March 31, 2015

Tinker v. Des Moines Independent Community School District Dies Not With A Bang, But A Whimper

That appears to be the only reasonable conclusion that can be drawn from the decision of the US Supreme Court to deny a the certiorari petition in Dariano v. Morgan Hill Unified School District.

The US Supreme Court announced on Monday that it would not take up a major First Amendment case testing whether school officials in California violated the free speech rights of three high school students who were told they could not wear American flag T-shirts at school because it might upset students of Mexican heritage.

The court took the action in a one-line order. The justices offered no further comment on the case.


I’ve written about this case before. A group of students chose to wear apparel depicting the American flag to school on May 5 – the minor Mexican regional holiday Cinco de Mayo, which has been adopted as a Mexican cultural celebration in the United States – to demonstrate their love of the United States and pride in their American heritage. A group of Hispanic students declared this to be racist and threatened violence if the students were allowed to continue to wear the pro-American shirts. School officials then ordered the students to change clothes of go home for the day, despite the fact that the students themselves were engaged in no violent or disruptive conduct themselves.

Let me repeat that for you – a group of American students wearing American flags were silenced by an American high school because other students threatened violence because they felt that nobody should be allowed to celebrate anything other than a foreign country on that day.

The silenced students sued, arguing that the Supreme Court precedent in Tinker v. Des Moines Independent Community School District mandated that the school allow their peaceful expression of pro-American sentiments. One would have thought that to be the case, given that the main holding in Tinker is that students do not lose their First Amendment rights at school and that this included the peaceful, non-disruptive wearing of symbols. These students were peaceful, and they in no way caused disruption. Rather, other students threatened to engage in criminal conduct against them for daring to express a view which was not deemed orthodox by a majority of students on campus – in other words, these other students were engaged in a criminal conspiracy to violate the civil rights of the American flag wearing students. The school then facilitated this criminal conspiracy by enforcing the demands of the violent conspirators, rather than protecting the civil rights of the peaceful students. It did so using the argument that the actions of the students engaged in patriotic speech, rather than the criminal conspiracy by the violent students, was causing a substantial disruption of the school. Sadly, two courts have upheld the school’s decision, and the Supreme Court has declined to review those decisions.

It is therefore clear that the expansive protection of student speech found in Tinker has been implicitly repudiated by our nation’s courts. While the denial of certiorari is not a ruling on the merits, the refusal to take up a case in which courts have so clearly ruled contrary to would seem to indicate that there no longer exists even a plurality of justices who are supportive of the holding in Tinker. The irony of the matter is that the same argument used by the school district in Dariano – that threats of violent disruption of school operations by a violent mob justifies the suppression of the civil rights of students – was rejected by the Supreme Court in Cooper v. Aaron, the Little Rock High School desegregation case.

Mary Beth and John Tinker, the two students whose choice to wear black armbands to protest the Vietnam War gave rise to the earlier case on student free speech rights, have remained active in the area of student rights and filed an amicus brief in the Dariano case. I believe that the words of that brief need to be given serious weight by the educators (and the American people as a whole), even if the Supreme Court did not heed their call.

Mary Beth Tinker and her brother, John, were 13- and 15-years-old in December 1965 when they donned armbands to make a point about the Vietnam War.

In a friend-of-the-court brief, they argued that some lower courts have been reluctant to uphold constitutional protections for student political speech at school. Instead, they said, judges often give school administrators broad discretion to censor student speech they find offensive or that they believe might potentially be disruptive.

It is time for the high court to revisit the issue and clarify the core holding in the Tinker case, Washington lawyer Robert Corn-Revere wrote in the Tinker’s brief.

He added that the California case also offered the justices a teaching moment. “This case is about the future of free speech as much as about the present and the past,” Mr. Corn-Revere wrote. “If students learn that threatening speakers is an effective way to suppress speech, this will produce more threats, and more suppression of a wide range of other speech,” he said.

“And beyond this, even peaceful students will learn that free speech must yield whenever its opponents are willing to threaten violence – a message antithetical to all that this Court has tried to convey about the First Amendment,” he wrote.

And yet it appears that the seminal holding of Tinker, that students do not shed their rights at the schoolhouse gate, is no longer even given lip service by our courts. Today all it takes is threats of a violent mob, intent upon violating those rights, for school officials to be allowed to suppress the liberties of peaceful students with an unpopular message. The lesson being taught to American students today is that a good American should no longer “stand up and speak out” even if their views are rejected by the majority – instead they must “sit down and shut up” because an angry majority is allowed to turn government officials into agents for the suppression of rights rather than guardians of liberty.

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