The Rocket's Red Glare: The Largely Errant and Deflected Flight of Tinker

Forty years ago, Supreme Court's decision in Tinker v. Des Moines Community Independent School District generally opened door to education litigation and specifically ushered in era of students' rights.2 For example, a leading education law scholar hailed Tinker as the magna carta of students' expression rights.3 Tracing its trajectory in subsequent case law reveals an impact that is far from its highly touted reputation and its seemingly intended course.4 The major markers5 in this forty-year celestial path to present are following four Supreme Court decisions, starting with Tinker, applying Amendment freedom of expression to public school students: (1) Tinker v. Des Moines Community Independent School District (1969),6 public school authorities suspended a pair of students for wearing armbands to school in protest of Vietnam War; Court ruled in students' favor due to lack of a material and disruption; (2) Bethel School District No. 403 v. Fraser (1986),7 public school authorities suspended a student for giving a nominating speech laced with sexual innuendo at a high school assembly; Court ruled in school's favor due to its fundamental function of inculcating values in students; (3) Hazelwood School District v. Kuhlmeier (1988),8 public school authorities censored two articles in student newspaper, one concerning teenage pregnancy and other concerning divorced parents; Court ruled in school's favor due to its legitimate pedagogical concerns in relation to school-sponsored student expression; (4) Morse v. Frederick (2007) , public school authorities suspended a student for displaying a banner at an extracurricular event that contained words Bong Hits 4 Jesus; Court ruled in school's favor due to lack of Amendment protection for student pro-drug expression. Within periods after each of these major markers, lower courts issued various decisions that have cited Tinker. The next four sections examine specific language in Tinker decision, its successive effects on previous three Supreme Court precedents, and interlaced lower court case law. I. THE LANGUAGE OF THE TINKER DECISION The strict scrutiny of Tinker's route starts with mapping boundaries of decision itself. Doing so reveals that, whether Justice Fortas did so deliberately or inadvertently, his majority opinion contains threads that are susceptible to unraveling its lofty students' rights reputation. Although rule in Tinker generally is known as substantial disruption test for student expression,10 a careful examination of decision suggests an elastic effect that is more akin to Rorschach inkblot test. The difficulty is separating and not confusing holding, or rule of case, from dicta, or incidental comments that are not directly and squarely responsive to issue of case. First, rationale of majority opinion started with this two-sided, door-opening dicta:12 First Amendment rights, applied in light of special characteristics of 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 schoolhouse gate.13 Second, although it cited more broad-based precedents, majority made clear that its ruling was limited to student expression under Amendment in K-12 public schools, expressly excluding student apparel and hair style.14 Next, after even more broad-based dicta about hazardous freedom,15 majority opinion selected as its keystone Fifth Circuit's Burnside v. Byars]6 rule that public school officials may not prohibit student expression unless it materially and substantially interfere[s] with requirements of appropriate discipline in operation of school. …