Tinkering with Tinker: protecting the First Amendment in public schools.

• Author: Kellman, Bonnie A.

INTRODUCTION

The Supreme Court has long recognized that students are protected by the First Amendment in public schools. In the seminal case, Tinker v. Des Moines Independent Community School District, (1) the Court affirmed that neither students nor teachers "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." (2) However, the Court also laid out two instances in which schools may regulate student speech: when the speech (1) "materially disrupts classwork or involves substantial disorder" (3) or (2) "colli[des] with the rights of other students to be secure and to be let alone." (4)

Although Tinker laid out two instances in which student speech may be regulated, the Court has largely ignored the "rights of others" prong of the test and instead relied solely upon the "substantial disruption" prong. (5) Tinker itself was decided using the "substantial disruption" prong, (6) as were the vast majority of other Supreme Court cases which have since applied the Tinker test. (7) In fact, in a concurrence to Morse v. Frederick, (8) Justice Alito described Tinker only in terms of the "substantial disruption" prong. (9) Perhaps courts refrained from using the "fights of others" prong because its meaning remained ambiguous. (10) Neither Tinker nor any other Supreme Court case gave lower courts any real guidance about exactly when certain speech "colli[des] with the rights of other students to be secure and to be let alone." (11)

This changed markedly, however, with the Ninth Circuit's decision in Harper v. Poway Unified School District. (12) This case arose out of the controversy surrounding student speech criticizing homosexual conduct in Poway High School. In April 2004, the student Gay-Straight Alliance held a "Day of Silence." (13) On that day, Tyler Harper wore a t-shirt stating, "I WILL NOT ACCEPT WHAT GOD HAS CONDEMNED" on the front, and "HOMOSEXUALITY IS SHAMEFUL 'Romans 1:27'" on the back. (14) There is no record of any incidents occurring as a result of Harper wearing the t-shirt that day, nor of the school staff noticing it. (15) The next day, Harper again wore the t-shirt expressing his disapproval of homosexuality. (16) However, he changed it to say, "BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED" on the front. (17) On the back, it displayed the same message as before: "HOMOSEXUALITY IS SHAMEFUL 'Romans 1:27.'" (18) That day, his second period teacher noticed that Harper's t-shirt was distracting other students during class. (19) The teacher told Harper that his t-shirt was "inflammatory" and violated the school's dress code. (20) When Harper refused to take it off and asked to speak with an administrator, the teacher gave him a dress code violation card and sent him to the front office. (21)

When Harper arrived at the front office, the principal repeated the teacher's concerns that the t-shirt was "inflammatory," and Harper admitted to him that he had been involved in a "tense verbal conversation" with a group of students over the t-shirt earlier in the day. (22) As a result of this, and in light of the tensions surrounding the "Day of Silence" held the year before, (23) the principal informed Harper that he was not allowed to wear the t-shirt on the school campus. (24) When Harper continued to refuse to change his shirt, the principal ordered him to remain in the front office for the remainder of the school day, (25) effectively restricting his ability to express his viewpoint on homosexuality by wearing the shirt.

Harper sued the Poway Unified School District for violating his freedom of speech, among other things. (26) On appeal, after analyzing the case under the Tinker test, the Ninth Circuit became the first court to use the "rights of others" prong to limit a student's freedom of speech. (27) The court ruled that Harper's wearing of the t-shirt satisfied the "rights of others" prong because speech expressing disapproval of homosexuality amounts to "psychological attacks" (28) on homosexual students, a minority group, by "strik[ing] at a core identifying characteristic" (29) of the group.

The Ninth Circuit's interpretation of the "rights of others" prong is problematic for many reasons. As will be explained in Part II.B.1, Supreme Court precedent, as well as the interpretations of other circuits, suggests that the "rights of others" prong should not be construed to encompass offensive speech. Furthermore, as will be explained in Parts II.B.2 and II.B.3, the distinctions drawn by the Ninth Circuit--both between minority and majority groups, and between speech that amounts to psychological attacks on others and speech that does not--are inherently problematic in application. For these reasons, courts should formulate a better interpretation of Tinker's "rights of others" prong, such as one that would allow schools to regulate student speech only when it has the potential to spark a physical assault.

