M. Eleanor Schmalzl ‘20
Editor-in-Chief
Lena Welch ‘20
New Media Editor
On Friday, January 24, several Law School organizations, including the Virginia Law Review, hosted an open discussion about free speech “inside the schoolhouse gates.” Fifty years ago, the Supreme Court issued Tinker v. Des Moines,[1]discussing student speech rights and schools’ ability to limit student speech in the classroom. Since Tinker, circuits have split on questions surrounding the important balance between allowing student speech and protecting the learning environment, and it is unclear what protections students still have regarding their speech in and out of classroom settings today. The symposium participants explored several current topics related to Tinker, and Ms. Mary Beth Tinker herself gave the keynote address.
Mary Beth Tinker delivered the keynote address in Caplin Pavilion for an event commemorating the fifty year anniversary of Tinker v. Des Moines. Photo credit Kolleen Gladden ‘21.
In her keynote, Mary Beth Tinker detailed her journey through the time of the Tinker case. As a shy child growing up, Tinker never thought she would be a kid to make a big statement in high school. However, after seeing stories of hatred and war, she ended up doing just that when she stood with a few other classmates by wearing a black armband in protest of the Vietnam War. The school suspended her and a few of her classmates also wearing the arm bands, and these students challenged this punishment in court. After a battle in the district court, Tinker and her classmates lost. They lost again on appeal. But the Supreme Court reversed 7-2, finding that their armbands did not impair the learning process to a level where the school system could limit the students’ rights to wear them. Instead, school officials can only limit student speech when that speech can interfere with the learning process. Since that time, courts have been left to figure out the details of students’ free speech in schools, and lots of questions have resulted.
Before Tinker spoke, Professor Frederick Schauer kicked off the event. He detailed the First Amendment cases we have seen over the last fifty years and the importance of preserving speech as our nation becomes ever more divided. Schauer reminded the audience that this time is not just an important anniversary of the Tinker case, but an important issue to keep discussing as schools face issues with where to draw lines in speech interference. As social media and other platforms grow outside the classroom, school administrators must face the challenge of protecting students and the learning environment. And with political parties flipping on their viewpoint of the issue over the last several decades, there are complex dynamics at stake.
The first panel, comprised of distinguished scholars Mary-Rose Papandrea, Emily Gold Waldman, Timothy Zick, and Manal Cheema ’20, explored the aftermath of Tinker: Is it even still good law? These scholars discussed the standards applied to student speech following Tinker. Currently, schools are provided a great deal of deference. As long as interference with school is a reasonable, foreseeable consequence, whether by the student speaker’s own actions or by another student’s, the school is able to censor the speech. The scholars contemplated the application of this standard in online and off-campus settings as well as in the instance of compelled speech.
The panelists also highlighted Confederate flag cases as an example of a content ban that is likely to survive. School districts have added prohibitions against Confederate flags in their dress codes, and while these bans are likely to be challenged, the scholars have not seen a challenge win. Rather, they used this example to point out the potential bad outcomes of a content ban, although most people would agree with the ban against Confederate flags.
Panelists discuss the implications of Tinker issues surrounding unpopular forms of student speech. From left to right: Anna Cecile Pepper ‘21, LaTarndra Strong, Susan Kruth, Mary Anne Franks, and Professor Rich Schragger. Photo credit Kolleen Gladden ‘21.
The second panel featured Mary Anne Franks, Susan Kruth, LaTarndra Strong, and Anna Cecile Pepper ’21, and was moderated by Professor Rich Schragger. The panelists discussed unpopular student speech and ways to handle it. These scholars also discussed the Confederate flag cases as an example of content bans, which Kruth advocated against, but also as a ban against symbols of hate, which Strong works hard to eliminate through her organizing. This panel highlighted the importance power plays in the world of speech protections, pointing out those whose speech is protected or who can assert their rights tend to be people of privilege. Additionally, the panel discussed walkouts and other forms of protest, with Pepper highlighting her scholarship as it relates to student speech outside the schoolhouse gates.
Despite all these questions left in the post-Tinker era, Tinker herself works now as an advocate for human and child rights. She was driven to speak up by all the images of hatred and war that she saw as a kid, and she wants to prevent this hatred and violence in the future to improve our world’s future. She believes the kids are the future, but also the present, and we need to focus on and listen to them now. While Tinker hinted at believing there is need to limit student speech in certain instances, she urged us to fight for the voices of those that are not always heard. On her own experience speaking out that day with that black armband in high school, Tinker told the audience: you may be nervous and scared to stand up for things you care about, but a little bit of courage goes a long way. So while we may not know what the future holds for student speech in an era of technology and growing political divide, we do know there are people like Tinker seeking protection for those not always able to fight for themselves.
When asked about the event, Maggie Booz ’20 commented, saying, “We started planning the symposium last March, shortly after we started our positions on the managing board. We initially decided that we wanted to do an event centered on free speech, since it’s an issue that all sides of the political spectrum care deeply about. After running some initial ideas by Vice Dean Leslie Kendrick, we decided to do an anniversary symposium on Tinker v. Des Moines––nobody was addressing it, and we felt that it was an issue relevant to students’ lives that people would be excited to write about. We then opened the pool for submissions over the summer, and were very fortunate to be able to select two excellent student pieces by Manal Cheema and Anna Cecile Pepper in August. We solicited articles from free speech experts, and then spent the fall editing and publishing the pieces. Around the same time, Mika was incredibly fortunate to secure Mary Beth Tinker as our keynote speaker. Meanwhile, we planned panels, invited free speech experts to speak on the panels, and planned the logistics of the event.”
A replica of the armband at issues in Tinker v. Des Moines commemorating the fifty year anniversary of the Supreme Court case. Photo credit M. Eleanor Schmalzl ‘20.
Former Law Review Editor-in-Chief Laura Toulme ’20 said, “The Tinker Symposium was a great event. It certainly was a high-note to go out on as EIC. Many people and organizations were instrumental in making the event possible. As Professor Schwartzman highlighted in his introduction of Ms. Tinker, we were lucky to have such a broad array of student organizations supporting the event. I thought that really spoke to the importance of the topic. And it certainly wouldn't have been as successful without the Karsh Center's support. Finally, our outgoing Online Department––Ben Lucy ’20, Maggie Booz ’20, and Mika Carlin ’20–– and Managing Editor––Kareem Ramadan ’20––worked all year in the lead up and especially during the event to make sure everything went smoothly.” She also thanked Professor Schauer, Vice Dean Kendrick, Professor Robinson, and Professor Schragger for being there to bounce ideas off of for speakers and panelists to participate in the event.
Finally, she said “Hearing first hand from Mary Beth Tinker was probably the highlight for me. Her actions helped forge current First Amendment rights, which is incredible. My favorite part of her speech was her discussion of taking off her armband in the principal's office. You don't have to be the most courageous person to make a difference––even a little bit of courage can change history. It's also rare to have heavily female participation on conference panels, so it was really exciting to see all of the brilliant women who participated––especially our two student authors, Anna Cecile Pepper and Manal Cheema.”
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[1] 393 U.S. 503 (1969).