Old issue, new ruling – whew, it’s (still!) legal to wear a protest armband to school

Yes, it’s true that in 1969 — more than four decades ago — the U.S. Supreme Court upheld the right of Iowa junior high school student Mary Beth Tinker to wear a black armband to school to silently protest the Vietnam War. And while the path Mary Beth and her family took to the High Court was a difficult one, the ruling issued by the Court’s majority seemed relatively straightforward. “Students,” the Court began, do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

So with that, Mary Beth was good to go — with two exceptions.

First, like everyone, she didn’t have the right to engage in unlawful speech. In other words, she couldn’t wear an armband that contained a libelous statement about someone or that displayed an obscene image. No surprise and not a problem: her armband was pure black. More importantly, however, the Court recognized that schools are not the same as a town’s public square and that school officials have an obligation to ensure that student speech activities don’t unreasonably interfere with a school’s primary mission:  education. To balance the two interests, the Court told Mary Beth — and seemingly all the students that would follow her — that her right to wear an armband to school to express her beliefs was protected up to the point where school officials could reasonably show that such expression would “materially and substantially interfere” with normal school activities.

Of course, as is usually the case, the Court’s language required some interpretation and refinement as lower courts applied the new “Tinker standard” to other student speech cases presenting different facts, including cases involving student media. For example, over the years lower courts tried to more clearly define what the Supreme Court meant by a “material and substantial disruption” and what proof was required of school officials who tried to suppress speech by arguing such disruption was likely to occur. And while not everyone agreed with the Tinker ruling — some felt it was wrong for a court to ever second-guess a principal; some thought the Court’s protection for student speech didn’t go far enough — the standard was reasonably easy to understand and explain: students had a right to express themselves at school as long as the expression was lawful (e.g.,  not libelous or obscene) and as long as it didn’t disrupt class.

Fast forward 40 years. Last October, a New Jersey high school freshman asked school officials with the Bridgeton Board of Education for permission to wear an armband to school to voice her opinion on abortion. Specifically, she wanted to wear her plain armband — in this case black and red — in conjunction with the Pro-Life Day of Silent Solidarity, an annual anti-abortion protest. (Unlike Mary Beth Tinker, she also sought permission to remain silent during the school day by wearing a piece of tape over her mouth and to distribute flyers to her classmates about her actions — but let’s stick with just the armband part of it for now.) School officials said “no” — and the student sued.

Between 1969 and 1984, it would have been hard to imagine an easier situation for the student and school officials (or a court, in the very unlikely event it reached that stage) to identify and follow the rules. If a student wanted to peacefully wear an armband to school to express her thoughts on an important issue of the day, the Supreme Court said he or she could do so. End of story.  But in 1985, things started to get more and more and more complicated. So complicated, in fact, that last week, in handing down his decision in the New Jersey case, a federal district court judge spent 22 pages explaining his answer.

It certainly wasn’t Judge Robert Kugler’s fault. In fact, his opinion is one of the more thoughtful, thorough and “clear” explanations of the current state of First Amendment law as it applies to students that we’ve seen in recent years. It’s well worth a read. But the fact that it took 22 pages to explain his decision that the student did, in fact, have the right to wear her armband (and engage in her various other non-disruptive speech activities) is a sad commentary on how complicated things have become.

As Judge Kugler carefully chronicles, the Supreme Court, beginning with its 1985 Fraser decision and continuing through its 2007 ruling in Morse v. Frederick, started whittling away at Tinker, carving out new and more complicated exceptions to student speech rights and requiring lower courts do the same.  Such tinkering with Tinker has prompted judges, either by necessity or plain lack of guidance, to engage in all sorts of improvisational jurisprudence that has led to serious conflicts among courts about what the law is. Today, where a student is from — specifically what legal jurisdiction he or she lives in — is often more important in determining what the law might be than what it is the student actually did. Frankly, that’s messed up.

Student journalists calling the Student Press Law Center for help with most censorship cases in 1980 could probably count on a ten-minute telephone call that would end in their knowing, with a reasonable degree of certainty, whether their speech was protected and whether school officials had acted unlawfully. That rarely happens today. After multiple phone calls, emails, the gathering and analysis of school district documents, questions regarding where the student publication gets its funding and how the newspaper is structured and taught,  a review of a particular jurisdiction’s laws and court cases — after all that, it’s still pretty unlikely a student today is going to get a rock solid “yes” you’re absolutely protected or “no” you’re not.  After all, its been 22 years since the Supreme Court handed down its Hazelwood decision — carving out an exception to Tinker for school-sponsored, non-forum student media — and, of course, we’re no closer to knowing when an act of administrative censorship would be upheld because the student speech somehow conflicts with the “shared values of a civilized social order” (language taken directly from Hazelwood and provided by the Court as a “helpful” example of acceptable censorship) than we were back then.  Not to excuse it completely, but might it be possible that many students today don’t much care about the First Amendment, as surveys have shown, because they (like many adults) don’t have a clue about what it actually does?

Still, a student speech victory is a student speech victory and Judge Kugler’s decision is indeed a victory — at least for students in New Jersey.  The decision reaffirms that Tinker remains the law in New Jersey (and presumably also Delaware and Pennsylvania, the two other states covered by the Third U.S. Circuit Court of Appeals) and that, despite courts in other parts of the country also throwing (quite complex) issues such as forum analysis, viewpoint discrimination, dress code resrictions and “time, place and manner regulations” into the mix, Tinker remains the “catch-all” legal standard for student speech cases.

And, at this rate — ten years from now — we’ll probably also consider it a victory that it only took 22 pages to get there.