After their suspension, Tinker and the other students ceased wearing the armbands, but wore black clothing for the remainder of the school year and launched a four-year court battle that eventually led them to the Supreme Court. In a 7-2 decision in Tinker, the nation’s top court said neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate ... In our system, state-operated schools may not be enclaves of totalitarianism.”
The case imposed a standard that permitted school authorities to censure student speech when it “materially disrupts class work or involves substantial disorder or invasion of the rights of others.”
We’ve been arguing ever since over what constitutes a disruption and disorder, a debate that became vastly more complicated with the advent of the internet, social media and online bullying. The court’s latest decision reaffirms schools can still discipline students for after-hours speech, but they have to show the speech was truly disruptive.
The court argued the Mahanoy Area School District didn’t make that case with Levy, noting that Levy’s “posts appeared outside of school hours from a location outside the school. She did not identify the school in her posts or target any member of the school community with vulgar or abusive language. B. L. also transmitted her speech through a personal cellphone, to an audience consisting of her private circle of Snapchat friends.”
The court maintained the impact on the school from Levy’s obscenity-laden Snapchat was minimal, saying the “discussion of the matter took, at most, 5 to 10 minutes of an Algebra class ‘for just a couple of days’ and that some members of the cheerleading team were ‘upset’ about the content of B. L.’s Snapchats ... there is little to suggest a substantial interference in, or disruption of, the school’s efforts to maintain cohesion on the school cheerleading squad.”
The high court was leery of a broad mandate that allowed schools to monitor and limit student speech 24/7. “From the student speaker’s perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day. That means courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all,” wrote Justice Stephen G. Breyer for the majority.
Breyer also reminded schools that protecting “unpopular expression, especially when the expression takes place off campus” is important “because America’s public schools are the nurseries of democracy ... while public schools may have a special interest in regulating some off-campus student speech, the special interests offered by the school are not sufficient to overcome B. L.’s interest in free expression in this case.”
The ruling was applauded by advocates for children and free speech. “We are pleased that, by an 8-1 margin, the court decided that neither new technology — nor the age of the speaker — should play a role in whether the government can stifle speech,” said Bruce Lesley, president of First Focus on Children, a Washington-based bipartisan advocacy group. “Young people, all across the country, are emerging as leaders in the fight against injustice — against racial inequity, LGBTQ discrimination, climate change, gun violence, and other issues — and must be allowed to speak up without fear of punishment from those in power.”
While the Supreme Court may have affirmed free speech, a counter movement is underway in Georgia and other Southern states to restrict classroom discussions around race, inequity and gender issues. The state Board of Education — at the behest of Gov. Brian Kemp and in acquiescence to what has become a political flashpoint around critical race theory — passed a resolution that endorsed suppression of frank classroom discussions of race, diversity and inequality. Legislation likely to come up next year will attempt to harden that resolution into state law.
Under a rationale that no one “should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex,” the board categorically declared Georgia is not a racist state and went so far as to advise against schools compelling any “discussions of current events or widely debated and currently controversial issues of public policy or social affairs” in history, civics, U.S. government and politics or social studies classrooms.
The resolution troubled 2020-2021 Georgia Teacher of the Year Tracey Pendley, who, as a nonvoting member, told the state board, “Every good teacher knows that real learning comes when students are constructing their own knowledge. And that means giving our students all of the resources, allowing them to tackle difficult conversations in the classroom. That includes current events. I really worry that not being allowed to discuss current events will be damaging, not only to our future as a state, but also to our students’ own identities. We simply cannot disregard the lived experiences of our students. And I want us to trust teachers. This resolution feels like we don’t trust our teachers.”
In a live chat tonight with advocacy group Education Trust and the nonprofit education news organization Chalkbeat, U.S. Education Secretary Miguel Cardona was asked about the political push to clamp down on classroom discourse and limit discussions of race and racism. In his response, Cardona echoed Pendley, saying, “I believe strongly that we ought to leave the business of educating our youth to the educators who are trained professionals. Don’t think these issues are not coming up in conversations with students. They are watching, they are seeing it. I don’t think we should be in the business of excluding what students are discussing or what they’re seeing for fear they can’t handle it. I think they can handle it.”
“Efforts to quash these classroom conversations about race and racism put educators in a difficult situation when students ask them to address those issues,” said Codeye Woody, director of government affairs and advocacy for the Southern Education Foundation, a nonprofit organization dedicated to advancing education equity and opportunity in the South. “The resolution here in Georgia and others like it stifle conversations that need to be had. If students want to voice their opinion of what’s happening in their own backyards with Black Lives Matter, with the civil rights movement, with George Floyd, they are now being silenced.”