probably 
becomes one of the few times during the week where they stimulate 
a discussion. We know that from the mail we get-this program is 
something that the family shares together.  

   Id.  

   n168. See, e.g., supra notes 95-99 and accompanying text 
(discussing the rhetoric of Fraser).  

   n169. Sessums, supra note 164, at 149.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   This discussion of sex could not be complete without 
mentioning Madonna. In a retrospective on teen idols, People 
magazine described Madonna as follows: "For millions of 
teenagers, Madonna was the girl of their disobedient dreams. She 
had power; they had none. She was free, while they still needed 
Mom's permission to stay out past 10." n170 Her media coverage 
ranges from the expected-Rolling Stone n171-to such unexpected 
sources as the Economist, n172 National Review, n173 and The 
Progressive. n174 Without passing judgment on the merits of these 
articles, it cannot be denied that Madonna nonetheless demands 
attention from most quarters of society. She is indeed an icon, 
n175 and understanding her may aid in the understanding of high 
school students today.
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n170. Madonna, People, July 27, 1992, at 46.  

   n171. See Carrie Fisher, True Confessions: The Rolling Stone 
Interview With Madonna, Rolling Stone, June 13, 1991, at 35 (part 
1 of a 2-part interview) (hereinafter Fisher, Part I); Carrie 
Fisher, True Confessions: The Rolling Stone Interview With 
Madonna, Rolling Stone, June 27, 1991, at 45 (part 2 of a 2-part 
interview) (hereinafter Fisher, Part II).  

   n172. See Madonna: Dominatrix of Discourse, Economist, July 
27, 1991, at 82 (describing Madonna as a "musical opportunist").  

   n173. See Joseph Sobran, Single Sex and the Girl, Nat'l Rev., 
Aug. 12, 1991, at 32 (profiling Madonna, disapproving of 
Madonna's use of sexual themes, and concluding that Madonna mocks 
"Christian values").  

   n174. See Ruth Conniff, Politics in a Post-Feminist Age, The 
Progressive, July 1991, at 17 (contrasting Madonna as post-
feminist woman with "real women" who must still struggle with low 
wages and a lack of control over their own destinies).  

   n175. The label "icon" has been used to describe Madonna more 
than once. See Fisher, Part I, supra note 171, at 35; Madonna: 
Dominatrix of Discourse, supra note 172, at 82.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - 
[*64]    

    While Madonna has certainly produced her fair share of fluff, 
n176 some of her songs seem to go right to the heart of what the 
teenagers of today are feeling and thinking. An example is "Papa 
Don't Preach." n177 The song has been described as an anti-
abortion anthem. n178 More importantly, it is a plea by a young 
girl for understanding. The lyrics are:
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n176. See, e.g., Madonna, Material Girl, on Like a Virgin 
(Sire Records 1984); Madonna, Lucky Star, on Madonna (Sire 
Records (1983); Madonna, Where's the Party, on True Blue (Sire 
Records 1986).  

   n177. Madonna, Papa Don't Preach, on True Blue (Sire Records 
1986).  

   n178. See Madonna: Dominatrix of Discourse, supra note 172.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - 

   Papa I know you're going to be upset  

   'Cause I was always your little girl  

   But you should know by now  

   I'm not a baby  

   You always taught me right from wrong  

   I need your help, daddy please be strong  

   I may be young at heart  

   But I know what I'm saying  

   The one you warned me all about  

   The one you said I could do without  

   We're in an awful mess  

   And I don't mean maybe-please  

   Papa don't preach, I'm in trouble deep  

   Papa don't preach, I've been losing sleep  

   But I made up my mind, I'm keeping my baby  

   I'm gonna keep my baby, mmm ...  

