New Cases Test Landmark Ruling on School 1st Amendment Rights

, The Connecticut Law Tribune

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Mary Beth Tinker
Mary Beth Tinker

Known far and wide as the "Tinker Standard," the law on free speech in public schools is governed by a 1969 U.S. Supreme Court decision giving students the right to vent for or against just about anything, as long as they don't create a disruption that violates the rights of others.

The ruling is named for Mary Beth Tinker, who is headed to Connecticut this month as part of a national speaking tour. Tinker will focus on "the need for students and civil rights lawyers to remain vigilant." Her scheduled appearance at Quinnipiac University School of Law on Nov. 12 comes during an active time in free-speech legal actions.

Last week, a Pennsylvania case over whether students can wear breast cancer awareness bracelets was sent to the U.S. Supreme Court for possible review. And there's another dispute winding down in Torrington, where school administrators, under fire from civil rights advocates, withdrew a plan to restrict some social media use.

"There is a lot going on in public schools right now with free speech," Tinker said. "And more of it now has to do with social media and online behavior. There are a lot of young people who are actively speaking out about standardized testing and other issues, and that is being done on Twitter or Facebook. That is the new frontier."

In the pre-Internet days of 1965, Tinker was a 13-year-old high school junior in Des Moines, Iowa, whose parents were social-activist ministers who had demonstrated against racial segregation.

"I was very shy, and when I was younger I thought the civil rights movement was for others who were braver than I was," Tinker said. "But eventually, I got my courage."

Stirred to action by the belief that violence is wrong, she and a group of students decided to wear black armbands with peace signs on them to protest the Vietnam War.

The school board stepped in and passed a preemptive ban against the armbands. Some of the students were suspended. Others, including Tinker, were sent home.

American Civil Liberties Union lawyers launched a lawsuit against the school board on behalf of the students. After four years of litigation, on Feb. 24, 1969, the high court ruled in a 7-2 decision that the First Amendment applied to public schools, and that students "do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

"We didn't know it at the time, but we were creating history," Tinker said. "Even today, all these years later, the fight is still being waged on other speech-related issues."

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