So, kids have first amendment rights, but only until such point as it goes against a school's policy or educational mission?

It's great that they're protected from incredibly capricious rulings by individual teachers or administrators, but it's hard to argue that 'freedom of speech' could hold less bite than simply breaking arbitrary rules. This may follow precedent, but it's a complete violation of the spirit of the first amendment for government officials to be able to effectively muzzle individuals that disagree with them peacefully.

BTW, my references to "Tinker" should be to "Harper." Sorry.

“ … so long as the T-shirt would undermine the school's "policy of promoting tolerance and prohibiting derogatory comments based on protected categories."

So membership in a “protected category” gets you special treatment under the First Amendment? So we now live in Animal Farm where some are more equal then others.

I wonder if it might not be better in the long run to deny minor students all rights on the grounds of incompetence, rather than 'customize' rights to make them workable in a school environment. Would it be better if there were no rights for teens instead of a corrupted version of them that may lead them, as adults, to accept less than their due?

PfP, I don't think there is any psychological research that indicates that what you've said is correct. One could just as well come to the conclusion that fewer rights in high school would inure students to authoritarianism.

It is unfortunate, maybe, that plaintiffs did not raise state claims.
SECTION 1. INHERENT AND INALIENABLE RIGHTS
All men are by nature free and independent and have
certain inherent and inalienable rights among which are life, liberty and the pursuit of happiness. To secure these rights and the protection of property, governments are instituted among men, deriving their just powers from the consent of the governed.
SECTION 4. FREEDOM OF SPEECH
All persons may speak, write and publish freely, being
responsible for the abuse of that liberty.
(Source: Illinois Constitution.)

I disagree with Plaintiff's message, so I support their right to say it - otherwise there is a risk that their message becomes stronger because of the suppression.

In all fairness, it should be noted that in the 1980s the federal courts split, some upholding and some striking down, a series of state laws permitting school boards to fire teachers for making statements advocating homosexuality, particularly in states with sodomy laws.

In National Gay Task Force v. Board of Education of Oklahoma City, The U.S. Supreme Court split 4-4 on the subject.

In addition to involving a particularly specific state statute 6-103.15, which provided for firing teachers for "advocating, soliciting, imposing, encouraging or promoting public or private homosexual activity in a manner that creates a substantial risk that such conduct will come to the attention of school children or school employees," the case was notable for the fieriness of its dissent:

Sodomy is malum in se, i.e., immoral and corruptible in its nature without regard to the fact of its being noticed or punished by the law of the state. It is not malum prohibitum, i.e., wrong only because it is forbidden by law and not involving moral turpitude....Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) is a poor vehicle for the majority to rely upon. There, the Supreme Court simply held that school children opposed to the Vietnam conflict were protected under the First Amendment in their practice of wearing black arm bands in protest thereto, unless that conduct could be shown to substantially interfere or disrupt normal school activities. Tinker involved a symbolic demonstration involving a matter of national political significance. Political expression and association is at the very heart of the First Amendment. The advocacy of a practice as universally condemned as the crime of sodomy hardly qualifies as such. There is no need to establish that such advocacy will interfere, substantially or otherwise, in normal school activities. It is sufficient that such advocacy is advanced in a manner that creates a substantial risk that such conduct will encourage school children to commit the abominable crime against nature. This finds solid support in Tinker, supra, where the Court said "First Amendment rights must always be applied 'in light of the special characteristics of the . . . environment ' in the particular case."

If conservatives were permitted to do this in the 1980s, why shouldn't liberals be permitted today? The consititution is supposed to be even-handed. It is not there to ensure the judge's friends, or the positions that the judge politically supports, are the ones that win.

I'm confuzzled. Is Tinker still good law? According to what seem to be the current rules, why couldn't De Moines have argued that the Tinkers' and Eckhardt's armbands undermined the school's policy and educational mission of inculcating patriotism among its students? Surely that's at least as legitimate a policy as is one of teaching students that there's nothing wrong with homosexuality, or that there is something wrong with drugs.

Brian G: See Fraser v. Bethel School District, which is generally read as holding that a school may ban vulgar language.

