Constitution Check: How free are students to comment on public policy issues?

Lyle Denniston looks at a recent free speech case involving students and why the Supreme Court itself has never deviated from the teaching moment that was the Tinker decision.

school_LockersTHE STATEMENTS AT ISSUE:

Tinker v. Des Moines Independent School District is known throughout the school law community as the high-water mark of student free speech rights….This case is not Tinker.  ‘I [heart] Boobies’ is far from the silent political protest at issue there.  The expression here is one example of a type of student speech that school officials encounter daily – sexual double-entendre intended to push boundaries, sometimes touching on a political or social concern.”

 – Excerpt from a legal brief filed by the National School Boards Association and other school organizations in the Supreme Court case of Easton Area School District v. B.H. and K.M..  On Monday, the Supreme Court denied review of the appeal in that case by public school officials in Easton, PA.  As is its custom with such denials, the court gave no explanation.  The case involved students who wore bracelets with a message that officials found too sexually suggestive.

“In our system, state-operated schools may not be enclaves of totalitarianism.  School officials do not possess absolute authority over their students.  Students in school as well as out are ‘persons’ under our Constitution.  They are possessed of fundamental rights which the state must respect, just as they themselves must respect their obligations to the state. In our system, students may not be regarded as closed-circuit recipients of only that which the state chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved.”

 – Excerpt from the Supreme Court’s 7-to-2 decision on February 24, 1969, in the Tinker case, involving public school students who were suspended for wearing black arm bands as a way to express opposition to U.S. involvement in the Vietnam war.

WE CHECKED THE CONSTITUTION, AND…

Almost exactly 45 years ago, the Supreme Court gave public school officials a stern lecture about the First Amendment rights of students.   Leaving aside that the Court’s opinion unnecessarily used hyperbolic language about “totalitarianism” in the public school setting, the intended constitutional message was clear: Schools can fulfill their mission even when officials leave space for students to begin acting out the role of citizen.

Although the Justices have returned, with some frequency, to the basic First Amendment question about students’ free-speech rights, and even though lower court judges disagree about how to interpret what the Court’s rulings mean, the Court itself has never deviated from the teaching moment that was the Tinker decision.

Today, that decision still adds up to three constitutional propositions: first, school speech restrictions must be nuanced and, to a considerable degree, tolerant; second, it matters what specific message students are attempting to convey, and, third, officials should not be too quick to see a threat merely in the chosen vernacular of the young.

Given that students in the teen and even the sub-teen years are, perhaps inevitably, going to try to “push boundaries,” and that they are keenly aware of their developing sexual sensibilities,  the temptation to crack down must seem very compelling.   Sexual innuendo is not always harmless, especially at that age, and some students may interpret it as permission to make unwanted sexual advances, or to engage in bullying.   But assault, physical or verbal, ordinarily would seem to be easily identified and addressed even without running afoul of the First Amendment.

In some ways, perhaps, the Easton, Pa., school case that the Supreme Court has just chosen to bypass seems quite typical.  Some teachers observed, or speculated, that the wearing of bracelets with the message “I [heart] Boobies” was a prelude to trouble.   And administrators rather quickly saw that potential, and decided to ban the bracelets altogether.  It was better, they thought, than to take the risk of disruption of the educational mission.

But the federal appeals court that ruled against the ban saw something quite unusual about this case. It recognized the compelling nature of this specific message: young girls ought to be encouraged to comment upon the risk of breast cancer.

They might not actually face that as a personal risk very soon, but neither could they imagine that they were immune to it.  At their age, too, it may well be a good idea to grow more sensitive about examining themselves, as they develop, and to do so without embarrassment.   That, indeed, is exactly the message that the distributor of the bracelets, the Keep A Breast Foundation, intended for girls and young women to share.   And, to reach the younger generation, it chose a vernacular that it believed would attract that group.

The Supreme Court, when it analyzes First Amendment controversy, often talks about the need to leave some “breathing space” in public discourse.   On matters of public concern, the Court said, discussion must be “uninhibited, robust and wide-open.”  Actually, it said that 50 years ago this week, in the libel case, New York Times v. Sullivan.

Among students in the middle and elementary school grades, and maybe even in high school, it may be too much to allow speech – even on matters of public concern – to be “uninhibited” or “wide-open.”  But, constitutionally speaking, the only available alternative to that no-holds-barred approach is not a flat ban that puts a public policy entirely out of bounds in public school hallways and classrooms.   Subtlety in regulation of student speech about public affairs surely is academically within reach.  What’s more, Tinker demands it.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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