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.
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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