   He says that he's going to marry me  

   We can raise a little family  

   Maybe we'll be all right  

   It's a sacrifice  

   But my friends keep telling me to give it up  

   Saying I'm too young, I ought to live it up  

   What I need right now is some good advice, please.... n179
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n179. Madonna, Papa Don't Preach, on True Blue (Sire Records 
1986).
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   The notion of Madonna as social commentator may offend some 
people. However, given the amount of publicity surrounding 
Madonna, it seems appropriate to look at her music, not just her 
hype. Seemingly, at least some of her popularity can be 
attributed to her music. Confronted with "Papa Don't Preach," one 
may either employ a Kuhlmeier-type naivete and conclude that 
discussions of pregnancy are inappropriate in the high school 
setting, or one may recognize that high school students are 
indeed sexually active. n180
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n180. See supra notes 151-56 and accompanying text.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - 
[*65]    

    The point of this reality check is not so much to pass 
judgment on teenage sexuality; rather, it is to provide evidence 
that when the Court discusses the innocence and naivete of youth, 
or the inability of our youth to address issues of sexuality, 
these assertions are not supported by facts. It is perhaps the 
Court which is unable to understand, and the schools which are 
not adequately able to address, this pressing social issue.  

   B. Reality Check Number 2: All the Rest  

   On a broader level, many of our youth are in a precarious 
situation. n181 One study found that over the past thirty years, 
the number of teenage suicides and homicides has increased almost 
three-fold on a per capita basis. n182 The study further reports 
that the number of unwed mothers has doubled between 1960 and 
1988, n183 and that, currently, one in four children are living 
in poverty. n184
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n181. See generally, Experts Say Status of Kids Worsened in 
Last 30 Years, Dallas Morning News, Jan. 3, 1992, at 1A 
[hereinafter Kids Status] ("In a disturbing measure of the effect 
of economic and social change, a new study says that the status 
of children in the United States has declined by almost every 
measure during the past 30 years.").  

   n182. See id. at 13A (The study found that the suicide rate 
for youths between the ages of fifteen and nineteen increased 
from 3.5 per 100,000 youths in 1960 to 11.3 per 100,000 youths in 
1988, and that homicide figures for the same group over the same 
time frame rose from 4.0 per 100,000 to 11.7 per 100,000.).  

   n183. See id.  

   n184. See id.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   Drugs also afflict our students. Recent surveys present 
conflicting findings with respect to the trend in high school 
student drug use. n185 Even under the rosier scenario, at least 
twenty-nine percent of high school seniors report using drugs. 
n186 One article cited drugs, along with sex and AIDS, as the 
"triple threat" facing teenagers today, and noted the correlation 
between the use of alcohol or other drugs and teenage 
pregnancies. n187
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n185. See High School Drug Use Declines, Orlando Sentinel 
Tribune, Jan. 28, 1992, at A4 (finding that drug use among high 
school seniors was down from 33% in 1990 to 29% in 1991). But see 
Doug Isenberg, Teen Drug Use Up, Reversing Trend, Atlanta Const., 
Oct. 20, 1992, at E1 (discussing a more recent survey that 
indicates a reversal in a three-year trend of declining drug use 
among teenagers).  

   n186. See High School Drug Use Declines, supra note 185, at 
A4.  

   n187. See Bob Dart, Drugs, Sex, AIDS: Symposium Warns Teens of 
"Triple Threat," Austin Am.-Statesman, Dec. 6, 1992, at A20.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   The schools, which should be a refuge to which students can 
turn, are failing to address these concerns. During the 1980s, 
people questioned the efficacy of our public schools. n188 One 
commentator notes   [*66]   that "the major reform effort ... has 
focused not on enhancing quality but on reversing what the 
National Commission on Excellence in Education termed a rising 
tide of mediocrity that threatens our future as a nation and a 
people."' n189 Unfortunately, while much discussion on this issue 
continues today, it is unclear whether any true advances have 
been made. n190
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n188. See, e.g., Mark G. Yudof et al., Educational Policy and 
the Law 816 (3d ed. 1992) (noting that Nation at Risk: The 
Imperative for Educational Reform was the first in a series of 
reports addressing the "crisis in American education").  

   n189. Id.  

