I first became involved with the Liberty & Law Center by participating in the Liberty & Law Reading Group as a 1L. I decided to participate in the reading group for several reasons. One reason is that I wanted to engage in more critical evaluation of a text than is typical in 1L courses. Another reason is that I wanted to become more familiar with ideas behind the interaction of liberty and law. Participating in the reading group fulfilled both of these desires. One of the participating professors started every semester by saying that the reading group is not meant to be Bible study for libertarians; it is meant to be a place to engage critically with texts about liberty and law. Sessions usually involved participants collectively trying to make sense of passages that were particularly opaque or that contrasted with typical understandings of the law. By participating in the reading group, I was exposed to works by Friedrich Hayek, Randy Barnett, and Richard Epstein. All of these authors challenge the typical modern legal paradigm, often in ways I had not previously considered. Even though I do not fully agree with every author, I benefited from exposure to their arguments. The readings expanded my thinking and, hopefully, made me less likely to fall into a trap of lazy, clichéd thinking.

I also participated in the Liberty & Law Center’s Discussion Over Division program. That program involves discussions about controversial political issues, either through one-on-one discussions in which participants can choose their own topics or through roundtable discussions with dedicated topics. I really enjoyed these discussions and looked forward to them every year. Part of my enthusiasm comes from a simple enjoyment of politics and policy, but another part stems from the program providing an outlet to discuss positions freely. Although many legal issues discussed in class often have political overtones, discussion is still in the context of a law class. One’s positions, for the most part, need backing from a statute or court decision. In the Discussion Over Division program, we had more freedom to bring in philosophical, economic, or even just personal reasons for a position. Besides the enjoyment I got from participating in the program, I think it was also useful preparation for a future career as a lawyer. Although the discussions were mostly non-legal and were not truly adversarial, I still had to explain my position to someone who was not inclined to agree. As someone who wants to work in public interest law, and therefore might have to communicate with non-jurists such as the media and the public at large, I am glad I got at least a little experience explaining my positions without needing to cite to case law.

In my final year of law school, I had the privilege of participating in the Free Speech Clinic. The clinic counts towards the Public Interest Litigation and Advocacy Concentration, which I pursued. The clinic provided me with hands-on experience in an area I would like to work one day. I got experience researching potential free speech cases and drafting complaints. Through the clinic, I was able to apply in a very real way principles I had discussed a bit more abstractly in other classes. That is only half the benefit of being in the clinic, though. The first half of class was usually devoted to covering a topic with a guest speaker. Guest speakers included practicing attorneys and people who participated directly in famous cases we read. I feel much more confident in pursuing a public interest career because of my participation in the clinic.

Brennan VanderVeen, Public Interest Litigation Program Alumnus and Student Participant

Anniversary of Tinker v. Des Moines Independent Community School District

By Madison Breshears

On this day in 1969, the Supreme Courtheld for the student petitioners in Tinker v. Des Moines Independent Community School District by a 7-2 majority. The opinion, delivered by Justice Fortas, remains among the most emphatic affirmations of students’ First Amendment rights.

“It can hardly be argued,” the Court famously wrote, “that either students or teachers shed their constitutional rights of freedom of speech or expression at the schoolhouse gate.”[1] Evidently, however, such a claim was argued—certainly, by the school administrators in Des Moines, but also by large swaths of Americans who, during the height of the Vietnam War, struggled to adjust to, and often sought actively to suppress, the unprecedented and seemingly unyielding surge of youth activism which characterized their time.

The Kent State Massacre would occur only a year after the Tinker decision, and retrospectively, it makes the Iowa school district’s temporary suspension of Christopher Eckhardt, John Tinker, and Mary Beth Tinker—16, 15, and 13 respectively, for the donning of symbolic antiwar armbands, seem almost trivial. But the decision’s impact was an undeniable watershed, expanding free speech protections to campuses and classrooms, and, perhaps most significantly, guaranteeing the constitutional rights of children in a way that would have been difficult to imagine only years before.

