Every other Tuesday, the team behind Civics 101 joins NHPR’s All Things Considered host Julia Furukawa to talk about how our democratic institutions actually work.
Civics 101’s host Nick Capodice joins Julia this week to talk about free speech in schools, what students are allowed to express or say and what they aren’t.
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Transcript
Nick, tell me about the case that started it all for free speech in schools.
Yeah, there's a bunch of cases about free speech in schools, but the big one is Tinker v. Des Moines [Independent Community School District]. It's a Supreme Court case from 1969. This is the seminal First Amendment case that deals with the freedom of speech in schools.
The central character is Mary Beth Tinker, sort of a personal hero of mine. I've had the great fortune to meet her a couple of times. Mary Beth, her brother John, and some other folks in 1965 wore black armbands to their school. And this was a protest. They were protesting the deaths on both sides in Vietnam. They were expelled for this act of protest. They challenged it, worked its way through the courts and Mary Beth won. The Tinkers won their case 7 to 2. And the famous quote, like the thing anybody should take away from this when they hear it, is from [Justice] Abe Fortas’ decision. He said, “Teachers and students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
And this case created what we call the Tinker Standard, which is this: whatever kids say in school can be protected speech as long as it is not disruptive. That's the magic word, disruptive.
Okay, well, what does disruptive really mean, Nick? I mean, how do we or the courts define that?
Well, Julia, that's very tricky. You know, like almost all Supreme Court cases when you sort of winnow down to sort of the core of it, to its essence, you got to rule it on a case-by-case basis. Is X disruptive? Is Y disruptive? Threatening speech can be disruptive. Hateful speech can be disruptive. Just yelling in class, just yelling over the teacher, that's a disruption. Anything that disrupts the functioning of a school can be disruptive and therefore not protected speech.
So is disruptiveness the only benchmark when it comes to free speech in schools?
No, not anymore. After Tinker v. Des Moines, lots of other decisions came down throughout the years that tightened restrictions on speech in school, most notably Bethel [School District] v. Fraser. That's a case where a student was punished for making an obscene speech. Fraser lost the case, and the court then said, okay, vulgar speech can also be prohibited in schools.
And then later, another case, Hazelwood [School District] v. Kuhlmeier, it extended to words in a school newspaper [that] can be censored.
And then the last one, my personal favorite: Morse v. Frederick. Any language referencing drug use can be banned. The court had ruled against a student for holding up a now famous cryptic banner that said “Bong Hits 4 Jesus.”
Well, these standards all seem to be pretty open to different interpretations. I mean, what's disruptive to me might not be disruptive to you. And that also applies to what's obscene or offensive. So how are students supposed to know exactly what they're allowed to say or express in schools and what they're not?
That's really the hard part. And I would like to say that I think it's rather unfortunate that young American students have to be the ones to figure out, well, what can I say and what can't I say if there aren't really clear rules laid out for them?
I guess what you can say is, if it's not disruptive or vulgar, or in a school newspaper or related to drug use, according to Supreme Court precedent, it should be protected speech. However, when schools like the one I went to have, for example, a dress code and other such rules, it can be really hard to find that line between expressing yourself and breaking a school rule.
