BILL
OF
RIGHTS
NETWORK
Newsletter of the Bill of Rights Education Project, volume 16 Spring 2009
Tinker and Beyond: 40 Years of Student Rights
Forty years after she made
constitutional history, Mary
Beth Tinker is coming to Boston. Massachusetts students and
teachers will be able to meet her
on September 17, at a Constitution
Day forum at the Boston Public
Library (see back page).
Mary Beth, her brother John,
and their friend Chris Eckhardt
established the high watermark for
student First Amendment rights
when they won their case in the US
Supreme Court by a margin of 7-2. On February 24, 1969, the Court
declared in memorable words
penned by Justice Abe Fortas:
“It can hardly be argued
that either students or teachers
shed their constitutional rights to
freedom of speech or expression at
the schoolhouse gate….Students in
school as well as out of school are
‘persons’ under our Constitution. They are possessed of fundamental
rights which the State must
respect.”
A symbolic act of conscience
The case, Tinker v. Des Moines
Independent Community School
District, derived from an act of
conscience: the decision to wear
black armbands to school in
December 1965 to protest the
Vietnam War. The school principal
had heard about the action being
planned by a group of Des Moines
students, and announced that he
would suspend anyone who came
to school with an armband. Mary Beth Tinker (center) with Boston-area high school students at the
National Marshall-Brennan Moot Court Competition in Philadelphia.
Many students decided not to
risk suspension and pulled out of
the action. But 13-year-old Mary
Beth, 15-year-old John and 16-yearold Chris decided to go ahead as
planned. They wore armbands to
school on December 16, and were
immediately sent home. They
did not return to school until
after New Year’s Day, and then
continued their symbolic protest
by dressing in black for the rest of
the school year. In 1965, student rights were
in their infancy. Back in 1943, in
the case W.Va. Board of Education v.
Barnette, the Supreme Court had
ruled for the first time that the
Bill of Rights did apply to public
school students when it declared
that they had the right under the
First Amendment to refuse to
participate in the flag salute. But
for the next two decades, during
the period known as the post
World War II “Red Scare,” freedom
of thought was not encouraged in
either society or schools, and the
courts had little more to say about
student rights.
This was to change with the
groundswell of activism associated
with the movements for civil
(continued on page 3)
COURTWATCH
Strip Searches in Schools
By the end of June 2009, the
justices of the Supreme Court
will make a ruling that could
have profound implications for
how students feel about school. How far can school officials go
to ensure that schools are free of
drugs? Can they conduct strip
searches of students – even if there
is no evidence to suggest that the
students are carrying drugs in their
underwear?
Safford School District v. Redding
Savana Redding, a 13-yearold 8th grade honors student,
never returned to Safford Middle
School in Arizona after being strip
searched in 2003 in an attempt to
locate an extra-strength ibuprofen
pill. She was on the verge of tears
when the school nurse and an aide
made her strip to her underwear,
and pull out her bra and panties to
see if they contained a hidden pill. A classmate who had been
caught with pills implicated
Savana, who had never been in any
kind of trouble at school. After
she consented to a search of her
belongings -- which turned up
nothing -- the assistant principal
sent her to be strip searched. Again, nothing was found.
A federal district court threw
out the lawsuit brought against
school officials by Savana’s mother
with the help of the ACLU. On
appeal, a three-judge panel of the
US Court of Appeals for the 9th Circuit again threw out the suit. page 2
But the full 9th Circuit Court
decided to re-consider the case,
and found that her Fourth
Amendment right to be free from
“unreasonable searches” had
indeed been violated and that
school officials could be sued for
damages. The school appealed.
On April 21, 2009, the Supreme
Court heard oral arguments in
the case, with Savana Redding,
now aged 19, observing the
proceedings. Only Ruth Bader
Ginsburg – the sole woman on the
Bench -- seemed to understand
why Savana found the experience
so humiliating. The attorney for
the school district insisted that
even a body-cavity search would
have been legal to keep the school
free of drugs including ibuprofen,
but added that no school official
would undertake one since they
lacked appropriate training. The Obama administration
filed a friend-of-the-court
brief agreeing with Savana’s
ACLU attorney: the search was
unconstitutional since there was
no evidence that she was hiding
anything in her underwear. Will zero tolerance for drugs
trump the Fourth Amendment? Your students can be on the lookout for the decision, which will be
handed down before the end of the
school year. Harassment in Schools
On January 21, 2009, the US
Supreme Court ruled unanimously
in Fitzgerald v. Barnstable School
Committee that the parents of a
child in kindergarten who was
sexually harassed on a school bus
and in her Hyannis school could
sue Barnstable School District in
Massachusetts for harassment and
civil rights violations.
The girl was bullied by a
3rd-grade boy, who made her lift
up her skirt and pull down her
underpants. After her parents
alerted school officials, they
wanted to put the girl on another
bus, rather than putting a monitor
on the bus or transferring the boy
to another bus, as her parents
suggested. Her parents then
drove her to school everyday,
where there were more disturbing
incidents. The parents sued in federal
district court under Title IX of
the Education Amendments
Act of 1972 (barring gender
discrimination in federally-funded
education programs) and the
138-year-old civil rights statute
known as Section 1983. After two
lower courts threw out the lawsuit, the Supreme Court gave the
parents the green light to pursue it
under Title IX and Section 1983.
