For the summer, we’re going to designate Thursdays as Throwback days, when we take a look at some of the seminal legal developments that are still important. Let’s call these cases GOLDEN OLDIES!
The Golden Oldie in the area of student free speech is Tinker v. Des Moines School District, decided by the U.S. Supreme Court in 1969. Schools have not been the same since that fateful day when Mary Beth Tinker walked into her 8th grade classroom wearing a black armband in support of a Christmas truce in Vietnam. The principal had gotten wind of this ahead of time and had specifically prohibited any such war protest in the school building. So young Ms. Tinker was in direct defiance of the principal when she wore that armband to school. What’s a principal to do? He was already on record—he had to follow through with a suspension.
Little did he know that his decision would be the subject of a Supreme Court decision that we would still be talking about almost 50 years later. The Supreme Court overturned Mary Beth’s suspension. The Court held that the student was engaging in symbolic speech that was protected under the First Amendment. The quote that has rung down through the decades is that “students do not shed their constitutional rights when they enter the schoolhouse gate.”
Of course this is not an unlimited right. School officials retain the power to discipline students for expression if they “reasonably forecast” that the expression will cause a “material and substantial disruption” of school, or to interfere with the rights of others.
So what’s the latest on this? YouTube! Facebook!! Twitter!!! The early cases were about armbands, political stickers, underground newspapers and other such things. Now, of course, student expression is digital, and the courts have struggled to enunciate clear guidelines for the regulation of cyber speech that originates off campus but is incorporated into every cell phone and device in the student’s backpack. The most recent decision that is relevant to Texas educators is Bell v. Itawamba County Schools. In this case the full 5th Circuit upheld disciplinary action against a student in Mississippi who wrote, recorded and disseminated a nasty rap accusing two coaches of sexual misconduct with students. This case recognizes social media as a game changer, making the physical boundaries of the school less relevant than they were in simpler times.
How should principals and assistant principals proceed? Cautiously. Remember that Tinker is the law of the land, and so when students express themselves verbally, symbolically, in writing or in cyberspace, the starting point is that the expression is probably protected under the First Amendment. There are a number of exceptions to that general rule, but it is still the starting point for analysis.
DAWG BONE: THE GOLDEN OLDIE FOR STUDENT FREE SPEECH: TINKER v. DES MOINES
File this one under: FREE SPEECH