What Tinker got wrong

By September 28, 2018

In a discussion of free speech in a school setting, one name stands above the rest: Tinker. Time and time again, civil rights groups reference Tinker v. Des Moines as the landmark Supreme Court case that enshrined the free speech rights of students into law. The famous line from the case is still in common use today: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” But nearly fifty years after Tinker, does the law really reflect this catchy phrase? Do students really enjoy the same free speech rights as the rest of society?

In reality, Tinker and its progeny have incrementally restricted the freedom of expression for students both on and off campus. While before Tinker, the default assumption was that students were guaranteed no freedom of speech, the landmark case simply didn’t go far enough to actually guarantee these rights. The precedent set by Tinker has led to a series of cases in which the Supreme Court has routinely ruled against the constitutional right to free speech for students, especially pre-college students. Ruling after ruling, case after case, have “clarified” what Tinker meant by finding new restrictions on free expression by students.  

And yet, intuition would point the other way. Common sense says that free speech is conducive to a comprehensive and explorative education. Without the ability to contemplate new ideas or engage with different thoughts, education becomes simply rote memorization of established ideas. This type of single-mindedness is what the past fifty years of Supreme Court case law has supported. Students in high school and in grades below are subject to extreme measures of censorship, all in the name of enforcing “discipline.” But how does one define discipline? And how can the government reconcile the inherent tension between discipline and a free education?

In short, it can’t. Free speech is necessary to facilitate a true and unhindered education. When a student is told they can’t say certain things that a non-student citizen could, their education is stifled. They are held to a different standard — for whatever reason, be it discipline, appropriateness, or emotional safety — that naturally deprives students of a complete education. Censorship should be especially abhorrent in institutions of learning. We as a society entrust our educational centers to provide students with knowledge and critical thought. And, at the same time, our judicial system has upheld policies and laws that allow these same educational institutions to punish or censor students based on the content of their speech. Students deserve the best education they can get. Period. Free speech is integral to education in every sense of the word. Free inquiry, free thought, and social learning cannot exist without free speech. Tinker and its progeny of cases have dismantled this right.

Of course, the Supreme Court thought that they were advancing the education of students. They argued that allowing school administrators to discipline students for speech would protect  important values and cultivate a safe, respectful learning environment. To a certain extent this reasoning is sound: Discipline is absolutely necessary in a school, where students may act out or cause disruptions in class. But there is a world of difference between disciplining unruly behavior and censoring speech outside of the classroom. A teacher should and does have every right to discipline a student during lessons; there is no First Amendment right to scream your head off during math class. But once that student leaves the classroom — during recess, lunch, or just walking in the hallways — that student should have every right to speak his or her mind.

So what has Tinker actually done? Tinker did attempt to offer its own standard for what students can say, but that broad and vague test offered little actual security for the freedom of student speech. The majority stated that there were no “facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities.” This is the standard that the Court set forward. It was not a specific test; it offered no definitions, nor did it offer any concrete boundaries for student speech. Instead, the standard allows schools to censor whatever student speech it desires, so long as it shows some – undefined – evidence that the speech could conceivably lead to some kind of disruption – again, undefined. While the Court may have been referring to a physical disruption of school, this definition was not articulated in the opinion.

In the years since Tinker, the Supreme Court has gone on a tear against students’ rights to free speech. Given the vague mandate from Tinker, the Court has found numerous ways to carve out different exceptions to free speech for the special case of pre-college students.

In Bethel School District v. Fraser, the Court held that a public high school was allowed to “discipline” and punish a student for giving an “offensively lewd and indecent speech” at an assembly. But when the school is given the free range to decide what is too “indecent” for its students, administrators could end up hindering the education of students by denying them exposure to new and different ideas. Defending this encroachment on students’ expressive rights, the Court explained that “[i]t is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.” Here, in this case, words like “discipline” and “appropriate” were employed to steep the opinion in judicial precedent from Tinker, and to shield the case from those who would claim that Bethel carved out an exception to free speech from nothing. In this regard I agree with the Court. It’s true, Bethel did have precedent. It’s just that the precedent is an affront to the First Amendment.

Bethel also helped to cultivate and advance the judicial precedent that schools are meant to preserve certain — yet unspecified — values. As the majority opinion in Bethel stated: “The inculcation of these values is truly the work of the school, and the determination of what manner of speech is inappropriate properly rests with the school board.” The Court states here that the “school board” should define those values. Yet, the Court does not seem to consider the extent to which the selection of certain values would lead to the censorship of speech which would be otherwise protected outside the school. Again, we see the age-old problem of government defining what is appropriate, what is offensive. As Justice Douglas noted in his famous dissent in Miller v. California, “What shocks me may be sustenance for my neighbor.” When the Court gave public schools the authority to punish students for the views espoused in their speech, they enabled a content-biased enforcement of subjective values.

But the Court didn’t stop after Bethel. Tinker has afforded the Court significant leeway to ban or punish student speech. In Hazelwood School District v. Kuhlmeier, the Supreme Court ruled that school administrators could censor and punish students so long as “their actions are reasonably related to legitimate pedagogical concerns.” These concerns can be broadly interpreted across the school campus, which allows for administrators to censor and punish student speech with a far lower standard. What is “legitimate?” Isn’t the whole point of the First Amendment to allow the public to debate, discuss, and decide for itself what is “legitimate?” If you’re worried about how this ruling further opened the door of student censorship, I think you can see where this is going.

Hazelwood was followed by the corrosive cherry on top of all student speech cases: Morse v. Frederick. During a school-sanctioned event, where high school students were let out of class and left campus to watch the Olympic torch pass by, some students unraveled a banner that read “BONG HiTS 4 JESUS.” Nevermind the fact that this speech took place off school grounds, outside of the literal “schoolhouse gate,” the Court held that such speech may be restricted by public school administrators because the event was sponsored by the school, and therefore the school had jurisdiction to punish and censor students at the torch passing. That the speech could be “reasonably viewed as promoting illegal drug use” was enough to pass the Court’s low bar for censoring student speech.

The First Amendment’s guarantee of freedom of speech has been categorically dismantled for K-12 students over the course of the last fifty years. Tinker left the door open. Through that door has walked a long list of cases that have capitalized on Tinker’s vagueness and have curtailed the freedom of speech of students. Still, the First Amendment is for everyone. In fact, free speech is perhaps most important in the place where it enjoys the least respect: K-12 schools. For the Supreme Court to rule, case after case, that students are subject to the whims of their administrators is to deny the very purpose of a true education. Honest, engaging education should encourage free speech and inquiry — or, at the very least, not censor and punish it. Censoring lewd speeches or banners involving drugs only serves to deny students their right to be exposed to new concepts and to engage with diverse ideas. The legacy of Tinker has defied that famous line about the “schoolhouse gate.” Today, example after example after example has proven that students shed their constitutional rights when they enter the schoolhouse gate, and their education suffers for it.

There are no conditions to receiving First Amendment protections. It doesn’t matter whether you’re black or white, Christian or Muslim, rich or poor — the First Amendment applies to you. The Supreme Court would do well to recognize the same, and to return to students those rights that should have always been theirs.

Ben Lee is a former FIRE summer intern (2018) and a junior at Cornell University.