When I first read an August news report that a Clark County student named Angelique Clark had been told she could not form a pro-life club at her school, it was not clear to me whether the club would have been anti-death penalty or anti-abortion. The report didn’t say. In fact, the report didn’t mention abortion.
In the early months after the 1973 U.S. Supreme Court ruling Roe vs. Wade, the emerging pro- and antiabortion movements were defined by the issue, with the result that they tended to be described as I have here, as “pro-abortion” and “anti-abortion.” But as the years passed, they defined themselves with public relations terms – “pro-life” and “pro-choice” – and for some reason journalists eventually started using those terms.
Here was a news story that showed the pitfalls of using subjective campaign slogans instead of descriptive, fair journalism.
Whatever the nature of Ms. Clark’s club, I almost instinctively came down on her side. When I was a high school editor at Reno High School, I ran a letter to the editor from two students who called for shifting some funding from athletics to debate. The two were haled into a vice principal’s office to be harangued for their opinion. The vice principal was also a coach. It was an outrageous abuse of authority.
During that same period, a student rights case was slowly making its way to the U.S. Supreme Court.
Des Moines residents Mary Beth Tinker, John, Hope, and Paul Tinker and their friend Christopher Eckhardt decided to wear black armbands to their high, junior high, and elementary schools during the December holiday season to protest the Vietnam war and also support Robert Kennedy’s call for a truce. School officials learned of their plan and adopted rules prohibiting it. The students did it, anyway, and Mary Beth, John and Christopher were suspended (Hope and Paul were spared, apparently because of their youth). That was in 1965.
In 1969 the U.S. Supreme Court ruled 7 to 2 in favor of the students. “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students,” Justice Abe Fortas wrote in the majority opinion. “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.”
Tinker vs. Des Moines was a ruling that transcended political expression. The first amendment also encompasses religious expression and press freedom.
There matters rested for a couple of decades. As the impact of Nixon and Ford appointments to the Supreme Court took hold, the court began chipping away at Tinker in the 1980s, in cases like Bethel School District v. Fraser (1986) and Hazelwood v. Kuhlmeier (1988). In Hazelwood, Justice Byron White – a Kennedy appointee – wrote for the majority, “A school need not tolerate student speech that is inconsistent with its basic educational mission, even though the government could not censor similar speech outside the school.”
So state legislatures started stepping in to restore student rights with state laws. In Nevada, Sen. Sue Wagner sponsored a measure at the 1989 Nevada Legislature. Along with several other reporters, I testified at a hearing on the bill. But the bill failed after the Church of Jesus Christ of Latter-day Saints came out against it. The Mormon intervention prevented Nevada from joining the trend. Nevertheless, Fortas’s original opinion provides, if not binding law, very good advice for policymakers:
“The District Court concluded that the action of the school authorities was reasonable because it was based upon their fear of a disturbance from the wearing of the armbands. But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, and our history says that it is this sort of hazardous freedom – this kind of openness – that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.”
Dennis Myers is an award winning journalist who has reported on Nevada’s capital, government and politics for several decades. He has also served as Nevada’s chief deputy secretary of state.