   n190. See, e.g., William Tucker, School Choice and Reforms for 
the Future, Wall St. J., Dec. 4, 1991, at A14 ("After increasing 
education spending by 33% over the past decade, Americans realize 
they have very little to show for it."); Review & Outlook: 
Education Dinosaurs, Wall St. J., Jan. 21, 1992, at A20 (noting 
that the past "decade of reform' has produced only lower SAT 
scores....").
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   The schools are not only educationally unsound, their campuses 
are violent as well. Gone are the days when teenagers were 
involved in "innocent" fun, such as gum chewing. n191 Today, 
students either have, or have access to, weapons. n192 Moreover, 
today's students are not afraid to use them. Students are 
committing homicides, n193 conspiring to commit homicides, n194 
and facilitating drug deals. n195 Under these   [*67]   
conditions, school administrators could make, and judging by 
lower court decisions have made, cases for a wide variety of 
actions, each justified as "reasonable."
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n191. See, e.g., Newsome v. Batavia Local Sch. Dist., 842 F.2d 
920 (6th Cir. 1988). 

   Today's public schools face severe challenges in maintaining 
the order and discipline necessary for the impartation of 
knowledge. A recent study conducted by the Fullerton, California, 
Police Department and the California Department of Education, for 
instance, shows that, while schoolteachers in the 1940's listed 
talking, chewing gum, and running in the hallways as the primary 
disciplinary problems they encountered, today's schoolteachers 
are more concerned with drug abuse, rape, robbery, assault, 
burglary, arson, and bombings.  

   Id. at 924-25 (citing Ezra Bowen, Getting Tough, TIME, Feb. 1, 
1988, at 54).  

   n192. See Rod Nordland, Deadly Lessons, Newsweek, Mar. 9, 
1992, at 22 (quoting a fifteen-year-old New York City student who 
stated, "If you had the money, you could get yourself a tool' 
[gun] in 15 minutes. I would say, out of 100 kids, 90 got guns or 
can get them."); Tom Morganthau et al., It's Not Just New York, 
Newsweek, Mar. 9, 1992, at 25 ("According to the federal Centers 
for Disease Control, one student in five reports carrying a 
weapon of some type and about one student in 20, or 5.3 percent, 
reports carrying a gun.").  

   n193. See, e.g., Accidental Shooting Kills 1, Wounds 1 at L.A. 
High School, Austin Am.-Statesman, Jan. 22, 1993, at A4; Zeke 
MacCormack, 1 Dead, 1 Wounded in Shooting Blamed on 2 Killeen 
[Texas] Teen-agers, Austin Am.-Statesman, Jan. 23, 1992, at B2 
(discussing an after-school shooting that was thought to have 
been prompted by a fight at school between two female students); 
Robert D. McFadden, Student Shot to Death in a High School in 
Brooklyn, N.Y. Times, Nov. 26, 1991, at A12.  

   As two teenage boys fought with fists, a third youth drew a 
gun and opened fire in the crowded hallway of a Brooklyn high 
school today, and the wild shots killed a 16-year-old bystander 
and critically wounded a teacher who was approaching to 
intervene. One law-enforcement official said the fistfight that 
preceded the shootings ... apparently stemmed from a dispute over 
a book bag. Another investigator said the youth began firing when 
he saw that his friend was losing the fight.  

   Id.  

   n194. See Teens Plead Guilty to Conspiracy to Kill Fellow 
Student in California, Austin Am.-Statesman, Nov. 26, 1991, at A4 
(describing how two thirteen-year-olds and a fourteen-year-old 
pleaded guilty to a conspiracy to kill a fifteen-year-old 
described as a "bully").  

   n195. See, e.g., Berry v. State, 561 N.E.2d 832 (Ind. Ct. App. 
1990) (student convicted of selling marijuana at school); New 
Jersey v. T.L.O., 469 U.S. 325 (1985).
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   For lack of a better place to turn, many teenagers look to 
each other for support. Numerous media accounts depict this 
phenomenon. One newspaper article chronicled the life of some 
Hollywood, California, teenagers dubbed the "Trolls" and their 
harsh lifestyle. n196 Another story analyzed the rise of gang 
activity, not by young men, but by young women in search of 
protection. n197 Courts do not seem to address these situations 
in their rhetoric. Courts and, more importantly, school 
administrators do not listen to these cries for help.
 
 - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - 
-  

   n196. Sonia L. Nazario, Playing House: Troubled Teen-agers 
Create a Fragile Family Beneath a Busy Street, Wall St. J., Jan. 
21, 1992, at A1. The opening paragraph of the article presents a 
stark look at the existence of some youths.  

    Five teen-agers crouch over a candle in a dark, fetid cavern 
under a busy roadway. Around them, the dirt floor seems to move 
as rats look for food. As the teen-agers pass around a half-
gallon bottle of Riesling, they talk about their latest sexual 
scores. This is the place the teens call, simply, the Hole. "This 
is my home," reads a graffito scrawled on a concrete wall.  

   Id.  

   n197. See Felicia R. Lee, Violence, Loneliness Drive More 
Girls into Gangs, Experts Say, Austin Am.-Statesman, Nov. 28, 
1991, at E14 (noting that the motivation to join gangs apparently 
stems from a need to gain protection from the violence around 
them).
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   Students not only attempt to express their dissatisfaction 
with the system through their own actions and words, but they 
also express themselves vicariously through the arts that they 
consume. Tracy Chapman n198 sings of radical change, n199 
escapism, n200 and asks the most difficult, lingering question, 
"Why?" n201 Pink Floyd's The Wall, n202 still popular with 
today's youth, n203 presents another artistic expression of 
youthful disillusion. Both the classic refrain from Another Brick 
in   [*68]   the Wall, Part 2, n204 "We don't need no education," 
n205 and the sense of betrayal in Mother, n206 illustrate the 
disbelief and distrust youth have toward institutions designed to 
inculcate correct values in them. n207
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n198. Tracy Chapman was introduced at a Farm Aid benefit 
concert "as the most important poet and dreamer of her day."' 
Karen Schoemer, Tracy Chapman Struggles to Live up to 
Expectations, Austin Am.-Statesman, May 4, 1992, at B9.  

   n199. See Tracy Chapman, Talkin' Bout a Revolution, on Tracy 
Chapman (SBK Records 1988) ("finally the tables are starting to 
turn"). The album, Tracy Chapman, has been described as one that 
"spoke volumes in whispers and minute details." Schoemer, supra 
note 198.  

   n200. See Tracy Chapman, Fast Car, on Tracy Chapman (SBK 
Records 1988) ("You got a fast car/I want a ticket to 
anywhere/Maybe we make a deal/Maybe together we can get 
somewhere/Anyplace is better/Starting from zero got nothing to 
lose/Maybe we'll make something/But me myself I got nothing to 
prove").  

   n201. See Tracy Chapman, Why?, on Tracy Chapman (SBK Records 
1988).  

   n202. Pink Floyd, The Wall (Columbia Records 1979).  

   n203. The Wall was number 18 on the Billboard "Top Pop Catalog 
Albums" chart during the week of August 29, 1992. Top Pop Catalog 
Albums, Billboard, Aug. 29, 1992, at 49. This chart contains 
"albums [of] older titles which have previously appeared on the 
Billboard 200 Top Albums chart and are registering significant 
sales." Id.  

   n204. Pink Floyd, Another Brick in the Wall, Part 2, on The 
Wall (Columbia Records 1979).  

   n205. Id.  

   n206. Pink Floyd, Mother, on The Wall (Columbia Records 1979) 
("Hush now baby don't you cry/Mama's gonna make all of 
your/Nightmares come true/Mama's gonna put all of her fears into 
you/Mama's gonna keep you right here/Under her wing/She won't let 
you fly but she might let you sing/Mama will keep baby cozy and 
warm/.../Of course Mam'll help build the wall").  

