REMEDYING THE DECLINE OF TINKER:
EXPANDING STUDENTS’FREE SPEECH RIGHTS THROUGH STATE AVENUES
Wellington Lyons1
Robust freedom of speech protections in schools advance student learning in ways that
planned curriculum and staged debates cannot. If schools are to serve their purpose of preparing
adolescents for meaningful and self-sufficient citizenship, protections of student speech should
go beyond what the Supreme Court has recently allowed. Advocates of strong student free
speech rights have watched for nearly twenty-five years as the Supreme Court has chipped away
at the importance of Tinker v. Des Moines.2 Confronted with this reality of diminishing rights,
those who believe in the importance of robust student speech should explore state and local
solutions, which may afford greater protections than federal courts are willing to dispense.
I. THE LEGAL FRAMEWORK
Student free speech rights reached their high-water mark in 1969, the last year of the
liberal Warren court.3 The student speech at issue in Tinker was the symbolic wearing of black
armbands to protest the Vietnam War, in contravention of a recently passed administrative code
specifically banning such armbands.4 High school and middle school students were suspended
for refusing to remove their armbands, and subsequently filed suit.5 In its seminal decision on
the topic, the court held in Tinker v. Des Moines Independent Community School District that
whi
l
et
hec
ou
r
tr
e
c
og
ni
z
e
dt
he“
s
pe
c
i
a
lc
ha
r
a
c
t
e
r
i
s
t
i
c
soft
h
es
c
h
oole
nvi
r
on
me
nt
,
”s
t
ud
e
nt
1
Candidate for Juris Doctor, Loyola University Chicago School of Law, 2011; B.A., Political Science, Middlebury
College, 2005.
2
See Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1969); Bethel Sch. Dist. No. 403 v. Fraser,
478 U.S. 675 (1986); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988); Morse v. Frederick, 551 U.S. 393
(2007).
3
Erwin Chemerinsky, Students Do Leave Their First Amendment Rights at the Schoolhouse Ga
t
e
s
:Wha
t
’
sLe
f
tof
Tinker?, 48 Drake L. Rev. 527, 527 (2000); Erwin Chemerinsky, The Deconstitutionalization of Education, 36 Loy.
U. Chi. L.J. 111, 124 (2004).
4
Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. at 504.
5
Id.
speech could be proscribed only “
byas
ho
wi
ngt
ha
tt
h
es
t
u
de
n
t
s
'
a
c
t
i
vi
t
i
e
swou
l
dma
t
e
r
i
a
l
l
ya
n
d
6
s
ub
s
t
a
nt
i
a
l
l
ydi
s
r
uptt
hewo
r
ka
n
dd
i
s
c
i
p
l
i
neoft
hes
c
hoo
l
.
”
Thi
s“
ma
t
e
r
i
a
la
nds
u
bs
t
a
nt
i
a
l
”
disruption standard for restricting student speech in public schools is not satisfied by an
a
dmi
n
i
s
t
r
a
t
or
’
sme
r
eh
unc
horf
e
a
rt
ha
td
i
s
r
u
pt
i
onma
ye
ns
ue
,butr
e
qu
i
r
e
se
vi
de
n
c
ea
n
df
a
c
t
s
t
ha
twou
l
dl
e
a
ds
c
hoo
la
ut
hor
i
t
i
e
st
oa
n
t
i
c
i
pa
t
et
h
a
tt
h
es
pe
e
c
hwo
ul
d“
s
u
bs
t
a
nt
i
a
l
l
yi
nt
e
r
f
e
r
e
7
with the work of the school or impinge ont
her
i
g
ht
sofo
t
h
e
rs
t
u
de
nt
s
.
