In Tinker v. Des Moines, 1969, the Supreme Court ruled on the 1st Amendment rights that applied to student protests at school. In his concurring opinion, Justice Byron White observed that "students do not abandon their constitutional rights at the schoolhouse gate." So sweeping a statement required further clarification. It left unanswered such questions as when a minor becomes a "fully participating citizen" protected by the Bill of Rights, and what parts of the Bill of Rights apply to students. Do they apply to all students, even those in elementary schools? How is a student at school different from a young person in the custody of his or her parents, or a minor in the juvenile justice system?
In its previous decisions involving minors, the Court ruled that young people in the juvenile justice system were entitled to most of the due process rights afforded to adults (In re Gault, 1967), and that schools could not limit the "peaceful expression of political opinion" by students (Tinker, 1969). In the case at hand, the Court considered the due process rights to which students are entitled when facing disciplinary action by the school.
Chief Justice Burger presided at the hearings, flanked by senior Justices Douglas (1939), Brennan (1956), Stewart (1959), White (1962), and Marshall (1967). Also participating were Justices Blackmun (1970), Rehnquist (1972), and Powell (1972). Later in the year, Justice John Paul Stevens (1975) replaced Justice Douglas, who retired after serving a record 36 years on the Court.
The storm of student protest movements that had broken out on college campuses in the 1960s and during the Vietnam War had, by the early 1970s, spread to many high schools. In 1971 widespread student unrest occurred in the Columbus, Ohio, public schools. A number of students who either participated in or were present at demonstrations held on school grounds were suspended. Many suspensions were for a period of 10 days. Suspended students did not receive hearings before their suspensions were imposed, though some students and their parents met in informal conferences with school officials at a later date. A number of students, through their parents, sued the school board. The Supreme Court of Ohio found the State law permitting the suspensions unconstitutional. School officials appealed to the Supreme Court.
At issue were two provisions of the 14th Amendment—the Equal Protection Clause, requiring laws to apply equally to all persons, and the Due Process Clause, which requires States to recognize the rights of all citizens facing legal action. Do these constitutional provisions extend to high school students as citizens entitled to equal protection? Do students have due process rights in schools? If so, were students' rights to due process violated when they were suspended without a hearing? Does the school's need to maintain discipline override due process rights in cases of apparent emergency, demanding swift action by school officials?
For Goss and school officials: The operation of public schools is an area of power reserved to the States in the Constitution. Ohio has chosen to offer free public schools, but public education is not a "right." Since education is not a right guaranteed under the Constitution, no "rights"—of due process, especially—were violated in this case. Furthermore, the 10-day suspensions were not very damaging. Students suffered no serious "loss" of education because of the suspensions. Finally, school administrators, not judges, must be the ones who decide how to operate the schools, including the maintenance of discipline.
For Lopez and the suspended students: By providing for the suspensions of students for up to 10 days without a hearing, the school law in Ohio clearly violated students' due process rights. Such a statute is arbitrary and dangerous to a society based on law. Students should be notified of the rules they are accused of violating, should receive a hearing, have the right to confront their accusers, and have a chance to tell their side of the story. A 10-day suspension is a serious punishment for a student, and schools should not be allowed to impose such punishment arbitrarily.
Justice Byron White wrote the majority opinion for the 5–4 decision, in which the Court struck down the Ohio law as a violation of students' limited rights to due process. White observed that "a student's right to liberty included reputation, honor, integrity and standing with teachers and other students," all of which could be damaged should the student be suspended. To prevent arbitrary suspensions by school officials, some measure of due process had to be incorporated into disciplinary proceedings. The majority of the Court did not feel that a 10-day suspension was a "minor matter unworthy of attention" but that, on the contrary, it "may not be imposed in complete disregard of the Due Process Clause."
According to the majority, students were entitled to the following due process rights: (1) oral or written notice of the charges, (2) if a student denies the charges, an explanation of the evidence the school will use against him or her, and (3) an opportunity for the student to present his or her side of the story. The Court ruled that in an emergency situation, students could be sent home immediately and a hearing held at a later date. The Court did not rule, however, that students had a right to an attorney, to cross-examine witnesses, to call witnesses in their defense, or to a hearing before an impartial person.
Four justices disagreed completely with the majority. Justice Powell called the matter of suspension an "insignificant infringement of education" that "rarely affect[s] a pupil's opportunity to learn or his scholastic performance." Powell noted the differences between the rights and duties of children and adults. There are clearly differences in the standing of youths and adults in the area of voting, owning property, holding office, and in civil and criminal law. The difference is most obvious in the area of public education. "The State's interest," Powell continued, "is in the proper functioning of its public school system for the benefit of all pupils and the public generally." Referring to the role of the student in the school, Powell observed: "One who does not comprehend the meaning and necessity for discipline is handicapped not merely in his education but throughout his subsequent life."