Rights at Risk: The Limits of Liberty in Modern America (Vintage)

by David K. Shipler

  The opinion provoked a scalding dissent from Justice Hugo Black. “I think the record overwhelmingly shows that the armbands did exactly what the elected school officials and principals foresaw they would,” he wrote, “that is, took the students’ minds off their classwork and diverted them to thoughts about the highly emotional subject of the Vietnam war.” Thoughts! How disruptive for those at that cafeteria table with John Tinker to be diverting their thoughts to a war that some of them might be drafted to fight, that would cost 50,000 American lives, kill and displace millions of Vietnamese, and tear the fabric of the United States.

  Black seemed intent on preserving not freedom but authority. If students “can defy and flout orders of school officials to keep their minds on their own schoolwork,” he warned, “it is the beginning of a new revolutionary era of permissiveness in this country.” He predicted ridiculously that the Court’s decision would turn schools upside down. “It is nothing but wishful thinking to imagine that young, immature students will not soon believe it is their right to control the schools, rather than the right of the States that collect the taxes to hire the teachers for the benefit of the pupils.”

  Chris Eckhardt became an insurance salesman; a youth worker for government agencies in Canada, Iowa, and Florida; a consultant on energy conservation; and a stockbroker, which landed him in jail for “exploiting the elderly,” he told me, after a client deeded him some real estate. Eckhardt said he’d returned it, but he was sentenced heavily by a judge who “was a Republican Vietnam veteran and knew of my black armband days.” He spent more than four years in prison.8

  Mary Beth Tinker became a nurse with a master’s in public health, concentrating on children’s medical issues. But the case “has defined my life in many ways,” she said, propelling her to visit schools, talk about the First Amendment, and provide teenagers with a sense of empowerment by describing the big impact of a small gesture. “Look at just the little bit of courage I had, how it shook things up,” she tells them, and she also lets them see the tension between bravery and fear. “I like to tell them about taking off the armband, too. I was scared, I was in trouble,” she said. “I like to tell them that twenty-five years later we were invited back to the Des Moines schools, but this time we were, quote, ‘visiting scholars.’ So you’re better off doing what you think is right rather than what you think is popular.”

  John Tinker became a computer specialist in constructing databases. He bought a decommissioned school with twelve rooms and a gymnasium and converted it into a home where he lives with his wife and son but no students. “I like to fix things,” he told me, so he’s made the rooms into “a welding shop, a woodworking shop, an electronics lab, a computer museum.” He has an old printing press. And, of course, he can wear anything he wants in his school.

  Justice Hugo Black may have been in the Tinker minority, but his anxiety over disruption has been a subtext for decades. Supreme Court opinions are rarely one-dimensional, and they’re easy to misinterpret by emphasizing the restrictions rather than the rights. That is what Judith Coebly, principal of Dearborn High School in Michigan, apparently did thirty-five years later while explaining to Bretton Barber why he couldn’t wear a T-shirt branding President Bush an “international terrorist.” She hadn’t read Tinker entirely but did read selectively to her student from a legal advisory by the National Association of Secondary School Principals. Ignoring the written guidance on protecting “pure or symbolic speech,” she plucked out a passage on the limits, which the document said could be imposed upon “a showing of either past disruptions caused by similar speech or a showing of imminent disruption.”9

  Nearly one-third of Coebly’s students were Arab, many of them from Iraq, where the war was about to begin, and she worried that the shirt might spark disorders.10 Aside from a few unpleasant comments, however, no disruption occurred, and the federal district court judge Patrick J. Duggan seemed to have no trouble ruling in the student’s favor. He chastised school authorities for assuming that an ethnic group would have a monolithic reaction to a political viewpoint.11

  Like virtually every landmark Supreme Court opinion, Tinker struggles to keep its footing against stormy gusts of expedience. School authorities don’t like controversy. They don’t like discord. They don’t like parents calling with complaints. They don’t like students having arguments that could flare into fistfights or shootings. And they are increasingly under legal obligation to protect the feelings, as well as the opportunities, of minorities in their care, whether black, Muslim, or gay. So they overreact sometimes, shutting down speech because it offends their own beliefs, opposes school policy, or insults an entire group of students.

  When Katie Sierra wore pro-peace T-shirts to Sissonville High School in West Virginia, she was suspended; when she asked to form a school-sponsored anarchists’ club, she was denied. It was the autumn of 2001, during that spasm of national dread and anger, and a state judge found that her shirts’ hand-drawn peace signs and slogans opposing the war in Afghanistan would “disrupt the educational process.” She sued, and a jury half agreed with her, deciding that she could form the club but not wear the shirts. Had she appealed, precedent would have surely weighed on her side.12 But her lawyer, Roger Forman, said the verdict was considered a victory. Katie never formed the club. She returned to her school but didn’t fit in, a school board member accused her of “treason,” she was taunted and threatened, so she finished her degree sitting at home on a computer and then went to Marshall University.13