”
This standard respects
students as persons under our Constitution and recognizes that they possess significant First
Amendment rights. Unfortunately, a string of subsequent Supreme Court rulings has shown a
diminished respect afforded to student speech, as measured by a reduced significance of the
material and substantial disruption standard. Indeed, some courts have openly wondered whether
Tinker remains good law today.8
While it has become something of an axiom of American educational law that students do
no
t“
s
h
e
dt
he
i
rc
ons
t
i
t
ut
i
o
na
lr
i
g
ht
st
of
r
e
e
dom ofs
pe
e
c
hore
xp
r
e
s
s
i
ona
tt
hes
c
ho
ol
hou
s
eg
a
t
e
,
”
this statement is now misleading.9 Today, the memorable pronouncement of Tinker may more
properly be thought of as an epitaph for the rights it once heralded. A more honest evaluation of
t
hes
t
a
t
eofs
t
ud
e
nts
pe
e
c
hr
i
g
h
t
smi
g
h
tbe“
St
ude
n
t
sd
ono
ts
he
dt
he
i
rc
ons
t
i
t
u
t
i
o
na
lr
i
g
ht
st
o
f
r
e
e
domo
fs
pe
e
c
ha
tt
hes
c
ho
ol
hou
s
eg
a
t
e
,e
xc
e
p
twhe
nt
h
e
ydo,
whi
c
hi
sof
t
e
n.
”
Beginning with Bethel School District No. 403 v. Fraser in 1986, the Supreme Court held
that additional categories of student speech were excluded from the protections afforded by the
First Amendment.10 In Fraser, a high school senior gave a nomination speech for a classmate
6
Id. at 513.
Id. at 509.
8
Baxter v. Vigo County Sch. Corp., 26 F.3d 728, 737 (7th Cir. 1994).
9
Tinker, 393 U.S. at 506.
10
Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986).
7
2
running for student body vice president. The speech was rife with sexual double entendres, but
11
a
son
ec
omme
n
t
a
t
o
rha
sn
ot
e
d,“
no
twi
t
h
i
nac
ount
r
ymi
l
eoft
h
eCo
ur
t
'
sde
f
i
ni
t
i
o
nofobs
c
e
ne
.
”
Fraser was suspended for three days for his speech, and his name was removed from the list of
students eligible to speak at graduation.12 In the majority opinion, the court noted that the rights
ofs
t
ude
nt
si
np
ubl
i
cs
c
ho
ol
sa
r
e“
nota
ut
oma
t
i
c
a
l
l
yc
oe
xt
e
ns
i
vewi
t
ht
her
i
g
ht
sofa
dul
t
si
not
he
r
13
s
e
t
t
i
ng
s
.
”
Thec
ou
r
ta
l
s
oe
mph
a
s
i
z
e
dt
hei
mp
or
t
a
nc
eo
ft
h
es
c
h
ool
’
se
duc
a
t
i
ona
lob
j
e
c
t
i
v
et
o
14
“
i
nc
u
l
c
a
t
et
heh
a
bi
t
sa
ndma
n
ne
r
sofc
i
vi
l
i
t
y
.
”
It held that the school district was acting within
i
t
sa
u
t
h
or
i
t
yi
ni
mpo
s
i
ngdi
s
c
i
pl
i
na
r
ya
c
t
i
ona
g
a
i
ns
tFr
a
s
e
rf
orhi
s“
of
f
e
nsively lewd and indecent
15
s
pe
e
c
h.
”
Of course, Fraser could have been decided under the Tinker test of material and
s
ub
s
t
a
nt
i
a
ld
i
s
r
u
pt
i
o
n,b
utwa
sno
t
.“
Wha
t
e
v
e
ra
ppr
o
a
c
hFraser employed, it certainly did not
c
on
duc
tt
h
e‘
s
ubs
t
a
n
t
i
a
ld
i
s
r
u
pt
i
o
n’a
n
a
l
y
s
i
sprescribed by Tinker,
”Ch
i
e
fJ
us
t
i
c
eRobe
r
t
sh
a
s
dryly noted in a recent student speech opinion.16 In his dissent in Fraser, Justice Marshall
argued that the case should have been considered within the Tinker framework, and found no
reason to overrule two lower courts, both of which had found that the school district failed to
show any substantial disruption of the educational process.17 Wh
i
l
eFr
a
s
e
r
’
ss
pe
e
c
hma
yha
ve
been in poor taste, it was neither obscene nor materially disruptive. True threats, patently
offensive remarks and obscene speech would all fall within the Tinker rule, and be subject to
appropriate disciplinary actions, as permitted by the special requirements inherent in maintaining
11
Perry Zirkle, TheRoc
k
e
t
’
sRe
dGl
a
r
e
:Th
eLa
r
g
e
l
yEr
r
a
nta
ndDe
f
l
e
c
t
e
dFl
i
g
h
to
fTi
nker, 38 J.L. & Educ. 593,
598 (2009).
