Tinker after 50: A Historic Ruling Still Relevant After All These Years

Fifty years ago, the U.S. Supreme Court protected the ability of public school students from Des Moines, Iowa, to wear black peace armbands to protest the Vietnam War.[1]  But, more than that, the Court recognized the importance of student rights and ushered in a new era – one that dissenting Justice Hugo Black lamented as “revolutionary” and full of “permissiveness.”

Amazingly, the Court’s decision in Tinker v. Des Moines Independent Community School District (1969) remains the leading K-12 First Amendment decision – the baseline for which the vast majority of public student free-expression cases are examined.   In the intervening 50 years, the Supreme Court on occasion has created exceptions or carve-outs to the Tinker decision but has reaffirmed its validity.   Most courts even apply the Tinker decision to cases involving off-campus social media posts that has some connection to on-school activity.  In other words, Tinker remains the case for student First Amendment rights.

Before Tinker, the Supreme Court had not articulated a clear test or set of rules to determine when students had the ability to engage in freedom of expression.  Back during the era of World War II, the Supreme Court famously overruled a decision only a few years earlier and determined that a pair of Jehovah Witness sisters attending public school students had the right to refuse to salute the flag and recite the Pledge of Allegiance.[2]   The Court’s decision in West Virginia Bd. of Educ. v. Barnette established that students had some level of free-speech rights but it certainly did not establish any sort of clear test.

In Barnette, the Court emphasized the importance of protecting students’ constitutional rights, writing in majestic language: “That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of government as mere platitudes.”[3]  The Court also created an important new principle in First Amendment law – the so-called compelled speech doctrine.  Under this doctrine, the government can violate the First Amendment by compelling people to engage in certain speech.

While Barnette was a historic victory for Jehovah Witnesses and students, the decision did not create a discernible test for determining when student speech was protected.  Furthermore, many viewed the Barnette decision as more of a freedom of religion case than a free-speech case.

The Tinker Decision

The Tinker case arose out of an era of social activism, a commitment to principle, and civil rights.  Leonard Tinker – the father of Mary Beth and John Tinker – was a Methodist minister who had been removed from his church for integrating church services.  He also had gone to Washington D.C. for an anti-war rally.  The parents of Christopher Eckhardt – a black armband wearing student – similarly were committed to social justice and anti-war principles.   In December 1965, the Eckhardt home served as a meeting place for those committed to standing up and speaking out against the Vietnam War.  Someone suggested that the students enter the cause by wearing black peace armbands.

Somehow school officials in Des Moines learned of the impending student protest and quickly passed a no black armband rule – even though students routinely wore political campaign buttons, Iron Crosses, and other forms of symbolic speech.  In other words, school officials censored one symbolic associated with a particular political viewpoint.

Middle-schooler Mary Beth Tinker and several high school students, including John Tinker and Christopher Eckhardt – wore their armbands and suffered suspensions.  They sued in federal district court and lost.  The federal district court judge – a former military officer – believed that the school policy banning armbands was reasonable.  The 8th U.S. Circuit Court of Appeals divided evenly without an opinion, leaving the lower court ruling in place.

That meant that the only place for the students to prevail was the United States Supreme Court.  But, they did by a 7-2 vote.   “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” wrote Justice Abe Fortas.[4]

He emphasized that the students had engaged in “silent, passive” political speech and had engaged in no disruptive activity.  Furthermore, the armbands did not cause a substantial disruption or material interference with school activities or impinge on the rights of other students.[5]  This sowed the seeds for what has become known as the principal test emanating from the Tinker decision – the “substantial disruption” test.

Justice Fortas also emphasized that school officials must reasonably forecast that the student expression would cause a major disruption – something these armbands did not do.   While school officials claimed they feared disruption from the armbands, Fortas responded: “But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”[6]

Ultimately, the Court found that its “independent examination of the record fails to yield evidence that the school authorities had reason to anticipate that the wearing of the armbands would substantially interfere with the work of the school or impinge upon the rights of others.”[7]  The Court added that there were no facts “which might reasonably have led school authorities to forecast substantial disruption with school activities, and no disturbances or disorders on the school premises in fact occurred.”[8]

The decision “certainly increased the social consciousness of many students about the importance of First Amendment freedoms and the fact that the highest court in the country had affirmed that they possessed them.”[9]   The decision launched an era in which students challenged various forms of restrictions ranging from dress codes, regulation of hairstyles, censorship of student written work, walkouts, and other issues.[10]

