12/20/2002

Legal Miseducation?

The Bill of Rights and the School Curriculum

by David Schimmel

There is a disturbing disconnect between what schools claim to teach about the law and what most schools in fact do teach. A goal of the public schools is to teach students to become knowledgeable, active, and responsible supporters of our legal system and constitutional democracy. Unfortunately, many (perhaps most) do just the opposite through both their formal and informal curricula.

Through the formal curriculum, every student learns about our great constitutional liberties. But when nothing is taught about how the courts have applied the Bill of Rights to students in public schools and when students experience the law as a restriction on their freedom and as a source of punishment, it is not surprising that many become cynical and view constitutional rights as distant, theoretical, or irrelevant platitudes. Similarly, when the informal or "hidden" law curriculum (the way schools develop, interpret, and apply school rules) is taught in an authoritarian manner and seems to hypocritically contradict what students learn about constitutional rights in the classroom, they may feel victimized by school authorities and alienated towards law, and they are likely to become passive, nonvoting citizens.

This article examines the unintended consequences of the way most schools miseducate about the law. It then suggests an approach to both the formal and informal curricula that explains how the Bill of Rights applies to the public schools and why such rights must be limited as well as protected. Such an approach can capture student interest, teach democratic skills, and encourage students to become responsible and effective citizens.

Formal Curriculum

All students are taught about our individual rights as Americans. Every U.S. history text tells about our freedoms of religion, speech, and press, and due process, as well as a few historic Supreme Court cases. In addition, most civics and law-related education materials include more recent court decisions that apply the Bill of Rights to adults.

The problem with this curriculum is threefold. First, teaching about great landmark cases such as Marbury v. Madison, despite their historic significance, is irrelevant to students. Second, the way most history texts teach about the First, Fourth, Fifth, and Fourteenth Amendments tends to be so broad, ambiguous, and unlimited as to seem unrealistic. Since students know that their freedoms are constantly being limited in schools, they may view constitutional rights more as rhetorical phrases than as anything relevant to their lives. Third, it is obvious that Supreme Court decisions protecting the rights of adults in their homes (e.g., the warrant requirement before a search) or in the courts (e.g., the due-process rights of the accused) don't seem to apply to students. As a result, they often conclude (erroneously, but understandably) that the Bill of Rights doesn't protect them in the public schools, or, if it does, that school authorities are constantly violating their rights. Thus, students perceive a dramatic disconnect between the rhetoric of rights as taught in the curriculum and their experience of the law in school—as an authoritarian restriction on their legitimate liberty, as a source of potential punishment, and as a contradiction from what the cases seem to say the law should be.

If we want students to support our constitutional system, they must feel that the Bill of Rights protects their rights. They must understand why student rights are different from those of adults and why their freedoms must be limited when they conflict with the rights of others. One way this can be done is by teaching about the important Supreme Court decisions that apply the Bill of Rights to the public schools—cases that are rarely included in the curriculum. In these compelling cases, the Supreme Court discusses and balances the rights of some students with the competing rights and interests of educators, voters, school officials, and other students.

Freedom of Religion

The prohibition of laws "respecting an establishment of religion" is one of the most important, controversial, and misunderstood phrases in the First Amendment. Many students (and parents) are confused about why the Supreme Court has interpreted the establishment clause to prohibit "voluntary" school prayer and about the court's apparent double standard that allows invocations at the opening of Congress but prohibits those same prayers at a school's opening exercises or graduation ceremony. Studying one of the school prayer cases such as Engel v. Vitale, 370 U.S. 421 (1962), or the more recent graduation prayer case, Lee v. Weisman, 112 S.Ct. 2649 (1992), would explain how the establishment clause applies to public schools and why the wall of separation is higher in schools than in legislatures-because students are compelled to attend and because they are at a formative and impressionable age. Students would also learn that, as part of the government, public schools should be neutral towards religion-neither promoting nor undermining any group's faith.

Freedom of Expression

From U.S. history and civics texts, students learn that all citizens are entitled to freedom of speech and press and that such freedoms can be limited by government officials only in extreme cases such as falsely shouting "Fire!" in a crowded theater. Therefore, students wonder whether school officials violate their rights when those officials prohibit and punish student speech that is far less extreme. That is why students should be taught about the Supreme Court cases that interpret this freedom in the public school context. This should include the landmark decision in Tinker v. Des Moines, 393 U.S. 503 (1968), which holds that the First Amendment does protect student freedom of expression but that students have more limited freedom than adults and that this freedom can be restricted if it causes substantial disruption or interferes with the rights of others.

