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“The Schoolhouse Gate”: The Unpopularity of Free Speech in Public Schools

The Supreme Court’s decision in Tinker is viewed as the high-water mark for students’ First Amendment rights, but Justice Black’s strident dissent—not the majority—spoke for most Americans at the time.

This post is the second in a series of edited excerpts from my new book, "The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind." The Supreme Court's 1969 decision in Tinker v. Des Moines Independent Community School District is now correctly revered as a landmark in protecting student rights. But Tinker's outcome was far from preordained, and its vehement dissent accurately captured many Americans' growing concerns over youth culture.

In December 1965, a group of students in Des Moines, Iowa—including Christopher Eckhardt, John Tinker, and Mary Beth Tinker—planned to protest the Vietnam War by wearing black armbands to school. When plans of the protest leaked, Des Moines school officials hastily created a plan to suspend pupils wearing armbands. This policy was necessary, the officials maintained, to avoid disruptions they believed would result from the protest. The officials noted that a former Des Moines student had been killed in Vietnam and expressed concern that his friends who remained in school would create a volatile environment.

When Christopher Eckhardt arrived at school, he made his way directly to the principal's office so that he could be suspended. One school official sought to coax Eckhardt into removing his armband by observing that "colleges [don't] accept demonstrators," and that he "was too young and immature to have too many views."

John Tinker wore his armband at school through lunchtime, before a teacher finally instructed him to report to the principal's office. Like her brother, Mary Beth Tinker wore her armband for much of the day—until she attracted the notice of her mathematics teacher, who had dedicated the entire previous day of class to condemning student demonstrators. The students filed a lawsuit contending that their suspensions violated the First Amendment right of free expression, setting in motion what would culminate in the Supreme Court's most consequential student rights opinion in its entire history.

In Tinker v. Des Moines Independent Community School District, the Supreme Court, by a 7–2 margin, vindicated the right of students to express their views in school. Justice Abe Fortas's majority opinion used a turn of phrase that not only became a staple of judicial opinions but even entered the larger national culture: "It can hardly be argued that … students … shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." That language established the fundamental terms of debate for students' rights cases.

Fortas made clear that public schools could not prevent students from expressing particular ideas simply because their message may contradict the school's preferred message. That the Des Moines school district sought to prohibit students from expressing an antiwar viewpoint—when it otherwise permitted students to express their viewpoints on a whole range of issues—rendered the policy constitutionally dubious: "In our system, state-operated schools may not be enclaves of totalitarianism."

Moreover, Fortas emphasized that it would be unwise to permit schools to suppress views, as today's students will soon assume responsibility for maintaining tomorrow's civic discourse: "The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, [rather] than through any kind of authoritative selection."

Justice Hugo Black's heated dissent made little effort to conceal his deep displeasure. "It may be that the Nation has outworn the old-fashioned slogan that 'children are to be seen not heard,' but one may, I hope, be permitted to harbor the thought that taxpayers send children to school on the premise that at their age they need to learn, not teach," he wrote. For Black, Tinker marked "the beginning of a new revolutionary era of permissiveness in this country." Black further contended that those inclined to protest were the public schools' "loudest-mouthed, but maybe not their brightest, students." In Black's estimation, Tinker did not merely permit the inmates to run the asylum but thrust the least equipped inmates among them into the warden's role.

Tinker garnered acclaim for reining in overzealous educators who had trampled upon students' First Amendment rights, and many elite observers condemned Justice Black's dissent. Criticism of Justice Black's dissent, however, obscured the prevalence of such views among many Americans during the late 1960s. Black tapped into a deep wellspring of cultural anxiety that engulfed the Court's efforts to extend constitutional rights to students.

Accordingly, Tinker's outcome was far from inevitable from the viewpoint of the 1960s. When Tinker initially arrived at the Court, Justice Fortas himself wrote, "this is a tough case" on a law clerk memorandum outlining the students' petition for certiorari. Fortas eventually voted to deny the students' petition, a stance that (if not overcome by his colleagues) would have permitted the school officials' suppression of student speech to remain intact from their victory at the circuit court level.

The notion that Tinker was far from an assured triumph for student rights finds further support in the events of the late 1960s. The Court heard oral arguments in Tinker only one week after Richard Nixon defeated Hubert Humphrey for the presidency. Nixon's campaign condemned the Supreme Court for its supposedly indulgent treatment of the criminal element and promised to restore "law and order" on behalf of "the forgotten Americans." Time designated "The Middle Americans" its "Man and Woman of the Year" for 1969, and quoted a resident of Pittsfield, Massachusetts, who groused, "Dissent is disgusting. If you have a complaint, write your Congressman or the President. School is to get an education."