12
Fraser, 478 U.S. at 675.
13
Id. at 682.
14
Id. at 681.
15
Id. at 685.
16
Morse v. Frederick, 551 U.S. at 405.
17
Id. at 690.
3
a functioning school. Few would object as insufficient limiting student speech rights to just
below an adult threshold. But by expanding the power of school officials to regulate speech
which it merely finds to be in lewd or offensive, but not disruptive, is to make public schools
institutions of hypocrisy.
What is a student going to learn when she is taught the First
Amendment, only to watch as school officials deny her those same rights?
The court further limited student free speech rights in Hazelwood School District v.
Kuhlmeier, in which it held that as school newspapers bore the imprimatur or the school,
a
dmi
n
i
s
t
r
a
t
or
sc
ou
l
d“
r
e
g
u
l
a
t
et
he c
o
nt
e
ntof[
t
h
es
c
hoo
ln
e
ws
pa
p
e
r
]i
na
ny r
e
a
s
on
a
bl
e
18
ma
n
ne
r
.
”
In Kuhlmeier, a principal deleted two pages of school newspaper containing articles
written by students about pregnancy and divorce. Fearing that student speech in a schoolsponsored medium, whether newspaper, theater production or other activity could be
mi
s
a
t
t
r
i
bu
t
e
da
sr
e
f
l
e
c
t
i
ngt
hes
c
h
ool
’
sv
i
e
wp
oi
nt
s
,t
hec
o
ur
tg
a
v
es
c
hoola
d
mi
n
i
s
t
r
a
t
or
sne
a
r
total control in deciding how to regulate such speech.19
The decision was met with
disappointment by the leading national association of journalism educators.20 Again, while
pretending to give deference to the precedent established by Tinker, the court chipped away at
the expressive rights of students by carving out another exception to the substantial and material
disruption rule.
The latest chapter in the assault on student free speech rights was handed down by the
court in 2007, in Morse v. Frederick. In Morse, students unfurled a large banner at a school22
sanctioned event.21 Theba
nne
rh
a
dano
ns
e
n
s
i
c
a
lme
s
s
a
g
e
.I
tr
e
a
d“
BONG Hi
Ts4J
ESUS.
”
18
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 270 (1988).
Id. at 271.
20
Robert Schoop, States Talk Back to the Supreme Court: Students Should Be Heard As Well As Seen, 59 Ed. Law
Rep. 579, 579 (1990).
21
Morse v. Frederick, 551 U.S. at 396.
22
Id. at 397.