KNOW YOUR RIGHTS!
The Bill of Rights Education Project
has recently produced a new edition
of its report for students. It outlines
where student rights came from and
what rights public school students
currently possess in Massachusetts. You can order free classroom sets of
up to 25 copies of this resource -- see
order form on the back page. Bill of Rights Network
STUDENT RIGHTS
Freedom of Expression
• A federal district court ruled
that students may wear black
armbands to protest the restrictive
uniform policy imposed by the
Watson Chapel School District in
Arkansas. In September 2008, the
US Court of Appeals for the 8th
Circuit upheld this ruling, citing
the 1969 student black armband
case, Tinker v. Des Moines. • After a student at Ponce
de Leon High School in Florida
was prevented from wearing a
handmade T-shirt that read “I
support gays,” she sued the school
for banning pro-gay symbols. In 2008 a federal judge ordered
school officials to lift the ban and
pay $325,000 in attorney’s fees. • In 2008, a federal district
court in Pennsylvania upheld
the 10-day suspension of a Blue
Mountain Middle School student
for creating at her home an online
parody profile of her principal.
Although the profile did not
cause substantial disruption at the
school, it contained the kind of
vulgar speech denied protection by
the US Supreme Court in its Bethel
School District v. Fraser ruling.
Dress Codes
• In 2009, a New Jersey court
ruled that a state law allowing
school boards to adopt uniforms is
not unconstitutional just because it
fails to require that the codes
provide an opt-out provision.
• In 2008, the North Carolina
Court of Appeals struck down
as “unconstitutionally vague”
portions of Durham Public Schools’
“anti-gang” policy, including a
ban on wearing certain kinds of
clothing, jewelry, or symbols or
using certain gestures that “may
be evidence of membership or
affiliation in any gang.”
Harassment
• In 2009, the Washoe County
School District in Nevada agreed
to pay $350,000 to a former student
to settle a harassment suit. She
claimed she had been called names
and told “you are not one of us”
and “leave or we will kill you” for
wearing a hijab, a traditional hair
covering worn by many Muslim
women. When she appealed to
school officials for help, she was
allegedly ignored or told that she
should not wear the scarf.
WHAT IS CONSTITUTION DAY?
schools that receive federal funds
are required to spend some time
teaching about the Constitution
and Bill of Rights. If September
17 falls on a weekend or a holiday,
schools must hold a Constitution
It’s the law!
Day program during the previous
On September 17, 1787, 39
or following week.
members of the Constitutional
To fulfill this mandate, you
Convention signed the final draft
can bring your students to our
of the US Constitution. In 2004,
Constitution Day forum (see back
Senator Robert Byrd of West
page) or you can select an activity
Virginia authored legislation
from our innovative website:
establishing September 17 as
www.rightsmatter.org
Constitution Day. On that day, all
Tinker and Beyond (from p. 1)
rights and against the Vietnam
War. By 1969 in the Tinker case,
the Supreme Court recognized the
vital importance for democracy of
encouraging freedom of thought
and expression in public schools. As Justice Fortas wrote: “Any word spoken, in class, in
the lunchroom, or on the campus,
that deviates from the views
of another person may start an
argument or cause a disturbance. But our Constitution says we must
take this risk, and our history says
that it is this sort of hazardous
freedom – this kind of openness
– that is the basis of our national
strength.” Freedom of expression, the
Court decided, was constitutional
in public schools as long as it did
not “materially and substantially”
interfere with the running of the
school or invade the rights of
others. This is known as the “Tinker
standard.”
The pendulum swings
The Tinker decision launched
a decade in which courts around
the country struck down the
censorship of student publications
and dress codes, and student
rights flourished. But soon the
pendulum began to swing back, as
the US Supreme Court and lower
courts cut back on student rights. You can find out more about these
cases in our free publication, Know Your Rights! A Bill of Rights
Education Project Report for Students. Forty years after Tinker, student
freedom of expression is being
interpreted anew in the digital age,
and the balance between student
rights and school safety is being redrawn by the US Supreme Court
(see page 2). Where are student
rights headed in the 21st century?
Join us with your students on
Constitution Day to find out. Bill of Rights Network
page 3
The ACLU of Massachusetts & the Civic Education Project
present:
STUDENT RIGHTS IN THE 21st CENTURY
A Constitution Day Forum with Mary Beth Tinker
Thursday, September 17, 2009
6:00 pm - 8:00 pm
Rabb Lecture Hall, Boston Public Library
Copley Square, Boston
It is now 40 years since the Supreme Court upheld Mary Beth Tinker’s
right to wear a black armband to school to protest the Vietnam War. On
this Constitution Day, Mary Beth Tinker will reflect on the action she took,
Mary Beth Tinker with Boston students.
and how student rights have expanded - and contracted - over the last 40
To reserve seats for your students,
years. She will be joined by advocates, school administrators and students
please fill out and mail the form
in a discussion of what lies ahead for student rights, and what young
below or email [email protected].
people are doing to transform their schools.
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