Student Speech Exam Question: Answer to Tinker Issues

Paul Park will argue that the flyers and t-shirts he created about the SLAM organization and brought to school are protected speech under the Free Speech Clause of the First Amendment. The speech is Paul Park’s personal, political expression that advocates a change in the law and does not in any way tie his views to the High School for Social Justice or even mention the school in his literature or on his t-shirts.

In addition, the use of the SLAM logo does not reduce the degree of free speech protection. While the logo consists of both a drawing of a glass and an up arrow, the flyers and t-shirts also include words and the number 16. Even the black armbands in Tinker were considered to be "akin to pure speech" and they contained no words at all. Because the flyers and t-shirts are personal political speech by a public school student, Paul will argue they are governed by Tinker v. Des Moines Independent Community School District.

Under Tinker, Paul will argue that the school cannot satisfy the Tinker standard. First, it cannot reasonably have predicted that the speech could cause substantial disruption. Since the focus of the school is on social justice issues, students at the school are used to hearing about law reform proposals, probably many that are more controversial than Paul’s, and are unlikely to react strongly to them. In addition, the students are likely taught to consider both sides of the argument for law reform rather than to just assume one side is right and the other is wrong. As a result of the focus of the curriculum, the school could not reasonably predict that the SLAM flyers and t-shirts would cause substantial disruption.

Second, Paul will argue that the school could not show that the SLAM flyers and t-shirts caused actual substantial disruption. After students purchased his shirts and wore them to school, there were comments in the hallways and discussions in the cafeteria and during recess. However, none of these discussions disrupted classroom activities or other aspects of the school’s educational program. In addition, there is no indication the discussions were violent, excessively loud or disruptive in any other way. The other reaction to the t-shirts also included phone calls from parents who objected to the shirts, but phone calls from parents are a regular part of a school administrator’s job and do not qualify as substantial disruption. Moreover, there is no indication that the phone calls had any impact beyond taking up a small amount of the principal’s time.

By contrast, the high school will argue, assuming the speech is considered to be the personal speech of Paul Park rather than student speech that is part of a school-sponsored expressive activity, that the speech satisfies the Tinker test. First the school will argue that there was actual substantial disruption. After students purchased Paul’s shirts, they provoked a substantial amount of discussion in the hallways, the cafeteria, and during recess. It is reasonable to conclude that these conversations did not cease when students entered the classroom and caused students to lose focus on their classroom learning. In addition, the school will argue that the phone calls from angry parents blaming the school for the SLAM campaign were disruptive to the principal’s other assigned tasks.

In addition, even if the activities described above don’t amount to actual disruption, they provide a basis for the school to reasonably forecast actual disruption from both the continued wearing of the t-shirts and a continuation of the angry phone calls as additional students purchase the shirts and wear them to school. The anger of the parents is also likely to spread to some of the students who oppose SLAM’s effort to lower the drinking age. Additional disagreements about SLAM’s law reform proposal is likely to intrude into classroom learning as well as provoke more aggressive confrontations between students. The likely results of a continuation of Paul's campaign provides a reasonable basis for the school to forecast actual disruption.