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45 Years Later: A Look Back at Tinker, Students, and Free Speech

By Aditi Mukherji, JD | Last updated on

On February 24, 1969, the U.S. Supreme Court ruled that neither students nor teachers "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

The well-known case Tinker v. Des Moines permits school administrators to restrict students' free speech rights when that free speech is likely to cause substantial disruption.

The landmark case celebrated its 45th anniversary this week.

The Fight for Student Free Speech: Tinker and Burnside

In 1965, Mary Beth Tinker and her siblings joined other students in Des Moines by donning black armbands at school to protest the Vietnam War and mourn the fallen soldiers. They were suspended for a week and the ACLU took up the case.

Simultaneously, another case was moving through the court system, Burnside v. Byars, which involved students in Philadelphia, Mississippi who were suspended by school officials for wearing "freedom buttons" in protest of racial segregation.

In a classic split, the Burnside students prevailed before the Fifth Circuit in 1966, while the Eighth Circuit ruled against the Tinker students (the en banc court was equally divided and accordingly affirmed the district court's ruling). The conflict between Burnside and Tinker wound up a blessing in disguise: the issue was ripe for a U.S. Supreme Court appeal.

The Supreme Court granted certiorari to Tinker and changed First Amendment history.

U.S. Supreme Court's Landmark Ruling

In 1969, the U.S. Supreme Court handed a victory to public school students. Citing Burnside, the court said a student "may express his opinions, even on controversial subjects" ... if he does so without "materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school" and without colliding with the rights of others.

To some extent, the tide has turned since Tinker. At least, that's what one would say when looking at the most recent cases on the issue: Bethel v. Fraser, Hazelwood v. Kuhlmeier, and Morse v. Frederick. Uncharted territory includes students' digital free speech rights, an issue the Court has yet to weigh in on. But the basic precedent of Tinker remains -- that students do have free speech rights in public schools.

As Mary Beth Tinker herself summed it up in a piece she penned for The Huffington Post, "here's to Freedom Summer, and to young people who speak up for a better world."

Thoughts on the state of student free speech rights? Let us know on Facebook at FindLawLP.

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