  Discomfort with homosexuality has prompted censorship in various forms. Numerous school districts have installed software blocking students’ access to websites that explain or support gay and lesbian concerns, while sometimes allowing anti-gay sites to appear. In Wilson, North Carolina, administrators took down two posters of a candidate for student government president because they identified him as gay, and in Rowan County the school board denied students the right to form Gay-Straight Alliance clubs, voting unanimously “to ban all sexually oriented clubs, gay/straight or otherwise.”14 A principal at a Florida high school banned gay pride and rainbow themes on clothing as “sexually suggestive” messages that would prompt students to imagine homosexual acts and prevent them from studying; he was overruled by a federal judge who scolded the school for missing “a learning opportunity about tolerance and diversity.”15

  In contrast, administrators at Sammamish High School in Bellevue, Washington, permitted the Gay-Straight Alliance and asked teachers to honor participants who remained mute on the Day of Silence, an annual protest against the larger society’s silencing of gays and lesbians. “The adviser sent out an e-mail with names of students participating, asking us to excuse them from speaking in class and suggesting other ways they could silently participate,” said Katie Piper, a teacher. “Our principal then sent out an e-mail confirming their right to participate and saying there was some talk that there would be a counterprotest. All I saw in the way of that was one student who wore a ‘Straight Pride’ T-shirt.”

  In less tolerant schools, however, even the black armband legitimized in Tinker has been forced off students’ arms when administrators don’t like its being used to criticize their policies. Several cases illustrate the problem.

  After the 1999 Columbine High School shootings in Littleton, Colorado, about ten students in Allen, Texas, wore black armbands to make two statements: to mourn the Columbine dead and to protest random searches and other new security measures at Allen High School. Administrators raised no objection as long as they thought the armbands were only an expression of grief; it took them three days to learn the other purpose, and when they did, they suspended the students. Once a lawsuit was filed, the school backed down.16

  Also in 1999, Jennifer Roe and friends were suspended in Bossier City, Louisiana, for wearing black armbands to protest a new dress code. She won in federal court.17

  In October 2006, school officials suspended about twenty students who wore them to oppose a ri
gid new dress code in Arkansas’s Watson Chapel district. It imposed a school uniform of white shirts and khaki pants or skirts, banning all written messages on garments, except school logos. And in 2009 the Supreme Court let stand an appeals court decision upholding Texas school authorities in a similar situation: a ban on clothing with printed messages other than the school’s clubs and teams.18 The Court left the impression that as long as dress restrictions were content neutral, they would pass constitutional muster.

  Dress codes have become a popular method of suppressing unwanted expression by suppressing all expression—on clothing, at least. Courts look for a specific viewpoint the school is trying to snuff out, something more consequential than a fashion statement. For example, a federal judge found that the Arkansas school, in punishing students for wearing armbands, had violated the youngsters’ First Amendment rights by enforcing the code to censor a particular message.19 But an Albuquerque student lost his argument for the right to wear sagging pants,20 and blue hair hasn’t qualified as protected expression under the First Amendment. Courts have often deferred to administrators’ arguments that uniform clothing relaxes rivalries over styles, fosters school unity, eliminates gang symbols, and blurs obvious socioeconomic differences.

  Nevertheless, students who want to object when expression is silenced often win struggles with their principals, if they care to try. A group at Pioneer High School in Ann Arbor, Michigan, was denied permission to form an organization opposing closed-circuit cameras, which were slated for installation throughout the building to combat thefts, fights, vandalism, and drug use. The surveillance was widely opposed by youngsters who gathered 1,100 signatures on a petition and urged the board of education, in vain, to abandon the assault on privacy.

  Even after losing before the board, the student council president and others continued efforts to get the policy reversed, or at least to influence how the recordings would be used and who would be authorized to view them. They needed the school’s recognition of their “club,” without which they would be denied the right to communicate messages and meeting times in flyers, on bulletin boards, and through the PA system.

  “Frankly, it should be embarrassing to the Ann Arbor community that the Pioneer administration is perfectly willing to recognize and give privileges to a student group like the Scooby Doo Club, but deny the same treatment to students who are organizing to advance constitutional values,” said the ACLU in a letter to the school superintendent, Todd Roberts.21

  Even more embarrassing was the ignorance by both the principal and the assistant principal, who reportedly gave two unconstitutional rationales for nonrecognition: that no “political” clubs would be allowed, and that the school would be hypocritical to take one position and permit a recognized student organization to take another. As the ACLU letter noted, both the Federal Equal Access Act and a line of court rulings prohibited schools from singling out clubs to reject “on the basis of the religious, political, philosophical, or other content of the speech at such meetings,” in the statute’s words. Michigan had a similar law.22 Superintendent Roberts overruled the principal as soon as he had read the letter and announced the next day that the club would receive recognition.23 The youngsters had pushed back and succeeded.

  So American schoolchildren stand on uncertain ground. Episodes of censorship by public schools and mixed rulings by the courts have left students with an ambiguous right—to speak in some ways about some things in some circumstances. If you’re a teenager traveling near the shifting, meandering boundaries between expression that is protected and expression that is unprotected by the First Amendment, you cannot be sure which side of the line you’re on. What was allowed last year, in another school or by another court, may be punishable today—or vice versa. This is not the way to teach constitutional values to the next generation of citizens, but that’s the way it is being done.