Due Process

From texts and television, students learn that citizens have a Fifth Amendment right not to testify against themselves and that due process usually includes a number of rights such as written notice of charges and a formal hearing, the right to present witnesses, to cross-examine, to have representation, and to appeal. If they study the Supreme Court decision in Goss v. Lopez, 419 U.S. 565 (1975), students would understand that due process is not a fixed, rigid concept but varies according to the severity of the penalty. The more serious the possible penalty, the more formal is the process that is due. Therefore, while students are entitled to extensive procedural rights before being expelled, the process due is much more limited and informal in cases of short suspension. Students might disagree with Goss, but they would know that administrators who provide limited and informal notice and hearings before short suspensions are not violating the Fourteenth Amendment.

Search and Seizure

Students also learn from texts and television that police cannot search their home without a warrant based on probable cause and that random, suspicionless searches on the street violate the Fourth Amendment. Therefore, it is not surprising that many students believe that they have no privacy rights in school or, if they do, that the Fourth Amendment is routinely violated when their lockers, backpacks, or cars are searched without a warrant. That is why it is important for them to learn about how the Supreme Court has applied the Fourth Amendment to public schools. For example, New Jersey v. T.L.O., 469 U.S. 325 (1985), would teach students that school officials must have "reasonable suspicion" before searching students but that neither probable cause nor a warrant is required. If they studied Board of Education v. Earls, No. 01-332 (June 27, 2002), students also would learn why a majority of the justices believe that schools do not even violate the Fourth Amendment when they conduct random drug tests of students who participate in extracurricular activities.

Equal Protection

When discussing civil rights, most texts emphasize the progress the Supreme Court has made from its separate-but-equal doctrine in Plessy v. Ferguson, 163 U.S. 537 (1896), to its holding in Brown v. Board of Education, 347 U.S. 483 (1954), that school segregation is inherently unequal. But Brown is no longer controversial in most U.S. communities. Therefore, students also should be taught about the more complex and misunderstood rulings on affirmative action, such as University of California v .Bakke, 438 U.S. 265 (1978), which holds quotas unconstitutional while permitting race to be considered as a "plus factor" in university admissions. Similarly, all history texts discuss women's suffrage but give little if any attention to cases on peer sexual harassment (which is a problem in almost every secondary school) and to Title IX decisions that have had enormous impact on equal educational opportunities for women—especially in competitive sports.

Unfounded Fears

Some educators fear that a focus on current Supreme Court cases will preclude an understanding of broad constitutional concepts and their historical development. On the contrary, Supreme Court decisions usually include a discussion of historical precedents and principles. In addition, students are often more motivated to learn history if taught backwards, beginning with recent cases rather than starting with decisions in the distant past.

Another reason these cases are omitted is the fear that, if students knew about their constitutional rights, they would become irresponsible "schoolhouse lawyers"-abusing their rights, threatening lawsuits, and intimidating teachers. The opposite is true. Ignorance of the law does not stop students and parents from asserting rights they don't have, threatening lawsuits without any legal foundation, or trying to intimidate teachers. In fact, it may be the unqualified rhetoric of rights in some texts that encourages this uninformed and counterproductive behavior. Conversely, if students, parents, and teachers learned about the Supreme Court decisions discussed above, they would understand the limits as well as the scope of student freedoms. As a result, there would be less confusion and misunderstanding about students' rights and fewer uninformed threats and unfounded lawsuits.

Informal Curriculum

Educators, like parents, teach as much by what they practice as by what they preach. While schools "preach" about law through their formal history and government curriculum, they "practice" law (often unconsciously) through their informal law curriculum—i.e., through the way in which they develop, interpret, and implement school rules, which are the laws of the school and the laws that directly affect every student every day. Thus, all teachers and principals teach law by example, although most seem unaware of their role as law teacher and the way in which they influence student perception of the law by what they do as "legislator," "law enforcer," and "judge." As a result, most schools teach their rules in a way that unintentionally contradicts the goals of citizenship education, encourages students to subvert or ignore school rules, and violates the norms of good teaching. In fact, most school codes of conduct share several negative characteristics that tend to undermine their legitimacy. After analyzing these characteristics, I outline a collaborative educational alternative that is more likely to result in positive attitudes toward rules, law, and authority.

