January 27, 2019

After half a century, Tinker decision still protecting student speech

“It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

These words written by U.S. Supreme Court Justice Abe Fortas in the 1969 landmark decision Tinker v. Des Moines Independent Community School District formed the baseline by which the majority of K-12 public student free-expression cases are examined. In the 50 years since the Supreme Court recognized that students have freedom of speech and other constitutional rights in public schools, much has changed. The evolution in technology, education and societal values over the last five decades, as well as several more Supreme Court decisions, have altered the view of these student rights.

At a panel during the ABA’s 2019 Midyear Meeting in Las Vegas titled “Tinker at 50: Student Rights at the Schoolhouse Gate and Beyond,” experts in education and the law examined what has changed since the ruling.

The panel was moderated by Stephen Wermiel, a professor of practice in constitutional law and part of the program on law and government at American University Washington College of Law. He opened the program by playing a video of an interview he had with Mary Beth Tinker, one of the students who brought the case to court 50 years ago.

Tinker, in middle school at the time, and several high school students, including John Tinker and Christopher Eckhardt, wore armbands with peace symbols to protest the Vietnam War to school. The school had earlier instituted a “no armband” policy, so the students were suspended.

They sued in federal district court and lost then, then got an evenly divided opinion from the 8th U.S. Circuit Court of Appeals, leaving the lower court ruling in place. Eventually, the students prevailed in a 7-2 decision before the U.S. Supreme Court.

Wermiel pointed out some cases since Tinker that served to limit some of the freedoms of student speech.

In Bethel School District No. 403 v. Fraser, the Supreme Court ruled in 1986 that school officials could punish a student for giving a lewd, vulgar, sexually laced speech in front of a student assembly. They decided there had to be a balance between student free-speech rights and socially accepted behavior. The court set a new standard – public school officials could prohibit student speech that is vulgar, lewd or offensive. 

In 1988, the court ruled in Hazelwood School District v. Kuhlmeier that a St. Louis County, Mo., high school was within its rights to censor two articles written by students for the school newspaper, one on teen pregnancy and one on divorce. The students argued that the stories did not meet the standard of being disruptive from Tinker, or lewd from Fraser. But the ruling created a new standard governing school-sponsored speech stating that “educators 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 Hazelwood decision not only included student newspapers, but other school-sponsored events such as athletic contests or plays.

The third case about student expression discussed was Morse v. Frederick, or more commonly referred to as the “Bong Hits 4 Jesus” case.

Joseph Frederick, an Alaska high school senior, attended the Olympic torch relay on a street near his school.  He and others displayed a banner with the message “Bong Hits 4 Jesus.”  The school’s principal, Deborah Morse, ordered the students to drop the banner, but Frederick did not comply and was suspended. Frederick sued, saying it was off-campus speech and not disruptive to the school. The Supreme Court ruled that the Olympic torch relay was a “school-sanctioned” event and that discipline was legal since the student was “promoting illegal drug use.”

All three of these Supreme Court cases after Tinker ruled in favor of school officials and against students. But Wermiel pointed out that the Tinker ruling still has a “broader vision of students and rights and education.”

Panelist James Hanks, who is of counsel with Ahlers and Cooney PC in Des Moines, Iowa, a firm that represents more than 150 school districts, believes the Tinker decision is still a powerful force. He said that he often counsels school districts to be more open to student speech. He said that any time the thought of censoring or disciplining a student for speech, a little “Tinker bell” should go off in your head. Unless the speech is “materially disruptive of classwork,” causes “substantial disorder” or results in the invasion of the rights of others,” the protections of Tinker should prevail.

Salvatore Russo, an assistant professor of constitutional lawat California State University at Dominguez Hills, pointed out that in today’s world, the conflict is less between the administration and the students and more between students. “More students are requesting the suppression of speech with which they disagree on college campuses,” he said.

Alex M. Johnson, a program director at the California Wellness Foundation and a member of the Los Angeles County Board of Education, lamented this trend. “School campuses should not be places where we censor the exchange of ideas,” he said.

In today’s changing world, new technologies have muddied the waters. Johnson singled out cyberbullying on social media as a particularly difficult problem in terms of free speech and cultivating a safe and tolerant environment for students. But Johnson believes it is important to adapt to the evolving usages of social media and not jump to censor it. Rather than “more constriction,” Johnson favors “less regulation.”

Wermiel agreed with the confusing aspects of social media on the law but did not express much confidence in the Supreme Court to clarify the situation.

Hanks, however, pointed out the positive power of social media and its effects on student speech. He mentioned the Parkland, Fla., school shooting and how the students used social media to launch a nationwide movement to bring the issue of gun control to the forefront.

The expressions of free speech, including walkouts by students around the country, was a powerful example of student speech, he said. In many ways because of the protections of Tinker, Hanks said he counseled the school districts he represents not to challenge the walkouts. “Almost without exception, these walkouts went off without incident,” he said, which is a formidable testament to the relevance of the Tinker decision 50 years later.