A Voice of Reason: Sane Views for a Crazy World

March 19, 2007

The Supremes New Hit: “Tinkering” With Free Speech?

Today the Supreme Court heard arguments in a case about free speech within a public school.  It is expected that a decision will be reached sometime this Spring.  You may have to wait to Spring to finish this post, it’s a long one, but well worth the reading.

The particulars of the case are not at all unfamiliar, and this case will likely make school officials have to read up again on the balance between the authority of the school’s policies and that of free speech.  The benchmark for this balancing is the “Tinker” case.   This case, decided in 1965, involved students who were suspended for wearing black armbands to protest the Vietnam War.  The school suspended the students, and they were not allowed to return if they would not remove the armbands.  In this case, the Court sided with the plaintiffs, that wearing the arm bands was free speech, and that the school had acted arbitrarily, capriciously, and unreasonably because they had singled out this one method of showing protest, rather than prohibiting the wearing of all controversial insignias.  Since the wearing of armbands did not materially and substantively interfere with the discipline of the school, the students did not lose their rights when entering the doors of the school.

Other cases have limited or defined what exactly composes free speech.  In 1986 Bethel v Fraser limited speech in a school setting.  A student used profanity in an assembly supporting the candidacy of a friend, after he had been warned that the speech was inappropiate and his delivery of the speech would result in serious consequences.  The speech, which was laced with profanity and sexual metaphor, was delivered, and there were reported discipline problems.  Fraser was suspended and removed from eligibility to address the school at graduation.  Both lower courts affirmed the plaintiffs rights had been violated, including the well-known, 9th Circuit, and awarded damages to the plaintiff, but the case was reversed by the Supremes.

Citing that although the Tinker Doctrine was law, that “sexual content of respondent’s speech in this case seems to have been given little weight by the Court of Appeals.”  The Court added, “[Public] education must prepare pupils for citizenship in the Republic. . . . It must inculcate the habits and manners of civility as values in themselves conducive to happiness and as indispensable to the practice of self-government in the community and the nation.”

Another Court case, Hazlewood v Kuhlmeir, 1988, concerned the extent that a school had over a student publication, a student newspaper.  The paper enjoyed a large circulation, beyond the school, and was published with funds paid for by the Board of Education.  Two stories, one dealing with abortion and divorce, were eliminated due to fears that students may be identified, even though aliases had been used.  The paper was printed with those stories deleted, and the students sued.  The 8th Circuit ruled with the students, but the Supremes reversed.  Again, while citing the Tinker Doctrine, “Students in the public schools do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate”, Court reversed on the basis that, “A school need not tolerate student speech that is inconsistent with its ‘basic educational mission,’ even though the government could not censor similar speech outside the school.   So, the trend has emerged that although Free Speech is guaranteed, there are Constitutional limits that Public Schools, with greater range than the government at large can place upon such speech.

A few instances in the news will be challenging this.  Recently, in Upstate NY, three girls were suspended by the school for quoting from “The Vagina Monologues” at a public event.  The girls were suspended, and seemed to enjoy their moment of fame brought on by cries of “violation of their First Amendment Rights”.  However, it seems that their parents, attorneys, and the young ladies need to read up on Fraser.  The school, possibly scared by the prospect of a law suit, dropped the suspension. 

Another instance is found in many schools perhaps “Tinkering” with free speech has to do with the number of blogs and sites such as “Rate my Teacher”.  All too often instances of cyber-bullying are occurring off the campus of the school, yet which impact upon the school’s ability to perform its educational purpose.   Some schools are arguing, that the limitations of “Tinker” should apply to speech which occurs off campus, but has an impact on campus.  There are some court cases in the thicket right now, and undoubtedly some of these will likely land within the domain of “The Supremes”.

Recently, there was controversy over high school students recognition of “A Day of Silence“.   The Day of Silence is one of the largest student generated events designed as a form of protest over treatment of gays and lesbians in American society.  It is an annual event that runs on April 18.  Students typically wear buttons, armbands, and also refuse to speak on this day.  While some school teachers and administrators may welcome that latter part, obviously this could disrupt the mission of the school.  Students typically have a card to give to teachers to explain, which asks their silence to be excused.  However, some schools have had counter demonstrations, where students wear buttons or t-shirts reading, “God created Adam and Eve, not Adam and Steve.”  This has obviously lead to some altercations between groups.  In a school I am acquainted with, one solution was to have the groups discuss both sides of their issues, while allowing both groups to wear the materials. 

All of this brings us back to today’s hearing about a case where a school principal is being sued for tearing down a sign that promoted “Bong hits 4 Jesus”.  The principal is represented by Kenneth Starr, who argued, “This is disruptive of the educational mission and inconsistent with the school’s message” against using drugs, Starr said.  Ironically, several religious rights group have joined the plaintiffs in this case, stating concern that this ruling may limit students wearing t-shirts or buttons which would proclaim a praising of Jesus. 

The principal in this suit, initially suspended the students for five days, and then doubled it when the student invoked his First Amendment Rights.  The principal’s decision and discipline were affirmed by the Federal Court, but reversed by the famous 9th Circuit.  Enter The Supremes.  Today, Justice Souter provided much of the commentary, and his questions and responses may portend that the Court will side with the principal.  Will this be an affirmation of the school’s right to control behavior or will Tinker be “Tinkered with” again. 



  1. Not sure about providing commentary to my own analysis, but I failed to give my own reaonable voice in my post.

    I feel the court should reverse the 9th in this case, and not because the 9th is the most often reversed circuit, so why not stay with precedent. In this case, it seems that the Mr. Starr’s argument is very strong. This would seem to have a disruptive effect on the primary mission of the school, and there is no substantive principal of free speech such as was shown in Tinker and with the practice of a Day of Silence.

    Party on, dudes.

    Comment by avoiceofreason — March 19, 2007 @ 10:22 pm | Reply

  2. thanks for inviting me to your website.
    quite a simple page but with informative content.
    well done.

    Comment by MyLaw — April 8, 2007 @ 4:57 am | Reply

  3. Thank you! Come back often.

    Comment by avoiceofreason — April 8, 2007 @ 5:10 pm | Reply

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