Blog: N.J. court victory boosts student speech

Wednesday, April 28, 2010

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A federal district court in New Jersey has ruled that Bridgeton High School officials violated the First Amendment rights of a student when they prohibited her from wearing armbands and distributing fliers advocating her anti-abortion views.

The case reaffirms the fundamental principle established by the U.S. Supreme Court in Tinker v. Des Moines Independent Community School District (1969) that students do not “shed” their free-speech rights at the “schoolhouse gate.”

The case involved a then-ninth-grader known in court papers as “C.H.” who sought to participate in the Pro-Life Day of Silent Solidarity. She wished to wear a red duct-tape armband and distribute fliers explaining her position. School officials responded that the armbands would violate the dress-code policy and refused to allow the literature distribution.

In his April 22 ruling in C.H. v. Bridgeton Board of Education, U.S. District Judge Robert B. Kugler applied the Tinker case and its standard that requires school officials, before they censor student speech, to reasonably show that the speech would cause a substantial disruption of school activities.

School officials argued that the Tinker standard should apply only when a government body (such as a public school) restricts student speech on the basis of viewpoint. This argument relies on the fact that in the Tinker case, school officials in Iowa selectively targeted black peace armbands because of the wearers' anti-war views.

However, Kugler said the Tinker case is not limited to cases of stark viewpoint discrimination. Instead, he characterized Tinker as the default standard in student-speech cases. He noted that the 3rd U.S. Circuit Court of Appeals, which New Jersey falls under, “treats Tinker as the endpoint of its decision tree in student speech cases, rather than a starting branch.”

Kugler also wrote that “this case seems to involve viewpoint discrimination,” as school officials had allowed other students exemptions from the dress code. And the judge held the school officials’ feet to the fire by requiring them actually to show there would be a disruption if C.H. wore her armband and handed out her fliers.

“Defendants have only articulated a general fear of disruption,” he wrote. 

This ruling boosts student speech in America’s schools because it breathes life into the famous Tinker ruling that students are persons to be respected under the Constitution and that schools are not to be “enclaves of totalitarianism,” as Justice Abe Fortas warned in his opinion so long ago.

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