19
4
As soon as the high school principal saw the banner he immediately ordered the students to take
it down; one of the students refused, and was subsequently suspended for eight days.23 The
Ninth Circuit Court of Appeals found that the administration had failed the Tinker test by
showing no threat of substantial disruption from the unfurling of the banner. 24 In its ruling
reversing the Ninth Circuit, the Supreme Court again avoided applying the Tinker rule. While
pretending to defer to the language of Tinker,t
hec
ou
r
tma
n
a
g
e
dt
or
e
s
t
r
i
c
tt
h
es
t
u
de
n
t
’
ss
pe
e
c
h,
never finding that his banner would have led to a substantial and material disruption of the
e
du
c
a
t
i
ona
lp
r
o
c
e
s
s
.I
ns
t
e
a
d
,h
ol
di
ngt
ha
ta
sFr
e
de
r
i
c
k
’
sba
nn
e
rwa
ss
pe
e
c
ha
tas
c
h
oole
v
e
nt
and reasonably interpreted as advocating illegal drug use, school officials did not violate his First
Amendment rights by restricting his arguably pro-drug speech.25
Wr
i
t
i
ngt
ha
t“
Ti
nk
e
r
’
smod
eofa
na
l
y
s
i
si
sno
ta
bs
ol
ut
e
,
”t
hec
our
tf
ou
ndy
e
ta
no
t
he
r
exception to the substantial disruption rule, and again stripped student speech of some of its
protections.26 The result is that after Morse, students apparently shed any constitutional right to
convey what may be reasonably interpreted as pro-drug messages well before they reach the
s
c
h
ool
ho
us
eg
a
t
e
s
. St
e
ve
ns
’di
s
s
e
n
tr
a
i
s
e
si
mpor
t
a
ntq
ue
s
t
i
onsa
bou
tt
h
ea
pp
l
i
c
a
bi
l
i
t
yo
ft
h
e
holding. Certainly, it is constitutionally permissible to punish a speaker who advocates illegal
27
c
on
duc
twhe
nt
h
ea
dvo
c
a
c
yr
i
s
e
st
oal
e
v
e
lo
f“
i
nc
i
t
e
me
ntt
oi
mmi
ne
n
tl
a
wl
e
s
sa
c
t
i
o
n.
”
But it is
qu
e
s
t
i
o
na
b
l
ewhe
t
h
e
rFr
a
nk
l
i
n’
sba
nne
re
ve
na
dv
oc
a
t
e
di
l
l
e
g
a
ldr
ugu
s
e
,a
ndt
h
e
r
ei
s no evidence
whatsoever that it incited others to imminently experiment with marijuana. Stevens argued that
“
c
a
r
v
i
ngoutpr
o-drug speech for uniquely harsh treatment finds no support in our case law and is
23
Id. at 398.
Morse v. Frederick, 439 F. 3d 1114, 1121-1123 (2006).
25
Morse v. Frederick, 551 U.S. at 394.
26
Id.
27
Brandenburg v. Ohio, 395 U.S. 444, 449 (1969).
24
5
28
inimical to the values protected by the First Ame
n
dme
n
t
.
”
The dissent concludes that under the
ma
j
or
i
t
y
’
sop
i
n
i
o
n,e
ve
nab
a
nne
rwh
i
c
hr
e
a
d“
WI
NESi
PS4J
ESUS”c
oul
db
eba
nne
df
r
om
school for advocating the use of substances illegal to minors.29
What remains of Tinker after Fraser, Kuhlmeier and Morse? J
us
t
i
c
eAl
i
t
o
’
sc
onc
u
r
r
i
ng
opinion in Morse suggests that the ban on student speech advocating illegal drug use is at the far
limits of what the First Amendment allows.30 This may bring a sigh of relief to student speech
a
dv
oc
a
t
e
sf
e
a
r
i
ngt
h
a
ta
n“
i
n
t
e
r
f
e
r
e
nc
ewi
t
has
c
hoo
l
’
se
d
uc
a
t
i
on
a
lmi
s
s
i
on“t
e
s
twa
sa
r
oun
dt
h
e
corner.31
Suc
h at
e
s
t
,wr
i
t
e
st
he j
u
s
t
i
c
e
,woul
d“
s
t
r
i
ke a
tt
he ve
r
yh
e
a
r
to
ft
he Fi
r
s
t
32
Ame
ndme
nt
.
