(This week’s civic education and engagement column from Danville’s The Republican newspaper.)
Decisions by the U.S. Supreme Court have shaped our nation and our daily lives. When students at local high schools recently decided to join their counterparts nationwide and stage walkouts to protest federal immigration enforcement tactics, the name “Tinker” quickly became a common sight (and cite) on social media chatter pages. It was usually accompanied by its central message that students don’t abandon their free speech rights when they step on school property.
More formally known as Tinker v. Des Moines Independent Community School District, the 7-2 Supreme Court decision from 1969 is one of the most important rulings regarding the First Amendment rights of public school students. It’s the source of that famous quote from the majority opinion written by Justice Abe Fortas: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
Many Supreme Court opinions contain pithy quotes like that one. Familiar phrases like “separate but equal,” “the right to remain silent,” and “you can’t yell ‘fire’ in a crowded theater” are all derived from the writings of justices. But while those brief phrases attempt to summarize the Court’s rulings, the cases are nearly always significantly more complex, and Tinker is no exception.
The case involved teenagers Mary Beth and John Tinker and their friend, all of whom were suspended from school in 1965 for wearing black armbands as a silent protest against America’s growing involvement in Vietnam. Like today, it was an extraordinarily divisive time in our nation. When school administrators learned of student plans to wear the armbands, they quickly adopted a policy stating that doing so would result in a suspension.
Essentially, the Court ruled that schools can’t censor student speech – including symbolic actions like wearing black armbands – unless they can prove it could potentially cause a major disruption in normal operations. It doesn’t matter how unpopular a student’s opinion may be or how uncomfortable it makes the adults in the community. As long as the speech or action doesn’t interfere with other students’ focus on learning, Tinker said it cannot be infringed.
Most people who cite Tinker seem to believe its ruling means schools can’t place any limits on student rights, but that’s far from accurate. While I’m not an attorney (obvious to anyone who sees my car), I spent dozens of hours in legal seminars in my longtime school board role. Probably a quarter of those hours focused on students’ First Amendment rights. There were many discussions about Tinker and the long list of subsequent cases that clarified and narrowed the original ruling.
A great example (and my personal favorite) is 2002’s Morse v. Frederick, more widely known as the “Bong Hits 4 Jesus” case, in which an Alaskan student’s banner bearing those words earned him a 10-day suspension. The Court ruled that schools are allowed to limit speech that promotes the use of illegal drugs. Other cases have addressed everything from students wearing Confederate flag T-shirts to offensive words in social media posts – and if you think the decisions were obvious, consistent, and clear-cut, you’re going to be disappointed. Because student walkouts could be considered substantial disruptions, they generally don’t fall under Tinker’s protection. Put another way, students do not have an automatic legal right to participate in walkouts and similar potentially disruptive protests.
School boards and the administrators they hire are expected to be familiar with the many cases regarding student (and employee) rights. Most turn to education attorneys to draft policy that ensures their rules and actions are consistent with what state and federal courts have decided. Nearly every year brings new cases and new laws. Because school districts are legally required to follow all those laws, they need to examine their policies, procedures, and student handbooks to make sure they meet the ever-changing requirements. Tinker is a key piece, but there’s a whole lot more to know.