The SECOND Part of the Tinker Test Comes Alive

Readers of this blog are probably familiar with the basic outline of the “Tinker Test.”  Tinker v. Des Moines is the landmark SCOTUS case establishing that students have a right to free expression during the school day.  The Tinker Test is usually framed in terms of “material and substantial disruption.” That is, the student can express herself freely; but school officials can infringe on that right if they can reasonably forecast a “material and substantial” disruption.

There has always been a second part to the Tinker Test, but it has gotten very little attention.  Since courts have rarely cited it, administrators and lawyers tend to forget it. But now we have an important decision from the 9th Circuit that revives the second part of the Tinker Test. In upholding school disciplinary action, the court specifically relied on the second part of the Tinker Test.

The second part of the Tinker Test allows school officials to take action if student expression collides with “the rights of other students to be secure and to be let alone.”  Notice that this test does not require a major disruption of school activities. It only requires evidence of an interference with the rights of other students.

The 9th Circuit case involved 7th grade boys acting badly.  Just minutes after school let out, on a path that went through a park adjacent to school property, three boys surrounded a 6th grade boy and girl who were walking home.  The boys gave the younger students fake vulgar names, asked them if they were dating, asked them if they watched pornography, and made sexually suggestive and vulgar comments.  The 6th grade girl reported that she was very uncomfortable with this. Both of the 6th graders were identified in the court case as having disabilities, but that did not figure in the decision.

School officials heard about what had happened after school that day, investigated, charged one of the boys with sexual harassment and suspended him from school for two days.  The ACLU jumped in with a First Amendment lawsuit.

There were two key issues here. Today, we will address the Tinker Test issue.  Check out tomorrow’s Daily Dawg for a commentary on the “on school/off school property” issue.

As to the Tinker Test, the court noted that the comments of the 7th grade boys were properly classified by the school as “sexual harassment,” which the court distinguished from speech that is “merely offensive.”  The court observed that sexual harassing speech “implicates the rights of students to be secure.” It threatens a person’s “sense of physical, as well as emotional and psychological security.”   The age of the students was a relevant factor here as well.  The court noted that “when it comes to sexual harassment, grade schools may exercise a greater degree of control over student speech than colleges.”

So the comments of the boys were not protected as free speech.  But what about the fact that all of this happened after school, and off school property?  We’ll turn our attention to that tomorrow.

The case is C.R. v. Eugene School District 4J, decided by the 9th Circuit Court of Appeals on September 1, 2016.


File this one under: STUDENT DISCIPLINE

Tomorrow: Can the school exercise jurisdiction beyond its boundaries?