A "Primer"

• Author: Renee Zeringue

Special thanks to Professor John Devlin for his patience and insight.

A "PRIMER"

"Children today... have bad manners, a contempt for authority, a disrespect for their elders and they like to talk instead of work. They contradict their parents, chatter before company, gobble up the best at the table and tyrannize over their teachers."¹

I Introduction

With the recent outbreak of school violence and increase in student misbehavior,² there have been several ideas and plans to remedy the situation. Some proposals focus on fixing the current situation, while others seek prevention, or at least a decrease in the number of future incidents.

In an attempt to curb student misbehavior, Louisiana has become the first state to enact legislation requiring students to use specific language when addressing school officials beginning when students enter the school system.³ Referred to as the "yes ma'am, no ma'am" bill and the "respect" bill, Louisiana Revised Statutes 17:416.12⁴ currently applies to public school students in kindergarten through fifth grade. The statute applies to students speaking to any public school system employee, from custodians to teachers to school board officials, while on school property or at a "school sponsored event."⁵ The law requires students to "exhibit appropriate conduct," defined as addressing and responding to such an employee in the form of "Yes or No, Ma'am," "Yes or No, Sir," or "Yes or No, Miss, Mrs., or Ms (Surname)," or "Yes or No, Mr. (Surname)."⁶ The statute also provides for the gradual inclusion of higher grades until it applies to grade twelve by the start of the 2006-2007 school year. The law as enacted, however, does not provide an enforcement provision. Enforcement is reserved for local school boards,⁷ with the limitation that "no school board may provide suspension nor expulsion from school as an appropriate punishment for violation" of the above provisions.⁸

Although school officials have been given a great deal of deference in the area of discipline and student behavior in schools, they are still bound by constitutional parameters. This comment will explain the purpose behind the law's enactment and the need and benefits of its purported end. A discussion of the power given to states in the area of school curriculum and discipline will be followed by a discussion of legal issues that may arise with the enactment and the enforcement of such legislation.⁹ In particular, this will focus on the possible infringement of constitutional rights of students, such as freedom of speech and procedural due process.¹⁰ This comment concludes that the law does not violate the constitutional right to freedom of speech. Furthermore, whether or not it violates a student's constitutional right to procedural due process is dependent upon the particular disciplinary action taken. The final analysis focuses on the rights of parents in controlling the education of children. The constitutionality of Louisiana's law in this area depends on the scrutiny applied by the court and the success of the law in accomplishing its goal.

II Background

The National Center for Education Statistics found an increase in the percentage of principals reporting problems of verbal abuse of teachers by students, from 13% in 1991 to 20% in 1997. ¹¹ Teachers bear the brunt of hostility and disrespect of students. They also see the needs of polite and respectful students being neglected as a result of the extra time and effort that must be exerted to maintain discipline. Some states, including Louisiana, have started character education programs in an attempt to teach, among other things, morals, manners, patriotism and integrity. ¹² These programs focus on high expectations for all students, criticism of the behavior as opposed to the individual, modeling by the faculty of the characteristics to be instilled and consistency in implementing rules and regulations, just to name a few. Yet, there is concern that these plans also infringe upon constitutional rights.

Some proponents of the Louisiana law have publicly stated their thoughts regarding the act's purpose. According to Governor Mike Foster, "when they took religion out of the schools, they left a vacuum," which the law was enacted to fill. ¹³ The law's sponsor, Senator Donald Cravins, has said the law is a means of "instill[ing] some old-fashion respect ".¹⁴However, he is aware that it will not eliminate all the evils of society.¹⁵ The purpose seems clear: to prompt students to show respect for authority in public schools.

The committee hearings indicate that some senators believed that a statutory measure would show support for and empower school districts.¹⁶ The committee reasoned that highly disciplined institutions such as the military and prisons require the use of courtesy titles.¹⁷ Almost all those present, though, recognized that respect cannot be legislated.¹⁸ Ironically, however, they supported the act and its attempt to make students show respect in an attempt to return discipline to schools.¹⁹

The statute did not include all provisions of the bill as originally introduced. Provisions requiring all students to stand and remain standing until instructed to be seated when a school principal entered a room in a public school were deleted.²⁰An amendment was also proposed that would have required school employees to address students in the same manner prescribed for addressing school employees, but this was also not adopted.²¹ Eliminating these provisions indicates that a majority of the legislators were unwilling to create substantial disruption to classroom activities. Nor were they willing to legislate that students be addressed in the same manner as adults.

Even as amended, the bill was not unanimously approved. Opponents considered the bill an attempt to legislate respect and an encroachment on parents' rights to raise their children.²² One senator stated that the law was far from the respect teachers deserved and that the legislature should instead focus on raising teacher standards, teacher pay, and funding to improve the environment of Louisiana public schools.²³

III Role of States To Prescribe Curriculum And Maintain A Sound Learning Environment

The state has a role in prescribing the curriculum for schools and in maintaining an atmosphere conducive to learning. This is evidenced by long- standing state statutes providing for and regulating education. Courts have upheld the rights of the state to do so against claims by students and parents alleging violations of their Constitutional rights. The authority of the state, however, is not unrestricted.

Because state power regarding public education is not limitless, a state must act in a way so as not to infringe upon the Constitutional rights of students. Unfortunately, however, the United States Supreme Court has never pinpointed the constitutional limitations on this authority. The Supreme Court in Hazelwood School District v. Kuhlmeier²⁴ held that First Amendment rights were not violated where the actions by educators were reasonably related to "legitimate pedagogical concerns."²⁵ Accordingly, in Kuhlmeier, the Court upheld the removal of articles in a school newspaper that discussed the pregnancy experiences of three students and the impact of divorce on children. The Court has stated that maintaining an environment where the educational process may occur without disruption and teaching students the boundaries of socially appropriate behavior are legitimate pedagogical concerns.²⁶ Once it is determined that the state or school's purpose is a legitimate academic concern and that the action is reasonably related to such purpose, a court must balance the concern against the constitutional right claimed to have been violated.

When analyzing restraints upon students' rights to free speech, the Supreme Court distinguishes between school-sponsored speech or speech bearing the approval of the school²⁷ and speech that is more a form of personal expression.²⁸In order to censor speech that appears to represent the thoughts of the school, such as school newspapers or school plays, the decision must be based on legitimate pedagogical concerns determined by school systems.²⁹ The Court stated that "[i]t is only when the decision to censor a school-sponsored publication, theatrical production, or other vehicle of student expression has no valid educational purpose that the First Amendment is so 'directly and sharply implicate[d]'... as to require judicial intervention to protect students' constitutional rights."³⁰ Accordingly, the Court in Kuhlmeier did not intervene and, in order to maintain the educational process, upheld the exercise of editorial control over the style and content of student speech in a school-sponsored newspaper.³¹ The Court in Bethel School District v. Fraser recognized the need to strike a balance between expression of views in schools and the interest of teaching "the boundaries of socially appropriate behavior" when it upheld the three-day suspension of a student for a nomination speech the school found to be lewd and indecent.³² Upon consideration of a challenge to a school board's authority to censor the script of a student-produced film, it was held that "promoting moral improvement and teaching students to refrain from the use of profane and vulgar language" were valid pedagogical objectives.³³

However, limits on speech that is personal expression, are subjected to a higher burden of justification. A state must show that without the limitations material and substantial interference with discipline will result.³⁴ The "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression."³⁵...