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John Tinker and Kenneth W. Starr share their divergent views about limitations on the freedom of speech in schools.
2009 marks the 40th anniversary of the landmark Supreme Court case, Tinkers. Des Moines Independent Community School District. That case established that students, as well as teachers, do not "shed dieir constitutional right to freedom of speech or expression at the schoolhouse gate." The justices held 7 to 2 that students had a First Amendment right to wear black armbands in school to protest the Vietnam War as long as school was not substantially disrupted. This case still remains the quintessential student rights case even though subsequent cases eroded some of those rights.
One of those later cases was the 2007 U.S. Supreme Court ruling in Morse v. Frederick, also known as the "Bong Hits for Jesus" case. The Morse Court ruled that a student, Joseph Frederick, who displayed a "Bong Hits 4 Jesus" sign at a high school event, was not protected by the First Amendment because school officials had the right to control drug-related expression in schools. Nevertheless, a majority of the justices did reaffirm Tinkers basic principles.
We recently had the opportunity to interview both John Tinker and Kenneth Starr for WGTD Public Radio in Kenosha, Wisconsin. Tinker continues to champion student rights. Starr, who is now dean of the law school at Pepperdine University, represented the Juneau, Alaska, high school principal, Deborah Morse, in the "Bong Hits" case before the U.S. Supreme Court.
The following exchange of ideas between Tinker and Starr illustrates just how passionate they both are concerning student rights and the rights of schools to maintain order.
Question: Justice [Abe] Fortas said in Tinker that students have the right of free speech in K- 12 public schools as long as it does not create a material and substantial disruption to the educational environment. What exceptions, if any, would you make to students' freedom of expression in the classroom and at school?
Starr: Staying with the Supreme Court's teaching, speaking through Justice Fortas in the case that bears John Tinker's name and continues to be the law of the land, the baseline is freedom. But there can be exceptions, just as there are general exceptions to the First Amendment....