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Student Rights: A Philosophical Framework

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Student rights are usually addressed as a matter of law. In Understanding Student Rights in Schools (Teachers College Press, 2013), philosopher Bryan Warnick addresses student rights as an ethical issue. His concern is what elementary and secondary schools should do with regard to students' freedom of expression, religious liberty, and privacy.

At an abstract level, Warnick accepts the general framework of U.S. constitutional law. Students have basic civil liberties, including free expression, religious liberty, and privacy. But rights in school may differ from rights elsewhere due to "the special characteristics of schools."

I was immediately leery. For the past 30 years I've been reading Supreme Court and other judicial decisions restricting student rights on the basis of "special characteristics of schools" that are deemed to render rights irrelevant or counterproductive. I've learned to be wary when I hear that phrase.

I needn't have worried. Warnick immediately acknowledges that judicial appeals to "the special characteristics of schools" are almost invariably an excuse for restricting student rights. He promises a more serious philosophical analysis rooted in basic principles of ethical theory, and the book delivers. Perhaps this is faint praise, but he certainly outreasons the Supreme Court.

In between an introduction and conclusion, the book has four chapters. The first and most basic is entitled (here it comes again) "The Special Characteristics of Schools." The remaining three chapters apply the special-characteristics framework to free speech, religious liberty, and privacy.

Warnick identifies seven special characteristics, each of which, he emphasizes, can be a basis for arguments both restricting and promoting student rights. Here is his analysis with respect to freedom of expression.

First, students may be children. Perhaps their speech must be restricted due to limited experience and cognitive capacity. On the other hand, many children are more experienced and competent, at least regarding some topics, than many adults, and intellectual freedom may enhance the development of autonomy.

Second, compulsory education makes public school students a "semi-captive audience." Because they cannot escape the offensive speech of other students, such speech should perhaps be limited. With respect to liberty, however, to require someone to be in a certain place many hours each day and then restrict speech in that place adds insult to injury.

Third, schools have a special responsibility for the safety of their semi-captive audience. They must protect students from threats, harassment, and violence. On the other hand, free speech may help teachers and authorities identify and assist troubled students, and open communication may make schools safer.

Fourth, schools have a special concern with public accountability and legitimacy. Students do not vote and are not responsible for educational governance, but what they have to say may inform those who do exercise political power about what is really happening in schools.

The fifth special characteristic is that student action may be so associated with school facilities and resources (as in a school-sponsored student newspaper) that the line between student expression and the official views of the school becomes blurred. In many such cases, however, a simple disclaimer would enable intellectual freedom for everyone while dissociating the school from student views.

Sixth, schools serve multiple constituencies including parents. Free speech may undermine parental rights by enabling children to say and hear things objectionable to their parents. On the other hand, censorship may undermine parental rights by not permitting children to speak in accord with the beliefs and values of their families.

Last, but certainly not least, the defining characteristic of a school is the pursuit of educational goals. Free expression may compromise the ability of the school to maintain order, control the curriculum, and teach what needs to be taught. But respect for student expression legitimizes the teacher/student relationship, provides a climate for learning, teaches democratic values, and promotes the development of critical thinking.

Overall, Warnick makes the case that the arguments for student expression are at least as strong as the arguments for restricting it, and often stronger. He provides similar analyses and reaches similar conclusions concerning students' religious liberty and personal privacy.

The philosophical message is clear. Schools need not and should not limit student rights to the maximum extent legally permitted. They should engage in serious ethical analysis and do the right thing, which often means protecting and promoting student rights beyond what the law requires.

As for me, I've become more open to hearing about (here it comes one last time) "the special characteristics of schools." Serious consideration of those special characteristics clarifies the importance of student rights.