   n207. There is at least one case in which a teacher was 
discharged for showing the movie version of this album. See 
Fowler v. Board of Educ. of Lincoln County, 819 F.2d 657 (6th 
Cir. 1987).
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   The popularity of movies such as Dead Poet's Society, n208 an 
extreme example of youthful despair in which the youthful 
protagonist, in classic Shakespearean tragedy form, commits 
suicide to escape the stifling control of his father, and 
Footloose, n209 a movie and accompanying soundtrack which depicts 
teenagers overcoming frustration through a communal grant of 
empowerment, are further examples of the arts reflecting the 
desires and needs of the young.
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n208. Dead Poet's Society (Touchstone Pictures 1989). See Mary 
McHugh, Hits and Misses of Seasons Past, N.Y. Times, Sept. 6, 
1992, 2, at 15 (Dead Poet's Society grossed $94 million). The 
movie has been described as a "critically acclaimed film ... 
which inspires teachers to teach and students to learn .... The 
film was applauded by the British House of Commons for 
celebrating the wonder of poetry, literature and language [, 
and] ... the importance of courage and integrity, non-conformism 
and free thought."' Sixth Annual Kohl Award to Honor Teachers, PR 
Newswire, Mar. 29, 1990, available in, Lexis, Nexis Library, Omni 
File. One library also has set up screenings of the movie for 
teenagers. See Children in Spotlight at Auburn Kidsday, Seattle 
Times, June 25, 1992, at F3.  

   n209. Footloose (Paramount Pictures 1984). At the time of its 
release, Footloose was described as "hugely popular." Vincent 
Canby, Film View: Musicals Move Ahead While Looking Back, N.Y. 
Times, Apr. 8, 1984, 2, at 19.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   Sex, drugs, violence, and despair are very serious issues 
facing our students today. The Supreme Court and lower courts do 
not adequately or accurately incorporate these issues in their 
discussions of students. The rhetoric used by courts simply does 
not match the reality facing students, which implies that the 
current reasonableness test for students' constitutional rights 
is unjustified and should be replaced with a protected sphere of 
students' rights based on the principles of Barnette, Tinker, and 
Pico. n210
 
 - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - 
-  

   n210. See supra section II.A.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   Some might argue that the issues raised in this Article 
justify more stringent control of students, not less; however, 
there is independent support for promoting students' rights as an 
educational matter. Pro  [*69]   moting students' rights may: (1) 
further "conceptual development"; n211 (2) foster debate on 
diverse issues; n212 (3) increase the chances that students will 
"experience the positive power of the law"; n213 and (4) further 
respect for human dignity. n214 These examples lend support to 
the premise that students should have rights because of their 
value to the educational process.
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n211. Roe, supra note 59, at 1276 ("An understanding of the 
work of the schools as conceptual development necessitates a high 
degree of tolerance for student speech under the protection of 
the First Amendment.").  

   n212. See Lee Gordon, Note, Achieving a Student-Teacher 
Dialectic in Public Secondary Schools: State Legislatures Must 
Promote Value-Positive Education, 36 N.Y.L. Sch. L. Rev. 397, 400 
(1991).  

   n213. Geimer, supra note 38, at 973.  

   n214. See Charles Robert Tremper, Respect for the Human 
Dignity of Minors: What the Constitution Requires, 39 Syracuse L. 
Rev. 1293 (1988).
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   Beyond the educational justification is an equally plausible 
interpretation of reality that lends support to legal recognition 
of students' constitutional rights. Because of the seriousness of 
this issue, and due to the temptation to discount students' 
rights, or to balance away students' rights under the guise of 
reasonableness, the Court must return to the principles of 
Barnette, Tinker, and Pico or the discussions of students' rights 
will be rendered meaningless. Instead of reducing constitutional 
protection as the seriousness of the issue increases, the 
opposite must be done. The serious issues present the greatest 
need for constitutional protections.  

   A final observation on reality and a comment on the benefits 
of respecting students' rights relate to combining the 
educational mission with the law. The Tinker Court discussed the 
importance of respect. n215 Students cannot realistically be 
expected to respect anyone-themselves, other students, school 
administrators, or adults in general-if school administrators do 
not demonstrate the importance of the concept by respecting the 
students. The law and its positive effects will not be recognized 
or respected if school administrators continuously resort to "the 
law" to justify suppression of student activities. If a student's 
dignity is not respected, it should come as no surprise if the 
student refuses to respect the dignity of others. To ensure the 
success of the educational mission, the law must support students 
by providing the necessary counterbalancing force needed to 
foster a more balanced relationship between students and school 
administrators, so that respect can be realistically promoted 
between both groups. n216
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n215. Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 
511 (1969).  

