A Stitch in Haste

To review: The high water mark in First Amendment protection of student speech was Tinker v. Des Moines School Dist., 393 U.S. 503 (1969), which famously held, “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 the almost forty years since Tinker, we have seen that noble principle chipped away, piece by piece, via “exceptions,” “competing interests” and “balancing tests,” culminating in the Supreme Court’s Kafkaesque holding in Morse v. Frederick, 127 S. Ct. 2618 (2007), that not only do students indeed shed their constitutional rights at the schoolhouse gate, but actually shed them long before they ever reach that gate: that they forfeit their rights merely via their status as students, and that even an 18-year old adult, not enrolled in school that day, not on school grounds and not taking part in a school function, could still be disciplined by school officials for his expressive conduct.

I therefore don’t know whether this is a good sign or a bad one, but the evisceration of students’ free speech rights has progressed so malignantly that one appellate court had to practically reinvent the wheel — literally down to the original Tinker fact pattern itself:

In the summer of 2006, the school district implemented a mandatory school uniform policy[.] The policy required students to “wear the school uniform while in school, on school buses, and at designated school bus stops.” Paragraph 17 of the policy stated that “any attempt to defeat the uniformity intended by this policy is prohibited.”

Several students and parents opposed the policy or the way it was enforced, and some of these parents and students organized a protest. On September 30, 2006, these parents and students handed out black armbands to be worn to school in protest of the policy on October 6, 2006. On that day, several junior and senior high school students wore the black armbands but did not wear them over any part of the school uniform. The school construed the student’s conduct as an attempt to defeat the uniformity intended by the policy and disciplined the students who wore the armbands citing their violation of the uniform policy.

The choice of black armbands as a symbol of protest was of course not arbitrary: It was the same form of expressive conduct (i.e., speech) that was at issue in Tinker 39 years ago.

The students sued to challenge the disciplinary action, and of course won. On appeal, the educrats came up with a “creative” (i.e., totally disingenuous) argument that Tinker ought not apply:

Defendants attempt to distinguish Tinker by emphasizing that the Tinker students protested the federal government’s Vietnam war policy, whereas here the protest object was merely a school dress code. This distinction is immaterial. Whether student speech protests national foreign policy or local school board policy is not constitutionally significant.
…
We find defendants’ attempts to meaningfully distinguish Tinker unconvincing. We hold that Tinker is so similar in all constitutionally relevant facts that its holding is dispositive.

Exactly right. As I’ve noted in other contexts, it is often the local governmental unit — especially the city, county or school district — that tends to behave tyrannically in matters of free speech and other fundamental rights. The right, and the need, to protest local abuse of power is no less urgent (and sacrosanct) than the right, and the need, to protest the federal government.

One post script:

Next, defendants argue that because plaintiffs only received nominal damages they should not receive attorneys’ fees, or at most, a very small amount — in essence defendants argue that plaintiffs’ victory was merely technical or de minimis.

The First Amendment is “de minimis”? Guess again:

Although plaintiffs received only nominal damages, their victory was not merely technical. Plaintiffs obtained an injunction that benefitted all of the students in the school district, and the free speech right vindicated was not readily reducible to a sum of money.

Bottom line: Taxpayers yet again on the hook because activist legislators (or in this case educrats) refuse to acknowledge the Constitution and unambiguous case law. The bill this time: $37,500, plus expenses and interest; see related posts here, here and the third item here.

The case is Lowry v. Watson Chapel Sch. Dist., No. 07-3437 (8th Cir., September 2, 2008) (PDF – 21 pages) (Via School Law Blog.)

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Elsewhere:

Milford’s school board [Connecticut] has adopted a new policy that students are subject to breath testing for alcohol at school functions.

Under the policy, students entering a public school-sponsored dance will have to take a Breathalyzer test. The policy has been adopted as an effort to cut down on teen drinking.

The policy also allows school administrators to test individual high schoolers during the school day if there’s reason to suspect they’ve been drinking alcohol.

School officials say if a student refuses to take the Breathalyzer, the student could be suspended for 10 days.

As I noted in a post on a similar rights-infringing policy in New Jersey back in January 2007:

From the narrow fact pattern [of drug testing student athletes], the Court’s reasoning quickly imploded. Suddenly it went from athletics to all extracurricular activities (but how much harm can a stoned chess team do to themselves?). Suddenly a carefully crafted exception became a mere reasonableness test — reasonable to be defined, of course, by the school administrators. From “this and only this” to “whatever you feel like.”

From “not shedding rights at the schoolhouse gate” to “shedding rights at the prom door.” Splendid.

Previously:
–War on Drugs Now Trumps First Amendment
–Morse v. Frederick Already Being Abused
–Posner’s Morse Error in the Anti-Gay Shirt Case
–Stitch in Haste Podcast #001
–The School as Breathalyzer
–School Tries to RFID Students Without Parental Consent