Tinker v. Des Moines Ind. Comm. School Dist. 393 U.S. 503 (1969)

Tinker v. Des Moines Ind. Comm. School Dist.393 U.S. 503 (1969) Argued: November 12, 1968 Decided: February 24, 1969

Tinker v. Des Moines Facts of the Case • John Tinker, 15 years old, his sister Mary Beth Tinker, 13 years old, and Christopher Echardt, 16 years old, decided along with their parents to protest the Vietnam War by wearing black armbands to their Des Moines schools during the Christmas holiday season. Upon learning of their intentions, and fearing that the armbands would provoke disturbances, the principals of Des Moins school districts resolved that all students wearing armbands would be asked to remove them or face suspension. When the Tinker siblings and Christopher wore their armbands to school, they were asked to remove them. When they refused, they were suspended until after New Year's Day. Constitutional Question • Does a prohibition against the wearing of armbands in public school, as a form of symbolic protest, violate the First Amendment's freedom of speech protections?

Tinker v. Des Moines Conclusion • The Court ruled that wearing armbands is protected speech as a form of political expression. This right is extended to students as a form of non-disruptive speech. Vote 7-2 Majority Opinion: Justice Fortas, joined by White, Stewart, Brennan, Douglas, Warren, Marshall • “The wearing of armbands was "closely akin to 'pure speech'" and protected by the First Amendment. School environments imply limitations on free expression, but here the principals lacked justification for imposing any such limits.The principals had failed to show that the forbidden conduct would substantially interfere with appropriate school discipline.” • “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Tinker v. Des Moines • “. . . In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. 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," the prohibition cannot be sustained . . .” Minority Opinion: Justice Black and Harlan: “While I have always believed that under the First and Fourteenth Amendments neither the State nor the Federal Government has any authority to regulate or censor the content of speech, I have never believed that any person has a right to give speeches or engage in demonstrations where he pleases and when he pleases. This Court has already rejected such a notion. The Court clearly stated that the rights of free speech and assembly "do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time.”’

Goss v. Lopez419 U.S. 565 (1975) Oral Argument: Wednesday, October 16, 1974 Decision: Wednesday, January 22, 1975

Goss v. Lopez Facts of the Case • Nine students at two high schools and one junior high school in Columbus, Ohio, were given 10-day suspensions from school. The suspensions arose out of a period of widespread student unrest during February and March 1971. • One of these, Tyrone Washington, was among a group of students demonstrating in the school auditorium while a class was being conducted there. He was ordered by the school principal to leave, refused to do so, and was suspended. • Rudolph Sutton, in the presence of the principal, physically attacked a police officer who was attempting to remove Tyrone Washington from the auditorium. He was immediately suspended. The other four Marion-Franklin students were suspended for similar conduct. • Dwight Lopez was a student at the Central High School. He was suspended in connection with a disturbance in the lunchroom which involved some physical damage to school property. Lopez testified that at least 75 other students were suspended from his school on the same day. He also testified below that he was not a party to the destructive conduct but was instead an innocent bystander. Because no one from the school testified with regard to this incident, there is no evidence in the record indicating the official basis for concluding otherwise. Lopez never had a hearing. • None was given a hearing to determine the operative facts underlying the suspension, but each, together with his or her parents, was offered the opportunity to attend a conference, subsequent to the effective date of the suspension, to discuss the student's future., and Ohio law did not require them to do so.

Goss v. Lopez Constitutional Question: • Could the Ohio public schools suspend students without preliminary hearings or is this a violation of students' Due Process rights guaranteed by the Fourteenth Amendment? Conclusion • In a 5-to-4 decision, the Court held that the state of Ohio could not withdraw the right to a public education once it had extended that right to its citizens "on grounds of misconduct absent fundamentally fair procedures to determine whether the misconduct ha[d] occurred." The Court held that Ohio must recognize that students' entitlements to education are protected by the Due Process Clause and that right could not be taken away without minimum procedures required by the Clause. The Court found that students facing suspension should at a minimum be given notice and some form of hearing.

