In 1969, the Supreme Court decided in Tinker v. Des Moines that students do not “shed their constitutional rights of freedom of speech or expression at the schoolhouse gate.” The issue before the court was that of a 13 year-old junior high school student, Mary Beth Tinker, who over three years earlier was among a group of students who decided to wear black armbands to school to protest the Vietnam War. The school board heard about the protest action and passed a preemptive ban. Students who wore the arm bands to school were asked to remove them and if they did not, were sent home.
The ACLU represented the suspended students and argued before the Supreme Court that because the protest was not disruptive, their First Amendment rights were violated when they were punished. The “Tinker standard” refers to the balance between students’ right to free expression without intervention from authority unless it would cause a disruption.
Since then, however, student expression rights have been challenged. In 1988, the Hazelwood School District v. Kuhlmeier decision rolled back student rights from the 1969 Tinker case. While Tinker recognized student’s First Amendment rights to non-disruptive expression, the Hazelwood decision allowed school administrators to censor school publications if they could prove that they had a reasonable educational purpose for stopping articles from being published.
More recently, the 2005 Hosty v. Carter decision in the 7th Circuit Courts extended the Hazelwood decision to public colleges. The 7th Circuit covers Wisconsin, Illinois and Indiana. In the 2007 ACLU Morse v. Frederick case, a prank “Bong Hits 4 Jesus” sign was displayed by a student at an Olympic torch rally in Juneau, Alaska. Even though the event was not on school grounds nor sponsored by the school, his punishment for displaying the “pro-drug” message where other students could see it was supported by the Supreme Court.
Arkansas, California, Colorado, Iowa, Kansas, Massachusetts, Pennsylvania and Washington have all enacted laws to define and protect student publications and expression. An attempt to make a law to protect student speech was vetoed in Wisconsin in 1992.
For more on the work of the ACLU of Wisconsin Foundation on youth civil liberties, visit our youth page, or visit our multimedia page to download our Freedom of Expression FAQ (PDF).
You can also read about the national ACLU's new video on the relevance of Tinker today...