   n216. See Dienes and Connolly, supra note 110, at 394 
("Students, teachers, and parents have substantive constitutional 
rights that the courts are obligated to protect.... While judges 
may properly give deference to administrative decisions when 
deference to administrative expertise is called for [this] must 
not be exalted to the point that substantive judicial review 
becomes a meaningless ritual.").
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - 
[*70]    

    V. A Proposed Balanced Relationship  

   To achieve a balanced relationship, school administrators must 
begin respecting students and include students in the decisions 
that affect the students' lives. This newfound sensitivity might 
seem simplistic and perhaps even naive. It is, in fact, based in 
part on an ideal world. In an ideal world there would be a sphere 
of protected rights that are not subject to balancing, 
reasonableness, or any other test. Even in such a world, however, 
the game would likely change from a balancing act to a debate on 
how large the sphere of rights should be.  

   The principle that should be strived for in a balanced 
relationship was roughly articulated in Arnold v. Carpenter, n217 
which dealt with a student dress code. The majority, in upholding 
a male student's right to wear long hair, stated,
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n217. 459 F.2d 939 (7th Cir. 1972).
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

    It is understandable why some judges find students' "long 
hair" claims constitutionally insubstantial. Measured against 
today's great constitutional issues (capital punishment, 
abortion, school segregation) the question of whether a student 
may or may not have constitutional protection in selection of his 
hair dress appears de minimis. Perhaps even judges who sustain 
the right are nagged with impatience and doubt when faced with 
student claims. But we look down across a gap of a generation or 
two, from the Olympian heights of what we consider the great 
issues. For the high school student claimant, however, the right 
to wear "long hair" is an issue vital to him and we have seen 
what he is willing to sacrifice for his claim. It is settled that 
the students have constitutional rights of freedom and there 
appears to be no reason why the values of freedom are less 
precious in a younger generation than in an older. n218
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - 

   n218. Id. at 941-42 n.5. Justice Stevens, then a Seventh 
Circuit judge, dissented in this case. It is interesting that he 
makes a similar plea for acceptance and respect for student views 
in Fraser. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 692 
n.2 (1986). This controversy over student hair length, and the 
sacrifices students are willing to make, was recently revisited. 
See Toungate ex rel Toungate v. Bastrop Indep. Sch. Dist., 842 
S.W.2d 823 (Tex. Ct. App. 1992) (involving a third-grade 
student's fight to wear a "thin ponytail five or six inches below 
his collar," and discussing the student's subsequent in-school 
suspension. Id. at 826).
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   It is easy to see that school administrators may believe each 
is reasonable in desiring a dress code, n219 and that students 
might disagree with school administrators on how the dress code 
should be written. Ar  [*71]   nold is particularly interesting 
because students were actually involved in the formulation of the 
dress code that Carpenter challenged. n220 In siding with 
Carpenter, the Court preserved a sphere of protected rights, even 
though the students and school administrators that wrote the 
policy were acting reasonably in requiring alternate behavior.
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n219. One principal attempted to implement a dress code 
banning certain colors and logos in response to gangs. See 
Baytown School's Dress Code Forbids Gang' Colors, Austin Am.-
Statesman, Mar. 29, 1992, at B10.  

   n220. One issue associated with advocating student empowerment 
is what happens if students vote to suppress students' rights. A 
group of Washington state students voted on an initiative to ban 
homosexual students from serving on the student council. See Gay 
Activists Assail Oregon Vote, Austin Am.-Statesman, Mar. 29, 
1992, at B10. While the initiative failed, this highlights the 
need on occasion, as the Arnold court demonstrated, for 
protecting substantive rights irrespective of the majority will. 
While students should be encouraged to express their views, and 
these views should be considered, the views cannot be definitive 
on the issue.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   Because it is unlikely that a claimant will find a court this 
sympathetic today, n221 a more explicit solution to balancing 
student and school interests is necessary. A possible solution 
includes a three-step analysis that will both respect the 
constitutional rights of students and allow school administrators 
to carry out their educational mission. The three steps are: (1) 
determine the reasonableness of the school administrator's 
actions in light of a reasonable educator standard; (2)if 
necessary, determine the reasonableness of the student's conduct 
in light of a reasonable student standard; and (3) if necessary, 
balance the interests of the school administrator with the 
interests of the student to determine whether the student ought 
to be allowed to act, or whether the school administrator ought 
to be allowed to restrict the student's actions.
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - 