Polling data suggests these "Middle Americans" would have embraced Justice Black's dissent. In a Harris poll taken only one month after Tinker, 52 percent of respondents opposed granting rights to student protesters, and only 38 percent of respondents supported granting such rights. Respondents to a February 1969 Gallup poll identified a lack of student discipline as the foremost problem confronting the nation's schools. Many respondents would doubtless have identified the behavior at issue in Des Moines, with students disobeying direct orders from their principals, as a cardinal example of the breakdown in student discipline that must be corrected.

Tinker represented a momentous innovation in the recognition of students' constitutional rights. For the first time, the Supreme Court recognized that students retain the essential power to communicate their ideas to one another; such communication is an integral part of the educational process; and public schools have a responsibility to tolerate dissident speech, so both the marketplace of ideas functions properly and citizens will be prepared to participate in the freewheeling debate that characterizes the United States. Tinker's constitutional contributions would deserve to be honored if they arrived at any time. But that Tinker resisted, rather than ratified, the era's prevailing attitudes on student dissent makes those contributions all the more remarkable.

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  • Bob from Ohio||

    Black was right and the corrupt Fortas was wrong.

  • Scarecrow Repair & Chippering||

    No, the correct answer is that it shows the unworkability of mandating public school education for everybody, with no allowance for diversity of opinion, and the unsuitability of one-size-fits-all policies.

    When your only choice is seemingly to force everybody into conformity by threat of jail, you've lost track of what you were trying to do and need to back up and take a fresh look.

  • apedad||

    Bob, if I ever invent a time machine, you have my solemn promise that I will transport you back to the 18th century where you will be happy.

    In the meantime, here in the 20th and now 21st centuries, Black was wrong in 1969, he's wrong now, and he will be wrong for the rest of history.

  • Bob from Ohio||

    Children are to immature to be given full adult liberty at school.

    Science says their brains are not fully developed so as to enable them to make good decisions.

    Why do you hate science?

  • Rossami||

    Human brains are not fully mature until about age 25 and, according to the latest research, never stop growing and developing new connections. Are you arguing that no one under the age of 25 should be allowed to vote, drive, drink alcohol, enlist in the Army or even walk down the street unattended?

    Even if you take a less strict view of the science and arbitrarily decide that the brain is "enough" developed at 18, how do you think that development actually happens? Do you think they will magically know how to make good decisions without ever having had the opportunity to make bad ones?

    In fact, the science is clear that development is a process. And regardless of the physical maturation processes, mental, emotional and moral development can be stifled by not giving students the opportunity to practice and learn.

    So which do you really think would be better? Letting students engage in non-violent and non-disruptive social protest in the controlled environment of a high school where their teachers can help them engage in critical thinking and use the events as teachable moments in communication skills? Or letting them have their first experience only after you've given up all opportunities to help them grow?

    Regardless of whether Black or Fortas were right as legal matters, Fortas was unquestionably right as a matter of social policy and human development.

  • Bob from Ohio||

    "social protest " is a waste of time so I do not care if they learn to do it at 15 or 65.

    They are in school to learn math, science, history, english etc. not how to annoy people with stupid protests.

  • Rossami||

    Bob, I usually like your comments but this one leaves me deeply disturbed about apparent gaps in your education. "Social protest" is just another word for "civic engagement". It's about learning to be a productive member of society who has the courage to what's right and the wisdom to figure out what's right in the first place.

    History is (supposed to be) much more than just memorizing names and dates. History includes learning to think critically about the issues of that time and using that critical thinking to understand how that affected the people involved. Not only is it inevitable that they will apply those critical thinking skills to more current situations, that is the ulterior motive for teaching History in the first place! English, too. Vocab is useless if you don't know how to use it properly to get things done.

    We want students to learn how to choose issues and advocate for them successfully. We want them, for example, to learn how to fight back appropriately against attempts to gut the Second Amendment. We want them to learn how to beat back the constant attempts by government at all levels to erode our Fourth Amendment protections.

  • Rossami||

    Once upon a time, we called these suite of skills and courses Rhetoric instead of chopping them up into History, English, etc. Perhaps we should return to that name because it makes clearer the purpose of education. English and History are not taught for their own sake but because it helps us learn to be better, more engaged (and hopefully, more wise) citizens.

