Washington Lawyer - August/September 2018 - 17
BALANCING COMPETING INTERESTS
The precedent governing students' First Amendment rights is well established. In
1943 the U.S. Supreme Court ruled, 6-3, in West Virginia State Board of Education v.
Barnette that public school students cannot be forced to salute the American flag.
Another central students' rights case is almost 50 years old and dates to another
time of angry divisions. In 1968 the Supreme Court heard Tinker v. Des Moines
Independent Community School District, a case involving students wanting to
wear black armbands to show their disapproval of the Vietnam War.
In a 7-2 ruling, the Court found that students do not "shed their constitutional
rights to freedom of speech or expression at the schoolhouse gate."
In the wake of Tinker, students have a right to protest so long as it doesn't
disrupt the educational process or violate a specific school content-neutral
policy, such as a dress code, says Vera Eidelman, the William J. Brennan fellow
with the ACLU's Speech, Privacy, and Technology Project.
The Supreme Court has over the years refined Tinker. In 2007, for example, the
Supreme Court in Morse v. Frederick limited the scope of Tinker by holding that
school officials can prohibit students from displaying messages that promote
illegal drug use.
However, there's little guidance as yet from the Court as to how far school
administrators can go in regulating off-campus social media speech, such
as planning student protests.
questions. For example, what constitutes a disruption to the educational
process? And can schools permit students to express themselves in favor of gun
regulation, but then discipline students who later want to express support for
the Second Amendment?
"Students have a legal First Amendment right to exercise their speech, but
superintendents have to enforce absentee policies, and they are responsible
for student safety during the day," says AASA's Ng. "In addition, we can't give
a preference to one form of expression over the other. We need to treat all
expressions of the First Amendment equally, so that goes into our decisions
on how to respond."
A MOVEMENT IS BORN
The recent spate of student protests over gun violence has shown the disparity in how school administrators apply the Tinker standard. Some school
administrators tried to divert students from walking off campus by creating
their own assemblies to discuss concerns over gun violence or student
bullying. Other schools let the students know definitively that student
walkouts would be treated as unexcused absence and punished accordingly.
Some schools sought to limit the protests by penalizing students' ability to
participate in after-school activities should they walk out of class. And other
school administrators around the country chose to allow walkouts to occur
without penalizing students at all.
"Student organizing for protests is now being done on social media," says Elad
Gross, president and chief executive officer of the Education Exchange Corps
and a former Missouri assistant attorney general. "There really isn't a settled
opinion on how school administrators can deal with off-campus social media
speech that could result in disrupting the educational environment."
Christopher Gilbert, a Houston-based Thompson & Horton LLP partner
specializing in education law, says there's "a lot of pressure on school districts to agree to a walkout." However, says Gilbert, "from a legal perspective, school districts [that] told kids they couldn't walk out were in the right.
There's just about nothing as disruptive to the educational process as a
Certainly, school administrators find that applying Tinker and its progeny can be
challenging, leading to internal and external debates over some fundamental
But some students' rights advocates argue that schools should view student
protests as an educational opportunity.
Patrice Gilbert Photography
FOR ME, AS A 14-YEAROLD, TO FEEL THAT
I COULD MAKE A
I COULD BE IN CHARGE
OF MY FUTURE, IT
TANAQUIL ELTSOV, 14