Tinkering with our rights

One of the coolest moments of my life took place about three
years ago when I got a chance to meet Mary Beth Tinker. She came to a
university where I was teaching for Constitution Day. I remember running a
fever of about 102 and feeling lousy all day, but I held on for almost a 14-hour
day so that I could be there when she toured the newsroom. She was one of the
nicest people I’ve ever met. She wasn’t a radical or even self-important. In
fact, when I asked what it was like to have the most famous name in free expression
rights, she smiled and said, “It’s actually not me. It’s my brother John. He
was listed first on the court papers.” She autographed a poster for me and let
me see the item that made her famous.

Of all the people who changed the course of free speech
history, few did it in as important of a way as she did or at as young of an
age.When she was 13, she and her brother were among a small cadre of students
who entered a Des Moines, Iowa school wearing black armbands in protest of the
Vietnam War.
They were sent home for wearing items that were likely to cause a

The Tinker family hired a lawyer, who appeared at a school
board meeting and requested that the suspensions be rescinded and that the ban
on the armbands be lifted. A school board member asked the lawyer, Craig
Sawyer, if he would support a student’s right to wear an armband emblazoned
with a swastika. Sawyer responded that he would and that he’d also support
other bands with the Star of David, a Catholic image or even one that simply
said “Down with the School Board.”

When the school board voted against lifting the ban, Sawyer
and the ACLU sued. The case went all the way to the Supreme Court where in
1969, four years after the incident, the court ruled in favor of the
plaintiffs. Justice Abe Fortas noted that students and teachers do not “shed
their constitutional rights to freedom of expression or speech at the
schoolhouse gate.”

The case stood as the cornerstone to free speech protection
for almost 20 years, ushering in an amazing era of quality high school
journalism and enhanced public debate among the nation’s young people. While
the 1988Hazelwood v. Kuhlmeier cut the legs out from under unfettered press
rights within the school, Tinker remains a controlling and oft-cited force in
cases involving expression within an educational setting.

Tinker set the stage for two key things that administrators
tend to conveniently forget: The First Amendment applies to everyone, not just
“grown ups,” and the First Amendment doesn’t just cover things we all like and
agree on. It has been clear for years that administrators don’t get this. A
recent study
found that principals across this great nation of ours tend to be
ignorant when it comes to the rights delineated in the amendment. Yalof and
Dautrich found that 31 percent of principals surveyed believe it is illegal to
burn a flag in protest and 2 percent believe it is legal to shout “fire” in a
crowded arena as a prank. Even worse, 50 percent believe that the law allows
the government to restrict indecent material on the Internet.

This is the type of environment that leads to the kinds of
things that happened at Hill’s Live Oak High in California and at the
University of Utah earlier this week.In California, a handful of students were
told to remove shirts and bandanas that depicted the United States flag.
shirts were worn on Cinco de Mayoand school officials said this display was
likely to create tension at the school. When the students refused to remove the
shirts or turn them inside out, they were sent home. Many of the quotes that came out in the aftermath explained that May 5 was important to the Hispanic community and was thus “their day” to wear things of a specific nature.

Meanwhile, at the University of Utah, nine graduating
seniors might not be graduating after all, due to a prank they pulled in the
student newspaper. The Chronicle, the INDEPENDENT (remember that word) student
newspaper on campus allows its graduating staffers to publish a farewell column
each year.As part of a decade-long running gag, they use drop caps to spell
out some cuss word across the columns.
This year’s words of choice? PENIS and
CUNT. Ah, newsroom humor… The university, which has no say over the content of the paper,
chose to use this as a learning moment and has thus accused the students of
violating the student code of conduct. A hold has been placed on their transcripts
until this gets sorted out.

I’m not going to defend either action as good or bad or
better or worse when it comes to what the students did in these cases. (If the
kids at the paper I advise had done the prank, I’d have had an aneurysm, but
I’d try to keep that to myself…) The larger point is that they have the right
to do these things, smart, stupid or otherwise. When you publish stupid shit, it hurts
your credibility and that leads to problems with your audience. The
administration didn’t need to drop a shit hammer on them for this. Leave that
up to the advertisers who don’t want to be associated with the “PENIS”
publication or the faculty who shake their heads in disgust at the paper.
That’ll do the job in the marketplace of ideas.

And why is it that the Hispanic kids feel they can’t
celebrate their heritage through flags and face painting and all that other
stuff every day? Isn’t THAT a bigger issue? Is there something that stops a
Polish kid from showing up wearing a Casmir Pulaskishirt the first Monday in March? Or someone from wearing a
“Storm the Bastille” shirt if they want? Is the environment in this school so
bad that students are essentially told, “Look, you can get all Mexican on this
one day, but after that, let’s get with the program, OK?”

Freedom of expression is an every-day thing. Schools should
be using their federally mandated Constitution Day in September to point that
out. Someone not liking something or someone being afraid that maybe someone
might be upset and then decide to do something bad doesn’t mean that someone else’s rights go away. Time, place
and manner restrictions have run roughshod over the rights of many people, but
most of the time, they impact the young. We treat kids like they don’t know how
to act in public and thus we infantilize or inflame the next generation of
citizens to the point where they REALLY don’t know how to act.

And that’s the bigger problem: If students are never
afforded their rights to see what they can and can’t do and what the true
ramifications are of their actions without adults stepping in, they’ll never
really appreciate what they have as citizens. They won’t be informed or active
members of our society and they sure as hell won’t bother to vote. They will
become the disaffected slackers each generation has accused the previous
generation of being. Only this time, we’ll have no one to blame for that but

3 thoughts on “Tinkering with our rights

  1. I’ve really been thinking for the past few years that the thing that really makes schools suck so hard isn’t so much that teenagers are stews of hormonal freakout juice, but that school administrators are authoritarian assholes who are either far stupider than the average person or vastly more insane.

  2. Even worse, 50 percent believe that the law allows the government to restrict indecent material on the Internet.
    Here in Missouri, Schools and Libraries must install filtering software.
    As for the Flags on Cinco de Mayo, it sounds like the intent was plainly to provoke problems and be disruptive. So I have sympathy for the school on this one. Admittedly, not a good Constitutional argument.

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