Tuesday, February 24, 2009

ACLU celebrates 40th anniversary of Tinker school free speech case


The American Civil Liberties Union is celebrating the fortieth anniversary of theTinker v. Des Moines Independent School District on February 24, 1969 with a posting Feb. 23 “ACLU Marks Anniversary Of Landmark Student Free Speech Decision With New Video (2/23/2009): 40 Years After Tinker v. Des Moines, School Officials Still Unconstitutionally Censoring Students”. In the 1969 case, the Supreme Court had ruled in favor of students wanting to wear black armbands challenging the Vietnam war and supporting a Christmas truce then. A Findlaw copy of the Opinion is here.

The ACLU article cites several egregious examples where school districts have ignored the principles of Tinker in relation of LGBT rights. Some of the examples, however, go into other areas of general individual rights’s interest. For example, in 2003 a school in Arkansas suspended a student for telling other kids he had been required to read the Bible in class after a frivolous conversation. The ACLU article also links to a 90 second video in which a high school principal from Florida testifies in a videotaped deposition that he banned students from wearing any sort of rainbow symbols – including the logos for Apple Computers and the long-running children's television show "Reading Rainbow" – because he felt they symbolized gay rights.” The case involved a student, Heather Gillman, who had worn a rainbow symbol, and Ponce De Leon High School, which did allow other kinds of partisan symbols.

There is always a potential catch-22 in these cases. School officials do have discretion to stop speech (perhaps even Internet off-campus speech) that is eminently likely to present a danger of disruption, leading to what is known as “Tinker's "material disruption" standard, or the Tinker test.”. (This is discussed in EFF’s Bloggers’ Legal Guide, covered here Feb.13; here is the link again). However, some school districts have considered the mere fact that an area as controversial or unpopular with parents to mean that “material disruption” would result, a kind of circular reasoning that probably would not stand up in most of today’s courts.

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