Tinker v. Des Moines and a hypothetical

[Alcon]

For you Constitutional Law freaks, here's a hypothetical:

A student is using a CD player during lunch at a public school in an isolated area, which is expressly listed as against school rules in the school handbook (which was distributed, but not signed).  No distraction is being caused by it.  The school security guard confiscates the CD player.

Later, the same student returns with another CD player, and goes to study in the same place.  This time, though, the CD player is permanently confiscated and the student is suspended for insubordination.

A few questions:

1. Under Tinker v. Des Moines (or some other precedent), would the seisure of the CD player be considered illegal?  Why or why not?

2. How about the associated punishment, which is even closer to the literal situation described in Tinker?

3. On a wider scope, is this a violation of search and seisure laws (the seisure portion)?

[Max Power]

1. Legal. Tinker v. Des Moines is apparently about the clothing the Tinkers wore, not personal objects. The student's CD Player has nothing to do with free speech.

2. The punishment is just, because they were punished once before, but they continued to break the school's rules on CD Player. Therefore, I believe the school had every right to suspend the student, although how long he was suspended for makes a difference.

3. Nope. The student brought the CD Player in once again, knowing full well of the consequences. So the seisure was a fitting punishment for the continuing disruption of the rules.

[Alcon]

1. Legal. Tinker v. Des Moines is apparently about the clothing the Tinkers wore, not personal objects. The student's CD Player has nothing to do with free speech.

I fail to see the difference between an armband and a CD player, if both are causing disruption.  Is it only Constitutional if it is symbolic?  That does not seem to follow.

2. The punishment is just, because they were punished once before, but they continued to break the school's rules on CD Player. Therefore, I believe the school had every right to suspend the student, although how long he was suspended for makes a difference.

3. Nope. The student brought the CD Player in once again, knowing full well of the consequences. So the seisure was a fitting punishment for the continuing disruption of the rules.

I appreciate your comments, but I'm not asking if the punishment was just, but whether it was Constitutional.  Does the school district, as a government agent, have the ability to take property from people who are mandated to attend school?

By the way, the suspension was just a hypothetical to differentiate the seisure from punishment, which is explicitly mentioned in Tinker.  Personally, for bringing in a CD player twice, this would be a ridiculous punishment in my eyes.  This is more a Constitutional question to me than a disciplinary one.

Interesting comments though.

[Max Power]

1. Legal. Tinker v. Des Moines is apparently about the clothing the Tinkers wore, not personal objects. The student's CD Player has nothing to do with free speech.

I fail to see the difference between an armband and a CD player, if both are causing disruption.  Is it only Constitutional if it is symbolic?  That does not seem to follow.

No. I think it's not Constitutional if the CD Player clearly violated the guidelines, whereas the armband was banned by the school district during the school year while the Tinkers were wearing them. I think the punishment of the Tinkers was just, however, because I don't think that there is a Constitutional right to an education. I agree with what the Tinkers stood for, I just think that once it was banned, they should have stopped.

2. The punishment is just, because they were punished once before, but they continued to break the school's rules on CD Player. Therefore, I believe the school had every right to suspend the student, although how long he was suspended for makes a difference.

3. Nope. The student brought the CD Player in once again, knowing full well of the consequences. So the seisure was a fitting punishment for the continuing disruption of the rules.

I appreciate your comments, but I'm not asking if the punishment was just, but whether it was Constitutional.  Does the school district, as a government agent, have the ability to take property from people who are mandated to attend school?

Oops. I do think the punishment was just, as the student clearly violated a precedent used by the school district. I also think that the student's CD Player should have been taken away because he knew that it was not allowed. I believe the Constitution states:

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I believe it is a reasonable seizure because he clearly violated school district policy.

[Alcon]

1. Legal. Tinker v. Des Moines is apparently about the clothing the Tinkers wore, not personal objects. The student's CD Player has nothing to do with free speech.

I fail to see the difference between an armband and a CD player, if both are causing disruption.  Is it only Constitutional if it is symbolic?  That does not seem to follow.

No. I think it's not Constitutional if the CD Player clearly violated the guidelines, whereas the armband was banned by the school district during the school year while the Tinkers were wearing them. I think the punishment of the Tinkers was just, however, because I don't think that there is a Constitutional right to an education. I agree with what the Tinkers stood for, I just think that once it was banned, they should have stopped.

I understand that, but if it is an unconstitutional rule, it does not matter how clear it was made - it remains unconstitutional regardless of whether they were informed.

[Emsworth]

There are two different issues here: the free speech issue (which Tinker v. Des Moines deals with) and the search and seizure issue (which is completely different).

