Bill of Rights
The Bill of Rights is generally recognized as a part of the U.S. Constitution that guarantees each person certain basic rights. The individual freedoms guaranteed by the Bill of Rights have been demarcated by a large number of court cases that have defined the rights of all citizens, including teachers and students in public education. The fascinating story of how these rights became a part of the Constitution and the specific freedoms that they guarantee is presented in this entry, along with their application to education. Even though not all of the Amendments have a direct impact on education, all are identified in this entry.
Origins of the Bill of Rights
Following the conclusion of the Revolutionary War with Great Britain, there was widespread discontent with the functioning of the new government under the Articles of Confederation. In fact, there were many problems that neither the individual states nor the weak federal government could solve. The Continental Congress passed a resolution calling for a Constitutional Convention to meet in May of 1787 in Philadelphia to revise the Articles of Confederation.
The state legislatures chose 74 delegates, but only 55 were able to attend the Constitutional Convention. The delegates elected George Washington as the presiding officer and decided that they would meet behind closed doors and that they would not discuss what was taking place even with their family members.
The delegates to the Constitutional Convention went beyond revising the Articles of Confederation by writing a new Constitution that created three branches of government with specific powers for a strong central government. Each state would have to ratify the new Constitution, and it would go into effect when nine states ratified it. It took two years for nine states to ratify the new Constitution. The emotions and feelings in New York were so strong during the ratification process that the group of men who supported the new Constitution wrote newspaper articles supporting the ratification and became known as The Federalists. The Federalists, who were led by Alexander Hamilton, James Madison, and John Jay, wrote 85 articles that together became known as The Federalist Papers. The anti-Federalists responded with their newspaper articles and pointed out the absence of a bill of rights in the Constitution. North Carolina rejected the Constitution because there was no bill of rights.
The founding fathers knew their history; they understood that the powers of a ruler could not easily be restrained but could be limited because of the action of brave men. Asignificant time that a ruler had his power curtailed occurred on June 15, 1215, when nobles in England rebelled against King John’s actions and forced him to sign at Runnymede a document that became known as the Magna Carta. This document enumerated certain rights of the nobles and the responsibilities of the king. The Magna Carta limited the power of the king. The concepts of due process of law and trial by jury of peers can be traced back to this document.
Another historical document, The English Bill of Rights of 1689, provided for the following rights: petition of the king, freedom of speech, freedom from excessive bail, and freedom from the infliction of cruel and unusual punishment. All of these rights eventually would become part of the U.S. Bill of Rights.
The U.S. House of Representatives, at the urging of James Madison, prepared 17 amendments to the U.S. Constitution that were sent to the Senate for concurrence. The Senate met behind closed doors and reduced the 17 proposed amendments to 12. A conference committee met and agreed on the 12 amendments, and both the House and Senate agreed with the conference committee report. In September 1789, the Congress submitted the 12 amendments to the states for their ratification. The first amendment was to authorize the expansion of the House of Representatives, and the second would prevent members of the House and Senate from raising their salaries during their current term of office, but these two amendments were not ratified by the states. However, the original Second Amendment would be ratified in 1992 and became the Twenty-Seventh Amendment. What was left, then, were the 10 amendments that became the Bill of Rights.
The Federal Bill of Rights
The First Amendment has five specific rights that are applicable to public schools. The first right, religious freedom, guarantees that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Among the dozens of Supreme Court cases on religion, perhaps the best known and certainly most widely applied case is Lemon v. Kurtzman (1971), wherein the Court created a tripartite test to evaluate interactions between religion and public education.
The second right is the freedom of speech, which has led to numerous court cases involving students and teachers. Perhaps the most famous case involving student speech is Tinker v. Des Moines Independent Community School District (1969), in which the Supreme Court ruled that students could wear armbands protesting the Vietnam War if there was no disruption of school activities. Later, the Court noted that students can be disciplined for lewd speech in Bethel School District No. 403 v. Fraser (1986). More recently, in Morse v. Frederick (2007), the Court reasoned that school officials could prevent a student from displaying a message that appeared to endorse drug use as he watched the Olympic torch pass the front of his school. Turning to the rights of teachers, the Supreme Court recognized that they could address matters of public concern in Pickering v. Board of Education of Township High School District 205, Will County (1968).
The third right is the freedom of press, an issue that was contested in an educational setting in Hazelwood School District v. Kuhlmeier (1988). Entering a judgment in favor of school officials in a dispute over the contents of a school-sponsored newspaper, the Supreme Court explained that “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” (p. 273).
The fourth right is the freedom to assemble, often associated with teacher unions; the fifth right is the right to “petition the Government for a redress of grievances.”
The Second Amendment says “the right of people to keep and bear Arms, shall not be infringed.” While this amendment does not have a direct impact on schools, the Supreme Court has rendered a judgment in only one case, U.S. v. Miller (1939), which required the registration of sawed-off shotguns for personal use. Public schools may and do restrict faculty and students from bringing firearms to school due to safety concerns.
The Third Amendment, which forbids the government from housing troops in private residences, has no application to schools today. This amendment was a direct result of the British Quartering Act, which required the colonists to feed and house British soldiers without recompense.
The Fourth Amendment prohibits government officials from searching the “houses, papers, and effects” of persons unless they first acquire search warrants The Supreme Court upheld the warrantless searches of students in New Jersey v. T. L. O. (1985). The Court subsequently upheld drug testing of studentathletes in Vernonia School District 47J v. Acton (1995) and Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls (2002).
The Fifth Amendment grants specific rights to persons accused of crimes, and it requires the federal government to follow specific procedures in dealing with citizens. Interestingly, if only educational officials, not the police, question students about misbehavior in schools, then the students are not entitled to the right to a warning that the Supreme Court established in Miranda v. Arizona (1966).
The Sixth Amendment, which provides citizens with the right to a trial by jury of their peers and to have a public defender provided at no cost, has no direct application in schools.
The Seventh Amendment, which spells out the right to a trial by jury in “suits at common law,” has no direct application in schools.
The Eighth Amendment provides protections for the accused, perhaps most notably from “cruel and unusual punishment.” In Ingraham v. Wright (1977), the Supreme Court was of the opinion that the use of corporal punishment in schools did not violate the Eighth Amendment.
According to the Ninth Amendment, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This Amendment has no direct application in schools.
The Tenth Amendment stipulates that if powers are not delegated to the federal government, they are reserved to the states or the people. The growing role of the federal government in education notwithstanding, insofar as education is not mentioned explicitly in the U.S. Constitution, it falls within the purview of the states under this amendment.
See also Religious Activities in Public Schools; State Aid and the Establishment Clause; Teacher Rights
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- O’Connor, K., & Sabato, L. J. (2006). American government: Continuity and change. New York: Pearson Longman.
- Rutland, R. A. (1991). The birth of the Bill of Rights: 1776–1791. York, PA: Maple Press.
- Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986).
- Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 536 U.S. 822 (2002), on remand, 300 F.3d 1222 (10th Cir. 2002).
- Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).
- Ingraham v. Wright, 430 U.S. 651 (1977).
- Lemon v. Kurtzman, 403 U.S. 602 (1971).
- Miranda v. Arizona, 384 U.S. 436 (1966).
- Morse v. Frederick, 127 S. Ct. 2618 (2007).
- New Jersey v. T .L .O., 469 U.S. 325 (1985).
- Pickering v. Board of Education Township High School District 205, Will County, 391 U.S. 563 (1968).
- Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).
- U.S. v. Miller, 307 U.S. 174 (1939).
- Vernonia School District 47 J v. Acton, 515 U.S. 646 (1995).