Goss v. Lopez Vote: 5-4 Majority Decision:White, joined by Marshall, Stewart, Brennan, and Douglas • “Although Ohio may not be constitutionally obligated to establish and maintain a public school system, it has nevertheless done so and has required its children to attend. Those young people do not "shed their constitutional rights" at the schoolhouse door. (Tinker v. Des Moines School Dist.)."The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures - Boards of Education not excepted.’” • “We do not believe that school authorities must be totally free from notice and hearing requirements if their schools are to operate with acceptable efficiency. Students facing temporary suspension have interests qualifying for protection of the Due Process Clause, and due process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story. The Clause requires at least these rudimentary precautions against unfair or mistaken findings of misconduct and arbitrary exclusion from school.”

Goss v. Lopez Minority Decision: Powell, joined by Rehnquist, Burger and Blackmun • “The decision unnecessarily opens avenues for judicial intervention in the operation of our public schools that may affect adversely the quality of education. The Court holds for the first time that the federal courts, rather than educational officials and state legislatures, have the authority to determine the rules applicable to routine classroom discipline of children and teenagers in the public schools. It justifies this unprecedented intrusion into the process of elementary and secondary education by identifying a new constitutional right: the right of a student not to be suspended for as much as a single day without notice and a due process hearing either before or promptly following the suspension.” • “Moreover, the Court ignores the experience of mankind, as well as the long history of our law, recognizing that there are differences which must be accommodated in determining the rights and duties of children as compared with those of adults. Examples of this distinction abound in our law: in contracts, in torts, in criminal law and procedure, in criminal sanctions and rehabilitation, and in the right to vote and to hold office.Until today, and except in the special context of the First Amendment issue in Tinker, the educational rights of children and teenagers in the elementary and secondary schools have not been analogized to the rights of adults or to those accorded college students. Even with respect to the First Amendment, the rights of children have not been regarded as "co-extensive with those of adults.’”

New Jersey v. T.L.O.U.S. 325 (1985) Oral Argument: March 28, 1984 Oral Reargument: October 2, 1984 Decision: January 15, 1985

New Jersey v. T.L.O Facts of the Case • A teacher at a New Jersey high school, upon discovering respondent, then a 14-year-old freshman, and her companion smoking cigarettes in a school lavatory in violation of a school rule, took them to the Principal's office, where they met with the Assistant Vice Principal. When respondent, in response to the Assistant Vice Principal's questioning, denied that she had been smoking and claimed that she did not smoke at all, the Assistant Vice Principal demanded to see her purse. Upon opening the purse, he found a pack of cigarettes and also noticed a package of cigarette rolling papers that are commonly associated with the use of marihuana. He then proceeded to search the purse thoroughly and found some marihuana, a pipe, plastic bags, a fairly substantial amount of money, an index card containing a list of students who owed respondent money, and two letters that implicated her in marihuana dealing. Constitutional Question • Did the search violate the Fourth (warrant-less search) and Fourteenth Amendments (equal protection)?

New Jersey v. T.L.O Conclusion • Voting 6-3, the Court abandoned its requirement that searches be conducted only using the standard of "probable cause“ for searches at school. • The Court used a less strict standard of "reasonableness" to conclude that the search did not violate the Constitution. The presence of paraphernalia (rolling papers, etc) in the purse created a reasonable suspicion in the principal's mind that T.L.O. may have been carrying drugs, and so justifying a more thorough search of the purse. • Also, warrant-less searches and the reasonableness standard are declared constitutional as school officials need first to establish orderly educational environments and second observe the limited rights of students.

New Jersey v. T.L.O Vote: 6-3 Majority Opinion:Justice White, Burger, Blackmun, Powell, Rehnquist, and O’Conner • “To hold that the Fourth Amendment applies to searches conducted by school authorities is only to begin the inquiry into the standards governing such searches. Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable, what is reasonable depends on the context within which a search takes place. The determination of the standard of reasonableness governing any specific class of searches requires "balancing the need to search against the invasion which the search entails." On one side of the balance are arrayed the individual's legitimate expectations of privacy and personal security; on the other, the government's need for effective methods to deal with breaches of public order.” • “Against the child's interest in privacy must be set the substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds. Maintaining order in the classroom has never been easy, but in recent years, school disorder has often taken particularly ugly forms: drug use and violent crime in the schools have become major social problems. Even in schools that have been spared the most severe disciplinary problems, the preservation of order and a proper educational environment requires close supervision of schoolchildren, as well as the enforcement of rules against conduct that would be perfectly permissible if undertaken by an adult.”

