Digitus Impudicus: The Middle Finger and the Law - Wired

2008] Digitus Impudicus 1469
Despite its broad grant of free speech rights to public school
students, the Tinker Court ultimately did not ensure full First
Amendment protection for students, at least when they are on school
grounds. Instead, the majority in Tinker concluded that, to regulate
student speech, a school must show that the speech or conduct it
seeks to punish would “materially and substantially” disrupt the
educational process in the school. 448 When punishing or limiting
student speech, a school must prove that its regulation was motivated
by something more than a desire to prevent the “discomfort and
unpleasantness” that often accompany expression of a controversial
viewpoint, because “undifferentiated fear or apprehension of
disturbance” is not sufficient to overcome students’ speech rights. 449
Thus, under Tinker, a student may express his or her opinions at
school as long as the speech does not materially and substantially
interfere with the educational process. 450
In subsequent decisions, the Supreme Court has broadened the
ability of school officials to regulate student speech and conduct that
occur on school grounds. 451 In Bethel School District No. 403 v.
Fraser, 452 the Court approved a school’s decision to suspend a student
who delivered a speech replete with sexual references and innuendos
at a high school assembly attended by 600 students. 453 The Court held
argues that, if school officials do not respect students’ speech rights, students will
grow up to be “disillusioned adults” who do not tolerate diverse thoughts and
opinions).
448 Tinker, 393 U.S. at 513 (stressing that student conduct that “materially disrupts
classwork or involves substantial disorder or invasion of the rights of others” is not
protected by First Amendment).
449 Id. at 508-09.
450 Id. at 513. For examples of lower courts applying the Tinker standard, see
Beussink v. Woodland R-IV Sch. Dist., 30 F. Supp. 2d 1175, 1177, 1181 (E.D. Mo.
1998) (holding that student’s speech did not materially and substantially disrupt
educational process where student created webpage that used vulgar language to
criticize his teachers and school administration); Pangle v. Bend-Lapine Sch. Dist., 10
P.3d 275, 286-87 (Or. Ct. App. 2000) (upholding school’s expulsion of student for
distributing on school campus newsletter that advocated activities including bomb
threats, interference with school’s public address system, and harming school
personnel, because school officials reasonably found that newsletter materially and
substantially interfered with school’s basic educational mission).
451 See generally Chemerinsky, supra note 441, at 528-30 (noting that courts have
sided with schools and against students in nearly all student speech cases after
Tinker).
452 478 U.S. 675 (1986).
453 Id. at 685. For a thorough examination of Fraser, see Robert Block, Note,
Students’ Shrinking First Amendment Rights in the Public Schools: Bethel School District
No. 403 v. Fraser, 35 DEPAUL L. REV. 739, 751-60 (1986).