Tad Armstrong Oct. 22, 2013, 3:34pm

The events of May 5, 2010, at Live Oak High School in Morgan Hill, California, caused outrage around the nation when three students were disciplined for wearing shirts displaying an American flag on Cinco de Mayo, a day set aside by many to celebrate Mexican heritage. The students sought to remedy what they perceived to be violations of their freedom of speech by filing suit in Federal District Court. They lost. The 9th Circuit Court of Appeals recently heard their arguments on appeal pitting the duty of public schools to prevent violence against the “rights” of students to express themselves. The outcome is difficult to predict for reasons described, below, but a detour is necessary before taking a look at Dariano v. Morgan Hill Unified School District.

We will always face these types of confrontations in our public schools between children on any number of hot button social issues, but the frequency and degree of potential violence of such matters today can be traced back to a 1969 Supreme Court decision that most lawyers hail as one of the greatest victories for freedom in our history – Tinker v. Des Moines Independent Community School District. I disagree.

Two high school students, John Tinker and Christopher Eckhardt, and one junior high school student, Mary Beth Tinker, along with their parents, came up with an idea to protest the Viet Nam War by wearing black arm bands to school during the Christmas season. The school district, fearing violence, adopted a policy that would send the kids home for as long as they continued to wear the symbols. They came to school arm band clad, were sent home and did not return sans arm bands until after New Year’s Day, the planned end of the protest. Not unlike the kids in Dariano, they filed suit claiming their free speech rights were violated.

The Federal District Court upheld the authority of the school as constitutionally reasonable in order to prevent “disturbance of school discipline.” The Court of Appeals agreed, but Justice Fortas, writing for the Supreme Court majority, reversed and, in doing so, crafted a most unfortunate statement: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” In fact, the statement is so misleading that Judge Ware (ruling on the Dariano case at the District Court level) made this remarkable statement: “Though Tinker v. Des Moines made clear that students do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,’ the Supreme Court has also consistently recognized that these rights are not co-extensive with those of adults or even of children outside of a public school setting.” Just a bit internally contradictory!

Would it be okay with you if we invite “common sense” to the table of reason?

Common Sense Position #1: There are limits to all freedoms, including the freedom of speech. The most fundamental limit upon this freedom relates to “time, manner and place.” If you don’t believe that is true, see what reaction you get to pontificating over a loudspeaker in a residential neighborhood at 3:00 a.m. See how “free” you are to enter upon a church service shouting the praises of your favorite baseball team or the benefits of going vegan. Try shouting down a city mayor during a council meeting or heckling President Obama if you are able to get by his “gatekeepers” at one of his appearances. And, Justice Fortas, not even you would endorse wearing an arm band symbol at school over a choir robe during a concert or allowing a student to stop play during a basketball game to support the legalization of drugs.

So, you see, Justice Fortas, after school a student may carry a placard protesting war up and down Main Street, U.S.A., ‘til the cows come home. He may not fail to attend his math class because he wishes, instead, to protest in someone else’s French class. And, I am certain that even you would be appalled if a fifth grade school teacher began her class by encouraging students to follow Jesus Christ, yet she may constitutionally do so at the corner of School and Main.

We have had to live with the false and rather ridiculous exaggerated statement of Justice Fortas for years. He and his colleagues, sitting 1,000 miles from the sinister school board in Des Moines, Iowa, concluded that there was no evidence “whatever” of the protesting students interfering with the schools' work or of collision with the rights of other students to be secure and to be let alone. “There is no indication that the work of the schools or any class was disrupted. Outside the classrooms, a few students made hostile remarks to the children wearing armbands, but there were no threats or acts of violence on school premises.”

Justice Black had it right in dissent: “The Court's holding in this case ushers in what I deem to be an entirely new era in which the power to control pupils by the elected officials of state supported public schools…is in ultimate effect transferred to the Supreme Court…The Court decides that...public schools are an appropriate place to exercise symbolic speech “as long as normal school functions are not 'unreasonably' disrupted, then arrogates to itself, rather than to the State's elected officials charged with running the schools, the decision as to which school disciplinary regulations are ‘reasonable.’ While the record does not show that any of these armband students shouted, used profane language, or were violent in any manner, detailed testimony by some of them shows their armbands caused comments, warnings by other students, the poking of fun at them, and a warning by an older football player that other, nonprotesting students had better let them alone. There is also evidence that a teacher of mathematics had his lesson period practically ‘wrecked’ chiefly by disputes with Mary Beth Tinker.”

