Academic journal article Notre Dame Law Review

Tinkering with Tinker: Protecting the First Amendment in Public Schools

Academic journal article Notre Dame Law Review

Tinkering with Tinker: Protecting the First Amendment in Public Schools

Article excerpt


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. …

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