3-Minute Civics: Tinker Tailor Teacher Spy

August 12, 2021 5:10 am
Exterior of the U.S. Supreme Court

The Supreme Court holds the sole power to interpret the U.S. Constitution to ensure the rights of Americans are not infringed.(Al Drago | Getty Images)

Free speech in schools has dominated the news lately throughout the “Live Free or Die” state. This column recently presented perspectives on the “divisive concepts” legislation signed by Gov. Chris Sununu on June 25, permitting a teacher to be disciplined and sued for teaching, among other things, that racism or sexism are inherent qualities. And two days before this bill was signed, the Supreme Court of the United States decided Mahanoy v. B.L., determining that a school infringed a student’s First Amendment rights when it disciplined her for posting a vulgar social media video.

As these and other issues swirl around us, it’s a useful time to reflect on how exactly our national pledge not to “abridg[e] the freedom of speech” interacts with a school system that students are typically compelled to attend. Should this freedom apply to schools? And if so, to whom. Teachers? Students? Both? Should it apply, but on a more controlled and limited basis?

Persistent though these questions are, the Supreme Court addressed them with clarity in its landmark 1969 decision on free speech in schools: Tinker v. Des Moines. So, let’s roll up our sleeves and see what we can learn by jaunting through a historical case of substantial importance in our modern lives.

In the mid-1960s, five school-aged kids from two families formally protested the Vietnam War by wearing black armbands. The school district caught wind and instituted a no-black-armbands-worn-to-exhibit-opposition-to-this-nation’s-involvement-in-Vietnam policy. These five renegades persisted, were suspended, and ultimately brought their dispute to America’s highest court. Seven out of nine justices concluded that the district’s ban was an unconstitutional violation of the students’ freedom of speech, and the school was forced to change its policy. Tinker was meant to be a bigger-picture case, the court using it to shed insight into exactly what the crossroads of free speech and schools looks like, and how to direct the traffic that regularly passes through.

The Supreme Court holds the sole power to interpret the U.S. Constitution to ensure the rights of Americans are not inappropriately infringed. When the court rules in this way, issuing a decision on a case that determines that the government has acted unconstitutionally (via a law passed by Congress, the actions of a president, or even the discipline imposed by a public school), the court’s decision carries the weight of law, and any explanation it offers provides insight into how future conflicts might be resolved.

In Tinker, the court declared: “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.” This seems simple enough. Schools carry unique status in many ways in our society, but constitutional rights to free speech still exist within their walls.

The court did not claim that anything and everything could be said in a classroom: the line was drawn as to whether a “substantial disruption” did or was likely to occur. This is why your kid can still get punished for telling the gym teacher exactly where to shove their whistle. But before we jump to our collective feet, shouting, “Aha! Some of these topics in the news are SO disruptive that they NEED to be banned!” we should keep reading. The court tried to tip its hand.

“In order for the State … to justify prohibition of a particular expression or 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.”

At the core of its argument, the court wanted to make something clear: “The classroom is peculiarly the marketplace of ideas. The Nation’s future depends upon leaders trained through wide exposure to [a] robust exchange of ideas.”

Schools are special places; we look to them to educate our children so they grow into responsible, free-thinking citizens capable of running our democracy. The quality of our nation depends entirely on the quality of its citizens, so we owe it to them and, frankly, ourselves that they leave school having participated in and been exposed to a “marketplace of ideas.” What kinds of citizens will they be if never forced to encounter opinions with which they disagree? How will they develop the ability to assess and defend their own opinions, or to experiment with new ones, if such a marketplace is too restrictive?

For better or worse, our country identifies as a democracy, and a democracy has steep maintenance costs – it invites and demands its citizens to be informed, to be capable of making their own opinions, and to be willing to risk those opinions in a public forum. Our country’s highest court and the needs of raising new generations of capable citizens require that we protect the classroom as a free “marketplace of ideas,” even if that means students being exposed to concepts potentially divisive. To again quote Tinker: “Our history says that it is this sort of hazardous freedom – this kind of openness – that is the basis of our national strength.”

(Three-Minute Civics is an occasional column that seeks to help the people of New Hampshire navigate the issues and debates taking place at every level of government.) 

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Chris Pappavaselio
Chris Pappavaselio

Chris Pappavaselio is a former high school Latin teacher and a second year law student at Harvard Law School.