First, as to the free speech issue: I believe that Tinker v. Des Moines was wrongly decided. There is a right to free speech, but not a right to speak whatever one pleases at any place one desires. Just because there is a right to free speech, it does not follow that students are entitled to speak and act as they please in school. There is a right to free speech, but there is not a right to use government-owned facilities in the process.

The state is entitled to impose whatever limitations on speech it deems fit, if the speech is being made on public property. It may even prohibit all speech whatsoever in areas that it owns. The only requirement is that the state should not make a "content preference." The rules prescribed by the government should not depend on the opinion being expressed. It is certainly unconstitutional to prescribe one set of rules for liberal opinions and another for conservative opinions. But, as long as the restrictions are being applied equally, and as long as the speech is taking place on public property, the First Amendment has not been violated.

Thus, even if we assume that keeping a CD player is "speech" (itself a difficult assertion to sustain), the school is still authorized to prohibit it.

The search and seizure issue is, as I said, a different one. It does not deal with whether CD players may be banned in the first place. It deals with the act of searching for and seizing them.

There is no problem with the search, as the item in question was in "plain view." If the student's belongings were searched for CD players, that would be a different matter, but here, the CD player was in plain and public view.

And there is no problem with the seizure, as CD players were forbidden.

[Alcon]

Hmm, that's pretty much my general opinion, too.

However, I do not quite understand why a quasi-government agency can take property when students (by law) must attend school.  It seems that, in theory, the government could demand students attend and then create rules that would allow them to confiscate any item.  That's rather distressing.

[Max Power]

Hmm, that's pretty much my general opinion, too.

However, I do not quite understand why a quasi-government agency can take property when students (by law) must attend school.  It seems that, in theory, the government could demand students attend and then create rules that would allow them to confiscate any item.  That's rather distressing.

Those reasons are why I oppose mandatory schooling.

[Jake]

In response to Emsworth's point on search and seizure, would precedent from NJ v. TLO apply which would allow the security guard to search to student's bags for a CD if he has reasonable suspicion to believe the student has brought it into school again?

[Emsworth]

In response to Emsworth's point on search and seizure, would precedent from NJ v. TLO apply which would allow the security guard to search to student's bags for a CD if he has reasonable suspicion to believe the student has brought it into school again?

Yes, New Jersey v. T.L.O. stated that less strict standards of "reasonableness" apply in school than outside school. The "probable cause" standard that would be applicable for adults is instead replaced (according to T.L.O.) by a "reasonable suspicion" standard, which is much lower.

[Jake]

Could a security guard get by simply with the excuse that the search was based on just the first incident?

[Emsworth]

Could a security guard get by simply with the excuse that the search was based on just the first incident?

I doubt it. There has to be some more concrete basis for the suspicion. In T.L.O., for example, a school official caught the student smoking, and then proceeded to search the student's purse. Some more specific reason for the suspicion than a past incident would have to exist.

[Jake]

That makes sense.

[Emsworth]

However, I do not quite understand why a quasi-government agency can take property when students (by law) must attend school.  It seems that, in theory, the government could demand students attend and then create rules that would allow them to confiscate any item.  That's rather distressing.

You bring up a very good point, Alcon. If we treat the rights of children and the rights of adults as the same, then we would have to through some very contorted constitutional reasoning to justify what the government is doing. However, if we treat the rights of children as being less than those of adults, these difficulties don't arise; the school is acting in loco parentis (in the place of the parents).

[Alcon]

Just a quick throw-in since you replied to my post while I was typing this one:  The government can forcefully assume in loco parentis even when a parent is available for these decisions?

This is a very interesting field to me.  Thank you for your responses.

The Tinker standard seems a little odd to me.  The school district did specifically disallow armbands, if I understand the ruling's preface, but because Tinker's actions were symbolic, it was protected under the First Amendment?  So, say a student brought in a hat to a school where hats were disallowed within buildings that protested the war.  Would that fall under the Tinker standard and be allowed?

Of course, if the law specifically related to armbands in protest of the Vietnam War, then it's a moot point, I suppose.

[Bandit3 the Worker]

A few questions:

1. Under Tinker v. Des Moines (or some other precedent), would the seisure of the CD player be considered illegal?  Why or why not?

2. How about the associated punishment, which is even closer to the literal situation described in Tinker?

3. On a wider scope, is this a violation of search and seisure laws (the seisure portion)?

Tinker v. Des Moines dealt with things like dress codes. The seizure (THEFT) of the CD player by the school is more of a matter of unreasonable search and seizure.

[Alcon]

Bump.

If you have any more comments, Emsworth, I would love to hear them.

[Emsworth]

Just a quick throw-in since you replied to my post while I was typing this one:  The government can forcefully assume in loco parentis even when a parent is available for these decisions?

I would say that it cannot, though the courts might conclude that it can, for historical reasons.