Harking Back to Tinker

How Ought A Union Of Writers Respond To Evisceration Of Student Speech?


Whatever one’s sense of the historical meaning of the initiation of the United States of America, the Bill of Rights, even without the addition of FDR’s ‘Economic Bill of Rights,’ remains a magnificent set of mandates.  This Humble Correspondent has often asked his students, “Why do you suppose the drafters made the First Amendment number one?” 

And they normally get this, that the right to express one’s opinions—freedom of speech—and act on them—freedom of assembly—so as to influence others to join in a democratic upsurge, or ‘redress of grievances,’ underpins any semblance of an actualization of democracy.  Is this how things are working out today?  That’s a different question; the point nonetheless seems applicable that social shifts must normally start with conversations or discourses of some sort or other.

Given that these observations are reasonable, how the process occurs whereby young people become skillful in communicating among themselves, elaborating both their collaborations and their debates, inherently expresses an important aspect of hopes for majority rule.  This essay provides both background about one aspect of this inculcation of First Amendment values—legal disputes about student speech—and analysis about what union writers ought to think, and do, about all of this.

What Tinker v. Des Moines ‘Established’

To begin at the beginning, we would travel back almost fifty years.  The 1960’s in the Capitol of Iowa were times of labor activism and economic plenty.  At mid-decade the State rid itself of the death penalty.  It had for some time been a hotbed of civil rights activism.

Decades before, Des Moines, in the mid 1930’s, was the fifth locality to inaugurate a civil liberties union.  The group called itself the Iowa Civil Liberties Union until 2006.  As the ‘60’s were winding down, groups like the ICLU and the American Friends Service Committee played leading roles in facilitating community discussion of current affairs, even as local citizen concern about the Vietnam war was coming to the fore.

This was the overall context in which Mary Beth Tinker and her older brother John and other students elected to wear black armbands to school to protest the war and call for its end.  The children acted over the protests of the Tinker kids’ dad, a Methodist preacher who had become a Quaker.  He eventually acceded to their decision, based on the contention that they were bringing his teachings to the forefront in their choice.

While John Tinker was something of a firebrand—“major(ing) in protest” in college, his sister was every bit the shrinking violet.  She describes her nervousness when she received her pink slip from her math teacher on Dec 16, 1968, how she immediately took off her armband in the principal’s offie and handed it over, but received a ten day suspension anyhow.

The rest, as the saying goes, is history.  The core of Justice Abe Fortas‘ Tinker v. Des Moines decision makes good copy.  Students, in that view, “do not shed their rights to free speech and expression at the schoolhouse steps.”  Or do they?

The Subsequent ‘Disestablishment’ of Both Tinker & Stare Decisis Fantasies

The limiting of Tinker began quickly enough according to the analysis of Dan Kozlowski, in his “Toothless Tinker narrative for Journalism & Mass Communications Quarterly.  He detects, in the thirty years following Tinker, virtually no Federal District Court cases that champion a virile expression of free speech in school and only a handful of Circuit Courts of Appeal cases that do.

Even in controversies in which courts ‘follow’ Tinker, according to this research, they end up deferring to schools’ choices to limit student speech, using Tinker’s standards, balancing the likelihood of disruption with the Constitutional privilege.  This is in addition to high profile cases that carved out broad exceptions to Tinker, such as Hazelwood School District v. Kuhlmeier, that denuded student journalists of rights since their publications had the school’s imprimatur,  Bethel School District No. 403 v. Fraser, which prohibited lewd and offensive communication, and Morse v. Frederick, that affirmed the punishment of a student whose “Bong Hits 4 Jesus” banner might ‘reasonably’ imply approval of marijuana smoking, or other illegal, unpopular behavior.

A Drake Law Review assessment is, if anything, even more dour in its summary of the way that matters now stand.  Erwin Chemerinsky agrees with attorney Kozlowski that lower court decisions have “overwhelmingly” inhibited or proscribed student speech rights.  He goes on to say that, while never overruling Tinker, neither has the court “ever followed it(s)” rubric and reasoning.

Instead, the Federal Courts have almost exclusively employed the rationale laid down by Hugo Black, in his Tinker dissent, which elevates the opinions of school administrators over mere Constitutional freedoms.  Most disturbingly, Chemerinsky summarizes about these cases that they “see schools as authoritarian institutions, much like prisons or the military.”  Just as courts prefer to give credence to a warden’s perspective rather than an inmate’s, so too “These decisions…openly express judicial deference to the choices of school officials.”

The upshot of such research—and even legal scholars who disagree with these and voluminous additional interpetations that critique the Supreme Court and see ugly declines in the rights of young people admit that the facts are not in dispute, i.e., that exceptions now in fact surround a Tinker ruling that is essentially ‘toothless’—is that the sacred juridical fancy of Stare Decisis, that previous decisions guide courts today, looks at best laughably incomplete.  Whatever was almost magical about Mary Beth’s and John’s courageous victory seems faded, torn, a relic of another time only safe to examine in the confines of a museum display or a theoretical exercise.

In any case, delving into this matter leads quickly to a vast literature, both on the subject of student free speech in general and on various, sometimes almost unbelievable, offshoots.  Cyberbullying, hate speech, bizarre online parodies that libel school officials and teachers, the opportunity to use social media in school, and a score of other matters arise in the lee of pondering just what rights of expression teenagers have.  No doubt, many parents and functionaries would agree with Justice Clarence Thomas, who questioned whether high school students should have any free speech rights at all.

