50 Years After Tinker, Erosion is Evident

March 1, 2019
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Tinker, 50 Years LaterIn recent months, free speech within schools has come to the forefront as districts abandoned their own policies for reviewing educational materials; efforts to ban books have increased; and, in one instance, a student was arrested after refusing to recite the pledge of allegiance in class. February marked the 50th anniversary of the United States Supreme Court’s decision in Tinker v. Des Moines Independent Community School District¸ a seminal case addressing students’ First Amendment rights.

In Tinker¸ a group of students wore black armbands in school to protest the war in Vietnam. When the students refused to remove the armbands, they were sent home and suspended. The case eventually reach the Supreme Court, which began its analysis with the recognition that “[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” and that the speech at issue was “akin to ‘pure speech’ ” involving primary First Amendment rights. However, the Court also recognized that school officials had the authority, consistent with constitutional safeguards, to prescribe and control conduct in the schools. 

In weighing the speech rights of the students against the authority of the school officials, the Court relied upon the lack of any evidence that the armbands interfered with the school’s work, disrupted class, or collided with other students’ rights to be secure and left alone. The school’s professed apprehension of a disturbance resulting from the armbands was “not enough to overcome the right to freedom of speech. The Court noted that any expression “that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk.” 

In finding that the students’ rights were violated by the suspension, the Court held that to justify prohibition of a particular expression of opinion, the school officials must show that it took action based on more than a mere desire to avoid “discomfort or unpleasantness that always accompanies an unpopular viewpoint.” The school officials in Tinker not only failed to show any material and substantial interference in the operation of the school but also did not prohibit the wearing of all political or controversial symbols. However, the Court warned that student conduct that materially disrupts classwork or invades the right of others would not be protected by the First Amendment.

Subsequent cases have seized on this warning to narrow the application of Tinker. In Bethel School District No. 403 v. Fraser, the Supreme Court found that a student’s suspension after giving an innuendo-laden speech did not violate his First Amendment rights. In contrast to Tinker, the Fraser Court began with the premise that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings” and that “[s]urely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.” The Court concluded that the school had the right to disassociate itself with the speech and that the suspension in Fraser was unlike the situation in Tinker because it was “unrelated to any political viewpoint.” In other words, it wasn’t the message of the speech that led to the suspension; rather, it was the vulgar and lewd nature in which the speech was made. The Court did not address or require that the speech meet the “materially disruptive” criteria set forth in Tinker.

In the 1988 case of Hazelwood School District v. Kuhlmeier, the disassociation question arose again in the context of whether the school’s censorship of a student newspaper that was part of a journalism class was permissible. Again, the Court distinguished Tinker, reasoning that the requirement that a school tolerate certain speech was different from the question of whether the First Amendment required the school to affirmatively promote particular student speech. The Supreme Court’s answer to that question was that school officials “do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.

The Supreme Court presented a summary of these cases and again distinguished Tinker in Morse v. Frederick. In that 2007 decision, the Court held that the suspension of a student who displayed a banner bearing the phrase “BONG HiTS 4 JESUS” at a school-sanctioned event did not violate the First Amendment. The Court reasoned that the banner violated a written school policy prohibiting the advocacy of the use of substances that were illegal to minors and that the student did not claim that the banner advocated a political or religious message. Although the Court recognized the admonition in Tinker that a school may not prohibit student speech on the basis of a mere desire to avoid discomfort or unpleasantness, the Court concluded that a school’s concern to prevent drug abuse “tends well beyond the abstract desire to avoid controversy” and therefore did not run afoul of the First Amendment.

Although Tinker established certain instances of protected student speech, the primary post-Tinker decisions have focused on distinguishing and differentiating the facts and motivations for restricting student speech. Arguably, the results have been an erosion of the parameters of Tinker and the narrowing of First Amendment protections in the school setting. Had the banner in Morse contained a political viewpoint such as “Legalize Bong Hits,” the Court may have been forced to undertake a much different analysis. While the Court has professed a continuing recognition that schools may not prohibit speech on the basis of viewpoint, the reasoning of these decisions have, so far, tended to support Justice Black’s dissent in Tinker that the First Amendment does not require “elected school officials to surrender control of the American public school system to public school students” and that “taxpayers send children to school on the premise that at their age they need to learn, not teach.” 

Brian Saucier is an attorney at the Chicago law firm of Deutsch, Levy & Engel, where he practices in the areas of intellectual property, First Amendment and defamation, and commercial litigation. He has appeared on panels at several comic conventions and is a co-author of the blog Creator Law, providing legal and business information for creators of comics, toys, and videogames.

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