Supreme Retractions

The Tinker decision runs rampant with language extolling the importance of students’ First Amendment freedoms.  Consider the following passages from Justice Fortas’ opinion:

In our system, state-operated schools may not be enclaves of totalitarianism.  School officials do not possess absolute authority over their students.[11]

In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate.[12]

Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance.  But our Constitution says we must take that risk.[13]

But, the Supreme Court that decided the Tinker decision was a relatively liberal Court.  It was the Warren Court led by Chief Justice Earl Warren, a Court that desegregated public schools, revolutionized criminal procedure, and expanded the right to vote.   The Court in the 1970s and 1980s was a different Court shaped largely by President Richard Nixon appointing more conservative jurists to the Court.  Furthermore, some in society viewed some of the 1960s social activism as excess and longed for a return to more stability.

The net result for public school students was a pair of decisions that cut back, or retracted, some of the protections of Tinker.  In the first case, Bethel School District No. 403 v. Fraser[14], the Court ruled that public school officials could punish a student for delivering a sexually laced speech before the student assembly nominating a fellow student for elective office.   Even though Matthew Fraser was delivering a political speech, the Court focused on his lewd and vulgar language.   Writing for the Court, Chief Justice Warren Burger wrote: “The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior.”[15]

The Court in Fraser distinguished the political speech of the Tinker armbands with the vulgar and lewd words chosen by Matthew Fraser.  The result was a new rule – public school officials can prohibit student speech that is vulgar, lewd, or plainly offensive.  

Two years later, the Court created another rule for so-called school-sponsored speech or speech bearing the imprimatur of the school in Hazelwood School District v. Kuhlmeier.[16]  The case involving a high school newspaper produced as part of a journalism class at Hazelwood East High School in St. Louis County, Missouri.   The school’s principal, Robert Eugene Reynolds, believed that two articles in the upcoming issue of The Spectrum were inappropriate for the school newspaper.  These articles discussed teen pregnancy and divorce.   Reynolds ordered the articles excised from the school newspaper, a decision that three female student editors – Cathy Kuhlmeier, Leslie Smart, and Leanne Tippett-West – objected to strenuously.  They filed suit in federal court, contending that Reynolds’ act of censorship violated their First Amendment free-speech rights.  They argued that there was no showing that the articles in question would be substantially disruptive under Tinker.  The articles also were not lewd or vulgar within the meaning of Fraser.

However, the U.S. Supreme Court created a new rule for so-called school-sponsored student speech, writing 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.”[17]   This rational basis-type standard is very deferential to school officials.   The Supreme Court even wrote that a legitimate pedagogical concern was disassociating “the school with any position other than neutrality on matters of political controversy.” [18]  This turns the First Amendment on its head.  Three justices dissented with Justice William Brennan writing a passionate dissent, accusing the majority of “brutal censorship.”[19] 

Under Hazelwood, school-sponsored speech includes curricular expression, many student newspapers, school plays, school athletic expression, and much more.   Thus, a key question in student-speech cases is whether the student expression in question is student-initiated or school-sponsored.   If student-initiated, Tinker governs.  If school-sponsored, Hazelwood governs.

For many years, student speech had a Holy Trinity of sorts:  Tinker, Fraser, and Hazelwood.  Then, nearly twenty years after Hazelwood, the Court decided a most unusual case called Morse v. Frederick, or “Bong Hits 4 Jesus.”[20]   In this case, an Alaska high school senior named Joseph Frederick skipped school and attended the Olympic Torch relay passing down a public street near his school.  He and others displayed a 14 x 8 foot banner with the cryptic message “Bong Hits 4 Jesus.”  The school’s principal, Deborah Morse, rushed across the street and ordered the students to drop the banner.  All but Frederick complied.  She later suspended him for five days but increased it to 10 days after he quoted her a Thomas Jefferson quote about “speech limited is speech lost.”

Frederick argued that Principal Morse violated his First Amendment free-speech rights, because he had engaged in off-campus speech that was not disruptive to the school.   He had a point.  After all, he was not on school grounds but a public street when he unveiled the banner.  However, the Supreme Court reasoned that the Olympic Torch Relay was a “school-sanctioned” event and that Principal Morse had the power to discipline Frederick for the drug-related speech.