  • Bob from Ohio||

    "Social protest" is just another word for "civic engagement".

    No, its about a group thinking because they march or protest they are entitled to get their way. "Social protest" is generally worthless.

    What possible impact does wearing an arm band in Des Moines have on US policy in Vietnam?

  • Rossami||

    Wearing an arm band [by non-voters in a Des Moines high school] did have the impact of raising visibility on a current social issue. It did create discussions with voting age parents and other citizens. It did get picked up by local and then national news. It did continue what became a national discussion on US policy in Vietnam.

    And ultimately, that national discussion did result in a change to the policy. Did the armbands alone do all that? Of course not. Just like no one raindrop is responsible for the flood. But the flood doesn't happen without the raindrops.

  • Bob from Ohio||

    In 1970, the US broadened the war with an invasion of Cambodia. In 1972, Nixon was re-elected with 49 states against a peace candidate.

    Its a myth that these protests changed policy.

    The 50,000 dead spoke even without a single armband or smelly hippy in the street.

  • NToJ||

    You are oversimplifying things. Nixon ran on ending the war, too. And did less than three months after the 1972 election. The 1972 election was not a referendum on Vietnam War, it was a referendum on McGovern. The polling in the early 70s showed a majority (~55-60%) of the population thought the whole thing was a mistake.

    You're confusing cause/effect re: the protests.

  • Bob from Ohio||

    "You are oversimplifying things. "

    Yes, of course. Its a 30 word comment.

    Its still a boomer myth that the anti-war protests changed things.

  • Perseus`||

    "Are you arguing that no one under the age of 25 should be allowed to vote, drive, drink alcohol, enlist in the Army or even walk down the street unattended?"

    Yes, the 26th amendment should be repealed and a minimum drinking age of 21 is fine. Young people in the military using weapons of mass destruction are under the direct supervision of superior officers.

    "where their teachers can help them engage in critical thinking and use the events as teachable moments in communication skills?"

    Proof of public school teachers actually doing that not in evidence.

  • MatthewSlyfield||

    That doesn't mean that they should be given no liberty at school, particularly at the high school level.

    If you want them to be capable of being adults when the graduate from high school/reach age 18 (when they are legally adults) then you have to train them to act like adults before then.

    Training them to act like adults necessarily means giving them the opportunity to act like adults and that means treating them like adults at least in a limited capacity.

  • Bob from Ohio||

    "treating them like adults at least in a limited capacity"

    Sure, outside of school.

  • MatthewSlyfield||

    There is zero rational basis for that boundary

  • Bob from Ohio||

    They are not adults. Parents can choose to give them whatever freedom the parents want to give.

    Other kids in school have a right to not get political views shoved in their faces by their peers.

  • MatthewSlyfield||

    Or non-political views on pop culture, who's the hottest girl in school, who's in, who's out.

    I find it amusing that you think schools could prevent this without turning into prisons with every student stuck in solitary confinement.

  • Bob from Ohio||

    I said or think no such thing.

    But I see no reason to require schools to permit protests.

  • MatthewSlyfield||

    You said: "Other kids in school have a right to not get political views shoved in their faces by their peers."

    The only way that such a right could possibly be enforced is to entirely prevent kids from talking to each other during lunch or in the halls between classes.

    "But I see no reason to require schools to permit protests."

    There is no rational reason for schools to try and prevent symbolic protests (like the wearing of arm bands) that don't disrupt class time. In point of fact, school administration efforts to prevent such protests do orders of magnitude to disrupt class room operations than do the protests themselves.

    I would agree that schools have the authority to prevent/block/punish disruptive protests such as student walkouts.

  • Dan S.||

    Other kids in school have a right to not get political views shoved in their faces by their peers.

    No more than any other citizens. Especially when those views are expressed by something as easily ignored as an armband.

  • Scarecrow Repair & Chippering||

    Yet they are mature enough to go to war right after they get that diploma in hand. They grow up so fats nowadays!

  • bernard11||

    Yes, and whether they want to or not. The male protestors were going to be subject to being drafted after they graduated, but the black armbands annoy Bob, so that's that.

  • apedad||

    Bob, does your logic apply to the Second Amendment too?

  • ScottK||

    The use of the word logic directed at the commenter is a non sequitur. Dogma is closer.

  • Bob from Ohio||

    Of course, children should not have weapons in school.

