Fanning the Flames: The Freedom Project Blog


Speaking Up

By Shawn Healy
Among the First Amendment community, Mary Beth Tinker's defiance in wearing a black armband to school in protest of the Vietnam War is seen as the pinnacle of Supreme Court free speech jurisprudence within the schoolhouse gate. The decision, Tinker v. Des Moines, has been elevated to the status of stone tablets, with each successive ruling a chip away at this majestic milestone. Anne Proffitt Dupre, in her 2009 book titled Speaking Up (Harvard University Press), turns this prevailing wisdom on its head, documenting the "unintended costs" that the Tinker decision unleashed by promoting free speech in public schools.

Dupre, a law professor at the University of Georgia and a former classroom teacher, laments the manner in which Tinker forever altered the relationship between students and their teachers and administrators. By abandoning in loco parentis, the Court unleashed a wave of litigation, where justices and judges defined what is permissible student expression in a public school setting at the behest of teachers, principals, and local school boards.

The author argues that we should view the Tinker decision in the context of the civil rights era when it was handed down, but unforseen challenges have since emerged that undermine the wisdom of the 1969 ruling. From hair length to library books, controversial newspaper articles to Christianity, and drug-related speech to that facilitated through the blogosphere, courts have aimlessly tried to apply the ideals of Tinker to student expression inside and outside of school walls.

In Dupre's opinion, the Court let the proverbial cat out of the bag with Tinker, and attempts to reign in lewd and vulgar speech through the Fraser decision in 1986, control speech through school-sponsored vehicles like student newspapers in Hazelwood (1988), and limit speech that advocates the illegal use of drugs in Morse (2007), only served to further muddy the First Amendment waters. Perhaps Justice Clarence Thomas' dissent in Morse best describes the current landscape: "students have a right to speak in school--except when they don't."

Her critique is a welcome and necessary addition to First Amendment scholarship, yet it is wanting for a well-articulated alternative. She holds out hope that the Court will once again enter the fray and recalibrate the landscape. Maybe this involves overturning Tinker altogether, as Thomas is wont to do, or clarifying the application of the exceptions to free student speech, among them "material and substantial disruption," "lewd and vulgar speech," and censorship for "legitimate pedagogical reasons."

The book's greatest strength is its thorough review of First Amendment case law in the school setting. The landmark decisions, and several of lesser known fame, are reviewed in minute detail. It should be noted that the book is written for a general audience, so non-lawyers will find its content widely accessible. Dupre does devote an extensive number of pages to religious speech in schools, which reads like a departure and at times a reach from the book's overall theme. That said, the case Westside School District v. Mergens (1991) is notably missing from this chapter, a landmark decision for student's freedom of association through the First Amendment.

Dupre also examines teachers' free speech rights in the second-to-last chapter. This subject is rarely discussed, but a great deal of case law in the area does exist. Yet the extent to which teachers are free to speak their minds via the platform that is their classroom remains contested.

Speaking Up is a recommended read for those seeking a chronological, comprehensive review of school-based First Amendment case law through a critical eye. Its contemporary, contrarian take makes it the exception in an all-to-thin library.


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Managing Director

McCormick Freedom Project

Shawn is responsible for overseeing and managing the operations associated with the McCormick Freedom Project. Additionally, he serves as the in house content expert and voice of museum through public speaking and original scholarship. Before joining the Freedom Project, he taught American Government, Economics, American History, and Chicago History at Community High School in West Chicago, IL and Sheboygan North High School in Wisconsin.

Shawn is a doctoral candidate within the Political Science Department at the University of Illinois at Chicago where he received his MA in Political Science. He is a 2001 James Madison Fellow from the State of Wisconsin and holds a bachelor's degree in Political Science, History, and Secondary Education from the University of Wisconsin at Madison.

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About Fanning the Flames and the McCormick Freedom Project

Fanning the Flames is a blog of the McCormick Freedom Project, which was started in 2006 by museum managing director Shawn Healy. The blog highlights the news of the day, in hopes of engaging readers in dialogue about freedom issues. Any views or opinions expressed on this blog represent those of the writers alone and do not represent an official opinion of the McCormick Freedom Project.

Founded in 2005, the McCormick Freedom Project is part of the McCormick Foundation. The Freedom Project’s mission is to enable informed and engaged participation in our democracy by demonstrating the relevance of the First Amendment and the role it plays in the ongoing struggle to define and defend freedom. The museum offers programs and resources for teachers, students, and the general public.

First Amendment journalism initiative

The Freedom Project recently launched a new reporting initiative with professional journalists Tim McNulty and Jamie Loo. The goal is to expand and promote the benefits of lifelong civic engagement among citizens of all ages, through original reporting, commentary and news aggregation on First Amendment and freedom issues. Please visit the McCormick Freedom Project's news Web site, The Post-Exchange at