Tag Archives: Tinker Case

Dawg Bones

PROTEST IN DES MOINES

Kids in a high school in Des Moines, Iowa recently protested the grand jury decisions in Ferguson, Missouri and New York City. The protest lasted about 15 minutes, during the students’ lunch hour. They held signs, marched, chanted, and eventually laid down in a “die in” for 4.5 minutes.

Apparently none of this caused any significant disturbance at the school. On the video of the incident you can see other students watching, while teachers and the principal look on. In fact, the principal complimented the kids for their social awareness and calling the protest “way cool.”

Well, that’s not exactly the way some members of the general public saw it! The news story I read carried comments from readers. Here’s a short sample:

“…in short, [you students] are idiots. Now get back to class.” Fred.

“Fred, they’re not idiots, their gourds are empty and awaiting the next phase of brainwashing you and I are paying for through taxes and tuition.” Kit.

“…these CHILDREN need to be in class learning something worthwhile instead of using these incidents as an excuse to get out of school. The faculty and principal should be fired for failing to maintain control of the school. What a bunch of morons…..Disgraceful.” Terry.

One reader called the kids “no-nothings.” Fortunately, another reader corrected him, pointing out that the term is “know-nothings.”

From the Dawg’s perspective, the principal should not be fired. He should be honored. He respected student free speech, as is required by the U.S. Constitution. Ironically, we know this is true because of a case that arose in the 1960s in Des Moines, Iowa! Tinker v. Des Moines established that students enjoy the constitutional right of free speech, even while they are at school.

The limitation is that they may not cause a “material and substantial” disruption of school. If this protest had disrupted class, or if the “die in” had impeded traffic flow, the principal would be authorized to take some sort of action. But that didn’t happen here, and the principal had the good sense to monitor the situation without trying to stop it. He did not “fail to maintain control of the school,” as Terry charged. In fact, if he had tried to stop this peaceful protest, he would have likely embroiled the school in litigation that would not have ended well for the Des Moines school district.

So hats off to principal Gary McClanahan. You can see the news story and the protest for yourself at this link: http://www.kcci.com/news/students-stage-die-in-protest/30117074

DAWG BONE: STUDENT FREE SPEECH ALIVE AND WELL IN DES MOINES, IOWA!

Dawg Bones

5TH CIRCUIT SAYS NASTY RAP SONG ON YOUTUBE IS “FREE SPEECH”

We’ve come a long way from Tinker v. Des Moines. In that seminal decision, the U.S. Supreme Court held that public school students do not shed their constitutional rights when they enter the schoolhouse.  The case was right for its time—a time of civil unrest and protest, most of it peaceful. Mary Beth Tinker was the poster child for peaceful protest, wearing a simple black armband as a symbol of her support for a Christmas truce in Vietnam.

Now comes Taylor Bell, poster child for the pervasively vulgar culture of 21st Century America.  Mr. Bell published a rap song on Facebook and YouTube.  According to the 5th Circuit, Mr. Bell’s rap is entitled to constitutional protection, the same as Mary Beth Tinker’s armband.   The rap is about as nasty as raps can be.  It includes the N-word, the B-word, the S-word, the P-word, the MF-word and the F-word.

But the offensiveness of the rap goes far beyond the vulgar language.  The rap is personally insulting to identifiable people.  It accuses two coaches of sexual misconduct with students.  It comments on the size of the breasts of one of the coach’s wives (using the T-word).  The young artist suggests that one of the coaches will “get a pistol down your mouth/Pow.”

Pretty much the same as Mary Beth Tinker’s silent protest in support of peace, don’t you see…..

School officials in Itawamba, Mississippi sent Mr. Bell (18 years old) to an alternative school and barred him from extracurricular activities for the remainder of a nine-week grading period.  But the court said that the punishment was illegal, a violation of the constitution. The school district could not produce evidence of any serious disturbance at the school. Classes were taught. Bells rang. Buses ran.  Since there was no “material and substantial disruption” there was no basis for the school to infringe on this off-campus artistic expression.

The court’s majority opinion made much of the fact that the rap was written and produced off campus.  Schools are allowed to prohibit vulgar and lewd expression that occurs at school or a school function, but the court concluded that the rap was done at home and never performed at the school.  The court did not view the omnipresence of technology as having any impact on this.  The dissenting opinion said that this on campus/off campus distinction is arbitrary and “both tortures logic and ignores history.”

I expect most of you agree with the dissenter on that, but the majority of the 5th Circuit did not.  The majority opinion says that the distinction between what happens on campus and what happens off campus remains important.  That’s how they read the Supreme Court’s decisions and they are unwilling to change that without clear guidance from the Supreme Court.

Where does that leave you?  It leaves you largely powerless to restrict or punish student expression that occurs off campus.  The 5th Circuit in this case holds that such expression is constitutionally protected unless it amounts to a “true threat.”  What is a “true threat”? We’ll cover that in a future Law Dawg post.

Your Law Dawg is hoping that this decision will be reviewed by the 5th Circuit en banc.  If it is, we think there is an excellent chance that this decision will be reversed. But unless and until that happens, this is an important precedent in the arena of student free speech.  The case is Bell v. Itawamba County School Board, decided by the 5th Circuit on December 12, 2014.

DAWG BONE:  JUST BECAUSE IT’S ON YOUTUBE FOR ALL THE WORLD TO SEE DOES NOT MEAN IT IS ON YOUR CAMPUS.  NASTY RAP SONG IS CONSTITUTIONALLY PROTECTED.