  • ||

    Bob,

    let's ask a nice simple question that surely even you can provide a clear, concise, and unambiguous answer to:

    Can a student be expelled for wearing a T-Shirt that says "I support the second amendment" if a school administrator declares it "is a protest" against then-prevailing local law, custom, or sentiment?

    While at the same time, the school allows a T-Shirts that says "I support gun control" because the same school administrator declares it "is not a protest" against then-prevailing local law, custom, or sentiment?

  • Bob from Ohio||

    Current law says no. You must both allow all "non-disruptive" protests.

  • MatthewSlyfield||

    @Bob,

    Yet elsewhere on this thread you seem to push the idea that schools ought to be allowed to prohibit even "non-disruptive" protests, so I think it's fair to ask you to clearly state your personal opinion on what the law in this area should be as opposed to what it is.

  • Bob from Ohio||

    I join the Black dissent in Tinker.

    Hugo Black was pretty far left in 1A cases generally but he was spot on in Tinker

  • MatthewSlyfield||

    Even if Black was right on what the law should be, blocking non-disruptive protests is idiotic from a policy perspective. A school administration's efforts to block non-disruptive protests will necessarily be disruptive.

  • damikesc||

    Bob, does your logic apply to the Second Amendment too?

    Since when do schools permit students to have guns? Hell, buying guns is traditionally limited to adults only.

  • apedad||

    Nice try dumbasses.

    Bob's logic is kids aren't mature enough to have formed cogent opinions.

    My question is, if kids aren't mature enough to form opinions, are they mature enough to possess weapons--even outside of school?

  • Bob from Ohio||

    If the parents ok the weapons and supervise the kids, sure.

    Use of weapons has nothing to do with "opinions". Its a skill, it can be learned.

    But I would not want a kid, even a trained one, to have a weapon in a situation where you have to exercise mature judgment about use.

  • Perseus`||

    Back in the 18th and 19th centuries children were expected to grow up much sooner than they are today because parents in the 20th and 21st centuries keep on extending childhood (contrast Alexander Hamilton's political tracts written as a teenager with the raw emotional outbursts of the likes of David Hogg), so, if anything, our devolving standards of maturity dictate that K-12 students should receive fewer free speech rights today than in the past.

  • NToJ||

    The liberals have won the culture wars at schools, so you might want to rethink your position. If Tinker were reversed today, which students' views do you think would be suppressed? The ones protesting the Presidents immigration platform? Or the ones criticizing Kaepernick?

  • Bob from Ohio||

    "The ones protesting the Presidents immigration platform? Or the ones criticizing Kaepernick?"

    I don't care. Such protests are a waste of time.

  • NToJ||

    A world without Tinker is not a world without waste-of-time protests. It just means the school gets to pick which viewpoints it is going to allow protest.

  • Bob from Ohio||

    Fine. IDK

    Are schools better pre-Tinker or post-Tinker?

  • NashTiger||

    I'm pretty sure it was Dylan going electric that ruined the schools

  • damikesc||

    Look around.

    One side's views ARE routinely silenced while the other is not.

    There wouldn't be a loss there.

  • NToJ||

    There is a remedy for one side's views being silence while the other is not. Bob is suggesting we remove the remedy.

  • Rev. Arthur L. Kirkland||

    Black was right and the corrupt Fortas was wrong.

    Bob from Ohio is old, intolerant, disaffected, and obsolete.

    In other words, a movement conservative.

  • Rev. Arthur L. Kirkland||

    Black was right and the corrupt Fortas was wrong.

    What should the company line for students be?

    That the [Vietnam] [Iraq] [Afghanistan] "war" was and is just and glorious, or that [torture] [deposing elected leaders] [arming butchers who slaughter nuns and peasants] [trading arms for hostages] is good and moral (or never happened)?

    That science is reality-based and that reasoning people do not subscribe to superstition? That evolution is a theory (much like gravity) but that creationism is nonsense? That global warming is a Chinese hoax, or nothing to worry about?

    That they should resist childhood indoctrination designed to incline them toward belief in fairy tales?

    That social protest (Martin Luther King, Gandhi, Gloria Steinem, Stonewall) never changes anything?

    The times have a-changed. For the better. Hugo Black's view is as stale as a dinosaur's bones.

  • Scarecrow Repair & Chippering||

    Funny how that works. Seems to me that if the government is going to demand kids attend school, with little choice as to where or when, then schools have to accept all kids, and have to accept all the baggage that comes with it, including cantankerous obstreperous kids with distinct opinions. It's one thing to band disruptive behavior, another to ban polite dissent.

