Flaunting the Freak Flag, by Gael Graham

Teaching the Article
Exercise 3

Youth Rights and the Law

In 1969 the U. S. Supreme Court decided the landmark case Tinker v. Des Moines Independent School District on the First Amendment rights of children. The case concerned whether minor children had the right to symbolic "speech" of a political nature while in school (here, to wear black armbands demonstrating opposition to the Vietnam War), or whether school officials could quell such speech to prevent disruption of education. The Court affirmed that students possess First Amendment rights even in school, but added two important qualifiers. First, the Court recognized that the "special school environment" might permit the abridgement of some student rights. Second, the Court found that speech concerning national foreign policy was a significant First Amendment issue, while it characterized as trivial and thus not protected student rights to specific dress or hairstyles. In addition, one Supreme Court justice, although agreeing with the ruling, disagreed with its implication that children's rights exactly paralleled those of adults. Taken as a whole, those opinions enabled lower court judges to rule both for and against high school dress codes and haircut regulations and to cite Tinker no matter which side they took.

Thirty-odd years later, Tinker v. Des Moines is still regarded as "good law," meaning that lawyers and judges refer to it as a precedent. But the lack of clarity in Tinker on the precise rights possessed by students and where or how those differ from adult rights has meant that judges apply the Tinker ruling in divergent ways. Excerpts from the four opinions appear below. Two of the cases occurred during the height of the high school student movement, and two after the movement had ebbed. The courts ruled for the students in two of the cases and against them in the other two.

How did the judges draw on the Tinker decision in arriving at their opinions? Do their readings of Tinker seem consistent, or do different opinions emphasize different aspects of the Tinker case? If high school students' right to free speech pits freedom against order, which value do the judges favor? Do you agree with their choices? Why or why not? What might have resulted in each case had the ruling been in favor of the losing party? Do you think it would have made a difference had the students in question been older (college age) or younger (elementary school age)? Why?


A. Quarterman v. Byrd, 453 F.2d 54 (1971)
B. Melton v. Young, 465 F.2d 1332 (1972)
C. Goss v. Lopez, 419 U.S. 565 (1975)
D. Bethel School District v. Fraser, 478 U.S. 675 (1986)