Material and Substantial Disruption/Infringement of Rights

Material and Substantial Disruption/Infringement of Rights

DOI: 10.4018/978-1-4666-9519-1.ch007
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Abstract

This chapter focuses on the Tinker v. Des Moines Independent Community School District (1969) case – the first United States Supreme Court decision about student speech under the Free Speech Clause of the First Amendment. It discusses the two tests established in Tinker v. Des Moines Independent Community School District for determining the scope of school authority over student speech. These tests are the “material and substantial disruption” test and the “infringement-of-rights” test. The ultimate goal of the chapter is to analyze the Tinker v. Des Moines Independent Community School District case in order to determine if it authorizes schools to censor off-campus student speech.
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Background

The United States Supreme Court first opened the door to the constitutional protection of students’ right to free expression in West Virginia State Board of Education v. Barnette (1943). While the case was not decided under the Free Speech Clause, the language the Supreme Court used in the case signaled a willingness to protect students’ right to free speech. In that case, a group of Jehovah’s Witnesses challenged a West Virginia Board of Education regulation which compelled students and teachers to salute the flag of the United States. The regulation provided that anyone who refused to salute the flag would be punished for insubordination. Based on their belief that the Scripture prohibited the salute of any image such as the flag, the Jehovah’s Witnesses sought a religious exception to the salute mandate from the board of education; they were, however, denied. In its review of the constitutional challenge to the regulation, the Supreme Court ruled that the salute constituted symbolic speech designed to communicate a political idea. The regulation, however, was a “compulsion of students to declare a belief” (p. 631) that could force students to “forego any contrary convictions of their own and become unwilling converts to the prescribed ceremony” (p. 632). This is clearly unacceptable and contrary to the conscience of the United States Constitution.

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