    But if private schools want to, say, ban even polite dissent, and kids/parents have supposedly voluntarily paid for the school of their choice, then the students have to either like it or leave it.

    Which puts public schools in the position of having to accept the dregs of student society. Of course that's untenable, because there are some kids who just don't belong in school: too dumb, too disruptive, not suited to an academic education.

    Imagine instead there were no public schools forced to accept all applicants. What would happen to unruly disruptive kids who could find no school willing to take them on? Parents would have to hire tutors or home school, or not educate them past a certain point. I suppose alternatives in old days included hit the frontier, join the military, apprentice, sell used cars, and so on.

  • NToJ||

    Life of crime. You forgot life of crime.

  • Scarecrow Repair & Chippering||

    You're right *slaps forehead*. I forgot all about civil service.

  • mad_kalak||

    Okay, that drew a laugh. Good stuff.

  • bernard11||

    if private schools want to, say, ban even polite dissent, and kids/parents have supposedly voluntarily paid for the school of their choice, then the students have to either like it or leave it.

    I'll remind you of this the next time Eugene posts about someone not allowed to speak at some private college.

    But I think you're wrong, unless the policy was very clear from the outset. If I paid a lot of money to send my kid to a private school, I would be very unhappy if polite dissent were banned, and my kid was told like it or leave, after the check had cleared.

  • Scarecrow Repair & Chippering||

    If you paid them under specific policies which allowed dissent, and they changed policies, that sounds like a contract violation. But IANAL, so maybe it is some other kind of violation which would get your money back or a re-re-adjustment of their policies.

  • gormadoc||

    You're comparing apples to oranges. The reason we get unhappy about private colleges pulling their invitations is because schools of all stripes should encourage a culture of freedom of expression, not some idea that they necessarily owe the students the culture because they're a school.

    I don't think the more reasonable among us have ever said that private universities should be forced to follow our principles or give refunds to students based on those. Students there also have to like it or leave it.

  • bernard11||

    The reason we get unhappy about private colleges pulling their invitations is because schools of all stripes should encourage a culture of freedom of expression, not some idea that they necessarily owe the students the culture because they're a school.

    I agree about the culture of freedom. Why shouldn't high schools do the best they can towards that end also?

    My main objection was to the idea that this sort of drastic policy - no expression of political dissent - could be put in place without advance notice. Maybe that's not what SR&C meant.

  • DRM||

    The assumption made by the decision is that the proper model for public school-student relations is that of the American government to a free citizen, rather than a parent to child.

    But the purpose of a school is to change the kind of person the student is, in accordance with the school's model of what a person should be. That is, of course, tyranny when carried out by a government on its citizens (just ask an Uyghur). So if the correct model for public schools truly is of a non-tyrannical government to a free citizen, then education itself is an impermissible activity for a public school.

    If, on the other hand, public schools have the authority to instruct and mold students that parents exercise, then schools have a right to decide what opinions the student is allowed to express while under that authority, regardless of how ever so politely and non-disruptively the student may express it. It may be stupid for a parent to ban expression of certain opinions by a child, but it is well within the established authority of a parent.

  • ScottK||

    "So if the correct model for public schools truly is of a non-tyrannical government to a free citizen, then education itself is an impermissible activity for a public school."

    Link to the GMU Professor who said this, at any time?

  • NToJ||

    "It may be stupid for a parent to ban expression of certain opinions by a child, but it is well within the established authority of a parent."

    ...because we are uncomfortable with the government telling parents how to raise their children (with exceptions). You can't sidestep the government-overreach problem by framing the government as parents. If we are not comfortable with the government telling parents how to behave, why are we comfortable with the government being parents?

  • DRM||

    If we're not comfortable with the government being parents, that's fine. Shut down the public schools, which are the government filling the since-time-immemorial role of parents in educating their children, and move on. Ta-da, no issue with the government acting as parents. (If you're worried about the ability for parents to educate their children adequately, at this point you can give them subsidies to buy their choice of educations for their offspring.)

    The only problem is if you try to make government act as a parent, and simultaneously deny the government the right to act as a parent. You cannot, as a simple matter of logic, give a government institution the job of telling a class of people people how to behave and what to think, and simultaneously require that government institution allow members of that class, while being instructed, to behave and act in opposition to that instruction.