Traditional Approach

Negative, unexplained, and authoritarian. Usually, school rules are framed as "thou shalt nots" and contain little or nothing about student rights. While the penalties and procedures for enforcing the rules are often clear, there are rarely any explanations for the prohibitions. Of course, some rules do not need an explanation, such as those prohibiting guns, drugs, and assault. But the rationale for others (e.g., no cameras, no sunglasses, no backpacks, no mouth spray, or no baggy pants) is not self-evident and may seem arbitrary and unreasonable unless explained. In addition, there are often rules that are open to widely different interpretations, such as "no inappropriate clothing," "no fooling around," or "no possession of any item that could be used to harm another." Ambiguous prohibitions invite conflicting interpretations, and selective enforcement of such rules is often viewed with cynicism.

Authoritarian and legalistic. Rules that are handed down in a dictatorial manner and are not clearly related to safety or education are seen by many students as illegitimate. Just as people living in a dictatorship feel it is moral to disregard or subvert laws that arbitrarily restrict their freedom, so many teenagers disobey autocratic rules without guilt and encourage others to do so. Furthermore, school rules are often written by administrators and legal counsel in "legalese" and are not even considered as teaching materials. Unlike most law-related education curriculum that features interactive methods and thoughtful assessment, the rules and laws that govern students are rarely developed, taught, tested as part of the curriculum, or evaluated for their clarity or effectiveness.

Nonparticipation and perceived unfairness. There is a contradiction in our citizenship education: all students are taught about democracy, but few are permitted to practice democratic skills in their schools. Although a few student representatives may be given an opportunity to comment on their school's code of conduct, the vast majority are not invited to participate in the development or revision of school rules and therefore have no sense of ownership. In addition, nonparticipation can intensify misinformation and misunderstanding. This can lead students (and parents) to assert rights they do not have and cause misinformed teachers to fail to take appropriate disciplinary action because of unfounded fears of being sued. While student codes usually include procedures for hearings before students are suspended, they rarely include procedures that allow students to challenge the fairness of specific rules. The issue of fairness comes up at every grade level when a student says about a rule or its application, "It's not fair." Whether in the second grade or the twelfth, there is one frequent response by teachers: "Life's not fair." This response may reflect teachers' frustrations because they have to enforce rules they disagree with or obey rules they feel are senseless, or because they honestly feel that life is unfair. Such responses teach a powerfully negative civics lesson and may seriously undermine student respect for rules and laws. For even if life is often unfair, this is no excuse for unfair school rules.

Negative results. The characteristics of most codes of conduct outlined above lead to several negative consequences. First, when students do not participate in making the rules and when they view them as arbitrary, punitive, or illegitimate, they (especially adolescents) may respond to those rules as challenges to be circumvented, ignored, or subverted. This can lead to a self-defeating cycle of escalating penalties, punishments, and defiance. Second, if students do not willingly submit, school rules must be enforced by coercion, which may have negative consequences. Even if intimidation succeeds, this may constitute an educational defeat, since many of these students then become insolent, inattentive, insubordinate, negative about school, and disrespectful of authority. Despite these likely consequences, many parents and educators believe that the only answer to misbehavior and the way to "regain control" of the schools is to punish, suspend, and then expel "the troublemakers," so that those who want to learn can do so. In some cases, when everything else has been tried and has failed, extreme penalties may be necessary. But in most schools, positive alternatives to gain voluntary compliance with codes of conduct have not failed; rather they have not been tried.

Collaborative Rule Making: An Educational Alternative

Here are the characteristics of an alternative approach that is more likely to result in willing compliance with school rules and more positive attitudes towards law.

Educational and reasoned. While school rules should be reviewed by legal counsel, they should be developed according to the norms of good teaching. Specifically, the rules should be taught as part of the curriculum using relevant examples and interactive methods that encourage questions and suggestions and assess student understanding. Such rules are less likely to be seen as arbitrary, ambiguous, or illegitimate. In addition to explaining student responsibilities and prohibited conduct, school codes should include a discussion of student rights and how the codes protect those rights. They should also explain when and why student freedom must be restricted when it leads to disruption or interferes with the rights of others.

