F ifty-one years ago, the U.S. Supreme Court ruled unequivocally that public school students are protected by the First Amendment.
“It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” the court stated in the landmark decision Tinker v. Des Moines Independent Community School District. “In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students.”
As indelible and clear as the Tinker decision is in the pantheon of individual rights, school officials still seem to ignore or circumvent it — especially, it seems, during the current global pandemic.
The latest example made headlines when two students at North Paulding High School in Dallas, Ga., took cellphone photos of crowded school hallways and posted them online, showing that few students were wearing masks. One of the students who posted the photos, Hannah Watters, reported in her tweet on Aug 4, “We were stopped because it was jammed. … This is not OK.”
That tweet alone has all the elements of free speech — it informs the public about what is happening at school. It also heeds the Tinker caveat that students are protected by the First Amendment, but conduct that “materially disrupts” a school is not. The photos went viral, a sign of the chaotic opening of schools for the new term.
But the tweeting students were swiftly suspended from school for five days for what they did. A school official wrote to parents that the photos did not “look good” and the students told they violated rules about using cellphones in school without permission. The school’s principal announced to students that “Anything that’s going on social media that is negative or [the like] without permission — photography … video … anything — there will be consequences.”
After nationwide backlash, the suspensions were both canceled. Watters tweeted, “This morning my school called and they have deleted my suspension. To everyone supporting me, I can’t thank you enough.” In an interview, she said, “This was some good and necessary trouble,” echoing the words of the late Congressman John Lewis. After the uproar, the high school closed for a period to allow cleaning after at least 35 students and school staffers tested positive for COVID-19.
The Georgia episode points up the persistent avoidance of the Tinker ruling in many public schools.
“It truly is mindboggling that more than 50 years after Tinker we are still having to remind principals that students have the right to speak peacefully and lawfully on campus,” said Mike Hiestand, senior legal counsel for the Student Press Law Center, which advocates for student speech rights. “It’s truly not rocket science. But sadly, I think it’s not so much they don’t know about the law as they don’t care. The idea that students dare criticize them is just not something many school officials seem able to tolerate.”
Hiestand said this persistent avoidance of Tinker has been exacerbated by the pandemic. “Schools have clamped down, for example on providing accurate, timely information in response to Freedom of Information (FOI) requests and interviews with school officials,” he said. “Schools are creating barriers to reporters trying to show what ‘Back to School 2020’ actually looks like. The other thing we’re starting to see are cutbacks in school budgets or other COVID-related changes that eliminate or cut back on student journalism programs.”
More broadly, school officials seem to be especially antagonistic toward social media, cellphones and other devices that students carry with them every day, says Frank LoMonte, director of The Brechner Center for Freedom of Information at the University of Florida College of Journalism and Communications.
“There is a pervasive and growing sense among authority figures that social media is somehow so uniquely ‘dangerous’ that normal First Amendment principles go out the window,” LoMonte said. “Everyone readily recognizes that complaining about school safety conditions is protected speech. But somehow, the introduction of social media causes an existential panic.”
Hadar Harris, executive director of the Student Press Law Center, also said, “Students must not be disciplined for exposing health and safety issues at their school, particularly in the midst of a pandemic. The school district’s policy related to cellphone and social media use on campus raises serious First Amendment concerns in and of itself. Schools should be on notice that students have the right to report responsibly and lawfully on the situation in their schools, even if it is not the most flattering view of the school.”
John Whitehead, president of The Rutherford Institute, said, “Hannah and her schoolmate acted in the best tradition of whistleblowers by bringing to light information that must be considered in making difficult choices.”
Mickey Osterreicher, general counsel for the National Press Photographers Association, was especially perturbed by the school officials’ hostility toward photography. “In this case, not only was the taking and posting of photos not seriously disruptive of normal school activities, it served a cardinal purpose enshrined in constitutional protections, namely the free exchange of ideas especially on matters of public concern.”
Looking into the future, Osterreicher added, “Students must be allowed to continue to photograph and report on conditions in their schools as well as their communities. Anything less creates a chilling effect on the constitutional rights of the next generation of newsgatherers.”
Tony Mauro is contributing U.S. Supreme Court correspondent for the National Law Journal and ALM Media, and a special correspondent for the Freedom Forum.