    Oh, sure, if "education" had simply and only the purpose of instruction in objective facts, and the line between objective facts and subjective opinion was clear and undisputed, one could potentially invent a rule that would allow for governments to do the former without impinging on the rights of students to have the latter unmolested. But it isn't the only purpose and the line is not clear and undisputed. So the only "line drawing" a judge can actually do is substitute his own judgment of what should be taught and how for that of the schools.

  • NToJ||

    "So the only "line drawing" a judge can actually do is substitute his own judgment of what should be taught and how for that of the schools."

    The line is schools can't punish students for wearing black armbands absent evidence that the rule is necessary to avoid substantial interference with school discipline or the rights of others. There are a million permutations between school can do whatever it wants, on the one hand, and school can't do anything it wants, on the other.

  • Stephen Lathrop||

    Hard not to notice that a lot of the defense of speech rights in public schools is coming from people who are openly hostile to public education. Some of them seem to prize the opportunity to weaponize speech, especially for attacks made at the university level. When the purpose behind the speech is disruption of the forum, or attacks on the people in it, that puts a less favorable slant on any educational presumption behind protecting free speech in public schools.

  • mad_kalak||

    "weaponize speech"

    How, pray tell, can speech be weaponized? I'm picturing a kid with a toy gun going "pew pew" while paying cops and robbers.

  • Perseus`||

    Catharine MacKinnon: Legally, what was, toward the beginning of the 20th century, a shield for radicals, artists and activists, socialists and pacifists, the excluded and the dispossessed, has become a sword for authoritarians, racists and misogynists, Nazis and Klansmen, pornographers and corporations buying elections.

    "Weaponizing" free speech is the use of free speech of, by, and for "powerful people" ("corporations are people, my friend") that lefties (like Lathrop) don't like, which boils down to "free speech for me but not for thee."

  • Alcibiades||

    The schools act in loco parentis, I've no problem with them regulating speech or expressive acts to keep them consistent with the educational mission and smooth running of the school.

  • Scarecrow Repair & Chippering||

    Even when the parents have no choice about the school chosen for them? There's a difference between parental indoctrination and government-mandated indoctrination.

  • Alcibiades||

    They have a choice, anyone can home school.
    I know indoctrination happens in some places, but the schools ours go to keep pretty much to the academics. Any problems there and we can deal with that at home.

  • mad_kalak||

    Homeschooling requires a unique work/life balance, and after a certain age for the kids, a level of mathematical expertise, that not everyone can provide. It's not really an option for a vast number of people, even if they wanted too.

  • Alcibiades||

    This is true, but it's never been easier and the resources out there are excellent and getting better all the time.

  • mad_kalak||

    I agree, that it is easier than ever, but still largely impractical for most people.

    But to your larger point, even if a parent does not homeschool, every parent needs to "top up" their kid's education which is at the lowest common denominator and which does not prepare them for the workforce. Further, SJWisms need to be countered in such a way as to not undermine the school's otherwise correct authority. This last bit is difficult for kids to understand.

    Perhaps with Janus, after a long time, we will get school choice in all 50 states, but by then my kids will be out of school.

  • Alcibiades||

    We do the "topping up" re academics and ideology all the time.

    Also, ours know, misbehave at school and we'll back the school to the hilt and have, so no sympathy at home is expected or given.

    Agree about school choice, parents have by far the most invested in their kids' educational outcome.

  • Rossami||

    Nor does Tinker forbid that view. In fact, Tinker explicitly endorses that position.

    What Tinker does say, however, is that schools may not arbitrarily regulate speech or expressive acts which are in congruence with the educational mission and smooth running of the school.

    In the Tinker matter, for example, none of the disruption was created by the protesting students. All of the disruption was created by the teachers and administrators. In other words, they sabotaged the smooth operation that they claimed to be trying to protect. In doing so, they undermined their own educational mission by contradicting the civic values that they were charged to teach. The Supreme Court defended the principle of in loco parentis but said that such ham-handed approaches went too far.

  • mad_kalak||

    "none of the disruption was created by the protesting students. All of the disruption was created by the teachers and administrators."

    I think then, we should hold this in mind when students show up on Cinco de Mayo with American flag clothes, or wear a MAGA hat about the halls in South Central, LA schools. The get out of jail free card, on administrators, though, is the heckler's veto, in that they say they are protecting the safety of the student with a MAGA hat.

