Free speech rights and free speech pedagogy
I am working on a paper about student speech rights in public school that has me vacillating about whether the classic Supreme Court case of Tinker v. Des Moines Independent Community School District (1969) is a brilliant exercise in linedrawing or an utter failure. Many readers will remember that Tinker held that students could wear black armbands to school in silent protest of American involvement in hostilities in Vietnam; school officials may interfere with or punish speech only if they reasonably forecast that it will “materially or substantially interfer[e] with the requirements of appropriate discipline in the operation of the school or collide with the rights of others.” The Tinker rule has the nice feature of explaining why a student cannot answer a teacher’s question “What were the results of Irish potato famine?” with “US Out of Vietnam!” while she can say the same thing in the hallway. More broadly, Tinker establishes a certain kind of pedagogical regime for the hours that students spend in-school-but-not-in-class, one where students can learn how to exercise constitutional rights by practicing them, up to the point of disruption.
Tinker’s flaws were made vivid once again this week by yet another case, this one from the Fourth Circuit, involving students being prohibited from and punished for wearing to school clothing that bears the likeness of Confederate flags. Such behavior seems initially very similar to wearing a black armband to protest Vietnam; but the courts of appeals have fairly consistently held that such speech can be barred under Tinker because histories of racial tension make it reasonable for school authorities to expect disruption to result from such displays. The new case, Hardwick v. Heyward, is quite emphatic on this score, emphasizing that the mere fact that the shirts did not lead to disruption is immaterial, because it was reasonable for school officials to predict disruption; moreover past racial disputes in the school were material, because they made the prediction more reasonable. The Hardwick rationale pretty clearly means that, had there once been fistfights in the Des Moines schools about the Vietnam War, or perhaps even World War II, then the armbands could have been banned in the present. Thus Tinker is deployed to create a particularly strong kind of hecklers’ veto.
My gut reaction to this case is — who is fooling whom? To my mind, it seems to me that the difference between the two cases is that a Confederate flag t-shirt is an irresponsible deployment of one’s free speech rights while the black armband is not. It might be that this should not matter for a person on the street, but a child in school is being taught how to use their free-speech rights, both in class and in-school-but-not-in-class. Schools, training students for civic participation, exist to teach children how to use their rights well. Schools should be able to engage in viewpoint discrimination when doing so, because that is what teaching is: just as we use viewpoint discrimination in punishing speech in class (some arguments about the potato famine get an A, others are rejected as unsound), we can use it in the hallways and cafeterias too.
The problem with this sort of honesty is that viewpoint discrimination scares us, as it should. If teachers and principals can decide what viewpoints are too odious for responsible expression, the little polis of the school starts to look, and can easily become, authoritarian. And how can we expect students to learn responsible exercise of their civil rights, by practicing them, if they must do so in a system where authority limns the boundaries of permissible viewpoint? I think this is a very valid point, and worry about it. But I am inclined to think that it is better for school authorities to determine the range of acceptable expression than for heckling classmates to do so.