”
Instead, we are left with the weakened, but still standing rule from Tinker:
absent evidence of a material and substantial disruption of the educational process, student
s
pe
e
c
hi
spr
o
t
e
c
t
e
dbyt
h
eFi
r
s
tAme
nd
me
nta
ndc
a
n
notbes
uppr
e
s
s
e
d… unless the speech is
vulgar, lewd, indecent or plainly offensive, but below the threshold of obscene; or unless it is
school-sponsored, or unless it may reasonably be interpreted as having a pro-drug message.
Taken together, these restrictions on student free speech rights reveal an educational system that
while proclaiming to be open and tolerant, at times prefers censorship to discussion, even when
such speech cannot be shown likely to cause any substantial disruption of the learning
environment.
Opponents of stronger student speech protections have argued that little of what is
restricted in student speech cases would qualify as high political discourse discourse. A quick
glance of recently litigated student expression cases tends to show that many of these cases
28
Morse v. Frederick, 551 U.S. at 438-439.
Id. at 446.
30
Id. at 425 (concurring opinion).
31
Id. at 423.
32
Id.
29
6
concern speech that is juvenile at best, and threatening or alarming at worst.33
However,
dismissing student speech as being of lesser value due to its lack of eloquence entirely misses the
point.
II. HOW CENSORSHIP HAMPERS EDUCATION
Paternalistic speech codes underestimate the intellectual ability of students and devalue
the critical educational goal of promoting tolerance. If students are going to become thoughtful
citizens capable of participating in a modern democracy, they need to learn how to distinguish
arguments based on fact, and learn how to confront opinions with which they may disagree.
While the special circumstances of public education may demand slightly greater
censorship of student speech, other circumstances make the school an ideal place for learning
ho
wt
oe
xpr
e
s
so
ne
s
e
l
fa
ndt
h
ei
n
sa
ndo
ut
sofa
dvo
c
a
c
ya
ndd
e
ba
t
e
:“
the vigilant protection of
34
constitutional freedoms is nowhere more vital than in the community of American schools.”
The marketplace of ideas is no different from any other marketplace in which certain goods are
proscribed - an underground market soon develops. Official censorship often gives weak ideas
an unfounded importance. Conspiracy theories are best countered by allowing them to be aired
in the public arena, where they may flourish or whither on their own merits. The same is true of
most other forms of expression or advocacy. Openness leads to thought, which leads to debate,
discussion and informed decision-making.
Justice Stevens, in his dissent in Morse, expressed what many parents and teachers
a
l
r
e
a
dyk
n
ow:“
mos
ts
t
u
de
nt
s
… dono
ts
he
dt
h
e
i
rbr
a
i
nsa
tt
hes
choolhouse gate, and most
35
s
t
ude
nt
sk
n
ow d
umba
dv
oc
a
c
ywhe
nt
h
e
ys
e
ei
t
.
”
A recurring complaint of high school
33
See generally, Allison Hayes, From Armbands to Douchebags: How Doninger v. Niehoff Shows the Need to
Address Student Speech in the Cyber Age, 43 Akron L. Rev. 247 (2000).
34
Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967), quoting Shelton v. Tucker, 364 U.S. 479, 487 (1960).
35
Morse v. Frederick, 551 U.S. at 444.
7
students is that they are not treated as adults. School censorship inherently treats students as
individuals incapable of exposure to debates taking place outside the confines of the schoolhouse
gates, and yet a crucial element of engaged citizenship is the ability to separate meritorious
arguments from ones unsupported by fact. One need only look to the recent health care debate to
see that speech in our country, even at the highest levels, is not always marked by order and
decorum, or even a basis in fact. Acquiring the tools necessarily to recognize spurious or
counterfactual arguments, whether from teachers, politicians, or fellow students is an important
educational goal - perhaps the most important - and students should be exposed to divergent and
contentious arguments so as to hone critical thinking skills.
