50 Years After Tinker: Protections and Limits of Expression in Schools

A special issue of Laws (ISSN 2075-471X).

Deadline for manuscript submissions: closed (1 September 2021) | Viewed by 36244

Special Issue Editors


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Guest Editor
Department of Educational Leadership and Policy Analysis, University of Wisconsin, Madison, WI 53711, USA
Interests: how law impacts policy for groups who have been historically marginalized in schools

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Guest Editor
Department of Educational Leadership and Policy Studies, Indiana University, Bloomington, IN 47405, USA
Interests: special education legal and policy issues; legal literacy of educators and administrators

Special Issue Information

Dear Colleagues,

We recently celebrated the 50th Anniversary of Tinker v. Des Moines, the seminal U.S. Supreme Court case which ruled that “students do not shed their constitutional rights at the school house gate.” K–12 public schools continue to grapple with the scope of students’ First Amendment rights. These controversies related to freedom of expression are not surprising; students are often at the forefront of social change.

As a result, complex questions often arise in courts and classrooms involving K–12 student speech. When examining these complicated legal and policy issues, K–12 public school officials must be careful to give students the ability to become thoughtful and politically active citizens; they must tread lightly on limiting students’ right to free expression. As Justice Brennan observed in Tinker, “[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools. The classroom is peculiarly the marketplace of ideas.”

The Tinker decision continues to be applied in many recent court cases. As a result, school officials rely on the decision to create policy related to posts on social media, regulating student attire (e.g., “Build the Wall” t-shirts), student walkouts related to climate change or gun violence, and political discussions in class. The First Amendment also protects teacher expression. Court decisions outline various limitations to teacher speech both inside and outside the classroom. This Special Issue will address K–12 students’ and teachers’ First Amendment rights and will also address related constitutional issues concerning students’ rights in schools. While the focus will be on U.S. schools, one piece will address student and teacher speech rights in Brazil.

Dr. Suzanne E. Eckes
Dr. Janet Decker
Guest Editors

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Keywords

  • Speech
  • First Amendment
  • Constitutional Rights
  • Student Rights
  • Teacher Rights

Published Papers (5 papers)

