This essay won third place in FIRE’s 2013 Essay Contest.
By James D.E. Ellwanger
Back in 1965, five students from my public school district in Des Moines, Iowa, wore black armbands to class in order to protest the war in Vietnam. After they were suspended, a lawsuit was filed resulting in a landmark decision by the United States Supreme Court handed down in 1969 which defines the constitutional free speech rights of students in U. S. public schools: Tinker v. Des Moines Independent Community School District. In deciding that the students’ symbolic speech was constitutionally protected by the First Amendment, the majority opinion famously proclaimed, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The court held that in order to justify censorship of student speech, schools must be able to show more than a “mere desire to avoid discomfort and unpleasantness that always accompany an unpopular viewpoint” and instead show that the challenged conduct would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.”
The so-called “Tinker Test” is still used by the courts today when addressing free speech issues. However, its strong protection against censorship of student speech is arguably in danger. For example, in a more recent case, the U.S. Supreme Court held that a certain type of student speech may be restricted at school-sponsored events, even when those events are not held on school property. Morse v. Frederick (2007). After two students were expelled for displaying a “Bong Hits 4 Jesus” banner across the street from their school during the 2002 Olympic Torch Relay, one of the students sued, claiming his free speech rights under the First Amendment had been violated. The court decided that speech such as this, which could be “reasonably viewed as promoting illegal drug use,” could indeed be censored by the school. In 2010, two Pennsylvania middle school students were suspended for wearing bracelets to class that read, “I (heart) boobies!”, which were meant to promote breast cancer awareness. A lawsuit was brought for free speech violations. BH and KM v. Easton Area School District (2013). Although both a lower court and a federal appeals court sided with the students, finding that the bracelets were not sufficiently “disruptive” under the Tinker Test, the United States Supreme Court is currently deciding whether it will hear the case and its ultimate outcome is still uncertain.
Attacks on freedom of speech in educational settings are nothing new. However, court decisions that tend to limit schoolhouse speech, such as the Morse case, have started to appear more frequently. This is an alarming development. First Amendment rights are basic rights protected by our state and federal constitutions. Free speech, especially in schools, colleges and universities, is the key to an enriching educational experience. How can a free exchange of ideas take place without it? How can teachers, students and others within the school system challenge each other and push one another to think more deeply and widely about issues that are so important in our world today? College students who are just out of high school are trying to figure out who they will become as adults. It is a time of big changes, personal development and growing up. It is especially important at this time in their lives that they be able to explore new ideas, learn to express their opinions and find their own voices. Without protected free speech, this is impossible.
The “speech codes” that some college and universities have put into place are particularly troubling. At Valdosta University, a student was retaliated against for writing to the school newspaper and passing out flyers in which he expressed his opinion about the school’s decision to spend $40 million on a parking garage. The student later poked fun at the university president on Facebook for the president’s opposite stand on the issue. For this, he was expelled and his speech was censored. But it is hard to imagine how this conduct could be considered “disruptive” under the Tinker Test. The University of Delaware created a similar free speech issue when it adopted an invasive orientation program for new students in which the students were asked questions by university representatives such as, “When did you discover your sexual identity?” and “Would you ever date or befriend someone of another race or a gay person?” Students who refused to answer faced public shaming and even written discipline. This program was a blatant privacy intrusion in direct violation of the First Amendment.
For now, the Tinker Test has withstood these challenges and with the help of FIRE, these two particular situations have been remedied. But if court decisions continue to chip away at the protection that has been put into place for student speech, these dangerous and unconstitutional violations could become more common and may even be upheld by the courts.
Siblings John and Mary Beth Tinker recently visited my hometown of Des Moines, Iowa in order to mark the 44th anniversary of their famous U.S. Supreme Court case. Recently, they have toured the country making appearances to promote free speech and the fundamental rights of students that demand government respect. It is a remarkable lesson in civics and one that has stood the test of time. It is an important reminder that we need to be able to explore ideas without fear of punishment, especially on college and university campuses. We must promote an open society where debate and discussion is encouraged, not stifled. Only then, as students and as citizens, will we truly be free.