The framers of the U.S. Constitution were concerned that the individual rights of Americans in the new republic were not adequately protected in the original Constitution. Because the framers were fearful that the Constitution would not be ratified by the states, James Madison composed 12 amendments to the Constitution, 10 of which were ratified by the states. Congress passed the amendments on September 25, 1789, and they became effective when the ratification process was completed on December 15, 1791.
The first ten amendments to the federal constitution, now known as the Bill of Rights, protect many of the rights that Americans hold most dear. In light of the significance that the Bill of Rights has had on the world of higher education, this entry examines the First, Fourth, Fifth, and Tenth Amendments, which have had the greatest impact on the rights and freedoms of faculty members, staff, and students in colleges and universities.
The First Amendment
In a 1960 Justice Hugo Black concluded a presentation on the Bill of Rights by observing that
the First Amendment is truly the heart of the Bill of Rights. The framers balanced its freedoms of religion, speech, press, assembly and petition against the needs of a powerful central government, and decided that in those freedoms lies this nation’s only true security. They were not afraid for men to be free. We should not be. (Black, 1960, p. 881)
The First Amendment guarantees five rights—freedom of religion, speech, press, assembly, and petition—the first four of which have had a major role on the campuses of American colleges and universities.
Freedom of Religion
Religious freedom was important to Americans, because many colonists had left Great Britain and other regions of Europe partly in order to be able to practice their own religions freely. The impact of this desire for religious freedom was enshrined in Article VI of the Constitution, which forbade any religious test of any officeholder. However, because many feared that Article VI was not strong enough, the First Amendment was ratified, beginning with the key words that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” In a matter of importance to colleges and universities, the U.S. Supreme Court later extended the reach of the First Amendment to the states in Cantwell v. Connecticut (1940), wherein it invalidated the convictions of Jehovah’s Witnesses for violating a law against soliciting funds for religious, charitable, or philanthropic purposes without prior approval of public officials.
In Everson v. Board of Education (1947), a dispute from New Jersey, the Supreme Court upheld the constitutionality of a law that allowed parents to be reimbursed for the cost of transporting their children to religiously affiliated nonpublic K–12 schools. Writing for the Court, Justice Hugo Black’s opinion introduced a metaphor from Thomas Jefferson calling for a “wall of separation” between church and state. Although these words are not enshrined in the Constitution, they are frequently used to refer to the position most frequently associated with the contemporary Court on matters involving religion.
The Supreme Court has reached mixed results on aid to religiously affiliated institutions of higher learning and their students. To this end, in Tilton v. Richardson (1971), Hunt v. McNair (1973), and Roemer v. Board of Public Works of Maryland (1976), the Court allowed public funds to be used for construction projects in public colleges and universities on the basis that the programs satisfied the tripartite test that it enunciated in a K–12 case, Lemon v. Kurtzman (1971), and it invalidated publicly funded salary supplements to teachers in religiously affiliated nonpublic schools. Under the Lemon test, a governmental action must have a secular legislative purpose and a principal or primary effect that neither advances nor inhibits religion, and it cannot result in excessive entanglement between religion and government. Further, in Witters v. Washington Department of Services for the Blind (1986), the Court upheld the constitutionality of extending a general vocational program to a blind man who was studying to become a clergyman at a religious college. Yet the Supreme Court of Washington, in a later iteration of Witters (1989), invalidated the plan under the more restrictive provisions in its state constitution, which prohibited aid in support of religious instruction. Similarly, in Locke v. Davey (2004), the Supreme Court held that because the state constitution in Washington forbade funding for religious education, a student was not entitled to a grant that would have helped to defray tuition costs for his dual major in pastoral studies and business administration.
In a case that overlaps with free speech concerns, Rosenberger v. Rector and Visitors of the University of Virginia (1995), the Supreme Court decided that university officials could not deny funding of a publication due to its religious content. According to the Court, the university’s program was neutral toward religion, insofar as the fund used to pay for student publications—including the religious publication—supported an open forum for speech and supported officially recognized student groups on campus. Therefore, officials would not have violated the Establishment Clause had they made the monies available to the religious group.
Freedom of Speech and the Press
“Congress shall make no law . . . abridging the freedom of speech, or of the press.” The freedom of speech involved in academic freedom is of special concern for individuals in higher education, including both students and faculty. Academic freedom, a concept that emerged in the middle of the 19th century, is alive and well in the 21st century. Among the Supreme Court cases involving academic freedom, perhaps the most notable are Sweezy v. New Hampshire (1957) and Keyishian v. Board of Regents (1967). In both of these cases, the Court recognized that academic freedom is a special concern in higher education, noting in Keyishian that the First Amendment “does not tolerate laws that cast a pall of orthodoxy over classrooms” (p. 603).