The Supreme Court created yet another exception to Tinker, allowing public school officials to “restrict student expression that they reasonably regard as promoting illegal drug use.”[21]  

In each of these three decisions post-Tinker – Fraser, Hazelwood, and Morse – the Supreme Court ruled against public school students and in favor of school officials.  However, the Tinker case still stands as the baseline rule for student-initiated speech that is not vulgar or lewd or promotes the illegal use of drugs. 

Modifications and Tinkering with Tinker

The chief test from Tinker is the substantial disruption test.   School officials must show that they could reasonably forecast that the student expression would cause a substantial disruption or material interference with school activities.   Justice Fortas devised a test that was designed to be quite protective of student rights.  Through the years, however, some lower courts have turned the speech-protective test into one that is quite deferential to school officials.[22]

For example, a federal appeals court ruled that public school officials in California could prohibit several students from wearing t-shirts with pictures of the American flag on them on Cinqo de Mayo, because it might lead to tension with other students.[23]   In other words, students who peacefully wore t-shirts with American flags could be prohibited from their peaceful expression because some other students might behave poorly. 

Another federal appeals court ruled that public school officials in Mississippi could expel a student for creating a rap video off-campus that blew the whistle on the sexually harassing actions of two physical education teachers.[24]   The appeals court majority reasoned that the rap music video had intemperate language that created a commotion at the school sufficient to cause a substantial disruption.   One of the dissenting judges warned that the majority opinion “allows schools to police their students’ Internet expression anytime and anywhere-an unprecedented and unnecessary intrusion on students’ rights.”[25]  He also pointed out the irony that school officials silenced the student’s critical speech of school officials when the very point of the First Amendment was to allow speech critical of the government.[26]

The other test from Tinker – ignored by most courts through the years – is the invasion of the rights of others.  In other words, public school officials can prohibit student speech that invades or infringes on the rights of others.   The Supreme Court has never explained the contours of this test, but in this age of cyberbullying and increased sensitivity to harmful expression, “expect more controversies in this area.”[27]

Conclusion

The Tinker decision was a watershed moment in American history.  “Virtually every observer — legal and layperson alike — views Tinker as the high-water mark for student First Amendment rights.”[28]   The decision recognized the importance of students learning the value and importance of constitutional rights and living in an environment that respected them.   Hopefully, more school officials will respect the teachings and legacy of that historic decision.   


Notes                              

[1] Tinker v. Des Moines Indep. Comm. Sch. Dist., 393 U.S. 503 (1969).

[2] West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).

[3] Barnette, 319 U.S. at 637.

[4] Tinker, 393 U.S. at 506.

[5] Tinker, 393 U.S. at 508.

[6] Tinker, 393 U.S. at 508.

[7] Tinker, 393 U.S. at 509.

[8] Tinker, 393 U.S. at 514.

[9] David L. Hudson, Jr.  Let The Students Speak!: A History of the Fight for Freedom of Expression in American Schools (Beacon Press, 2011) at p. 69.

[10] Id.

[11] Tinker, 393 U.S. at 511.

[12] Tinker, 393 U.S. at 511.

[13] Tinker, 393 U.S. at 508.

[14] 478 U.S. 675 (1986).

[15] Fraser, 478 U.S. at 681.

[16] 484 U.S. 260 (1988).

[17] Hazelwood, 484 U.S. at 273.

[18] Hazelwood, 484 U.S. at 272.

[19] Hazelwood, 484 U.S. at 289 (J. Brennan, dissenting).

[20] Morse v. Frederick, 551 U.S. 393 (2007).

[21] Morse, 551 U.S. at    .

[22] David L. Hudson, Jr.  Losing the Spirit of Tinker v. Des Moines and the Urgent Need to Protect Student Speech, 66 Clev. St. L. Rev. Et. Cet. 1, 5-6 (2018).

[23] Dariano v. Morgan Hill Unified Sch. Dist., 767 F.3d 764 (9th Cir. 2014).

[24] Bell v. Itawamba Sch. Bd., 799 F.3d 379 (5th Cir. 2015).

[25] Bell, 799 F.3d at 405 (J. Dennis, dissenting).

[26] Bell, 799 F.3d at 412 (J. Dennis, dissenting).

[27] David L. Hudson, Jr. K-12 Expression and the First Amendment, FIRE, April 14, 2017.

[28] David L. Hudson, Jr. “On 30-Year Anniversary, Tinker Participants Look Back at Landmark Case,” Freedom Forum Institute, 2/24/1999.

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