Academic

Larios on Tinker v. Des Moines Independent Community School District

By Lawrence Solum

Miguel E. Larios (The John Marshall Law School) has posted We Got No Class: Retiring Tinker v. Des Moines Independent Community School District on SSRN. Here is the abstract:

The First Amendment to the U.S. Constitution prohibits Congress from enacting laws abridging the freedom of speech, yet since educational opportunities during the colonial period were largely limited to private schools and tutors, the Framers could have hardly imagined how a free speech guarantee would apply to America?s schoolchildren. Despite a long history of granting deference to public school officials, the U.S. Supreme Court in Tinker v. Des Moines Independent Community School District, held that public school students have a First Amendment right to wear black armbands to express support for a truce in the Vietnam War. In this paper, I argue that Tinker should be overruled.

Part I of this Article provides a brief history of student speech rights and the prelude to Tinker. Part II examines the Tinker decision and subsequent decisions concerning student speech rights. Part III explains why Tinker should be overruled. Part IV argues that Tinker should be replaced with a more deferential standard for determining student speech rights. I conclude with a brief discussion of this post-Tinker world.

Full post as published by Legal Theory Blog on September 11, 2009 (boomark / email).