  • NToJ||

    That's why everyone has an interest in free speech. In the old days, the banned speech was anti-Vietnam. Today it's anti-MAGA (at some schools). The administration is going to exercise discretion consistent with its own political values. This is a reason to limit its discretion, even if you happen to agree with the school's current political stance. Because the schools' values will change.

  • NToJ||

    Second example should be pro-MAGA.

  • DRM||

    There is nothing in the constitution that makes protesting a "civic value" that schools are charged to teach rather than undermine. The belief that the Earth is flat or that one plus one is three is just as sacred to the First Amendment as an opinion on the Vietnam War. Any judge ruling "instilling these beliefs, attitudes, opinions, and behaviors are part of your 'educational mission', while instilling those beliefs, attitudes, opinions, and behavior are not" is not expounding a constitution; he is enacting his educational policy preferences by fiat.

  • mad_kalak||

    The OP makes the case, through Tinker, that the Supreme Court here was powerful enough to make a big change in America, that is the expansion of free rights to students. What they really show, is that when public opinion is split, and the elected branches are likewise split on the issue because the public sends them to office, that the Court can exercise more force for change because there is less chance for them to be overruled by the elected branches.

    A united country under Nixon could easily have passed a law prohibiting federal funding to schools that allowed for student protests. With a stroke of the executive pen, Tinker would have been essentially meaningless. Within a few years, through the appointment process, Nixon was able to tame the activist court activities. Tinker would have happened if Ike hadn't been stupid enough to appoint Warren.

  • mad_kalak||

    I meant to write ....Tinker would *never* had happened if Ike hadn't been stupid enough to appoint Warren.

  • Bob from Ohio||

    Don't forget Brennan.

  • mad_kalak||

    Yes agreed. And I had thought the days of GOP presidents appointing Justices that would vote against their policy preferences was over, but I'm not so sure when I think about Roberts on the Court.

  • Rev. Arthur L. Kirkland||

    Conservatives pining for the "good old days" -- and wishing that Republicans had been even more successful in thwarting American progress and preserving intolerance, ignorance, and authoritarianism -- are always fun to watch.

  • mad_kalak||

    Dude, I'm not pinning for the "good old days." It's enough these days just to keep Western Civilization intact and fend off socialism.

    What I'm saying that a president appointing justices that share their views, presidents who are democratically elected, and approved by the democratically elected Senate, is the way the system works to keep the Court from going outside the mainstream. Thus my point that if Ike hadn't have made what he admitted were "big mistakes" in appointing Warren and Brennen, Tinker would not have happened. The court is the side car to the elected branch's motorcycle. Tinker happened because of mistakes, not because history was on the side of expanding freedom or whatever it is you are getting at.

  • Rev. Arthur L. Kirkland||

    Dude, I'm not pinning for the "good old days."

    You figure yourself a fan of America's progress since the '50s?

  • mad_kalak||

    I reject your definition of progress, because you view it as a zero sum game, where the rights of the majority must be reduced in order to advance that of minorities. But that aside, by progress I take it you mean an advancement of individual rights (the subject of the OP), and for me, the answer is sometimes yes and sometimes no. Voting rights for minorities enacted the promise of the Declaration. But feminism has few redeeming qualities. However, who doesn't love Heller/McDonald, amiright?

    What really is neato (to use some 50s slang), is the expansion of opportunities for the physically disabled, and it was Republicans together with Democrats that changed society, and in a unique way. They passed the ADA and outsourced all the difficult interpretations to the courts and enforcement is via lawsuit, which prevented the creation of a new and intensively intrusive federal agency. The free market responded with specialized lawyers and regulatory assistance. Costs are passed on in small chunks to consumers. Smart policy decision, thanks George H. W. Bush and a Dem Congress. After all, we are but one car accident (not to mention old age) away from being disabled ourselves.

  • Rev. Arthur L. Kirkland||

    All of this damned progress -- reason, science, tolerance, education, inclusivity. It's a wonder right-wingers have been able to handle all of these affronts to their preferences for backwardness, intolerance, superstition, silly dogma, and insularity.

    Some conservatives understand, though. They're the ones prepping for the race war.

    Carry on, clingers.

  • NashTiger||

    Just ignore him and his one-track one-trick blather

  • apedad||

    It's because some GOP policies are unconstitutional and any judge of any party must find them so.

  • mad_kalak||

    "some GOP policies are unconstitutional"

    Would you be so kind as to provide a list?

  • apedad||

    Gay marriage
    Abortion
    Gerrymanding

  • NashTiger||

    0/3

  • apedad||

    Nash, if you mean I went 0 fer 3, then please check the 2016 Republican Platform to see how wrong you are.