Among others, a trio of cases from the Supreme Court dealing with speech by public employees is relevant for faculty members at public college and universities. In Pickering v. Board of Education (1968), the Court sought to balance the free speech rights of educators in public schools to address matters of public concern with the needs of their employers to ensure that educational operations are not disrupted. Acknowledging the rights of employees, the Court indicated that educators in public institutions maintain their right to speak as long as they truthfully address matters of public concern. In Connick v. Myers (1983), a dispute involving an assistant district attorney, the Court clarified the place of speech by employees on matters of personal concern in the workplace. When the attorney sought to distribute a questionnaire to peers surveying their attitudes about specified office policies, the Court determined that her private speech was unprotected, because it had nothing to do with a matter of public concern.
Finally, in Garcetti v. Ceballos (2006), another case involving an assistant district attorney, the Court distinguished between speech by officials in their job-related capacity and speech by officials as private citizens. At issue was a memorandum in which the attorney expressed his concern that there were serious misrepresentations in an affidavit that had been used to obtain a search warrant. In further refining the parameters of employee speech, the Court held that the attorney could be disciplined for making his views known in public, because when he was speaking in his official capacity, his speech was not protected, even though it dealt with a matter of public concern.
In its only case involving a student newspaper in higher education, Papish v. Board of Curators of the University of Missouri (1973), the Supreme Court reasoned that officials at a state university violated the First Amendment rights of a graduate student whom they expelled for distributing an off-campus newspaper that violated the institution’s policy against “indecent speech.” The Court pointed out that the dissemination of ideas could not be shut off solely in the name of conventions of decency, regardless of how offensive the ideas may have been, on a state university campus.
Freedom of Assembly
A case in which freedom of assembly overlapped with free speech, Lehnert v. Ferris Faculty Association (1991), helped set the standards under which unions of public education employees may charge fair share fees to nonmembers. As a general rule, the Supreme Court specified that fees must be germane to collective bargaining activities, be justifiable, and not add significantly to the burdening of free speech.
Previously, in National Labor Relations Board v. Yeshiva University (1980), the leading case on judicial involvement in faculty unionization, at least in private colleges and universities, the Supreme Court posited that faculty members in a private, religiously affiliated university did not have the right to organize and form unions. Basing its judgment on its belief that faculty members performed some duties that were considered managerial in nature, the Court prohibited the NLRB from intervening in a labor dispute between faculty members and the university.
The Fourth Amendment
The founders wrote the Fourth Amendment as a direct result of the Writs of Assistance that the British used to justify searches of colonists’ homes at any time. Over the ensuing years, a myriad of cases examined the Fourth Amendment in criminal cases. However, it was not until 1985 that the Supreme Court, in New Jersey v. T.L.O., applied the Fourth Amendment in K–12 schools. Under the T.L.O. test, officials may search students’ persons or property if they have “reasonable suspicion” that students violated school rules or the law; this measure is significantly lower than the “probable cause” requirement that applies to the police for searches. The Court added that the area searched must also be reasonable in terms of what officials are hoping to locate. In the years since, the judiciary has applied T.L.O. with some regularity to disputes in higher education.
In O’Connor v. Ortega (1987), the Supreme Court applied the T.L.O. test to searches of the offices of public employees. Ortega involved a dispute over a search of the office of a faculty member at a state university hospital in pursuit of evidence that he engaged in professional impropriety. In Ortega, the Court explained that under T.L.O., such an action by supervisory officials needed only to be grounded in reasonable suspicion. The Court noted that a probable cause requirement would have been impractical in such circumstances, where employers conduct searches to determine whether employees have been involved in work-related misconduct.
The Supreme Court’s only case involving the Fourth Amendment Rights of Students, Washington v. Chrisman (1982), predated T.L.O. In Chrisman, a campus police officer stood in the doorway of a student’s room and observed marijuana seeds and a pipe on the desk that belonged to the student’s roommate. After a second officer arrived, and the students voluntarily waived their rights orally and in writing, a search of the room led to the discovery of more marijuana and another controlled substance. On further review of the roommate’s conviction for possession of controlled substances, the Court agreed that because the first officer had justification for accompanying the student to the dormitory and the marijuana had been in plain view, the search did not violate the student’s Fourth Amendment rights.
The Fifth Amendment
Two key provisions in the Fifth Amendment state that an individual may not be “compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law. . . .” The first part of this excerpt from the Fifth Amendment came into play after fears of communist infiltration in the United States after World War II led to the introduction of loyalty oaths for public employees. In Slochower v. Board of Higher Education of New York City (1956), the Supreme Court invalidated a law that led to the dismissal of a faculty member at a public college because he refused to answer questions from a federal legislative committee about his allegedly communist activities due to his fear of self-incrimination. The Court held that the statute would have essentially eviscerated the Fifth Amendment privilege against self-incrimination and thus was unconstitutional.