John and Mary Beth Tinker were children of a Methodist minister, notably one who had been removed from his parish for attempting to racially integrate his services,[2] and who was active in the anti-war movement. Christopher Eckhardt’s mother was the president of the Des Moines Chapter of the Women’s International League For Peace and Freedom, and had previously participated in anti-war demonstrations in Washington, D.C.[3] On December 16, 1965, Mary Beth and Christopher wore black armbands to school to express their anti-war beliefs. John Tinker wore his for the same reason the next day. All three were suspended from school for violating the school’s prohibition of armbands, (supposedly, the school had caught wind of the students’ plan and had hastily created the rule to preempt controversy.) The children were informed they could not return to school with an armband and, accordingly, did not return until after New Year’s Day, when the planned period to wear the armbands had ended.[4] The children and their parents then brought suit in federal district court, alleging that the school’s policy stood in violation of the First Amendment. Their case was dismissed, and an appeal to the eighth circuit affirmed the district court decision. The Supreme Court granted certiorari.

In its historic reversal, the Supreme Court set a new, narrow standard for limitations on student speech in public schools. In what would become a famous free speech litmus, the so-called “Tinker Test” required that public schools seeking to quash expression provide reasonable evidence that a student’s speech would create a “substantial disruption”[5] to school activities. If not, the school’s failure to allow such expression would run afoul of the First Amendment. The wearing of black armbands, the Court reasoned, was “pure speech,”[6] entitled to constitutional protections, and created no such substantial disruption.

In what may be its most important contribution to school free speech, the opinion thoroughly condemned the notion that mere, unsubstantiated “fear” or “apprehension” of disruption may qualify as sufficient grounds for a school to ban speech.[7] The Court went on to quite movingly articulate the rights of children in American life:

In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school, as well as out of school, are “persons” under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.[8]

The Tinker decision, however, has not set a trend of ever-expanding student speech rights as activists may have hoped. In reality, Supreme Court cases addressing school speech after Tinker have shown far more deference to schools—see, for example, Hazelwood School District v. Kuhlmeier[9] (1988), which confirmed a public school’s right to prevent certain material from running in its student newspaper,[10] and Bethel School District No. 403 v. Fraser[11] (1986), which held that a school may punish a student for making a lewd speech at an assembly. In 2007, in its most important case involving speech in public schools since Kuhlmeier, the Supreme Court held that a public school did not violate a student’s First Amendment rights when it suspended him for displaying a banner, which read “Bong Hits 4 Jesus,” at a school-sponsored event. The Court reasoned, departing from its standard in Tinker, that a public school may prohibit a student’s speech when it promotes illegal drug use. In his concurring opinion, Justice Thomas went so far as to say that Tinker should be thrown out entirely.[12] Justice Thomas is not alone in questioning Tinker’s legitimacy —further confusing the state of school speech laws, lower courts have only sporadically followed Tinker’s precedent, some behaving as if its narrow approach to speech regulation has been overruled.[13]

Nonetheless, Tinker remains, and it has laid the foundation for the freedom we have come to expect from our public schools. Quoting Justice Brennan’s opinion in Keyishian v. Board of Regents, the Tinker Court held that “the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.” The classroom, it states, is the epitome of the marketplace of ideas.

[1] Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969).
[2] David L. Hudson Jr., Tinker After 50: A Historic Ruling Still Relevant After All These Years, Freedom Forum Institute, Jan 30 2019.
[3] Transcript of Oral Argument at 25, Tinker v. Des Moines Community School District, 393 U.S. (1969) (No. 21).
[4] Tinker, 393 U.S. at 504.
[5] Tinker, at 514.
[6] Tinker, 393 U.S. at 507.
[7] Tinker, at 508.
[8] Tinker, at 511
[9] Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988).
[10] Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 276 (1988).
[11] Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 686 (1986).
[12] Morse v. Frederick, 551 U.S 393, 422 (2007).
[13] Erwin Chemerinsky, Students Do Leave Their Constitutional Rights at the Schoolhouse Gates: What’s Left of Tinker? 48 Drake L.R., 547 (1999).