School officials should remember lessons of Tinker

Monday, November 23, 2009

Forty years ago, the U.S. Supreme Court decided that public school officials could not punish students for expression that didn’t cause a substantial disruption or material interference with school activities.

In Tinker v. Des Moines Independent Community School Dist. (1969), the Court determined that public school officials in Iowa violated the free-speech rights of several students when they punished them for wearing black anti-war armbands. According to the court record, the armbands caused minimal disruption.

Unfortunately, in 2009 some school administrators appear to have ignored the fundamental message of Tinker that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” A prime example is in Bridgeton, N.J., where school officials have refused to allow a student — known in court papers as C.H. — to distribute literature related to the Pro Life Day of Silent Solidarity. School officials also refused to allow the girl to wear a red armband with the word “life” on it.

The Associated Press reported that school Superintendent H. Victor Gilson said the student was not allowed to wear the armband because it would have violated the school’s dress code. The dress code allows “no insignias unless it has to do with Bridgeton High School.”

The student — with legal assistance from the Alliance Defense Fund — has filed a federal lawsuit, C.H. v. Bridgeton Board of Education, claiming school officials violated her First Amendment rights.

School officials and their attorneys may try to justify such a blatant end-run around Tinker by narrowly classifying the historic ruling. In Tinker, the Des Moines public school officials singled out the black armbands for special prohibition while allowing students to wear other symbols, such as political campaign buttons and Iron Crosses.

Some view Tinker mainly through the prism of the “viewpoint-discrimination” principle so important in First Amendment law — that government officials cannot discriminate against speech based on its viewpoint. At least some school officials and their attorneys claim that Tinker does not apply in the context of a general dress-code policy that does not single out a specific viewpoint or specific subject matter.

This narrow reading of the seminal student-speech opinion in U.S. legal history has insidious consequences. It eviscerates the free-speech rights of students. It also leads to the censorship of peaceful, political speech — the type of speech at the core of the First Amendment.

School administrators should heed the lessons of Tinker, including Justice Abe Fortas’ warning that “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”

Students certainly should have the right to engage in peaceful political speech, including the wearing of armbands to support or protest various issues, such as war, uniform policies, abortion or virtually any other subject.

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