The most significant case wherein the Supreme Court applied the Due Process Clause of the Fifth Amendment in an educational dispute was in a K–12 setting. Even so, the Fifth Amendment retains the potential to be significant for colleges and universities. In Bolling v. Sharp (1954), handed down on the same day as Brown v. Board of Education, Topeka (1954), the Court invalidated the segregation of public schools in Washington, D.C., because the practice of segregation there was implemented through action by the federal government, and the Fourteenth Amendment applies only to the states. Therefore, the Bolling Court instead invoked the Fifth Amendment’s Due Process Clause. While there are no federal institutions of higher learning other than the military academies, the Fifth Amendment continues to have the potential to impact higher education, especially with regard to investigation of faculty and student activities.
The Tenth Amendment
Pursuant to the Tenth Amendment, the “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.” The most significant dimension of the Tenth Amendment for this encyclopedia is that the Supreme Court has ruled that K–12 education is not a fundamental right protected under the U.S. Constitution but instead falls under the authority vested in the states. However, insofar as higher education is voluntary, the scope of the Tenth Amendment at this level remains open to some debate.
The first federal document on education was the Northwest Ordinance of 1787. Congress established land grant colleges and universities through the Morrill Acts of 1862 and 1890, and enacted later statutes in the 20th century dealing with postsecondary education, including the Higher Education Act and the Stafford Act. Congress has also overseen a wide array of issues in higher education through legislation such as Title IX of the Education Amendments of 1972, which helped to ensure gender equity in higher education. As the federal government has taken an increasingly active role in higher education, some have questioned whether the Tenth Amendment is serving the purpose for which it was enacted.
Robert J. Safransky
See also Drug Testing of Students; Fourth Amendment Rights of Faculty; Free Speech and Expression Rights of Students; Keyishian v. Board of Regents of the University of the State of New York; Political Activities and Speech of Faculty; State Aid and the Establishment Clause
- Black, H. L. (1960). The Bill of Rights. James Madison Lecture, New York University School of Law. New York University Law Review, 35, 865–881.
- O’Connor, K., & Sabato, L. J. (2006). American government: Continuity and change. New York: Pearson Longman.
- Agricultural College Act of 1890 (Second Morrill Land Grant Act), ch. 841, 26 Stat. 417, 7 U.S.C. §§ 322 et seq.
- Augustus F. Hawkins–Robert T. Stafford Elementary and Secondary School Improvement Amendments of 1988, Pub. L. No. 100-297.
- Bolling v. Sharp, 347 U.S. 497 (1954).
- Brown v. Board of Education, Topeka, 347 U.S. 483 (1954).
- Cantwell v. Connecticut, 310 U.S. 296 (1940).
- Connick v. Myers, 461 U.S. 138 (1983).
- Everson v. Board of Education, 330 U.S. 1 (1947), reh’g denied, 330 U.S. 855 (1947).
- Garcetti v. Ceballos, 547 U.S. 410 (2006).
- Higher Education Act, Pub. L. No. 89-329 (1965).
- Hunt v. McNair, 413 U.S. 734 (1973).
- Keyishian v. Board of Regents, 385 U.S. 589 (1967).
- Lehnert v. Ferris Faculty Association, 500 U.S. 507 (1991).
- Lemon v. Kurtzman, 403 U.S. 602 (1971).
- Locke v. Davey, 540 U.S. 712 (2004).
- Morrill Land Grant Act of 1862, ch. 130, 12 Stat. 503, 7 U.S.C. §§ 301 et seq.
- National Labor Relations Board v. Yeshiva University, 444 U.S. 672 (1980).
- New Jersey v. T.L.O., 469 U.S. 325 (1985).
- O’Connor v. Ortega, 480 U.S. 709 (1987).
- Papish v. Board of Curators of the University of Missouri, 410 U.S. 667 (1973).
- Pickering v. Board of Education, 391 U.S. 563 (1968).
- Roemer v. Board of Public Works of Maryland, 426 U.S. 736 (1976).
- Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995).
- Slochower v. Board of Higher Education of New York City, 350 U.S. 551 (1956).
- Sweezy v. New Hampshire, 354 U.S. 234 (1957).
- Tilton v. Richardson, 403 U.S. 672 (1971).
- Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681.
- Washington v. Chrisman, 455 U.S. 1 (1982).
- Witters v. Washington Department of Services for the Blind, 474 U.S. 481 (1986), 771 P.2d 1119 (Wash. 1989), cert. denied, 493 U.S. 850 (1989).