Justice Black continued: “One does not need to be a prophet…to know that after the Court's holding today some students in Iowa schools and indeed in all schools will be ready, able, and willing to defy their teachers on practically all orders...Students engaged in such activities are apparently confident that they know far more about how to operate public school systems than do their parents, teachers, and elected school officials...Turned loose with lawsuits for damages and injunctions against their teachers as they are here, it is nothing but wishful thinking to imagine that young, immature students will not soon believe it is their right to control the schools...”

I disagree with the student victory in Tinker for two reasons: (1) I find it arrogant for 7 unelected justices in Washington, D.C., to presume they know more about the propensity for symbols to create an atmosphere for violence to erupt than elected school board members on the scene; and, (2) I would require students, like everyone else in America, to first abide by proper “time, place, manner” rules before becoming entitled to a constitutional pursuit of free speech violations. For example, if a student in Des Moines was asked to write a paper on a current issue and decided to criticize the Viet Nam War, he would have a clear case against anyone who disciplined him or issued an unfairly low grade in retaliation. If a student were disciplined for taking a position on legalization of drugs in a discussion with a teacher in the cafeteria, same result. But, any student claiming his “rights” to be violated who hangs a banner over the railing at a basketball game is out of line. Tinker opened the door for rampant disrespect of authority figures in our schools and, folks, without discipline in education, all is lost. We are still paying a heavy price for the Tinker decision.

In Dariano, Judge Ware says: “The Ninth Circuit has not directly confronted the question of when a perceived threat of violence by other students against a student speaker may justify the suppression of that student's speech.” Did you catch that? In Tinker, the fear was violence on campus. The focus was not on who might get hurt. Here, in the land of the not-so-free, constitutionally protected student speech can be silenced if other students’ threats of violence rise to a high enough level of concern for the safety of the speaker. In other words, as the threat of violence from Student A increases, the free speech rights of Student B decreases, even to a point of being silenced. When kids with an agenda get that message, their tactics are clear. You don’t like the message of your fellow students – just threaten them sufficiently and you won’t have to put up with it. Such a wonderful lesson for our children. How about a lesson teaching respect for differing views?

I cannot predict the outcome on appeal because, in spite of Judge Ware’s intentional omission or glaring oversight, there is a monumental distinction between the facts in Tinker and the facts in Dariano.

While, in general, I would defer to school administrators to determine for themselves when violence is likely to ensue, in Tinker there was only one viewpoint speaking – the arm banded folks. In Dariano, both Mexican heritage folks and American flag folks are speaking through their choice of clothing. Therefore, in Dariano, the school district and Judge Ware (i.e. government) have decided to protect speech they like and to punish speech they do not like. That is a far different ball of wax that makes the outcome on appeal unpredictable.

In Tinker, Justice Fortas did believe, however, that the school’s non-decision to prohibit the wearing of all symbols of political or controversial significance was relevant to the outcome. He may have been unwittingly onto something far more important, which leads me to...Common Sense Position #2: Adults (judges, teachers, school board members, parents) have a responsibility not to enable the racing hormones of children (yes, teenagers are children) by intentionally placing them in a position to ruin their lives.

The most important lesson, here, does not involve the Constitution. Simply put, public school students should be required to wear the same clothes, same colors, and jewelry should be forbidden. What a novel idea - get an education, learn mutual respect for differing views, diminish threats of violence. (You might want to sell your Abercrombie & Fitch stock.) They can “be their own person” the other 17 hours of every day and for a lifetime after they graduate – after their hormones settle down.

It appears Justice Fortas would go along.

Or, we can look forward to threats of violence and real violence involving gang colors, threatening symbols like the Confederate flag, swastikas, and, yes, even religious symbols. So, my advice to all school boards is to help our kids by diminishing opportunities for serious confrontation and avoid costly litigation we all know is looming in every school.

You can download and read the ELLionized opinions (and discover what that means) by clicking on case number “9” (Tinker) and case number “11” (Dariano) on the “Supreme Court Decisions” page of our website at www.ellconstitutionclubs.com. While you’re there, join our mailing list. Our free newsletter will keep you informed.

Tad Armstrong is an Edwardsville, Illinois, lawyer, founder of ELL Constitution Clubs (www.ellconstitutionclubs.com) and author of “It’s OK to Say ‘God.’”

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