    * Traditional marriage and family, based on marriage between one man and one woman,
    is the foundation for a free society and has for millennia been entrusted with rearing children and instilling cultural values. We condemn the Supreme Court's ruling in
    United States v. Windsor, which wrongly removed the ability of Congress to define marriage policy in federal law.

    * Accordingly, we assert the sanctity of human life and affirm that the unborn child has a fundamental right to life which cannot be infringed.

    And check the recent federal court cases against Republican-controlled states' gerrymanding (to be fair, I think Maryland [Dem controlled] also has a problem).

    Solid 3 fer 3.

  • Rev. Arthur L. Kirkland||

    Is that a Regent or Ave Maria law degree talking, NashTiger, or perhaps what you remember from backwater religious schooling or maybe even an off-brand homeschooling outline?

    It isn't anything taught at North Allegheny, so you must be a different type of NASH Tiger.

  • ||

    So for all you anti-Tinker folks out there:

    Do you suddenly trust school administrators to have the power to declare certain views on [insert topic here] a "protest" and ban them under threat of expulsion, while the school actively promotes contrary views?

    In Tinker, it was disallowing Vietnam protest, while allowing pro-war viewpoints to be taught by teachers and apparently expressed by students. Maybe you think the Tinker students were grandstanding hippies and "protest is bad".

    .....

    Would you feel the same way if anti-Second Amd viewpoints (Tshirts, bumper stickers, maybe the occasional symbolic armband) were disallowed under threat of expulsion, while the school indoctrinated students that gun control is correct and good?

  • ||

    duh, that should be "pro-Second Amendment viewpoints" in the final paragraph. Please accept my apology for getting that part of my hypothetical backwards.

  • mad_kalak||

    Also, it's a f*ckton easier to get elected to a local school board and change a policy you don't agree with than try to change a Supreme Court precedent. This is why you saw, and still see, such noncompliance with the Court's decision (the name escapes me now) that banned school led prayer.

  • Bob from Ohio||

    I would feel the same way.

    Schools are not protest grounds.

  • mad_kalak||

    We've already crossed that bridge, so it's an interesting thought experiment. I would say, if there were no Tinker, than local school boards should set their own policies that are in keeping with their local cultures. Kids in Texas could wear their NRA shirts, but that would not be allowed in NYC.

    You gotta remember, that it's a false premise to even assume that children, whom we ban from a whole range of other activities, have any rights in the first place. Sorry, but if you don't have the right to buy a beer before 21, or a sex toy under 18, or buy a gun under 18, or drive at 14, why the hell do you think you should have free speech rights at a government school when it's the government that by law prevents you from other things that could be equally a "right" to do?

  • Perseus`||

    It doesn't require that we trust government bureaucrats (who already push their agendas), only that students are in no position to make very good use of such liberty, especially when being "guided" in the use of that liberty by said bureaucrats (which is among the reasons why government owned and operated schools are a grossly inferior system of education).

  • Rev. Arthur L. Kirkland||

    The sooner stale-thinking old-timers are replaced in our electorate by tolerant, educated, modern, reasoning citizens, the better.

    The sooner population drains from our can't-keep-up backwaters, improving our electorate, the better.

  • Krayt||

    Then: Even though it is disruptive to The Establishment's power, it is good for students to challenge The Establishment.

    Now: We Are The Establishment, so disruptive behavior to the establishment's power, defined by someone's swoon't reaction, is fine to ban.

  • Barbara45||

    Everything that happens today means that we are going not forward we are going back. We can't say what will be the next step as we are not sure in today's position. If we talk about the education, so it's the very thing I'm talking about. Just look at the students that have such a big amount of information that they have to use online services ( for example, Paperell)that do their home tasks instead of them. Everything just because they have to work to refund their educational loans. We need to be careful with them.

  • Barbara45||

    Everything that happens today means that we are going not forward we are going back. We can't say what will be the next step as we are not sure in today's position. If we talk about the education, so it's the very thing I'm talking about. Just look at the students that have such a big amount of information that they have to use online services ( for example, Paperell)that do their home tasks instead of them. Everything just because they have to work to refund their educational loans. We need to be careful with them.

  • commentator||

    Man, such a short excerpt. Didn't even get to Hazelwood School District v. Kuhlmeier or Morse v. Frederick ("bong hits 4 jesus") effectively rolling back Tinker bit by bit.

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