The other part of the Tinker Test….

Loyal Daily Dawg Readers are well aware of the Tinker Test. Students have the right of free speech that can be infringed by school authorities if there is a “reasonable forecast” of a “material and substantial disruption” of school.  But that’s only the first and most well-known part of the Tinker Test. Today we explore a case that examines the second part. 

It happened in May, 2019 in Clovis, California.  Andy Castro, scheduled to graduate that day, posted a tweet on Twitter that featured a picture of another graduate with a single word caption. That word was the N-word.  Another student alerted the principal. The principal called young Mr. Castro and his parents in for a discussion and concluded that Andy would not be permitted to participate in the graduation ceremony that night.  The principal gave him his diploma. 

Andy sued, claiming that this was an infringement of his constitutional right of free speech. 

Nope. The court held that the principal acted properly when she barred the student from graduation exercises.  What makes the case particularly interesting is that the court held that the school failed the first part of the Tinker Test, but passed the second part.  We don’t have many cases that rely on the second part of the Tinker Test, so let me explain.

TINKER TEST: PART ONE. The court held that the district did not produce evidence that a “material and substantial” disruption of the graduation program was foreseeable.  I suspect that if this case had gone to a full trial the school would have been able to produce that evidence. But the case was decided based on the district’s Motion for Summary Judgment, with little actual evidence. The court noted that the only evidence was the statement by the principal that “based upon her professional background and experience, she believed that Plaintiff’s tweet would cause a disruption….”  Intuition based on “professional background and experience” is not evidence of disruption.  So the school failed Part One. 

TINKER TEST: PART TWO.  The often overlooked second part of the Tinker Test allows schools to restrict or infringe on student expression if “the speech collides with the rights of other students to be secure and to be let alone.”  Notice that this test does not require a big disruption of the school day.  Moreover, it can involve a “collision” with the rights of a single student.  The plaintiff minimized the harm his tweet caused by arguing that it interfered with the rights of only one student.  To which the court responded: one is enough. Reviewing earlier cases the court cited this standard:

Whatever the outer boundary might be of Tinker’s interference inquiry, the cases establish that students have the right to be free of online posts that denigrate their race, ethnicity or physical appearance, or threaten violence. They have an equivalent right to enjoy an education in a civil, secure and safe school environment.

The court quickly disposed of Andy’s “due process” claim, noting that 1) he had plenty of notice that racial slurs were not ok, and that “walking” at graduation was a privilege that could be lost; and 2) he had his opportunity to tell his side of the story.  He did not handle that opportunity well. The principal asked him to delete the tweet to which he responded “you can’t make me delete it.  It’s my right.” 

No.  It wasn’t his right.  And so, on his graduation day, Andy learned a final lesson. There are limits to his free speech rights.  It’s Castro v. Clovis USD, decided by the federal court for the Eastern District of California on May 24, 2022. It’s cited at 604 F.Supp.3d 944. 


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