Hudson: Tinkers talk of their historic case, importance of student free speech

Mary Beth and John Tinker continue to add their historic voices to discussions about student speech and First Amendment rights.

The Tinker siblings have a unique vantage point: They were two of the three litigants in what is still the leading U.S. Supreme Court decision on student free-speech rights, Tinker v. Des Moines Indep. Comm. Sch. Dist. (1969). In Tinker, the Court famously declared that students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

In that ruling, the justices said Mary Beth, John, and the late Christopher Eckhardt had a right to wear black armbands with the “peace” symbol to their public schools in Iowa to protest the Vietnam War, support Robert Kennedy’s Christmas truce, and to mourn those who had died in the conflict.

The Court created what is known as the “Tinker standard” – that public school officials can censor student-initiated expression only if they can reasonably forecast that the student expression will cause a substantial disruption of school activities or invade the rights of others. The Supreme Court explained that Iowa school officials acted more out of “undifferentiated fear or apprehension of disturbance” rather than any real facts showing that the armbands might cause significant problems – which they did not.

In a presentation in Boston before a group of teachers from Massachusetts, New Hampshire, and Rhode Island, the Tinkers explained their story, including how they came to be inspired to support the peace movement. John Tinker explained that the essential ruling in the case – that the First Amendment protects the rights of students to engage in the “non-disruptive expression of political speech” has not been diminished. On the other hand, Mary Beth Tinker said, “the rights of students have been eroded.”

Both views are correct. The Tinker ruling remains the seminal U.S. Supreme Court decision on student free-speech rights. Only Justice Clarence Thomas among sitting Supreme Court justices has called for the case to be overruled.

However, it is also true that student rights have been eroded. In a series of later decisions – Bethel Sch. Dist. v. Fraser (1986), Hazelwood Sch. Dist. v. Kuhlmeier (1988), and Morse v. Frederick (2007) – the Court carved out exceptions to Tinker for vulgar and lewd student speech, school-sponsored student speech, and student speech that school officials reasonably believe promotes the illegal use of drugs.

Students have been punished for wearing t-shirts of the American flag, bracelets supporting awareness of breast cancer, and for online speech created entirely off-campus.

Fortunately, students sometimes prevail in free-speech disputes but often only after facing punishment and having to threaten or initiate litigation.

A silver lining surfaced in the 2015 State of the First Amendment survey where 60 percent of the responders agreed with the following statement: “Students should be allowed to express their opinions about school administration without threat of being punished.”

School officials need to ensure a safe learning environment but also must respect student constitutional rights, including the right to free speech.

The Tinkers not only understand the importance of student free speech, they live it. They inspired the group of teachers with their story and their continued passion for First Amendment rights. As Mary Beth Tinker says: “Sometimes you do need to challenge the status quo.”

David L. Hudson, Jr., the Ombudsman for the Newseum Institute First Amendment Center, is the author of :Let The Students Speak!: A History of the Fight for Freedom of Expression in American Schools.” http://www.beacon.org/Let-the-Students-Speak-P769.aspx He also spoke at the conference in Boston.