Happy 50th Birthday to Students’ Free Speech Rights!
By Molly Tack-Hooper, Staff Attorney, ACLU of Pennsylvania
On February 24, 1969 — almost exactly 50 years ago — the Supreme Court decided that public school students’ free speech rights don’t disappear when they go to school.
That ruling grew out of John and Mary Beth Tinker’s decision to wear black armbands with peace signs to their public school in Des Moines, Iowa, to protest the war in Vietnam and mourn the dead. Their school had banned the armbands, and punished them for wearing the bands in spite of the ban. John and Mary Beth fought their suspension all the way to the Supreme Court, and won.
The armbands were controversial. One Supreme Court Justice observed that the armbands had led to discussion among students and warnings or ridicule by other students. Mary Beth’s math teacher said his lesson period was “practically wrecked” by debate sparked by the armbands. And they took many students’ minds off school and diverted their attention to the “highly emotional subject of the Vietnam war.”
But the Supreme Court ruled that that was not enough to justify censoring their speech. The Court said:
A student’s rights . . . do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without “materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school” and without colliding with the rights of others.
This was not the first time the Supreme Court stood up for students’ rights. In 1943, the Court ruled that students at public school have a constitutional right not to be forced to salute the flag. The Court explained that the First Amendment means that, even during wartime, public schools can’t force students to participate in symbolic acts of patriotism. The right to free speech also includes the right not to be forced to say things you don’t mean.
But Tinker v. Des Moines was the first time the Supreme Court laid down a broad, general rule to protect students’ rights not just to not be forced to say things they disagree with, but to speak their mind at school. That rule — which became known as the Tinker rule — is that schools can’t punish students for their speech unless the speech causes “substantial, material disruption” of class or other school activities, or the school has specific reasons to expect that it will.
This is a tough test for schools to meet.
The Tinker rule does have some exceptions. The Supreme Court later decided that schools can punish students for swearing or for making sex jokes at school, even if they’re not disrupting anything. And schools can punish students for encouraging the use of illegal drugs (or for nonsense statements that school officials think might be encouraging the use of illegal drugs — just ask Joseph Frederick, who got suspended for ten days for holding a “BONG HITS 4 JESUS!” banner at a parade during school time).
And if there’s some risk that a student’s speech might be confused for something the school said — like when students write articles for a school newspaper — then the school can exercise some extra control over what students say.
But the basic idea that schools can’t censor student speech just because it might be controversial or upsetting to other students is still the law of the land, and important now more than ever.
We’ve relied on the Tinker case to defend middle school students’ right to wear breast cancer awareness bracelets that said “i © boobies! (KEEP A BREAST)” on their school’s Breast Cancer Awareness Day.
We rely on Tinker when we advise students that they have the right to take a knee during the national anthem to protest police brutality and white supremacy, or issue guidance about students’ rights when participating in a walk-out.
And courts have cited the Tinker case in rulings protecting students when schools exceed their authority and try to punish students for what they say on their own time on social media.
For example, in 2013, the federal appeals court that covers Pennsylvania, New Jersey, and Delaware cited the Tinker case in ruling that schools can’t punish students for making satirical social media profiles about school administrators. This is true, the court ruled, even if the profiles use the kind of bad language and sexual innuendo that students could be punished for using in school. And even if the profiles are really offensive and hurtful. And even if they make their way into the school, and other students talk about them at school.
And we’ve cited Tinker in our lawsuit to get a cheerleader restored to her cheerleading squad after she was kicked off because she used profanity and criticized cheerleading in a Snapchat post that she shared with her friends on the weekend, when she was not participating in cheerleading.
At age 50, Tinker v. Des Moines is still the cornerstone on which students’ free speech rights are built and will continue to be built.
Let’s hope it outlasts us all.