Accommodation and Adjudication in Student–Administration Conflicts: The Difficult Legacy of the U.S. Supreme Court

Abstract

In this article, we consider a series of U.S. Supreme Court rulings that place public school students under an expansive shield of constitutional rights while often hampering the ability of administrators to engage in flexible and creative conflict resolution in the context of the school's mission. The court's readiness to adjudicate a large range of student–administration conflicts has weakened schools’ ability to pragmatically accommodate conflicts that, by their nature, do not have principled solutions at the level of the law. We argue that as long as adjudication is the privileged course of action, the court seems locked into a philosophical zigzag, now endowing 8th graders with due process and constitutional rights, now framing them as mere “subjects.” To strengthen schools as educational and moral institutions, school leaders need to be able to construct systems of accommodation that are sensitive to their special educational nature and mission.

Notes

The senior author has enjoyed many fruitful discussions with Bill Boyd on the subject matters touched upon in this article, especially in the context of reflections about the American institutional tradition compared to that of other countries like Germany, the United Kingdom, Canada, and Australia. Although a staunch believer in the American tradition of individual liberty, Bill had strong sympathies for the views of authors like S. M. Lipset, A. Etzioni, and M. Glendon, who questioned the unmediated juxtaposition of liberty and authority in American political thought and legal practice. In this article we use Mary Ann Glendon's critique of the construction of the “lone rights bearer” in American jurisprudence to consider a part of the American legal tradition that is of particular importance for daily life of public schools.

Although Tinker v. Des Moines declared that neither “students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” teachers have not been granted comparable rights of free expression in the classroom, thereby creating one set of rules regarding speech for teachers and another for students. Teacher Deborah Mayer contended that her contract was not renewed because she shared with her students that she had “honked for peace” in opposition to the Iraq War (cert. denied Mayer v. Monroe County School Corporation, 2007). The Supreme Court's decision to deny review of her case relegated such cases to the lower courts without any clear precedent regarding how to balance acceptable speech as part of instruction compared to the power of the school district to supervise curriculum.

Citing United States v. Sokolow, 490 U.S. 1, 8 (1989) (quoting Cortez, supra at 418).

Thomas, concurring, quoting Morse, 551 U.S. at 414.