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Lawlines: Is Tinker Retiring?

By Wayne Young posted 02-22-2021 14:57


If you have had a school law class, and maybe even if you haven’t, you’ve likely run across the landmark case of Tinker v. Des Moines Independent Schools. It is the first and most famous U.S. Supreme Court case addressing student free speech rights in a school setting, involving high school students wearing black armbands to school to protest the Vietnam War.

Tinker can both literally and figuratively be called the “granddaddy” of student free speech cases. First of all, the case is now 52-years old, having been decided in 1969 (The students in the case were 16 when it occurred; I was 15. You do the math!) Every similar case decided by the federal courts since – and there have been many – has used Tinker as its guidepost. But it may be time for Tinker to retire.

We all know the world has changed dramatically since 1969, and the courts are now dealing with student free speech fact patterns that the Tinker court could never have imagined. The internet, specifically social media, and seismic changes in parental attitudes and social standards may be of such magnitude that the Supreme Court sees fit to revisit Tinker, and perhaps establish a new standard for assessing the right of schools to discipline students for their school-related expression.

The Supreme Court announced in January 2021 that it has granted a Pennsylvania school district’s request to hear a case in which the school punished a student for online speech that occurred off-campus during the weekend. The student sent a message to her followers on the social media platform Snapchat expressing her frustration with not being named to the varsity cheerleading squad at Mahanoy Area High School. The snap was a photo of the student and a friend with their middle fingers raised accompanied by the text, “f*** school f*** softball f*** cheer f*** everything.” In response, the school removed her from the junior varsity cheerleading team.  

The student filed suit claiming the school district exceeded its authority in disciplining her for these statements. She prevailed at the trial court and on appeal, with both courts citing Tinker as authority. The school district filed a petition for review with the U. S. Supreme Court, and it was granted. Oral arguments in the case will be held later this year.  

The compelling element of this case is whether the Supreme Court will use it as an opportunity to revisit the Tinker standard in light of the internet, and its ubiquitous presence in the lives of students and the operation of schools. Is Tinker obsolete in the internet age? Is speech originating at home and sent to hundreds of students electronically somehow different – in constitutional terms – than speech made at school, in the presence of dozens of other students? 

In a statement, the school district assessed the situation this way: 

"Learning to participate in team sports and abide by team rules teaches students lifelong lessons about responsibility and teamwork. Thus, when [the student] broke team rules and posted messages that she admitted would undermine team morale and chemistry, coaches responded with a temporary, team-related punishment: suspending her from the team for the year. [The resulting] lawsuit has produced a judicial decision that leaves schools powerless to respond to speech that is directed at the school environment and would have a devastating effect on students' well-being during the school day.” 

As a lawyer, my thought is that the Court could really only have one of two goals in deciding to hear this case: to reaffirm the Tinker standard as the law of the land; or, to put Tinker out to pasture and create a new and improved free speech standard designed for the age of social media. Stay tuned!