  TOLERATING INTOLERANCE

  To counter the message of a gay and lesbian awareness day in a California school, Tyler Chase Harper wore a shirt emblazoned with biblical references and the handwritten words “Homosexuality Is Shameful” and “Be Ashamed, Our School Has Embraced What God Condemned.” The principal refused to let him attend class. Harper sued.

  Tinker offered schools three legitimate reasons for restricting speech, and most litigation has focused on two of them combined: authorities’ contention that the expression “materially disrupts classwork or involves substantial disorder.” That argument has appealed to some conservative judges. But the third reason—“invasion of the rights of others”—is being cited increasingly as administrators try to protect minorities from hateful speech, a goal supported by certain liberals on the bench. It’s not a neat split, since many judges of various stripes remain unwilling to subordinate the right of free speech to such concerns. Yet the First Amendment has been squeezed from both ends of the spectrum.

  In 2004, two of three judges on a Ninth Circuit panel relied on the invasion-of-rights test to approve the school’s prohibition against Harper’s anti-gay T-shirt. Although altercations had erupted the previous year over the issue, raising concern about possible disruption, the court chose the other justification of censorship—to avoid a “collision with the rights of other students to be secure and to be let alone.”

  The opinion by a liberal judge, Stephen Reinhardt, emphasized the vulnerability of homosexual teenagers as a captive audience in a public school. “The demeaning of young gay and lesbian students in a school environment,” he wrote, “is detrimental not only to their psychological health and well-being, but also to their educational development.” Verbal abuse had led gays to cut classes or drop out, according to studies he cited. “The First Amendment does not require that young students be subjected to such a destructive and humiliating experience,” he declared.

  As noble as it sounded, the Reinhardt position failed to notice that suppressing a T-shirt would not silence the taunts. It might have been more beneficial—if more difficult—for the school to use the occasion as a teaching opportunity by organizing civil discussion about sexual orientation. Some believe that homosexuality is a choice or an emotional disease; others see it as a natural characteristic in the array of human variations. Across that dividing line of convictions, how many teenagers have had the chance to speak respectfully to one another? How many straight students, including those who demonstrate support, have actually heard a gay or lesbian describe the experience of self-discovery, of coming out, of negotiating through the emotions of family and friends?

  The answer to hateful speech is more speech, not less. And it’s not just more speech but more listening as well. Just as censorship can’t eliminate the silenced slur, the pro forma demonstration won’t always foster dialogue. Schools that are admirably open to T-shirt sloganeering, but don’t help facilitate serious conversation, do not prepare their students adequately for the complicated debates and collisions of the larger world.

  The courts have not done well at prescribing that kind of searching educational process, and educators who forfeit their responsibilities to judges invite brittle formulas for governing expression in their schools. It was probably just as well that the Supreme Court dodged this case by dismissing it as moot (because the student had graduated) and by vacating the circuit court’s decision.24

  School officials navigate between two shields: the Constitution’s protection of speech and various state laws’ prohibitions of harassment in public schools by race, ethnicity, religion, and—in some places such as California—sexual orientation. Walking the line so that neither right is trampled has required extraordinary equilibrium, especially in multiethnic settings of high tension.

  That sense of balance eluded a superintendent in Cleveland who worried about the feelings of “Arab-American students” when Aaron Petitt, sixteen, made posters of planes bombing Afghanistan (not an Arab country) and wrote, “May God have mercy, because we will not.” The boy’s sister had been injured by flying debris near the World Tra
de Center on September 11. Petitt sued, a federal judge lifted his suspension provisionally, and the school district reversed itself, then paid compensation.25

  The right to offensive speech also found protection from the Third Circuit, which struck down a Pennsylvania district’s sweeping ban on “any unwelcome verbal, written, or physical conduct which offends, denigrates or belittles an individual” because of “clothing, physical appearance, social skills, peer group, intellect, educational program, hobbies, or values.” Applying the Tinker test, the court ruled that such a “broad swath of student speech” could not be silenced without showing specifically why it would cause substantial disturbance. “By prohibiting disparaging speech directed at a person’s ‘values,’ ” the judges wrote, “the Policy strikes at the heart of moral and political discourse—the lifeblood of constitutional self-government (and democratic education) and the core concern of the First Amendment.”26

  Administrators sometimes step into minefields when they try to ban symbols that could cause friction. On Cinco de Mayo, the day honoring Mexican heritage, several students at Live Oak High School in Morgan Hill, California, sported T-shirts with American flags, a counterpoint meant to celebrate American heritage. They were given a choice by Miguel Rodriguez, the vice principal. The shirts posed a “safety issue,” he told them, so either turn them inside out or go home. They went home, were supported by the ACLU, became heroes on right-wing radio, and were given a standing ovation at a Tea Party rally. The school superintendent reprimanded his subordinates. If the students had sued, would a court have upheld banning the American flag as disruptive? It’s hard to imagine.27

  Courts have been more willing to suppress the Confederate flag, although not universally so, in recognition of the passions it ignites as a symbol of racism and slavery. In a line of federal opinions beginning in 1972, schools that have suffered disorders over the flag’s display have usually persuaded judges that the disruption test has been met.28