Participatory. Giving students the opportunity to participate in the development of school rules is an important way to prepare them to become active, responsible citizens. As one social studies framework suggests, students can demonstrate their "understanding of the basic values of American constitutional democracy" and the ways citizens can participate by "taking part in rulemaking and cooperative decision-making in their classrooms." In addition, participants tend to internalize and voluntarily uphold rules they help develop and encourage others to do so. One successful approach to participation is for administrators to annually give each social studies class a copy of the rules and a form that invites comments about whether any rules should be added, amended, or deleted. Analyzing, criticizing, debating, and proposing amendments to school rules can be an effective part of a civics curriculum. For this to not be viewed cynically, administrators must show that they seriously consider student feedback by responding to student suggestions and indicating which were or were not accepted and why.

Fair and responsive. When students say that a rule is unfair, they may mean "I don't like it" or "It punishes me for doing something I want to do." Fairness is often seen as a subjective judgment. However, if students, teachers, and administrators could agree on more objective criteria for judging rules, it could change the nature of the discussion when a student asserts that a rule or its application "isn't fair." Some suggested criteria for judging whether a rule is fair are that it does not discriminate, it is relevant to educational goals, it is easy to understand, it is not vague, subjective, ambiguous, or arbitrary, it does not conflict with constitutional values, it is known to the students it affects, and it has reasonable educational consequences when broken. If there were agreement on some similar set of criteria and students made a reasoned argument that a rule was irrelevant, ambiguous, or unintelligible, or that it violated constitutional values, then the teacher or principal would have an obligation to clarify, modify, justify, or repeal the rule.

Through this experience, students will learn that participation does not mean that administrators will usually agree with their views. However, when their views are rejected, they will learn why. They also will learn about the complexities of democracy—that responsible authorities must consider multiple perspectives and conflicting values and that even a majority vote cannot override constitutional principles or the rights of the minority. Equally important, students will learn that "the system" can be responsive, that there are procedures for being heard, and that they have a right to participate and have their ideas considered.

Likely Concerns

Some educators fear that student participation may lead to a loss of teacher control. However, writers on classroom discipline point out that teachers who involve students in collaborative rule making will find that their fears are generally unfounded and that the rules students propose usually "are the same as, or stricter than, the rules teachers try to force on them." Moreover, students "respect the rules they make much more than the same rules imposed by adults." Research shows that if there is honest collaboration in rule making, those affected are likely to react favorably to the rules and decisions of authorities even if they disagree with them.

Another frequent concern is that student participation is inefficient and time consuming. Participating does take more time, but this is an investment with a triple dividend. First, broad participation by students and teachers is likely to alert administrators to proposed rules that are confusing, contradictory, inadequate, or unenforceable before they are printed. This will improve the quality and clarity of rules and make them less likely to be challenged or subverted.

Second, student participation in rule making creates a sense of ownership and leads to greater self-discipline and less need for threats of punishment. Unlike punitive disciplinary systems, collaborative rule making promotes cooperation, mutual respect, and personal responsibility.

Third, collaboration in making school and classroom rules gives students the opportunity to acquire and practice citizenship skills, to consider the views of others, to work together to solve common problems, and to understand the importance of rules and laws. Furthermore, students who participate in school governance are more likely to be active citizens after they graduate.

Conclusion

Too often, the formal and informal law curricula are in unconscious conflict. These is especially problematic when students learn one thing about the law in their texts, and educators contradict these concepts through their disciplinary policies or practices and thereby teach legal cynicism. If, however, schools teach the Bill of Rights as it applies to students in the classroom and practice these constitutional concepts in the way they develop and implement school rules, then the formal and informal law curricula will complement and reinforce each other. In such an educational environment, students are more likely to become the responsible supporters of our constitutional democracy that our schools were intended to promote.



Reprinted from Insights on Law & Society, Vol. 3, No. 1, Fall 2002, a publication of the American Bar Association Division for Public Education.


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References

Center for Civic Education. National Standards for Civics and Government. Calabasas, Calif.: CCE, 1994.

Kamii, C, and L. Joseph. Young Children Continue to Reinvent Arithmetic, 2nd Grade. New York: Teachers College Press, 1989.

Lind, E. A., and T. R. Tyler. The Social Psychology of Procedural Justice. New York: Plenum Press, 1988.

Mosher, R.; A. Garrod; and R. A. Kenny. Preparing for Citizenship. Westport, Conn.: Praeger, 1994.

Nelson, J.; H. S. Glenn; and L. Lott. Positive Discipline in the Classroom. Rocklin, Calif.: Prima Publishing, 1993.

New York. Education Dept. Draft Framework for Social Studies. Albany: NYS Education Department, 1995.

Schimmel, D. "Traditional Rule Making and the Subversion of Citizenship Education." Social Education (Feb. 1997): 70-74.