Alyssa Mowitz, left, and Caitlin Sims speak with John Tinker at Central Academy. He is an activist for peace as well as free-speech rights.
—Photo by Steve Pope

Thus, in the present tense, we have on the one hand a situation in which Mary Beth Tinker can participate in a “Tinker Tour” with one of the longstanding champions of student journalists, Mike Hiestand, whose diligent efforts helped to establish the Student Press Law Center as a force that fights the current current of reaction and repression.  The two advocates even raised money for their sojourn through ‘crowdsourced’ funding.  And the passion for justice and longing for expression that they reveal truly warms the cockles of any heart not made of stone.

Yet, on the other hand, we face an environment in which, basically with impunity, schools have stripped away the possibility of maintaining the Bill of Rights in America’s schools.  Speech that causes concern, speech that criticizes established institutions and presumptions, speech that is racy or erotic, is easy enough to prohibit, while any notion of assembly and redress is beyond the realm of fantasy.  Routine drug-testing, an invasive ‘search’ if ever one existed, happens to a third or more of high school pupils.  Due process of even the most rudimentary sort is non-existent, as is any right to counsel prior to officials’ probing any deviation for possible ‘criminal’ attributes.

The Current Emasculation of Student Speech–Implications

“If you’re not a socialist when you’re twenty,” the saying goes, “you have no heart.  If you remain a socialist at sixty,” the saw continues, “you have no brain.”  Here This Humble Correspondent sits, brainless and stubborn, insisting that social equality and economic democracy amount not only to useful goals but also to core components of human survival.  Unfortunately, his most likely allies come from that sector of society with few rights of any sort, not even to express themselves robustly in formal and powerful ways.

Of course, this disinclination emanates from a wide variety of other factors.  Quite likely, legal standards have a relatively small impact on overall tendencies to stand up and speak, to seek ‘redress,’ and so forth.  Just as clearly, however, institutional threats against those who want to have their say must have some impact.  Otherwise, the powers-that-be wouldn’t bother to mandate or prohibit anything.

If in fact book-learning and formal instruction play any part whatsoever in the forming of consciousness, then today we confront a context in which the promises of texts run squarely into the brick wall of present practice.  A ‘sacrosanct’ Bill of Rights means little in an environment of suspensions at will, random and irresistible searches and seizures, and summary judgment without the presence of anything that even vaguely resembles a Fifth Amendment.

One interpretation of such apparent contrariness, contradictions that seem utterly impossible to fit together, is that the purpose of present poltical practice is precisely to disincline people to speak, to participate, or in any way to expect to be able to stick up for themselves.  As George Orwell put the case in  1984, “Orthodoxy is unconsciousness.”

He continued: “Don’t you see that the whole aim of Newspeak is to narrow the range of thought?  In the end we shall make thoughtcrime literally impossible, because there will be no (way) to express it.  Every concept that can ever be needed will be … rigidly defined and all its subsidiary meanings rubbed out and forgotten.

The foregoing analysis might bring to a position of prominence inquiries both about how we can support student free speech generally and about how we must teach these issues in school and as writers.  Such matters are arguably critically central right now.  For, as noted above, the present pass is not solely responsible for the erosion of a vibrant and vital First Amendment culture.

A Knight Foundation series of surveys, beginning in 2004, should chill the heart of anyone who wants participatory ‘redress’ to play a role in solving current crises.  “’The Future of the First Amendment’ findings,” concludes the reports from Knight, “are not encouraging.  It appears, in fact, that our nation’s high schools are failing their students when it comes to instilling in them appreciation for the First Amendment.  This study, the most comprehensive of its kind, shows that nearly three of every four students do not think about the First Amendment or say they take its rights for granted.”

Conclusion—What a Union of Writers Might Embrace in This Regard

Like any complex aspect of the paradox and perversity that appear to be benchmarks of contemporary existence, these matters can rapidly lead to mental gridlock, a state in which no obvious choice, no exemplary standard, no clear course beckons us to follow it.  On the other hand, despite this painful intricacy and inevitable cross-purposes wherever one turns, our job, as citizens and as writers, is to engage issues such as this.

Moreover, in so doing, we set the stage for growing our union, for in such a context of rumination and controversy, the capacity to present an opinion, to write a clear argument, to document assertions, and all the other skills that are part of what we do become indispensable.  We put ourselves, in the thick of such frays, in the position to reach and enlist the adherence of other wordsmiths who also stand for dialog, human rights, and reason.  We should never forget that every student is in some way a wordsmith.

We could start with Abe Fortas’ notion, from forty-five years ago.  “In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.”

A recent SCOTUS presentation tells us, “John Tinker…describes himself as having ‘majored in protest’ at college, and he is still active in supporting students in their struggles against school boards.”  Both he and his sister attended the lecture.

Ms. Tinker’s tours with Mike Hiestand light a pathway for members of a union that both wants to grow and hopes to have a real impact in terms of fostering human progress instead of oppression and disempowerment.  At the very least, in the views of This Humble Correspondent, our National Writers Union must do three things.

  • First, we must affirm without qualification that we stand for installing a robust right of free speech in schools.
  • Second, we must lead the way in developing and collaborating on programming that addresses these matters.
  • Third, we must produce media—we are writers, after all—that contextualize and advocate our positions on these issues.

Could we do more?  But of course.  A ‘Student Bill of Rights’ would be lovely, for instance.

Should we even ponder doing any less?  Only if our own decline and pointlessness turn out to be what we want.

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