Foreword: Tinker at 50

Fifty years ago, in Tinker v. Des Moines Independent Community School District, the Supreme Court intoned, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”[1] Nevertheless, speech protections for students in public primary and secondary schools have never been as robust as Tinker’s rhetoric suggests, not at the time of Tinker and certainly not now after decades of erosion. Tinker itself said that student speech was not protected if it was materially disruptive of the educational mission or involved “invasion of the rights of others,” two limitations on speech in public schools at once sensible and manipulatable.[2] Schools and courts have both made use of the disruptiveness exception to regulate a wide variety of speech, while the exception for speech that invades the rights of others has mostly withered on the vine, when it arguably has important work to do.

Since Tinker, students have lost every student speech case to come before the Supreme Court. In each one, the Supreme Court has identified another type of student speech as categorically unprotected by the First Amendment: profane and sexually suggestive speech,[3] school-sponsored speech,[4] and speech advocating illegal drug use.[5] These days, to reach the uncertain protections of Tinker, students must run a gauntlet of categorical exceptions into which their speech might fall.

Despite this retrenchment, Tinker still has real power. It governs the most salient student speech issues of our time, including the scope of school disciplinary authority over social media and other off-campus speech and the ability to regulate students’ wearing of white supremacist symbols in public schools. Tinker put forth a deceptively simple maxim: speech may be regulated when it disrupts the educational environment or invades the interests of others. What these words mean is at the heart of most K-12 student speech conflicts today.

This Symposium considers Tinker’s history and its legacy. The four pieces in this collection go all the way from the Supreme Court’s pre-Tinker cases, through the opinion itself, to its influence on current speech issues finding their way into schools and courts across the country. Professor Mary-Rose Papandrea’s piece points out that school speech cases are complicated by the fact that, both before Tinker and since, the Supreme Court has been none too clear about minors’ free speech rights outside the school context.[6] Professor Papandrea also argues that courts’ non-intrusive, deferential approach to schools and school officials leaves student protest and heterodoxy more vulnerable than Tinker appears to suggest.[7]

Professor Mary Anne Franks moves from the schools directly governed by Tinker’s holding, primary and secondary schools, to the realm of higher education, where she considers Tinker’s significance—and its distortion—in the university context.[8] Professor Franks suggests that contemporary claims of a free-speech “crisis” on college campuses are overblown and indeed manufactured. She argues that these claims of crisis misconstrue a foundational free speech principle affirmed in Tinker: that peaceful protest is an essential part of freedom of speech.[9] In criticizing college students for protesting controversial speakers, Professor Franks argues, the campus speech crisis narrative has “targeted a long-recognized, well-established form of protected free speech—student protest—and recast it as censorship.”[10]

Meanwhile, the student contributions to this Symposium address contemporary speech issues in public schools. Manal Cheema’s essay considers Tinker and subsequent cases and the questions they leave open about schools’ ability to require student participation for pedagogical purposes.[11] Cheema examines a recent Fourth Circuit case in which a student unsuccessfully claimed that a school lesson on world religions violated her First Amendment speech rights because she had to fill out a worksheet stating basic tenets of Islam.[12] Cheema argues that, although the court reached the correct outcome in this case, the Supreme Court has not provided enough guidance on the scope of speech that can be required for pedagogical purposes.[13] She examines the relevant precedent to develop a roadmap for courts faced with similar claims.

Finally, Anna Cecile Pepper’s essay applies Tinker and its progeny to student walkouts protesting gun violence and climate change.[14] Pepper points out that here, too, existing precedent provides insufficient guidance, at least in situations where schools expressly permit participation in a walkout.[15] In such cases, the status of student speech during the walkout becomes unclear, and schools could argue that it is completely unprotected school-sponsored speech.[16] Pepper suggests that Tinker provides the better paradigm and that all student walkouts, both permitted and unpermitted, should be governed by Tinker.[17]

All of these contributions highlight Tinker’s continued importance. Even as it left many questions unanswered, even as its scope was reduced by subsequent cases, even as its central premise remains under-developed, Tinker endures as the touchstone for school speech. Fifty years later, a Vietnam protest case sets the terms for walkouts and worksheets, for gun violence and climate change, for cyberbullying and white supremacist symbols—for all the dangers and opportunities that come with recognizing student speech rights while educating young people in a pluralistic and complex society. In the following essays, four scholars whom I am lucky to count as my students, colleagues, and friends, explain all of this and more.