School Business Affairs September 2019

38 SEPTEMBER 2019 | SCHOOL BUSINESS AFFAIRS asbointl.org legal issues The Tinker decision continues to guide the courts regarding students’ rights to expression. Tinker at 50: A Status Check on Student Expression By Charles J. Russo, J.D., Ed.D. F ifty years ago, the Supreme Court’s judgment in Tinker v. Des Moines Independent Community School District (1969) was a watershed moment in education. In Tinker , the Court found that absent a reasonable forecast of substantial disrup- tion, school officials could not discipline students for wearing black armbands to protest American military action in Vietnam. The case stands out not only because it was the first case recognizing the First Amend- ment free speech rights of students in public schools, but also because it turned out to be the high point of the protection they would receive. In its three later cases on the free speech rights of students, the Supreme Court restricted the scope of the protections it enunciated in Tinker . Following Tinker , which focused on student dress, the Court examined the spoken word ( Bethel School District No. 403 v. Fraser 1986), the writ- ten word ( Hazelwood School District v. Kuhlmeier 1988), and student expression in a school-supervised event ( Morse v. Frederick 2007a). The justices have yet to address student expression involving various forms of tech- nology, such as social media. Given the importance of the Supreme Court’s opinions on student expression, this column focuses on the cases in which the Court established the rules addressing the expressive rights of students and offers prac- tical suggestions for education leaders. Litigation on Student Expression A product of its tumultuous times, Tinker v. Des Moines Independent Community School District (1969) was litigated during the social upheaval of the 1960s. After the federal trial court in Iowa denied students’ claim that a two-day-old board policy that prohibited them from wearing black armbands to school in protest of Ameri- can activity in Vietnam violated their First Amendment free speech rights, the Supreme Court reversed in their favor. The justices thus sought a middle ground to balance the rights of students against the duty of educators to preserve order and discipline in schools. As an initial matter, using what is now often-quoted language, the Tinker Court explained: “It can hardly be argued that either students or teachers shed their con- stitutional rights to freedom of speech or expression at the schoolhouse gate” (p. 506). The justices thus sought a middle ground to balance the rights of students against the duty of educators to preserve order and discipline in schools, ruling that because the armbands were “pure speech”—meaning that the connotation of whatever messages they communicated depended in part on what observers perceived—they were enti- tled to the highest level of protection. According to the Supreme Court, before school officials could limit student expres- sive activity, they had to be able to show that the students’ actions were motivated by “more than a desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would SHCHUS/STOCK.ADOBE.COM

RkJQdWJsaXNoZXIy NTMyNTY4