   n221. See supra notes 110-42 and accompanying text.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   Step one requires the fact finder to determine whether the 
school administrator's actions, in some absolute sense, are 
reasonable in light of a reasonable educator standard. n222 The 
question that must be asked is: Would a reasonable educator act 
in the manner in which the actual school administrator acted in 
light of all of the circumstances? If the answer is no, the 
inquiry ends. If the school administrator's actions are found to 
be unreasonable, even under the deferential reasoning of 
Kuhlmeier, n223 the school administrator's actions cannot stand. 
If, however, the school administrator's actions are deemed 
reasonable, it will be necessary to proceed to step two.
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n222. See supra note 6 for a definition of "reasonable 
educator."  

   n223. 484 U.S. 260 (1988).
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   This second step inquires into the reasonableness of the 
student's conduct in light of a reasonable student standard. n224 
The step two question is: Would a reasonable student conduct 
himself or herself in the manner in which the actual student 
conducted himself or herself in light of all of the 
circumstances? As with step one, if the student's   [*72]   
conduct is found to be unreasonable, the analysis ends and 
sanctions against the student should stand. If, however, the 
student is found to have conducted himself or herself reasonably, 
then it will be necessary to proceed to step three.
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n224. See supra note 9 for a definition of "reasonable 
student."
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   Step three is the most difficult step. Two reasonable people-
the student and the school administrator-are in opposition to one 
another. Each has behaved as his or her peers would act. The 
question remains: Who should prevail? This is where a true 
balancing of interests is required. The approach most protective 
of students would require courts to use a heightened level of 
scrutiny of the school administrator's actions analogous to that 
used by courts evaluating limitations on suspect classes in Equal 
Protection cases. n225 I realize, however, that this is 
unrealistic. Therefore, a mid-level judicial scrutiny, something 
approaching what one commentator describes as rational basis with 
a bite, n226 is more likely to be accepted by courts. n227
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n225. See, e.g., Loving v. Commonwealth of Virginia, 388 U.S. 
1 (1967).  

   n226. See Gerald Gunther, Foreward: In Search of Evolving 
Doctrine on a Changing Court: A Model for a Newer Equal 
Protection, 86 Harv. L. Rev. 1, 20-24 (1972) (recommending a new 
level of scrutiny for equal protection cases, and noting that 
this new level of scrutiny "would have the Court assess the means 
in terms of legislative purposes that have substantial basis in 
actuality, not merely in conjecture.").  

   n227. This idea has been suggested before. See Dienes and 
Connolly, supra note 110, at 389-92 (proposing a "weighed 
balancing" of interests as an alternative to formalistic judicial 
decision making). However, this proposed approach covers a 
broader range of student interests, and more explicitly 
recognizes the interests to be balanced.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   This mid-level scrutiny should produce a greater sphere of 
protected students' rights than that found today. Hopefully, this 
level of scrutiny would not increase the number of judicial 
challenges to school authority. Rather, if the Supreme Court were 
to adopt this higher standard of review, it would be sending a 
message to school administrators to re-evaluate their actions and 
to take the interests of students more seriously when determining 
whether to implement student restrictions. n228
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n228. See id. at 385. ("Even though judicial action seldom 
provides definitive answers to conflicts, the threat of judicial 
intervention reshapes the dispute and becomes part of the give 
and take of the dialogue."); see also Roe, supra note 59, at 
1331:  

   Review of restrictions of student speech is particularly 
necessary because schools are charged with teaching respect for 
democratic values, including First Amendment values. Therefore, 
courts have a responsibility to see that First Amendment values 
are maintained when school boards evaluate the educational 
suitability of student speech because such evaluations may 
threaten the very values that schools have a duty to teach.  

