Why First Amendment still matters to students: Column

Tony Mauro | USA TODAY

Mary Beth Tinker is a pediatric nurse by profession. But she recently quit her job to embark on a nationwide tour promoting kids' health in another way.

She'll be speaking about the First Amendment, and the right of students to express themselves in school. How is that a health issue? "It's good for their health to speak up," she told me recently. "Students do better when school is a place where they want to be, and that happens if they have a voice."

For Tinker, that is not just an abstract idea. In 1965, then a 13-year-old student in Des Moines, she wore a black armband with a peace symbol on it — triggering a First Amendment dispute that went all the way to the Supreme Court.

In 1969, the high court ruled that Tinker should not have been disciplined for peaceably expressing her views about the Vietnam War. The court stated that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

Why a tour?

With such a ringing endorsement of the First Amendment rights of students, why does Tinker need to travel around the country to remind young people and adults why free speech is so important? It is because, in spite of the decision, lower courts — and even the Supreme Court — have chipped away at it over the years, in the name of order and discipline. School officials often develop amnesia about the Tinker case whenever a student deviates from some standard of behavior.

The files of the Student Press Law Center are full of efforts by principals or teachers censoring school newspapers for writing about controversial topics when, in fact, they should be encouraged. (Mike Hiestand, one of the center's lawyers, will join Tinker on her tour.)

Challenges to rights

And it's not just school newspapers. This year, a West Virginia student was suspended for wearing a National Rifle Association T-shirt. Battles have proliferated over efforts by schools to restrict off-campus, online student expression.

But on Aug. 5, a Philadelphia appeals court issued a ruling that proves the enduring power of the Tinker decision. The court ruled that a Pennsylvania school district violated the First Amendment by prohibiting students from wearing "I (love) boobies" wristbands distributed by Keep a Breast Foundation to promote cancer awareness. School officials banned them, apparently fearing that male students would make immature comments (as if they wouldn't otherwise).

Students Kayla Martinez and Brianna Hawk refused to take the wristbands off, provoking litigation similar to Tinker's. The court cited Tinker's case as it found that the bracelets were neither lewd nor disruptive, but instead were starting useful conversations about breast cancer.

Strangely enough, two weeks later, another court ruled in favor of a school ban on the same wristbands, this time in Indiana — showing that the First Amendment values Tinker fought for in the 1960s still need to be retaught and refreshed. Her "Tinker Tour" begins Sept. 15 in Philadelphia. Her valuable message: First armbands, and now wristbands, are important for the health of our democracy — and the health and development of students as well.

Tony Mauro is Supreme Court correspondent for The National Law Journal and the Supreme Court Brief. He is a member of the USA TODAY Board of Contributors.

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