The real world is not a safe haven of courteous debate. By allowing students to engage in
controversial dialogue with one another and to express themselves in school in ways that do not
substantially disrupt the educational process, educators help students find their voices, selfconfidence, and the skills requisite to challenging viewpoints with which they disagree. The best
wa
yt
oe
ns
u
r
et
h
a
twed
onot“
t
e
a
c
hy
out
ht
odi
s
c
o
unti
mp
or
t
a
ntpr
i
nc
i
pl
e
sofourg
ove
r
nme
nta
s
me
r
epl
a
t
i
t
ude
s
”i
st
op
r
o
t
e
c
tt
h
e
i
rf
r
e
es
p
e
e
c
hr
i
g
h
t
st
oa
sc
l
o
s
ea
na
p
pr
oxi
ma
t
i
onofa
dul
tf
r
e
e
speech rights as will not prevent substantial educational disruptions: in short, return to Tinker.36
I
tha
sbe
e
ns
a
i
d
,“
t
heFi
r
s
tAme
ndme
ntg
i
ve
sahi
g
hs
c
hoo
ls
t
ud
e
ntt
h
ec
l
a
s
s
r
oom r
i
g
htt
o
37
we
a
rTi
nk
e
r
'
sa
r
mb
a
nd
,bu
tn
otCo
he
n
'
sj
a
c
k
e
t
.
”
But would a jacket emblazoned with Coh
e
n’
s
expressive language cause a substantial disruption in a public high school today? As plainly
offensive speech, such an expression is clearly censorable under Fraser. Putting aside the
question of whether a more subtle message would be more effective at winning over adherents,
wou
l
d
n’
tp
e
r
mi
t
t
i
ngas
t
ude
ntt
owe
a
rac
o
nt
r
ove
r
s
i
a
lt
-shirt, and allowing students to discuss the
36
37
W. Va. Board of Educ. v. Barnette, 319 U.S. 624, 641 (1943).
Thomas v. Board of Educ., Granville Central Sch. Dist., 607 F.2d 1043, 1057 (CA2 1979) (concurring opinion).
8
me
s
s
a
g
ea
tt
hel
unc
ht
a
bl
ebea
ne
d
uc
a
t
i
on
a
le
xpe
r
i
e
nc
e
,pa
r
t
i
c
u
l
a
r
l
yi
ft
hes
t
u
de
nt
sdi
dn
’
tr
e
a
l
i
z
e
just how much they were learning? In a society where the Vice President openly describes the
passage of the health care bill in the same terms as Cohen, are we really afraid of letting high
school students use strong language to express strong opinions?38 Andwo
ul
dn
’
twebebe
t
t
e
rof
f
letting them learn firsthand the ineffectiveness of their approach when a fellow student trumps
expletives with reasoned argument? To quote Justice Fortas in his majority opinion in Tinker,
“
t
hi
ss
or
to
fh
a
z
a
r
d
ousf
r
e
e
dom - this kind of openness - that is the basis of our national strength
and of the independence and vigor of Americans who grow up and live in this relatively
39
pe
r
mi
s
s
i
ve
,of
t
e
ndi
s
p
ut
a
t
i
o
us
,s
o
c
i
e
t
y
.
”
A return to the reasonable regulation of student speech
- something more akin to the rights afforded adults - would be an important civics lesson in and
of itself.
III. WHAT CAN BE DONE TO PROTECT STUDENT FREE SPEECH RIGHTS
Tinker struck an appropriate balance between student free speech and the rules
necessary to maintaining an orderly school system. Requiring that student speech be shown
l
i
k
e
l
yt
o“
ma
t
e
r
i
a
l
l
ya
n
ds
ub
s
t
a
nt
i
a
l
l
ydi
s
r
uptt
hewo
r
ka
nddi
s
c
i
pl
i
neoft
hes
c
ho
ol
”pr
ov
i
d
e
s
broad free speech protections while allowing administrators to discipline students whose speech
falls so far outside the norm of accepted behavior as to impede the educational process. This
standard is at once both flexible - what may cause a disruption in middle school may be very
different from what causes a disruption in a senior level class - and straightforward.