   Id. (footnote omitted).
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   A bright line test for step three is seemingly impossible. The 
issue of students' rights is not one that is susceptible to 
absolutes. Given the inevitable conflicts between students' 
desires and the educational mis  [*73]   sion, the circumstances 
of a given case necessarily will determine who prevails. 
Admittedly, there will be few cases in which a fact finder will 
conclude that under no circumstances could he or she find that 
the school administrator or the student would be reasonable in 
acting in the manner he or she acted. Cases which come 
immediately to mind that might qualify include strip searches, 
drug testing, and weapons.  

   Slightly more difficult cases will be those in which the fact 
finder must decide whether the actions of students or 
administrators are reasonable in particular circumstances. The 
important point here is that even if one finds the action of the 
school administrator is reasonable, this should be only the 
beginning of the inquiry, not the end. A court should be required 
to inquire further into the reasonableness of the student's 
conduct or interest and expressly articulate what the offending 
conduct or interest is and why it is reasonable or unreasonable. 
At a minimum, such an articulation subjects the court's opinion 
to scrutiny by appellate courts, commentators, and the general 
public. If any of these groups is dissatisfied, appropriate 
remedial steps can be taken. While this is less than the ideal 
unyielding baseline of students' rights, it is far better than 
some of the conclusory court opinions that do not bother to 
evaluate the student interest at all. n229
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n229. Such a disinterest in students' rights is exactly what 
occurred in Fraser and Kuhlmeier. In Fraser, the Court based much 
of its reasoning on the potential harm to the younger students 
and then concluded that the school board should make the ultimate 
determination of what constitutes inappropriate speech. See 478 
U.S. 675, 684-85 (1985). In Kuhlmeier, the Court concluded that 
as long as actions of the administrators were reasonably related 
to legitimate pedagogical concerns they would be deferred to. See 
484 U.S. 260, 273 (1987).
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   A requirement that a court "gauge the reasonableness of 
questionable means on the basis of materials that are offered to 
the Court, rather than resorting to rationalizations created by 
perfunctory judicial hypothesizing" n230 should be imposed. 
Assuming the student's interest is reasonable, a court should 
further be required to balance it in light of Tinker's material 
and substantial interference standard. n231
 
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -  

   n230. Gunther, supra note 226, at 21.  

   n231. Tinker, 393 U.S. at 509.
 
- - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  

   Students and school administrators will disagree over what are 
proper limits over speech, press, and privacy rights. Indeed, one 
student might disagree with another student, and educators will 
disagree among themselves. The critical idea is that both 
students' and school administrators' interests be taken into 
account. Under today's scheme, this balancing of interests is not 
occurring. Under the proposal set forth here, school 
administrators and courts will be required to articulate the 
relevant interests of schools and students and explain why one 
outweighs the other.   [*74]    

    VI. Conclusion  

   This Article attempts to present the status quo and a new 
vision of the future with respect to students' rights. The status 
quo encompasses a legal standard that demands mere 
"reasonableness" when evaluating students' constitutional rights, 
and as a result, the Supreme Court has sanctioned an approach 
that gives great deference to school administrators. The status 
quo also encompasses an activist school administrator community 
that takes the Supreme Court's sword and wields it wherever and 
whenever it can to force students to conform to its notions of 
orthodoxy. 

   The status quo must take notice of students who are 
disillusioned, angry, bitter, and rebellious. Students today 
generally face despair and must confront the issues of sex, 
drugs, and violence at an earlier age than previous generations.  

   While parents and schools must inculcate youth with certain 
values, school administrators should include students in the 
selection of the values to be instilled. The silencing movement 
has not silenced students, and other puritanical and totalitarian 
methods have not stopped students from acting on their desires. 
Only by embracing a student-inclusive view and creating an 
environment where both students and school administrators 
mutually respect each other, listen to each other, and try to 
incorporate ideas espoused by each other, can we hope to move 
toward a society that equally values students' rights and 
educators' goals.