40 Years After Tinker v. Des Moines, School Officials Still Unconstitutionally Censoring Students
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NEW YORK – To mark tomorrow's anniversary of Supreme Court case Tinker v. Des Moines Independent School District, the American Civil Liberties Union has released a video about one of the latest of many cases in which Tinker was relied upon to uphold students' right to free speech. Despite the landmark ruling, school officials routinely ignore the rule of law and attempt illegal censorship to this day, especially against lesbian, gay, bisexual, and transgender students, the ACLU said.
"When I was a 13-year-old student in Des Moines, Iowa, I certainly wasn't thinking that my small action would help students have a voice 40 years later. But some of us had a strong opinion about peace, and we didn't think it was right for the schools to stop us from expressing it," said Mary Beth Tinker, one of the plaintiffs in the historic Supreme Court case. "Young people, like everyone, need to be aware of their rights and speak up when those rights are violated. I'm glad our case still helps students express their First Amendment rights."
In the ACLU video, available at www.aclu.org/lgbt/youth/38778res20090224.html along with an audio interview with Mary Beth Tinker, a high school principal from Florida testifies in a videotaped deposition that he banned students from wearing any sort of rainbow symbols – including the logos for Apple Computers and the long-running children's television show "Reading Rainbow" – because he felt they symbolized gay rights. Such censorship remains commonplace in spite of the Tinker decision outlawing it, according to ACLU attorneys. Heather Gillman, a student at Ponce de Leon High School, sued her school over the principal's ban and eventually won her case.
"Students like Heather Gillman, who speak up for what they believe in and hold schools accountable, should be highly commended. History will be made either by people's action or inaction, and I've found it's a lot more interesting and meaningful to take action," added Tinker.
Tinker v. Des Moines, decided by the U.S. Supreme Court on February 24, 1969, came about after Tinker, her brother, and another student in Des Moines, Iowa decided to wear black armbands with peace symbols on them to their schools in protest of the Vietnam War and in support of the Christmas Truce called for by Robert Kennedy. After hearing about the students' plans, the school board announced it was banning the wearing of armbands to school. Represented by the ACLU of Iowa, the students took their case all the way to the highest court of the land and won. In the court's 7-2 majority opinion, Justice Abe Fortas wrote, "It can hardly be argued that either students or teachers shed their constitutional rights...at the schoolhouse gate."
In the Florida case, Gillman v. Holmes County School District, the ACLU stepped in to help students who said they were routinely intimidated by school officials for things like writing "gay pride" on their arms and notebooks or wearing rainbow-themed clothing. After a two-day trial in which the principal testified that he believed clothing or stickers featuring rainbows would make students automatically picture gay people having sex, a federal judge ruled last May that the school had violated students' First Amendment rights of students.
"The right of students to speak out about their opinions has been the indisputable law of the land for 40 years as of tomorrow. But we still find schools that gag students, particularly students who support LGBT rights," said Matt Coles, Director of the ACLU's national LGBT Project. "The censorship at this Florida school was so ridiculous it's tempting to just make fun of it. But there is nothing funny about disregarding the First Amendment, especially in schools which are supposed to teach American values. Schools need to know censorship is illegal, and students need to know their schools can't get away with it."
Gillman is one of dozens of instances over the past 40 years in which schools were made to stop illegally censoring students thanks to Tinker v. Des Moines. In recent years, the ACLU has used Tinker more and more to protect the rights of LGBT students and their friends:
• In 2007, a teacher in Portsmouth, Virginia told Bethany Laccone, a 17-year-old senior and out lesbian, that she shouldn't be wearing a t-shirt with an image of two overlapping female gender symbols at school and then sent her to the assistant principal's office. The assistant principal and the teacher then told Bethany that the shirt violated a section of the school dress code that bans "bawdy, salacious or sexually suggestive messages." After receiving a letter citing Tinker from the ACLU, school officials apologized to Bethany and let her wear the shirt to school again.
• In 2006, a high school student in Dublin, Ohio was told to take off a t-shirt that read "I support gay marriage" by school administrators. The next day, about 20 students protested the action by coming to school in similar t-shirts. They were required to change their t-shirts, turn them inside-out, or go home. After the ACLU sent a demand letter on behalf of 16-year-old Zach Hust, one of the students punished for wearing the shirts, the school backed down, announcing publicly that it would no longer illegally censor students who expressed their views through their t-shirts.
• In 2003, school officials in Jacksonville, Arkansas punished 14-year-old Thomas McLaughlin for talking between classes with a female friend about a boy they both considered "cute." He was disciplined; his friend was not. Later, school officials forced him to read aloud from the Bible in clear violation of the Establishment Clause of the First Amendment as punishment after Thomas, who is himself a Christian, disagreed with a teacher for calling him "abnormal" and "unnatural." The school then suspended him for two days for telling other students about being made to read the Bible in school and told him that if he told any of his friends why he was suspended, he would be expelled. After the ACLU sued, the school district issued a formal apology to Thomas and his parents, created policies protecting students from anti-gay discrimination and harassment at school, and agreed to pay a total of $25,000 in damages and attorneys' fees.
Watch the Gillman video and listen to the audio interview with Mary Beth Tinker at: www.aclu.org/lgbt/youth/38778res20090224.html