By
requiring a showing of substantial disruption, school administrators will be less likely to single
out students for expressing views with which they may disagree. Certainly, a return to a more
38
Se
e
,Da
v
i
dHe
r
s
z
e
n
hor
n,“
AtWh
i
t
eHou
s
e
,Bi
de
n’
sEx
pl
e
t
i
v
eCa
ug
htonOpe
nMi
k
e
,
”Th
e Caucus Blog,
NYTimes.com, March 23, 2010. http://thecaucus.blogs.nytimes.com/2010/03/23/ at-white-house-bidens-expletivecaught-on-open-mic/?scp=1&sq=biden%20big%20deal&st=cse
39
Tinker, 393 U.S. at 507-508.
9
permissive standard will result in some uncomfortable and heated confrontations between parties
with opposing views.
Of course, barring any drastic personnel changes, the Supreme Court is unlikely to
suddenly revitalize a test it has consistently been narrowing for over twenty-five years now. As
such, advocates of strong student speech protections should turn to their state legislatures to
grant what the federal courts have taken away.
Cur
r
e
nt
l
y
,f
i
v
es
t
a
t
e
sha
v
epa
s
s
e
dl
a
wsp
r
ot
e
c
t
i
ngp
ubl
i
chi
g
hs
c
hoo
ls
t
ud
e
nt
s
’r
i
g
ht
st
o
free speech.40 The Massachusetts law exemplifies the best aspects of these laws. It proclaims, in
r
e
l
e
va
n
tpa
r
t
,t
ha
t“
t
h
er
i
g
htofs
t
ud
e
nt
st
of
r
e
e
do
m ofe
xpr
e
s
s
i
oni
nt
h
epub
l
i
cs
c
hoo
l
soft
h
e
c
ommonwe
a
l
t
hs
h
a
l
ln
otbea
br
i
dg
e
d”s
ol
o
nga
ss
u
c
he
xpr
e
s
s
i
onf
o
e
snotc
a
u
s
e“
di
s
r
up
t
i
o
nor
41
di
s
or
d
e
rwi
t
h
i
nt
hes
c
ho
ol
.
”
Under the Massachusetts law, student freedom of expression
includes the right to express ones opinions, verbally, symbolically, through writing, or by
peaceably assembling.42 Ea
c
hs
t
a
t
el
a
w us
e
st
he“
ma
t
e
r
i
a
la
nds
ubs
t
a
n
t
i
a
ldi
s
r
up
t
i
o
n”s
t
a
nd
a
r
d
from Tinker as the test to be used.43 Where legislatures are unwilling to pass pro-student speech
measures, students may turn to their state constitutions and state courts for protection. Every
state grants its citizens free speech rights under its own constitution, and many states have
interpreted their constitutions to afford more protection than is required as a federal minimum.44
Of course, students and concerned parents may always choose to fight these battles at the
local level as well, by approaching school boards to amend disciplinary policies pertaining to
s
t
ude
nts
pe
e
c
hr
i
g
h
t
s
. Wha
t
e
v
e
rt
hec
o
ur
s
eo
fa
c
t
i
on,a
v
e
nu
e
se
xi
s
t
. TheSupr
e
meCour
t
’
s
40
Heather Lloyd, Injustice in Our Schools: Stude
n
t
s
’Fr
e
eSpe
e
c
hRi
g
ht
sAr
eNo
tBe
i
ngVi
g
i
l
a
n
t
l
yPr
o
t
e
c
t
e
d
, 21 N.
Ill. U. L. Rev. 265, 310 (2001).
41
Mass. Gen. Laws Ann. Ch. 71, § 82 (West 2009).
42
Id.
43
Lloyd, supra note 40 at 313.
44
William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 489502 (1977).
10
whittling away at the significance of Tinker need not be the last word on the matter of student
free speech. Indeed, students should talk back to the Supreme Court and stand up for their free
speech rights. Doing so would allow students to learn firsthand lessons about the disputatious
but vibrant nature of our society and give meaning to otherwise abstract conceptions of
constitutional rights.
11