It seemed to me in high school, as it does now, that the Pledge of Allegiance is patently untrue. We are not a nation “with liberty and justice for all.” According to the Census Bureau’s current Population Survey, black families earn $57.30 in income for every $100 earned by white families and hold $5.04 in family wealth for every $100 of white family wealth. This discrepancy in family wealth is rooted in the reality that the United States was founded and grew rich on the backs of African slaves and their descendants—injustice is fundamental to our nation’s economic success. In this context, the claim that the United States provides “liberty and justice for all” is either a lie or an assertion that black people deserve the terror and deprivation inflicted upon them by the state. And this economic inequality is simply one of countless examples of the injustice that exists in the United States today.
It was this line of thinking that, as a senior in high school, landed me across the desk of the school principal, who laced her fingers together and explained, tilting her chin toward her collarbone as one often does when addressing a child, that standing for the pledge was a school rule. Refusing, as I had done, could have consequences.
I had come prepared for this. I argued that to be punished for not standing for the pledge was unconstitutional. According to Tinker v. Des Moines, a 1969 decision defending non-disruptive student protest—
“I’m familiar with it,” she interrupted, paraphrasing the Supreme Court’s majority decision, “Students shed their constitutional rights to freedom of speech and expression at the schoolhouse gate.” But she had selectively memorized Justice Fortas’s famous quote, conveniently omitting its first six words: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” I struggled to put the words in the right order to correct her and puzzled over how to, for the first time in my life, tell an adult, an important adult, that she was wrong.
Despite the fact that many facets of students’ rights have been established by the Supreme Court, teachers and administrators today still feel they can—and are even empowered to—disregard them. Over the past year, high-school students across the country have joined Colin Kaepernick in taking a knee during the national anthem before athletic events, in many cases facing threats of disciplinary action. A Louisiana school district threatened to remove any players who took a knee during the anthem, a move the ACLU called unconstitutional. In California, a high-school teacher lowered a student’s participation grade for not standing for the pledge.
And there’s a legal basis for this assumption: The legal doctrine in loco parentis (Latin for “in place of a parent”) has its roots in English Common Law and has governed the majority of legal issues surrounding the relationship between schools and their students in the United States unimpeded until the middle of the 20th century. According to the logic of in loco parentis, when parents make a choice to send their children to public school school, they are effectively delegating parental responsibilities to administrators. Schools often take this doctrine further, using their power as parental stand-ins to justify “protecting” students from other students’ actions—what some argue is actually a misapplication of in loco parentis, but has nonetheless fueled cases that have frequently worked their way up to the Supreme Court.
Several of these cases over the years have eroded the legal doctrine’s power. Tinker was the Supreme Court’s first decision to do so, beginning decades of court battles that would pit students’ constitutional rights against schools’ quasi-parental authority. Following the 1969 decision, school officials needed “facts which might reasonably have led authorities to forecast substantial disruption of, or material interference with, school activities” to curtail student activity, still a fairly flexible standard. In 1985, the courts backed a student whose Fourth Amendment rights against unreasonable searches and seizures had been violated, after her purse had been searched following suspected drug use. But advocates of students’ constitutional rights fought and lost against in loco parentis in 2007, when the Supreme Court considered constitutional the suspension of an Alaska high-school student for unfurling a banner reading “Bong Hits 4 Jesus” during a school-sponsored off-campus rally. (The principal, in this instance, was empowered by the courts to protect other students who might be influenced into drug use by the sign.)
The history of in loco parentis and its associated cases have left its parameters uncertain. Consistency, writes Mark Fidanza in the Rutgers Law Review, has not been “the hallmark of in loco parentis jurisprudence across American jurisdictions.” Not only that, teachers and school administrators aren’t always versed in its history and use—as my high-school principal demonstrated. In a 2000 survey, 55 percent of participating teachers said their teaching program had not discussed in loco parentis at all.
