New Cases Test Landmark Ruling on School 1st Amendment Rights
"As the Supreme Court explained in Tinker v. Des Moines Independent Community School District, students do not forfeit their free-speech rights when they walk through the school doors," Staub wrote in the letter. "School officials may only forbid student speech when it threatens to 'materially or substantially interfere with…the operations of the school' under Tinker."
The school district blinked and allowed the bracelets. "They made the right decision," Staub said.
On Oct. 30, the ACLU had another victory short of litigation, when the Torrington School District agreed to revoke a proposed social media policy that threatened to punish student athletes who made inappropriate comments online.
The policy change was suggested after online comments were made by students following the arrest of four football players on charges relating to having sex with underage girls. As it did in the bracelet matter, the ACLU wrote a letter to the school reminding officials of the Tinker standard. McGuire, one of the ACLU lawyers who worked on the letter, said he was pleased the school decided to cancel the policy change.
"The Torrington policy would have put some restrictions on students as far as how they use social media," McGuire said. "We pointed out that even on the Internet, student free speech is still governed by Tinker. That is still controlling, and has the largest impact to this day on student's rights to free speech."
As far as McGuire is concerned, the use of the Internet does not change the application of the law. It will be up to the Supreme Court to change that, if it chooses.
"I think everybody who practices free-speech law understands that the Supreme Court has not yet addressed the Tinker standard in the digital age," he said.
Tinker said her presentation and lectures are largely based on raising awareness about students' rights of free expression. She said since the days when she was in school, "student civics awareness is at an all-time low."
But at the same time, she is aware that technology is increasing students' abilities to learn about the law with the click of a mouse.
"Technology is good for student expression, because it allows them to have more access to more information," she said. "In that way, technology is good, and I think school administrators are starting to be more supportive of the way students use technology to learn and communicate with each other."