ReaderY: I'm puzzled -- in the 1980s, a lower court dissent reasoned that teachers could be fired for advocacy of homosexuality (not in-class advocacy, but any sort of advocacy). The Supreme Court split 4-4 on the subject, thus rendering no precedential decision but keeping on the books a lower court decision that struck down a law providing for such firing. How does that support upholding restrictions on student anti-homosexuality speech today?

Both of the shirts mentioned here have offensive messages, but the first one ("Be Happy, Not Gay") is actually clever. The second is just lame. Any rule that bans the first and permits the second is a problem.

Agreed. I imagine many of the wearers of the first shirt would be gays/lesbians mocking it. Thus the school district's rule is insensitive to irony, which is harmful to the development of self-expression (part of a school's educational mission) and prevents Judith Butler-style subversions of anti-gay norms that lead to greater tolerance. Not every bumper sticker or tee-shirt is meant to be taken literally.

The school dress code isn't just about political speech. It can get at gang issues, an overly sexualized environment, the fashion "arms race," or just about any other dress-related issue that leads to student fights.

I wouldn't extend the ban to articles in the school paper, where students would have to develop actual arguments that could then be debated and challenged on the merits. I mean, if you want to have a political or social argument, HAVE one.

T-shirts are more about displaying team colors or various badges of "tribal" membership, and that sort of thing can certainly be disruptive in class. The trouble comes when you start trying to define specific protected groups and the exact shades of meaning in various remarks. It really is offensive to set up a system where Group A is free to insult Group B, but Group B isn't free to respond in kind. So why not just clean up the mess ahead of time, at the same time you're banning tube tops and unsafe shoes and gang colors? School hours aren't 'round the clock, after all.

(Yeah, I know. One person decides to be a jerk and everybody loses a bit of liberty. It always happens that way, but I don't know of any other solution when people are stuck in close quarters and there's no social agreement on what "being a jerk" entails. Think of having to share an office with someone whose politics and religion repel you. The only way to avoid mayhem -- and seriously reduced productivity -- is for everyone to shut up.)

Assume that a person wore a t-shirt that said, "Be Ashamed, Our School Embraced What God Has Condemned" and "Racial Integration is Shameful." Now, this shirt would likely pose a "reasonable risk of disruption" and I think that the banning thereof would therefore be more likely to be consistent with the first amendment.

I have to admit that I never liked or agreed with the "reasonable risk of disruption" test, as it seems to place control over one's First Amendment rights in the hands of those who would be offended by the message. Why should any group that might be more likely to react violently to an offensive message (or at least is perceived as more likely to react violently) be granted greater control over someone else's speach? Yes, the message "Racial Integration is Shameful" is both stupid and offensive, but why can't the law insist that people who disagree with such a message control their behavior - a proportional response would be to wear a T-shirt with the message "Bigots are Idiots" or "Racists are as Worthless as Their Opinions". Certainly, the Nazi's marching through Skokie, Illinois presented a "reasonable risk of disruption" -- so why was that protected speech under the First Amendment? If the First Amendment only protects non-offensive expression, it's a mighty niggardly liberty.

Professor,

Thanks for the comment. I actually entered a moot court competition in law school (Chicago Bar Association) where Tinker and its progeny made up the briefs and arguments. I loved it.

What I was referring to was the federal cases in the last few years where a student was restricted from wearing an anti-homosecual shirt (9th Circuit) but a student wearing an anti-Bush t-shirt with vulgarities was protected (6th Circuit, I am 99% sure). If I wasn;t stuck on this MSJ, I would do the research right now.

David Schwartz writes:

Why deprive children of more liberty than necessary?

The serious answer is, "Because they aren't in school to exercise their liberty, but to get educated. Anything that distracts minors from education is unnecessary."

The snarky (but accurate) answer is, "Because homosexuals can't stand criticism, and therefore insist that schools have to encourage homosexuality, while prohibiting any criticism."

DLM: "Is it really better to occupy lawyers, schools, parents, teachers and the federal courts with these ridiculous cases about what T shirts kids may wear between the hours of 8 and 3?'

