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Part V of VII
Tinker and the Substantial Disruption Test
The Supreme Court’s modern school speech jurisprudence began to take shape in 1969’s Tinker v. Des Moines Independent Community School District. The plaintiffs planned to wear black armbands to protest the Vietnam War. In response, the principal established a policy banning all armbands, and the plaintiffs had to remove their bands to enter the school. The Court began noting the special constitutional characteristics of the school setting and the tension between “affirming the comprehensive authority of the States and of school officials” and protecting the First Amendment rights of students. Writing for the majority, Justice Fortas established what would become known as the substantial disruption standard:
But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression....Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk . . . . Certainly where there is no finding and no showing that engaging in the forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,’ [restrictions on student speech] cannot be sustained.
A desire to avoid the controversy or discord that might arise in response to the expression of unpopular views is not a justification for regulating student speech unless there is a material and substantial interference with the operations of the school.
(continued due to character limit)
The Heckler's Veto in Schools
The past two decades have, at the circuit level, seen the HV doctrine applied to scholastic settings, although as Dariano demonstrates there is no general agreement as to the doctrine’s scope in relation to speech in and around academic settings. Indeed, the Ninth Circuit, in Center for Bio-Ethical Reform v. Los Angeles County Sheriff Department, endorsed the idea that the HV can apply in situations even where special school-specific considerations are extant. In Center, a pro-life group which demonstrated, carrying signs with graphic pictures of aborted fetuses, in the vicinity of a middle school. Upon hearing some students planned to stone the display and that others were crying and distraught from seeing the images, concerned school officials contacted the police. The two demonstrators holding the signs in question were ordered to leave, and testified that their fears over being arrested had prevented them from protesting at other schools.
The Ninth Circuit’s message in Center for Bio-Ethical Reform was clear: a HV that is demanded by public school students is no less unconstitutional than one demanded by adults; however, as Dariano shows, the court was unwilling to extend that rationale into the classroom. The same cannot be said for other circuit courts, most notably the Seventh and Eleventh Circuits, both of which have implicitly or explicitly embraced heckler’s veto principles in public school settings.
The past two decades have, at the circuit level, seen the HV doctrine applied to scholastic settings, although as Dariano demonstrates there is no general agreement as to the doctrine’s scope in relation to speech in and around academic settings. Indeed, the Ninth Circuit, in Center for Bio-Ethical Reform v. Los Angeles County Sheriff Department, endorsed the idea that the HV can apply in situations even where special school-specific considerations are extant. In Center, a pro-life group which demonstrated, carrying signs with graphic pictures of aborted fetuses, in the vicinity of a middle school. Upon hearing some students planned to stone the display and that others were crying and distraught from seeing the images, concerned school officials contacted the police. The two demonstrators holding the signs in question were ordered to leave, and testified that their fears over being arrested had prevented them from protesting at other schools.
The Ninth Circuit’s message in Center for Bio-Ethical Reform was clear: a HV that is demanded by public school students is no less unconstitutional than one demanded by adults; however, as Dariano shows, the court was unwilling to extend that rationale into the classroom. The same cannot be said for other circuit courts, most notably the Seventh and Eleventh Circuits, both of which have implicitly or explicitly embraced heckler’s veto principles in public school settings.
[*=1]Holloman ex rel. Holloman v. Harland -- "If certain bullies are likely to act violently when a student wears long hair, it is unquestionably easy for a principal to preclude the outburst by preventing the student from wearing long hair. To do so, however, is to sacrifice freedom upon the alter [sic] of order, and allow the scope of our liberty to be dictated by the inclinations of the unlawful mob. . . The fact that other students might take such a hairstyle as an incitement to violence is an indictment of those other students, not long hair."
Essentially, the court decided schools cannot hide behind the expected or actual reactions of their students to suppress student speech.
[*=1]Zamecnik v. Indian Prairie School District -- Writing for the majority, Judge Posner noted that “high school students should not be raised in an intellectual bubble,” which would be the case if schools forbade discussion of political and social issues during the day. He asserted that “people in our society do not have a legal right to prevent criticism of their beliefs or even their way of life."
Tinker and the Substantial Disruption Test
The Supreme Court’s modern school speech jurisprudence began to take shape in 1969’s Tinker v. Des Moines Independent Community School District. The plaintiffs planned to wear black armbands to protest the Vietnam War. In response, the principal established a policy banning all armbands, and the plaintiffs had to remove their bands to enter the school. The Court began noting the special constitutional characteristics of the school setting and the tension between “affirming the comprehensive authority of the States and of school officials” and protecting the First Amendment rights of students. Writing for the majority, Justice Fortas established what would become known as the substantial disruption standard:
But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression....Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk . . . . Certainly where there is no finding and no showing that engaging in the forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,’ [restrictions on student speech] cannot be sustained.
(continued due to character limit)