1. OVERVIEW OF SCHOOLS' ABILITY TO RESTRICT STUDENT SPEECH

   The Supreme Court has long recognized that students are protected by the First Amendment in public schools. Neither students nor teachers "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." (30) The Court has even recognized that "[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools," (31) and that "[t]he classroom is peculiarly the 'marketplace of ideas." (32)

   On the other hand, students' First Amendment rights are not identical to the rights of adults, (33) and must be "applied in light of the special characteristics of the school environment." (34) The Tinker Court recognized that students' freedom of speech must be balanced with school officials' ability to control student conduct in schools. (35)

   The Supreme Court has recognized three categories of student speech, each of which is governed by a different line of precedent. First, speech that is "vulgar and offensive" due to its particular wording, rather than its content, is governed by Bethel School District No. 403 v. Fraser. (36) Second, school-sponsored speech is governed by Hazelwood School District v. Kuhlmeier. (37) All other student speech is governed by the test established by the Court in Tinker. (38) Under Tinker, schools may restrict student speech only if the speech (1) "materially disrupts classwork or involves substantial disorder" (39) or (2) "colli[des] with the rights of other students to be secure and to be let alone." (40) Student speech that does not fall under either of these prongs may not be regulated, even if it contains controversial ideas. (41) Harper's speech, not being vulgar or school-sponsored, falls under this third category and thus can be restricted only if it caused substantial disorder or collided with the rights of other students. (42)

2. THE NINTH CIRCUIT'S DECISION IN HARPER

   1. Analysis of the Ninth Circuit's Reasoning

      In Harper, the Ninth Circuit emphasized that students' freedom of speech must be balanced with schools' "special need to maintain a safe, secure and effective learning environment." (43) Schools have such a "special need" to create this environment because students are uniquely vulnerable, both because they are a captive audience due to compulsory attendance (44) and because, as children, they are particularly susceptible to hurtful speech. (45) Furthermore, the court recognized that speech causing "'[a] sense of inferiority affects the motivation of a child to learn.'" (46)

      In light of these special needs, the court interpreted Tinker's "rights of others" prong to allow schools to restrict speech that amounts to "psychological attacks that cause young people to question their self-worth and their rightful place in society." (47) Therefore, schools may restrict speech that "strikes at a core identifying characteristic of students." (48) Such identifying characteristics include race, religion, and sexual orientation. (49)

      Furthermore, this newfound ability of schools to regulate student speech only applies to speech that is offensive to minority groups, not to majority groups. (50) Minority groups have special status because they have "historically been oppressed, subjected to verbal and physical abuse, and made to feel inferior." (51) Majority groups, on the other hand, have "always enjoyed a preferred social, economic and political status." (52) Therefore, "[g] rowing up as a member of a minority group often carries with it psychological and emotional burdens not incurred by members of the majority," (53) and thus speech critical of them will be more likely to "damage their sense of security and interfere with their opportunity to learn." (54)

      Moreover, Harper allows schools to practice viewpoint discrimination. That is, a school may prohibit the expression of only one side of a debate if that speech violates either prong of Tinker. (55) Such viewpoint discrimination is permitted because, according to the court, in certain debates--such as the one over homosexuality--speech on only one side of the debate "espous[es] intolerance, bigotry or hatred." (56) Such speech is contrary to the basic educational mission of schools to instill in its students "'fundamental values of habits and manners of civility essential to a democratic society.'" (57)

      Consequently, the Ninth Circuit ruled that Harper's t-shirt satisfied the "rights of others" prong (58) because speech expressing disapproval of homosexuality amounts to psychological attacks (59) on homosexual students, a minority group, by "strik[ing] at a core identifying characteristic" (60) of that group.

   2. Criticism of the Ninth Circuit's Reasoning

      The Ninth Circuit's interpretation of the "rights of others" prong is problematic for many reasons. First, Supreme Court precedent, as well as the interpretations of other circuits, suggests that the "rights of others" prong should not be interpreted to encompass offensive speech...