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."

One issue the high court hasn't weighed in on is what constitutes the "schoolhouse gate" in the world of online college courses and social media. Professor Patrick File, who teaches communications law at Quinnipiac University, said the answer to that important question remains to be seen. For now, he said, the Tinker case is "the standard for freedom of student speech in media and constitutional law" and continues to be the final word.

File said he learned about Tinker's national speaking tour through a Twitter feed, and he contacted her directly to see if she would make a stop in Hamden.

"It's a pretty rare opportunity to get a historic figure like Mary Beth Tinker to appear," File said. "Having her come to the school will be really useful as an educational exercise because it helps the students to see that these are real people who were involved in making law."

Online Comment

File and others pointed out that the majority of student free-speech legal issues in Connecticut have been resolved short of litigation. Only one Connecticut case has been petitioned to the Supreme Court for review since Tinker.

That case, Doninger v. Niehoff, involved free speech on the Internet and stirred a lively debate on what schools can do about student speech. Avery Doninger was a student at Lewis Mills High School in Burlington in 2007, and was running for an elected position as senior class secretary. She used a personal computer to post a comment criticizing school administrators for canceling a battle-of-the-bands type event.

In her missive, Doninger referred to the administrators as "douchebags." The school responded by prohibiting her from running in the election.

Doninger and her mother sued. In what was considered a pioneer ruling on an Internet free-speech case, U.S. District Judge Mark Kravitz ruled against her claim and the U.S. Court of Appeals for the Second Circuit affirmed. But the part of the argument on whether speech that is made from a home computer is protected under Tinker was never heard. In 2011, the U.S. Supreme Court declined to consider that question.

Doninger's lawyer, Jon Schoenhorn, said the Supreme Court has still not looked at the issue, "but it likely will at some point."

Even Kravitz, who is now deceased, had compelled the higher courts to revisit the question "on boundaries of free speech for students. These legal issues are a lot harder in the Internet age," he said.

"The Doninger case was the first court of appeals case to address the Internet," Schoenhorn said. "Her blog was from home, but her statements related to school." The school board's lawyers made a huge leap by saying it was no different from her handing out leaflets at school, he added.

Schoenhorn said the courts have become far less open to enforcing students free-speech rights over the years. "Tinker v. Des Moines is the last time the U.S. Supreme Court ruled in favor of a student in any case," he said. "Since then they have gone the other way in carving out exceptions."

Part of that trend, Schoenhorn said, had much to do with the background of the civil rights movement that existed when Tinker was decided. "Now, it seems the courts don't want to give students too much freedom," he said.

'Bong Hits'

Cases in which courts have ruled against student free speech have included the 1986 decision in Bethel School District v. Fraser, where a high school student in Washington state, Matthew Fraser, made sexual remarks in a speech during a school assembly and was suspended as a result. In its ruling, the U.S. Supreme Court found that lewd speech was not protected by the First Amendment.

More recently was the "Bong Hits 4 Jesus" case, which started when a student in Alaska unfurled a 14-foot banner bearing those words outside his school as classmates watched the Olympic torch get carried down a nearby street. In 2007, the Supreme Court ruled that a student's free-speech rights are not enforceable when the speech promotes illegal drug use.

But students haven't lost all of their attempts to stand up for their speech rights. Last week, a Pennsylvania school district announced it will petition the U.S. Supreme Court to enforce its effort to ban "I [heart] Boobies" bracelets in the classroom.

The bracelets, which are designed to promote breast cancer awareness among young people, have prompted suspensions of students and other disciplinary actions. Two eastern Pennsylvania girls challenged the ban there in 2010.

The bracelets became a free-speech issue in Connecticut last year, when a student at Nathan Hale High School in East Haddam was told she would face detention from school if she wore one of the bracelets.

Sandra Staub and David McGuire, two lawyers with the ACLU of Connecticut, stepped in on behalf of student Sara Dickinson. They cited the Tinker standard in a letter to the school, reminding district officials that the bracelets should be permitted under the law.

"As the Supreme Court explained in Tinker v. Des Moines Independent Community School District, students do not forfeit their free-speech rights when they walk through the school doors," Staub wrote in the letter. "School officials may only forbid student speech when it threatens to 'materially or substantially interfere with…the operations of the school' under Tinker."

The school district blinked and allowed the bracelets. "They made the right decision," Staub said.

On Oct. 30, the ACLU had another victory short of litigation, when the Torrington School District agreed to revoke a proposed social media policy that threatened to punish student athletes who made inappropriate comments online.

The policy change was suggested after online comments were made by students following the arrest of four football players on charges relating to having sex with underage girls. As it did in the bracelet matter, the ACLU wrote a letter to the school reminding officials of the Tinker standard. McGuire, one of the ACLU lawyers who worked on the letter, said he was pleased the school decided to cancel the policy change.

"The Torrington policy would have put some restrictions on students as far as how they use social media," McGuire said. "We pointed out that even on the Internet, student free speech is still governed by Tinker. That is still controlling, and has the largest impact to this day on student's rights to free speech."

As far as McGuire is concerned, the use of the Internet does not change the application of the law. It will be up to the Supreme Court to change that, if it chooses.

"I think everybody who practices free-speech law understands that the Supreme Court has not yet addressed the Tinker standard in the digital age," he said.

Tinker said her presentation and lectures are largely based on raising awareness about students' rights of free expression. She said since the days when she was in school, "student civics awareness is at an all-time low."

But at the same time, she is aware that technology is increasing students' abilities to learn about the law with the click of a mouse.

"Technology is good for student expression, because it allows them to have more access to more information," she said. "In that way, technology is good, and I think school administrators are starting to be more supportive of the way students use technology to learn and communicate with each other."

Mary Beth Tinker will discuss the current state of free speech and civics awareness among young people when she lectures at 1 p.m. on Nov. 12 in the Grand Courtroom of the Quinnipiac University School of Law Center. The event is free and open to the public. For information, contact Paula.Fowler@Quinnipiac.ecu.

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