Teachers, perhaps unaware of the limitations of their power, have turned mundane questions of who can do what and where into proxy battles over more controversial issues. Transgender students’ access to bathrooms in schools across the country is one of many battlefields where perceptions of school power play out. Pine Richland School District, a suburban public district to the north of Pittsburgh, Pennsylvania, in September 2016 adopted “Resolution 2,” which required students to use the bathroom matching their “biological sex” rather than expressed gender. Resolution 2 was adopted after a series of public meetings at which some parents argued that, without this rule, students would or could pretend to be transgender in order to gain access to another gender’s bathroom to engage in untoward activity. The School Board voted 5-4 in favor of the resolution, despite the fact that, as District Court Judge Mark Hornyak wrote in his decision, there is no evidence, anywhere, of students misrepresenting their gender in order to behave inappropriately in a bathroom.
Among the most egregious parts of Resolution 2 is that it disrupted what had previously been a safe and functional school environment. Prior to the 2016 school year and the controversy that had brewed in the lead-up to the resolution, the three openly transgender students at Pine Richland had been using the bathrooms that matched their gender identities without issue. Teachers, administrators, and students acknowledged and respected their gender presentation; all three of the trans students, two young women and one young man, court records show, had met with school officials to discuss their gender identities and had been living as their expressed gender with “depth and consistency” for years. On the first day of the 2016–17 school year, senior Juliet Evancho was verbally harassed for being transgender. She began to feel unsafe at school. Forced to use either the bathroom of their biological sex (which Resolution 2 defined as their “then-existing” genitalia, despite the fact that is not the only biological indication of sex) or a single-occupancy unisex bathroom, she and other trans students felt singled out and marginalized, as though they had been specifically marked as different. They had, in fact, been specifically marked as different, the US District Court for Western Pennsylvania would later find; they were the only students not allowed to use the bathroom that matched their gender.
Evancho, along with the two other openly transgender students at her high school, Elissa Ridenour, and A.S., brought the lawsuit to the US District Court for Western Pennsylvania in February of this year, arguing that Resolution 2 violated the Equal Protection Clause of the 14th Amendment as well as Title IX of the Education Amendments Act of 1972 by treating them differently based on their gender identity. Judge Mark Hornyak determined that the plaintiffs had a viable legal argument that the school district had violated their 14th Amendment rights.
As more and more young people feel comfortable openly expressing their trans or gender-nonconforming identities, questions regarding their inclusion and acceptance will continue to play out inside of schools. Juliet, Elissa, and A.S. are pioneers of new legal terrain and the beneficiaries of paths already cleared by student-plaintiffs of the past. But the Evancho case also shows how schools’ perceptions of their own power is outsized. In loco parentis, while increasingly irrelevant legally, still lingers in schools’ attempts to regulate nondisruptive student behavior. Students themselves, however, pose a significant challenge to this mindset, something else that the Evancho v. Pine Richland case has illustrated: Students have more judicial agency than is frequently assumed.
Teachers and administrators are used to the deference often accorded to them by their age and positions of authority—the legal history of in loco parentis shows that those attitudes also stem from well-entrenched legal principles designed to defend and expand adults’ power over the young people in their custody. Still, every day, students have the opportunity to participate in renegotiating the boundaries of school authority, whether through litigation or invocation of past decisions. These interactions are central to the possibility of school environments characterized by mutual respect rather than dominance. Too often, students are thought of as passive—but that’s certainly not true. Students have been and continue to be the primary drivers of changes to the limits of school power, changes with impact reaching far beyond the present moment. Uncertainty over how much power administrators possess can chill student dissent. This past September, 200 students walked out of a California high school to protest President Trump’s decision to end Deferred Action for Childhood Arrivals, joining students who have done the same in Colorado, Arizona, and other states, and following in the footsteps of Chicano students’ fight for justice in Los Angeles public high schools in the 1960s. I don’t want to see this kind of student resistance extinguished, lost in the gray area of unclear students’ rights.
But, as I learned through my own experience, even some of the most famous Supreme Court decisions can be misinterpreted and weaponized against the groups they were meant to protect, especially if students do not know their rights. Just because a court has ruled on a problem doesn’t mean the problem goes away. Students’ civil rights are frequently challenged, and defending them takes active engagement and self-advocacy from students and their supporters, even if it feels like we’re still fighting battles we thought we won decades ago.