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Research

12 pages, 216 KiB  
Article
The Evolution of Student Free Speech: Tinker and Beyond
by John Dayton and Betul Tarhan
Laws 2021, 10(4), 94; https://doi.org/10.3390/laws10040094 - 6 Dec 2021
Viewed by 6142
Abstract
There are no secure rights without the right of free speech. Free speech is the right that is necessary to defend all other rights. Student free speech is an essential foundation for societal free speech. We will not have a society that values [...] Read more.
There are no secure rights without the right of free speech. Free speech is the right that is necessary to defend all other rights. Student free speech is an essential foundation for societal free speech. We will not have a society that values and protects free speech without valuing and protecting free speech for students. Schools must serve as the essential nurseries of our democracy and as examples of the responsible exercise of rights in a free society including free speech. We cannot expect students to spend most of their waking hours in institutions devoid of meaningful rights to freedom of speech and then emerge as adults prepared to exercise and defend democratic freedoms including free speech. Students who learn to exercise free speech rights in schools are more likely to become adults ready to exercise free speech rights in a civil democracy. This article addresses the ongoing evolution of student free speech rights in the U.S., providing a brief overview of free speech law; a review of student speech law in public K-12 schools and in public higher education institutions; a guide to applying the Tinker test in practice; a discussion of the continuing evolution of student speech law in public educational institutions; a review of freedom of the press in public educational institutions; and conclusions on the evolution of student speech. Full article
14 pages, 275 KiB  
Article
The Influence of Christian Nationalism on U.S. Public Educators’ Speech: Implications from Meriwether vs. Hartop
by David Hoa Khoa Nguyen, Jeremy F. Price and Duaa H. Alwan
Laws 2021, 10(4), 91; https://doi.org/10.3390/laws10040091 - 30 Nov 2021
Cited by 2 | Viewed by 4121
Abstract
Public school educators must navigate very complex intersections of the First Amendment’s Establishment, Free Exercise, and Free Speech clauses. The 6th Circuit’s ruling in Meriwether vs. Hartop created a slippery slope that could create a hostile learning environment and be discriminatory speech while [...] Read more.
Public school educators must navigate very complex intersections of the First Amendment’s Establishment, Free Exercise, and Free Speech clauses. The 6th Circuit’s ruling in Meriwether vs. Hartop created a slippery slope that could create a hostile learning environment and be discriminatory speech while trying to balance public-school educators’ sincerely held religious beliefs. This article examines the Meriwether case and court ruling while providing a background of U.S. Christian nationalism and its implications in American public education. Full article
13 pages, 220 KiB  
Article
Teacher Speech Inside and Outside of Classrooms in the United States: Understanding the First Amendment
by Suzanne Eckes and Charles J. Russo
Laws 2021, 10(4), 88; https://doi.org/10.3390/laws10040088 - 17 Nov 2021
Cited by 1 | Viewed by 7495
Abstract
Concerns often arise about the First Amendment rights of public school educators in the United States both inside and outside of their classrooms. As such, after setting the legal context, we analyze teachers’ free speech rights in a variety of settings. In order [...] Read more.
Concerns often arise about the First Amendment rights of public school educators in the United States both inside and outside of their classrooms. As such, after setting the legal context, we analyze teachers’ free speech rights in a variety of settings. In order to do so, we discuss illustrative cases analyzing the legal landscape of teachers’ free expressions rights in U.S. public schools. The purpose of this article is to provide a brief overview highlighting Supreme Court cases and selected opinions from lower courts involving teacher speech impact the expressive rights of educators in public schools rather than serve as a comprehensive analysis of all such speech cases. Full article
13 pages, 234 KiB  
Article
Social Media, Students, and the Law
by Martha McCarthy
Laws 2021, 10(4), 81; https://doi.org/10.3390/laws10040081 - 31 Oct 2021
Cited by 2 | Viewed by 12051
Abstract
Escalating social media use has become a worldwide phenomenon, with easier access each day. Teenagers seem particularly likely to use these expanding platforms. This article focuses on one aspect of social media developments—the school’s ability to intervene to curtail the harmful impact of [...] Read more.
Escalating social media use has become a worldwide phenomenon, with easier access each day. Teenagers seem particularly likely to use these expanding platforms. This article focuses on one aspect of social media developments—the school’s ability to intervene to curtail the harmful impact of cyberbullying on students. After presenting data on social media use and the scope of cyberbullying, it addresses the authority of school personnel to discipline students for harmful internet expression initiated off school grounds, including threats, harassment, and bullying. The Supreme Court’s decision in Mahanoy Area School District v. B.L. (2021) is addressed in detail as it is the high court’s first ruling in a case involving student off-campus expression. This article concludes with a discussion of legal guidance that is currently available and provides suggestions for school personnel in their efforts to curtail cyberbullying and create a positive school environment. Given the Supreme Court’s ambiguity as to when students can be disciplined for their off-campus speech, school personnel need strategies to prevent hurtful student expression before it takes place, thus avoiding pain to victims and perpetrators. Education is our greatest resource to combat the escalating cyberbullying that is plaguing American youth. Full article
16 pages, 240 KiB  
Article
Beyond Speech: Students’ Civil Rights in Schools
by Janet R. Decker, Allison Fetter-Harrott and Jennifer Rippner
Laws 2021, 10(4), 80; https://doi.org/10.3390/laws10040080 - 29 Oct 2021
Viewed by 5756
Abstract
Educators, including school leaders, must be able to handle legal dilemmas involving student speech, but these do not occur in a vacuum. Often, speech issues are commingled with other legal challenges. This article explores student rights beyond free speech that are guaranteed at [...] Read more.
Educators, including school leaders, must be able to handle legal dilemmas involving student speech, but these do not occur in a vacuum. Often, speech issues are commingled with other legal challenges. This article explores student rights beyond free speech that are guaranteed at PK-12 U.S. public schools. We clarify when educators must attend to students’ unique needs, especially when courts have identified that certain students are members of protected classes. This article explains the overarching constitutional framework in which the U.S. Supreme Court has applied the 14th Amendment’s Equal Protection Clause to protect the rights of students to be free from invidious discrimination. We describe how modern U.S. courts apply levels of review, including strict scrutiny, intermediate scrutiny, and rational basis review to equal protection cases. We then synthesize federal statutory law and case law that protect students. Specifically, we discuss how Title VI of the Civil Rights Act of 1964 (Title VI 1964) prohibits discrimination based on race, color, ethnicity, national origin, language proficiency, and religion. Next, we delve into the recent changes relevant to the application of Title IX of the Education Amendments of 1972 (Title IX 1972) to students based on sex, sexual orientation, and gender identity. Our final focus covers students with disabilities, including medical conditions, who are protected by the Individuals with Disabilities Education Act (IDEA 1990) and Section 504 of the Rehabilitation Act (Section 504 1973). Full article
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