New Jersey v. T.L.O Majority Opinion: Justice White, Burger, Blackmun, Powell, Rehnquist, and O’Conner (cont…) • “Every adult remembers from his own schooldays the havoc a water pistol or peashooter can wreak until it is taken away. Thus, the Court has recognized that "[e]vents calling for discipline are frequent occurrences and sometimes require immediate, effective action." Goss v. Lopez, 1975). Indeed, because drug use and possession of weapons have become increasingly common among young people, an immediate response frequently is required not just to maintain an environment conducive to learning, but to protect the very safety of students and school personnel.” • “Such immediate action obviously would not be possible if a teacher were required to secure a warrant before searching a student.Nor would it be possible if a teacher could not conduct a necessary search until the teacher thought there was probable cause for the search. A teacher has neither the training nor the day-to-day experience in the complexities of probable cause that a law enforcement officer possesses, and is ill-equipped to make a quick judgment about the existence of probable cause. The time required for a teacher to ask the questions or make the observations that are necessary to turn reasonable grounds into probable cause is time during which the teacher, and other students, are diverted from the essential task of education.A teacher's focus is, and should be, on teaching and helping students, rather than on developing evidence against a particular troublemaker.”

New Jersey v. T.L.O Minority Opinion: Justice Brennan and Stevens, joined by Marshall • “I do not, however, otherwise join the Court's opinion. Today's decision sanctions school officials to conduct full scale searches on a "reasonableness" standard whose only definite content is that it is not the same test as the "probable cause" standard found in the text of the Fourth Amendment.In adopting this unclear, unprecedented, and unnecessary departure from generally applicable Fourth Amendment standards, the Court carves out a broad exception to standards that this Court has developed over years of considering Fourth Amendment problems. Its decision is supported neither by precedent nor even by a fair application of the "balancing test" it proclaims in this very opinion.” • “Assistant Vice Principal Choplick's thorough excavation of T. L. O.'s purse was undoubtedly a serious intrusion on her privacy. Unlike the searches in Terry v. Ohio, supra, the search at issue here encompassed a detailed and minute examination of respondent's pocketbook, in which the contents of private papers and letters were thoroughly scrutinized. Wisely, neither petitioner nor the Court today attempts to justify the search of T. L. O.'s pocketbook as a minimally intrusive search in the Terry line.” • “On my view, the presence of the word "unreasonable" in the text of the Fourth Amendment does not grant a shifting majority of this Court the authority to answer all Fourth Amendment questions by consulting its momentary vision of the social good.Full-scale searches unaccompanied by probable cause violate the Fourth Amendment.”

Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) No. 84-1667. Argued March 3, 1986 Decided July 7, 1986

Bethel School Dist. No. 403 v. Fraser Facts of the case • Matthew Fraser, a public high school student, (hereafter respondent) delivered a speech nominating a fellow student for a student elective office at a all-school assembly that was held during school hours and that was attended by approximately 600 students, many of whom were 14-year-olds. • During the entire speech, respondent referred to his candidate in terms of an elaborate, graphic, and explicit sexual metaphor. • Some of the students at the assembly hooted and yelled during the speech, some mimicked the sexual activities alluded to in the speech, and others appeared to be bewildered and embarrassed. • Respondent’s father then filed suit in Federal District Court, alleging a violation of his First Amendment right to freedom of speech. • The court [Federal District Court] held that the school's sanctions violated the First Amendment, that the school's disruptive-conduct rule was unconstitutionally vague and overbroad, and that the removal of respondent's name from the graduation speaker's list violated the Due Process Clause of the Fourteenth Amendment. • The court [Federal District Court]awarded respondent monetary relief and enjoined the School District from preventing him from speaking at the commencement ceremonies. The Court of Appeals affirmed[agreed with the Federal District Court].

