Violations of Free Expression
Tinker was all about freedom of expression. The students in Tinker merely wore black arm bands. They did not disrupt school activities in any other way. The actions of the students are often used to distinguish the right of speech and expression for students from the rules that can govern those rights. Again the distinction hinges on the impact of the expression on the educational process.
In New Rider v Board (414 US 1097 [1973]), a pair of male Pawnee Indian students were suspended from school for wearing long hair in the tradition of their ancestors. The suspension was for violation of a school rule which forbade the wearing of hair that extended past the collar or ears. The Court refused to hear the case, but Justices Douglas and Marshall wrote a stinging dissent of the denial, "Petitioners were not wearing their hair in a desired style simply because it was the fashionable or accepted style, or because they somehow felt the need to register an inchoate discontent with the general malaise they might have perceived in our society. They were in fact attempting to broadcast a clear and specific message to their fellow students and others — their pride in being Indian." Douglas wrote another dissent in a hair-length case for Olff v East Side Union (404 US 1042 [1972]). No other cases appear to have been decided by the Court on this issue, and circuit courts have made conflicting rulings.
In Cohen v California (403 US 15 [1971]), the Court overturned a conviction of a man who wore a jacket with the words "F___ the Draft" on it. The Court ruled that the presence of a printed vulgarity cannot be sufficient cause for an arrest and 30-day imprisonment. The Court said: "[A]bsent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense." Cohen was not a student and the jacket was not displayed in a school, however. Dress codes that prohibit certain kinds of dress (like cut-off shorts or shirts with obscene or commercial messages) have not been challenged at the level of the Supreme Court, but have generally been upheld as promoting the educational process.
In 2007, in the widely-reported case of Morse v Frederick (06-278 [2007]), better known as the "Bong hits 4 Jesus" case, the court narrowly decided that student speech off campus can be suppressed by school administrators if the speech promotes illegal activity — drug use, in this case. In the case, Joseph Frederick erected a banner along a route used to transport the Olympic torch. The route was flanked by students from Frederick's high school. Principal Deborah Morse, on seeing the banner, had it removed and had Frederick suspended, on the premise that the banner ran counter to the school's anti-drug themes and policies. Drawing on both Tinker and Fraser, the Court decided that the message and its most reasonable interpretations, and not the place the message was displayed, was the deciding factor: "Student speech celebrating illegal drug use at a school event, in the presence of school administrators and teachers, thus poses a particular challenge for school officials working to protect those entrusted to their care from the dangers of drug abuse."
