Scott A. Moss, The Overhyped Path from Tinker to Morse: How the Student Speech Cases Show the Limits of Supreme Court Decisions-for The Law and for the Litigants

63 Fla. L. Rev. 1407 (2011)| | | |

Each of the Supreme Court’s high school student speech cases reflected the social angst of its era. In 1965′s Tinker v. Des Moines Independent Community School District, three Iowa teens broke school rules to wear armbands protesting the Vietnam War. In 1983, amidst parental and political upset about youth exposure to sexuality in the media, Bethel School District No. 403 v. Fraser and Hazelwood School District v. Kuhlmeier allowed the censorship of an innuendo-filled student government speech and a school newspaper article on teen pregnancy and parental divorce. In 2007, Morse v. Frederick paralleled the rise of reality television and online self-exposure in the 2000s: an iconoclastic student, long feuding with his principal, unfurled a cryptically drug-themed banner (“BONG HiTS 4 JESUS”) as national television news crews visited his sleepy Alaska town.

Many depict the school speech cases as fundamental alterations of student-school relationships, or even of the basic role of minors in society. Tinker draws praise as the landmark decision on student rights and on minors’ constitutional rights generally; detractors complain that it “departed from the traditional . . . vision of education, which emphasizes order, civility, and the inculcation of virtue.” And the broader body of school speech case law is a familiar three-act Supreme Court saga: the 1960s Warren Court declared a new right; the Burger and Rehnquist Courts chipped away at it; and the Roberts Court undercut it further, leading Tinker detractors to claim that the Court is restoring their preferred traditionalist vision, while Tinker supporters lament that the Court “eviscerated” Tinker with “exceptions . . . swallow[ing] the Tinker rule” and “unquestioned deference” to school officials.

This Article argues that a closer look shows a more nuanced state of affairs than the prevailing narrative-that of landmark decisions sweepingly altering the legal landscape and handing parties dramatic victories and defeats. Instead, even such watershed decisions as the school speech cases show the limits of Supreme Court opinions, both for the law and for the litigants themselves. Close factual examination of these cases and the social settings in which they occurred shows not only that each case was a major life event for the student, school, and community-but also that each had a surprisingly modest real-world impact on the law and on the student-litigants’ lives.


On the law, none of the student speech cases reshaped the legal landscape to the extent commonly depicted. Tinker never had the impact on actual schools that it had on paper: the infeasibility of most speech litigation left censorship widespread and lawsuits rare. And schools’ post-Tinker wins never really gutted Tinker, as the unexpected continued vitality of Tinker in the lower courts shows.

On the facts, each Court decision had an unexpectedly limited impact on the student litigants themselves, as this Article documents with both contemporary media accounts and new interviews with the various students and their attorneys. Somewhat surprisingly, whether the students won or lost at the Court bore little relationship to whether they felt victorious or defeated. Some who lost at the Court, or never reached a final verdict, express a striking sense of vindication from their cases. Another losing plaintiff found vindication in further legal battles and further speech shenanigans. Only one losing plaintiff actually expressed a complete sense of defeat and largely left behind any ambitions of issue advocacy. With their cases affecting them unpredictably, the six plaintiffs in the four school speech cases are the most vivid illustrations of the limits of Supreme Court decisions.

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