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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Thursday, March 17, 2016

The Struggle for Student Rights: Tinker v. Des Moines

I have repeatedly noted my enjoyment of John W. Johnson's (what is with double names?) book on Griswold v. Connecticut, part of the cottage industry of books on cases.  He earlier wrote The Struggle for Student Rights: Tinker v. Des Moines and the 1960s.  I found that book less interesting though it was serviceable.  [You can listen to the oral argument of this and other student rights cases at Oyez.com.]

The first book was much more comprehensive -- a favorite chapter was one that look toward history to show how the right of privacy was understood in U.S. law and among various rights in the Constitution as well.  The story of the case also spanned a long period of time -- it was part of a series of cases that go back to the 1930s and forward into the 21st Century.  This book, written in the late 1990s, is more time bound to the single case though there is a final chapter that discusses later student rights cases.  So, we have more detail of school meetings, newspaper reactions, law review responses, lower court activity etc.

We do get more of a sense of the other side but a lot of this stuff got to be a bit dull, if useful in a pedantic sense.  I would have liked more of a sense of other cases and general educational matters to fit in the Tinker case in a wider context.  The second book took a broad look at privacy law in a separate chapter.  Something like that would have been helpful here, a separate chapter that stepped back and looked at the wider situation.  The relevant cases like the flag salute case (Constitution applies to school) were covered, but not in such a comprehensive fashion.  The personal story of the litigants was interesting, but harmed but too much of the other stuff.

The case itself noted that an armband worn for protest is basically akin to core political speech and is protected here unless there is clear evidence of disorder.  Even in the school context. The evidence here was very limited.  The book also suggests any problems was if anything aided and abetted by school officials in some cases selectively targeting the speech.  So, a math or gym teacher made it known that criticism of the Vietnam War was distasteful to them.  And, in other cases, things like political buttons or even an Iron Cross were allowed, even though they would get some pushback. So, in effect, it was a core First Amendment "no no," a content based limitation. 

Justice Harlan briefly dissented, trusting that the school officials were neutrally relying on school discipline. This wasn't a case of "a desire to prohibit the expression of an unpopular point of view."  His dissent is not very convincing because it doesn't actually examine the record. If that was done, such neutrality would be a harder case to make.  Justice Stewart briefly concurred to note he thinks children/schools can be treated differently. A step further here, when some a benign type of expression was at issue, required a bit more. Justice Black had an intemperate dissent, showing his distaste for protests in the 1960s.

The opinion was sure to separate an armband from "length of skirts or the type of clothing, to hair style, or deportment."  There were around that time into the 1970s lots of cases, coming down different ways, dealing with hair length.  Hair (as suggested by the musical that came out around then) often has a symbolic quality to it, including religious in nature (the book discusses how the students here were influenced by their religious upbringing).  But, the Supreme Court never really dealt with that (though it upheld a regulation for police officers).  This is an interesting area and one that I find pretty important in various cases.  The same would apply to clothing; for instance, trans issues.

The later school cases in the area of controversial speech that reached the Supreme Court generally -- this is the sense you get from the book -- didn't go well for students.  This is partially a matter of how you look at the question.  For instance, religious speech had more success in relation to school clubs and such. Also, the book references the T.L.O. case, which did give teens second class Fourth Amendment rights. Still, even Tinker balanced school interests there and a "reasonableness" test still was applied as to searches. After the book came out, this had some bite.

The book also didn't really cover a few college cases, including involving the SDS that popped up in this story.  And, the cases that did reach the Court also repeatedly was complicated by other issues, especially the presence of an argument that school speech was involved, not merely student speech.  For instance, a school newspaper or the rules of a school election.  Finally, the facts were far from ideal -- two came off as pretty infantile -- a speech during a school campaign full with sexual metaphors or holding a "Bong Hits 4 Jesus" sign (this coming after the book was written).  And, the dissent there is surely correct, but the net result of the votes was a narrow rule regarding a criminal matter. The determining concurring opinion made clear that even if the student was merely promoting changing marijuana laws, it is treated differently.

We need them to hear a more Tinker-like case, even if the cases taken here have wider principles that make the results troublesome.  An important issue, e.g., would be the breadth of control a school has over social media that might be seen by students, perhaps at school, including such things like suspending an athlete for a few games for tweeting a curse connected to his/her school team deemed unsportmanlike. Or, even more serious t-shirt case. The balancing will depend on the facts.

The book was still pretty good overall and the case a useful way to discuss how to treat these matters.  This includes what amounts to a balancing test that treats schools differently than someone else.  


A footnote addresses the basic unconstitutional conditions principle applied to this context.  By the 1960s, the old principle that you might have the right to free speech but could lose it if you wanted to keep your government job or benefits was no longer deemed correct. This doesn't mean there is no difference there and again we are left with something of a balancing test, especially in the area of government employment. 

The footnote references a 1930s case that upheld a requirement for membership of a school university requiring a student to participate in school training in military "science" and was not found to conflict with his constitutionally protected freedom of conscience.  It was noted even granting that, there were limits on how far the schools could go, e.g., forcing people to pledge allegiance. The original case also was an interesting discussion of the breadth of a right to conscience and might have some relevance of the upcoming contraceptive mandate cases.

One thing that also caught my eye is an atypical reference to the Second Amendment:
Undoubtedly every state has authority to train its able-bodied male citizens of suitable age appropriately to develop fitness, should any such duty be laid upon them, to serve in the United States Army or in state militia ... the state is the sole judge of the means to be employed and the amount of training to be exacted for the effective accomplishment of these ends. Second Amendment [cases].
The Second Amendment is cited here as protecting the interests of the state over its own militia, which is the general "state rights" or "collective rights" view held by many today.  And, part of this is requiring training in military science, in part since there is not a right to conscientious objection status broadly. Or, at least, so broad that students at a school university, a voluntary matter, could not be required to take place in military type training.

It would seem to be more complicated if we were dealing with minors required to go to school though even there they are not required to go to public school.  The Supreme Court later upheld a rule requiring opening up colleges to military recruitment or be denied federal funding, again relying on some government interest in military training.  At any rate, this is one of those interesting cases with intriguing aspects.

And More: I referenced this with additional comments on the cases cited (the excerpt complete would be: "Second Amendment; cases") in this thread. The Presser reference (the non-incorporation point obsolete, the 1A also not incorporated at that time, even though it too in part has a federalist aim) is interesting partially in that (especially with Heller's analysis) it seems to allow banning private militia groups, especially if they "drill and parade" with their arms publicly.  Does this include "parading" or demonstrating in public with your weapons?

Looked up the other reference and they generally concern states having power over the militia, two cases (if not the page cites) briefly referencing the Second Amendment in a related context. The preamble speaks of a "well regulated militia" so training and other regulations thereof would have clear 2A implications and not just in a penumbra sense. And, training would be a form of "keeping and bearing" at any rate. As I noted, the single reference can be used by either side though as a whole it helps the collective rights side somewhat more.  Interesting overall.

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