Free-speech rights upheld in modern-day Tinker


Judge: Ark. district wrong to suspend students who wore armbands in protest





Just months after a lone United States Supreme Court Justice said he thought “the Constitution does not afford students a right to free speech in public schools,” a federal district judge upheld three students’ rights in a modern-day Tinker case, affirming once again that students can wear black armbands as a silent protest and do not lose their First Amendment rights at school.

When students at Watson Chapel High School in Arkansas were punished in October 2006 for wearing black armbands to protest the district’s new dress code, free speech proponents assumed the case was a clear violation of the students’ First Amendment rights.

“It’s troubling that decades and decades after Tinker there still is anybody who is not sure about black armbands,” said Adam Goldstein, attorney advocate for the Student Press Law Center. “It raises the question, if we need to re-litigate Tinker, then what good is Tinker?”

Judge Leon Holmes, in a September 2007 ruling, said that although the Watson Chapel School District’s dress code policy was legal, punishing students for protesting it was not. He pointed to the landmark 1969 case Tinker v. Des Moines Independent Community School District, in which the Supreme Court ruled that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” and that schools can restrict student expression only if it materially and substantially disrupts the school environment or invades the rights of others.

The school district is appealing the decision.

“They are basically asking the court to overturn Tinker, which the 8th Circuit can’t do,” said Rebekah Kennedy, an American Civil Liberties Union lawyer representing students Chris Lowry, Colton Dougan and Micheal Joseph.

The case began in October 2006, when students and parents passed out more than 200 black armbands for students to wear around their wrists or arms to show their disagreement with the district’s dress code. The protest stemmed from complaints that the policy passed the previous spring was too restrictive, even stipulating exact numbers for buttons on shirts, belt holes and pants pockets. The policy did allow students to wear personal jewelry and similar items as long as those items did not overlap the uniform.

According to court records, about 20 students from the junior and senior high schools were suspended for participating in the protest. Most students did not wear the armbands or removed them after they heard about the suspensions.

The most recent Supreme Court case involving student free speech was Morse v. Frederick, popularly known as the “Bong Hits 4 Jesus” case. The Court ruled that school officials can limit student speech that can reasonably be interpreted as advocating the use of illegal drugs.

In his concurring opinion in Morse, Justice Clarence Thomas, supporting the majority opinion ruling against the student, went so far as to say that, given the opportunity, he would “dispense with Tinker altogether,” explaining that the Tinker standard was “without basis in the Constitution.”

Thomas argued that Tinker “utterly ignored the history of public education” and that schools, acting in place of the parents, should be able to govern students’ behavior, including limiting their speech.

Although Thomas stated he would not uphold Tinker if it were in the Supreme Court today, legal experts believe the rest of the Court would protect students’ First Amendment rights.

“There is no question that Thomas is alone on the Supreme Court in his thinking that Tinker should be overturned,” Goldstein said.

Still, even if Thomas stands alone on his opinion of Tinker, his views — that schools should have more control over student expression — are held by administrators across the country.

“It’s sad but not surprising because administrators are generally not well-versed in student press law,” Goldstein said.

In addition to Morse, two other Supreme Court cases have limited the protections offered by Tinker.

The 1986 Bethel v. Fraser decision established that schools could prohibit lewd and indecent speech during school-sponsored events. Hazelwood v. Kuhlmeier, decided in 1988, went further by ruling that administrators could censor school-sponsored speech that interferes with the school’s basic educational mission.

Goldstein said that administrators often claim the law is unclear.

“So they make these shoot-from-the-hip decisions that are legally indefensible,” he said.

Even the jury in the Watson Chapel case, told that the school did violate the students’ First Amendment rights, did not award the students even nominal damages, despite the judge’s instruction that they must award at least $1.

Holmes overruled the jury’s decision and awarded the students $1 in nominal damages, which also allows the students to file for attorney fees. While the students are currently filing for attorney fees, the school district also is appealing the judge’s decision to award the nominal damages.

“Frankly, this is such a settled point of law, I don’t see the 8th Circuit ruling against decades of case history and a Supreme Court ruling,” Kennedy said.

Goldstein said that while the courts overwhelmingly continue to maintain students’ First Amendment rights, it’s important to remember that some individuals in the schools and community may disagree.

“Students need to be aware of the fact that there is a portion of the population that believes their obligation as a student is to show up, shut up and keep their head down until they get their diploma,” he said.


reports, Winter 2007-08