Bethel School Dist. No. 403 v. Fraser From the Court record of the nominating speech: • “I know a man who is firm - he's firm in his pants, he's firm in his shirt, his character is firm - but most . . . of all, his belief in you, the students of Bethel, is firm. • “Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spurts - he drives hard, pushing and pushing until finally - he succeeds. • “Jeff is a man who will go to the very end - even the climax, for each and every one of you. • “So vote for Jeff for A. S. B. vice-president - he'll never come between you and the best our high school can be.” App. 47.

Bethel School Dist. No. 403 v. Fraser Majority Opinion: 7-2, Chief Justice Burger: • “The First Amendment did not prevent the School District from disciplining respondent for giving the offensively lewd and indecent speech at the assembly. Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, distinguished. Under the First Amendment, the use of an offensive form of expression may not be prohibited to adults making what the speaker considers a political point, but it does not follow that the same latitude must be permitted to children in a public school. It is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse. The inculcation of these values is truly the work of the school, and the determination of what manner of speech is inappropriate properly rests with the school board. First Amendment jurisprudence recognizes an interest in protecting minors from exposure to vulgar and offensive spoken language.” • “There is no merit to respondent's contention that the circumstances of his suspension violated due process because he had no way of knowing that the delivery of the speech would subject him to disciplinary sanctions. Given the school's need to be able to impose disciplinary sanctions for a wide range of unanticipated conduct disruptive of the educational process, the school disciplinary rules need not be as detailed as a criminal code which imposes criminal sanctions.”

Hazelwood School District et al.v. Kuhlmeier et al. 484 U.S. 260Argued October 13, 1987Decided January 13, 1988

Hazelwood School District v. Kuhlmeier Facts of the Case: • Former high school students who were staff members of the school's newspaper, filed suit in Federal District Court against the school district and school officials, alleging that their First Amendment rights were violated. The schools principal deleted two pages of the school paper that included an article (1) describing school students' experiences with pregnancy and another article (2) discussing the impact of divorce on students at the school. • The newspaper was written and edited by a journalism class, as part of the school's curriculum. Pursuant to the school's practice, the teacher in charge of the paper submitted page proofs to the school's principal, who objected to the pregnancy story because the pregnant students, although not named, might be identified from the text, and because he believed that the article's references to sexual activity and birth control were inappropriate for some of the younger students. • The principal objected to the divorce article because the page proofs he was furnished identified by name (deleted by the teacher from the final version) a student who complained of her father's conduct, and the principal believed that the student's parents should have been given an opportunity to respond to the remarks or to consent to their publication. • The District Court held that no First Amendment violation had occurred. The Court of Appeals reversed.

Hazelwood School District v. Kuhlmeier Conclusion: • In a 6-3 vote, the principals right to edit the paper was upheld by the Court. The majority opinion noted that the school newspaper was not a public forum and thus the 1 Amendment challenge was not valid. Moreover, the court affirmed prior rulings (see T.L.O., Bethel, etc) that student right are not “coextensive” with the rights of adults outside of the school setting. The school may still meet its educational mission while censoring the student newspaper and so the principals editorial control is upheld.

Hazelwood School District v. Kuhlmeier Vote: 6-3 Majority Opinion: Rehnquist, White, Stevens, O’Connor, Scalia • “Respondents' First Amendment rights were not violated.” • “First Amendment rights of students in the public schools are not automatically coextensive with the rights of adults in other settings, and must be applied in light of the special characteristics of the school environment. A school need not tolerate student speech that is inconsistent with its basic educational mission, even though the government could not censor similar speech outside the school.” • “The school newspaper here cannot be characterized as a forum for public expression.” • “The standard for determining when a school may punish student expression that happens to occur on school premises is not the standard for determining when a school may refuse to lend its name and resources to the dissemination of student expression. Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, distinguished. Educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.”