Maybe these things should be settled the old-fashioned way, the way all schoolyard problems were solved — with fisticuffs.

Cramer: " "Because homosexuals can't stand criticism, and therefore insist that schools have to encourage homosexuality, while prohibiting any criticism."

Not true. I'm more than willing to have schools criticize homosexuality, so long as they are just as wiling to criticize heterosexuality. That WOULD be the fair solution, no?

Maybe these things should be settled the old-fashioned way, the way all schoolyard problems were solved — with fisticuffs.

The serious answer is, "Because they aren't in school to exercise their liberty, but to get educated. Anything that distracts minors from education is unnecessary."

Learning how to assert and exercise one's rights is an essential element of education in a free society.

I'd like to provide a viewpoint of a Board of Education Member in a public school.

Uniforms.

Yep, that's right. School uniforms. I shudder to think how much the school district spent on this entire matter.

I would not want an overly restrictive school policy or an overly permissive school policy. But somewhere along the line, an overzealous parent, school board, or administrator has worked to distort the primary reason students go to school. To learn and to prepare students for entry into the workforce, military or college.

Clayton,

Perhaps schools should stop promoting heterosexuality as well? Just to treat everyone equally?

Duncan: Good point. That's why I was careful to say education is 'in part' the process of questioning authority. Certainly, in primary school kids need to learn discipline first.

And, to clarify, what I mean by questioning authority isn't mindless "I disagree with that," but rather, to become engaged enough in a topic that you want to learn more, and ask questions about it. And sometimes, that leads to rather critical questions, hopefully. Without

As a part time educator, one of the most difficult things I encounter is to try to get students to ask questions. As a teacher, I should be challenged. I learn as much from my students as they do from me! I would be happy if students questioned whether democracy is truly the best form of gov't, for instance. Eventually, they will either come around to agreeing that it is, or at least they will realize that it has flaws, as every form of gov't does.

Doesn't Morse v. Fredrick give the school district latitude to stop these T-shirts? OR will the court say that pro-marijuana speech is a real problem, but anti-gay speech is hunky dory?

Justice Alito, with whom Justice Kennedy joins, concurring.

I join the opinion of the Court on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as “the wisdom of the war on drugs or of legalizing marijuana for medicinal use.” See post, at 13 (Stevens, J., dissenting)...

The opinion of the Court does not endorse the broad argument advanced by petitioners and the United States that the First Amendment permits public school officials to censor any student speech that interferes with a school’s “educational mission.” See Brief for Petitioners 21; Brief for United States as Amicus Curiae 6. This argument can easily be manipulated in dangerous ways, and I would reject it before such abuse occurs. The “educational mission” of the public schools is defined by the elected and appointed public officials with authority over the schools and by the school administrators and faculty. As a result, some public schools have defined their educational missions as including the inculcation of whatever political and social views are held by the members of these groups.

During the Tinker era, a public school could have defined its educational mission to include solidarity with our soldiers and their families and thus could have attempted to outlaw the wearing of black armbands on the ground that they undermined this mission. Alternatively, a school could have defined its educational mission to include the promotion of world peace and could have sought to ban the wearing of buttons expressing support for the troops on the ground that the buttons signified approval of war. The “educational mission” argument would give public school authorities a license to suppress speech on political and social issues based on disagreement with the viewpoint expressed. The argument, therefore, strikes at the very heart of the First Amendment ...

In most settings, the First Amendment strongly limits the government’s ability to suppress speech on the ground that it presents a threat of violence. See Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam). But due to the special features of the school environment, school officials must have greater authority to intervene before speech leads to violence. And, in most cases, Tinker’s “substantial disruption” standard permits school officials to step in before actual violence erupts. See 393 U. S., at 508–509.

Speech advocating illegal drug use poses a threat to student safety that is just as serious, if not always as immediately obvious. As we have recognized in the past and as the opinion of the Court today details, illegal drug use presents a grave and in many ways unique threat to the physical safety of students. I therefore conclude that the public schools may ban speech advocating illegal drug use. But I regard such regulation as standing at the far reaches of what the First Amendment permits. I join the opinion of the Court with the understanding that the opinion does not endorse any further extension.