Freedom of Expression Within the Schoolhouse Gate

Abstract

In the late 1960s, the Supreme Court began contemplating how the First Amendment's commitment to "the freedom of speech" should protect the right of students to introduce their own ideas into the schoolhouse.' This constitutional question extended well beyond the matter addressed in West Virginia State Board of Education v. Barnette, because that opinion-momentous though it was-held simply that students could refuse to recite the Pledge of Allegiance.2 But Barnette did not establish that students possessed an affirmative right to advance their own opinions, on topics of their own selection, much less in the face of school officials' objections. The right to sit out, in other words, did not necessarily confer the right to speak out.

This Article examines the history of student rights to affirmative speech, with a focus on threats facing those rights that appear on the horizon. First, as it must, this story begins with the Supreme Court's landmark decision in Tinker v. Des Moines Independent Community School District.3 The Article analyzes the case's background, emphasizes the majority's broad conception of citizenship, and illuminates the opinion's deep doctrinal ambiguity. Turning to the dissent, the Article highlights Justice Black's narrow conception of citizenship, examines possible motivations for his unusually strident opinion, and demonstrates that Justice Black's message resonated more with the American people than did the Court's opinion. By marshaling contemporaneous public opinion data, it becomes clear that Tinker should be understood as an opinion that successfully vindicated constitutional rights in the face of counter-majoritarian opposition.

Second, the Article assesses the strength of Tinker today, arguing that scholars have incorrectly dismissed its continuing significance. Admittedly, the Supreme Court has repeatedly rejected students' speech claims post-Tinker.4 But those decisions should not be mistaken for indicating that Tinker is now a dead letter. After recovering Tinker's contemporary vitality, the Article concludes by identifying two major areas that require renewed judicial attention in the fight to protect student speech rights. A brief conclusion follows.