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In early American history, children were widely viewed as the property of their fathers. Over the past two centuries, the U.S. has evolved to recognize children as legal persons with their own independent rights; however, Supreme Court decisions concerning children's rights over the years have frequently contradicted prior decisions.
It wasn't until the 19th Century that the need to protect children was acknowledged. The establishment of the first laws to prevent cruelty to children began in 1875 and in 1881 to ban employment of any children under 14. The Equal Protection Clause of the 14th Amendment was cited as applying to children. "All persons born or naturalized in the United States are subject to the jurisdiction thereof… No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." In other words, a child has many of the same Constitutional rights as an adult; however, if a child is under 18 years old, they do not have the right to vote. Given that, these rights are not absolute and are often balanced against the state’s interest in child welfare and a parent’s right to raise their children. Exceptions and limitations frequently apply.
Today, students in the U.S. retain constitutional rights, with limitations. at school through a series of Supreme Court rulings.
One of these first rulings granted religious freedom. Engel v. Vitale (1962) ruled that it is unconstitutional for officials to compose an official school prayer and encourage its recitation in public schools, as it violates the Establishment Clause of the First Amendment.
In 1969 Tinker v. Des Moines, the Supreme Court ruled students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Little did 13-year-old Mary Beth Tinker know that wearing a black armband to school to protest the Viet Nam war would open 'the schoolhouse gate' to student free-speech issues for the next 50 years.
School dress codes cannot censor specific viewpoints or force gender stereotypes. Schools can't create a dress code that only girls can wear some types of clothes and only boys can wear others. Dress codes also must be enforced equally. LGBTQ students have a right to express themselves in public schools. Public schools cannot discriminate based on race, color, or national origin.
Due process was determined in Goss v. Lopez (1975), which stated that public school students facing suspensions of up to 10 days are entitled to notice of the charges against them and can respond.
Some rulings clarified the difference in school rights v. adult rights. In 1985, New Jersey v. T.L.O the Court ruled that school officials do not need to obtain a warrant to search a student. Instead, searches are constitutional if they are “reasonable” based on the circumstances at their inception.
Bethel School District No. 403 v. Fraser (1986) clarified Tinker in that speech can only be restricted if it causes a “material and substantial disruption” to the educational process. However, the Court ruled that schools can prohibit the use of vulgar, lewd, or offensive language at school-sponsored events.
In Hazelwood School District v. Kuhlmeier (1988), the Court held that school administrators can exercise restraint over school-sponsored student publications.
Morse v. Frederick (2007) ruled that schools can restrict student speech that is reasonably viewed as promoting illegal drug use (e.g., a “BONG HiTS 4 JESUS” banner) during a school-supervised event.
In a seemingly contradictory ruling, Mahanoy Area School District v. B.L. (2021), the Court affirmed that while schools can regulate off-campus speech in certain circumstances, they overstepped when punishing a student with a suspension for a profanity-laced, off-campus Snapchat post.
The latest Supreme Court case affecting school children took place this year. West Virginia v. B.P.I. (June 2026), upheld a WV decision that restricts participation on girls’ athletic teams to biological females. The court ruled that these categorical bans do not violate Title IX or the Equal Protection Clause,
The Court has historically tried to balance legitimate interest in interpreting laws involving children, but frequently their conclusions have been contradictory and inconsistent. Each new configuration of the Supreme "Court interprets laws in a different ways.
Joy Cowdery, member of Living Democracy: Engaging Citizens. Our mission is to inform and educate the Mid-Ohio Valley about how government works on the local, state, and federal levels and how citizens can be involved to make our democracy work. Join us the third Monday of each month. livingdemocracymov@gmail.com and facebook/livingdemocracy:engagingcitizens and Youtube channel Living Democracy.