The Great Unfulfilled Promise of Tinker
105 Virginia Law Review Online 159 (2019)
16 Pages Posted: 24 Feb 2020
Date Written: December 2019
The most famous line from Tinker v. Des Moines Independent School District is that “[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” People who know only this line from Tinker—and the victory it gave to the Vietnam-war protesting students—likely think of it as an incredibly speech-protective decision. It turns out that although Tinker contains lofty language about the importance of student speech rights, it sowed the seeds for the erosion of those very same rights. In the past fifty years, First Amendment protection for student speech rights in K-12 public schools has diminished substantially.
The Tinker decision contained three main weaknesses that have undermined student speech rights. First, it erroneously assumed that it was clear that minors had speech rights outside of school. Fifty years later, it still remains unclear what rights minors have. This uncertainty has made it easier for the Court (and lower courts) to chip away at their First Amendment rights in subsequent decisions and has left students particularly vulnerable in this digital age to online speech restrictions. Second, Tinker held that the speech rights of students—whatever they might be—can be restricted based on considerations of “the special characteristics of the school environment.” With this qualification, the Court essentially announced that student speech rights are not subject to the same standards that normally apply when the government regulates speech. Most disturbingly, relying on the “special characteristics” standard, the Court’s post-Tinker decisions have implicitly assumed that the toleration of student speech at school means that the school endorses that speech. The third weakness of Tinker is that the Court embraced a standard permitting the restriction of student speech whenever school officials reasonably forecast that the speech would cause “material and substantial interference with schoolwork or discipline.” This standard is unnecessarily deferential to school administrators and poses precisely the sort of censorship that the Court would never tolerate outside of the school setting. As a result, student speech rights rest less on a judicially enforceable First Amendment right and more on the willingness of school administrators to tolerate speech.
Keywords: freedom of speech, constitutional law, First Amendment
Suggested Citation: Suggested Citation