Hazelwood School District v. Kuhlmeier Minority Opinion: Justice Brennan, Marshall and Blackmun • “If mere incompatibility with the school's pedagogical message were a constitutionally sufficient justification for the suppression of student speech, school officials could censor each of the students or student organizations in the foregoing hypotheticals, converting our public schools into "enclaves of totalitarianism.”’ • Official censorship of student speech on the ground that it addresses "potentially sensitive topics" is, for related reasons, equally impermissible. I would not begrudge an educator the authority to limit the substantive scope of a school-sponsored publication to a certain, objectively definable topic, such as literary criticism, school sports, or an overview of the school year. Unlike those determinate limitations, "potential topic sensitivity" is a vaporous nonstandard - like "`public welfare, peace, safety, health, decency, good order, morals or convenience,'"

Board of Education v. EarlsU.S. 822 (2002) Oral Argument: Tuesday, March 19, 2002 Decision: Thursday, June 27, 2002

Board of Education v. Earls (2002) Facts of the Case • The Student Activities Drug Testing Policy adopted by the Tecumseh, Oklahoma School District requires all middle and high school students to consent to urinalysis testing for drugs in order to participate in any extracurricular activity. Two Tecumseh High School students and their parents allege that the policy violates the Fourth Amendment.. Constitutional Question • Is the student drug testing policy, which requires “all students who participate in competitive extracurricular activities” to submit to a drug test, consistent with the Fourth Amendment? Or is this warrant-less search unconstitutional?

Board of Education v. Earls (2002) Conclusion • In a 5-4 opinion delivered by Justice Clarence Thomas, the Court held that, because the policy reasonably serves the School District's important interest in detecting and preventing drug use among its students, it is constitutional. • The Court reasoned that the Board of Education's general regulation of extracurricular activities diminished the expectation of privacy among students and that the Board's method of obtaining urine samples and maintaining test results was minimally intrusive on the students' limited privacy interest.

Board of Education v. Earls (2002) Vote: 5-4 Majority Opinion: Justice Thomas, Scalia, Rehnquist, Kennedy, Breyer • "Within the limits of the Fourth Amendment, local school boards must assess the desirability of drug testing schoolchildren. In upholding the constitutionality of the Policy, we express no opinion as to its wisdom. Rather, we hold only that Tecumseh's Policy is a reasonable means of furthering the School District's important interest in preventing and deterring drug use among its schoolchildren.” • “The Court concludes that the invasion of students' privacy is not significant, given the minimally intrusive nature of the sample collection and the limited uses to which the test results are put. The Policy clearly requires that test results be kept in confidential files separate from a student's other records and released to school personnel only on a "need to know" basis. Moreover, the test results are not turned over to any law enforcement authority.” • “Finally, considering the nature and immediacy of the government's concerns and the efficacy of the Policy in meeting them, (see Vernonia v Acton), the Court concludes that the Policy effectively serves the School District's interest in protecting its students' safety and health. Preventing drug use by schoolchildren is an important governmental concern.”

Board of Education v. Earls (2002) Minority Opinion: Justice Ginsburg, joined by O’Connor, Stevens, and Souter • “Vernonia v Acton cannot be read to endorse invasive and suspicionless drug testing of all students upon any evidence of drug use, solely because drugs jeopardize the life and health of those who use them. Many children, like many adults, engage in dangerous activities on their own time; that the children are enrolled in school scarcely allows government to monitor all such activities. If a student has a reasonable subjective expectation of privacy in the personal items she brings to school (see NJ v T. L. 0.), surely she has a similar expectation regarding the chemical composition of her urine.” • “It is a sad irony that the petitioning School District seeks to justify its edict here by trumpeting "the schools' custodial and tutelary responsibility for children." Vernonia, 515 U. S., at 656. In regulating an athletic program or endeavoring to combat an exploding drug epidemic, a school's custodial obligations may permit searches that would otherwise unacceptably abridge students' rights. When custodial duties are not ascendant, however, schools' tutelary obligations to their students require them to "teach by example" by avoiding symbolic measures that diminish constitutional protections. "That [schools] are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.’”

Sources • Hall, Kermit L., ed. The Oxford Companion to American Law. Oxford: Oxford University Press, 2002. • Hartman, Gary, R., Roy M. Mersky, and Cindy L. Tate. Landmark Supreme Court Cases. New York, Facts on File, Inc., 2004. • The Oyez Project, www.Oyez.org, 2007.

Tinker v. Des Moines Ind. Comm. School Dist. 393 U.S. 503 (1969)