In the News: Landmark Case on Student Free Speech Still Resonates 50 Years Later



By 02/25/2019

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Sunday, Feb. 24, was the 50th anniversary of Tinker v. Des Moines Community Independent School District, the Supreme Court ruling affirming that students have free speech rights protected by the first amendment. The case involved students in Des Moines, Iowa who wore black armbands to school to protest and draw attention to the Vietnam War.

As Mark Walsh explains,

Writing for a 7-2 majority in the Tinker decision, Justice Abe Fortas said, “In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students.”

And in the opinion’s most often quoted line, Fortas wrote, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Legal debates over the free speech rights of students are alive and well today.

As Josh Dunn and Martha Derthick explain,

the trend of federal courts since the 1980s has been to give school officials more authority in judging what would cause a substantial disruption, as well as allowing them to punish and censor vulgar speech, school-sponsored speech, and pro-drug speech.

As analyzed by Dunn and Derthick in a variety of articles for Education Next:

• Courts have been asked to consider whether schools can punish off-campus speech on social media that they believe can cause an on-campus disruption.

• In 2014, the Ninth Circuit considered whether a high school could punish students for wearing American flag T-shirts on Cinco de Mayo if the school believed that the t-shirts were likely to cause a substantial disruption to school activities.

• In 2006, the Supreme Court examined the case of a student who had been punished for unfurling a banner reading “Bong Hits 4 Jesus” at a school-sponsored parade.

• In 2007, a student brought a lawsuit challenging his school district’s dress code prohibiting T-shirts with printed messages.

•  Courts have considered whether elementary school students can give items to classmates containing religious messages, such as “Jesus pencils.”

— Education Next




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