Even as I write this, a small group of dedicated people is careening across the country in a 29-foot long RV looking to change the world.
Painted onto the side of this Vehicle of Change is a yellow school bus, itself in the process of delivering a racially diverse trio of gender neutral youngsters from blissful youth to civic awareness. They stand in the bus’s carriage, heads out the window, each exclaiming into the white canvas of the RV a separate colorful dialogue bubble of Good Citizenship (“free speech!” “free press!” “civic education!”). Ahead of them, stenciled into the amorphous pink wave upon which the bus rides, is a peace sign, the words “the FIRST Amendment,” and the usual array of social media touchstones. In their wake, the bus’s rainbow of exhaust coheres into the dominant text: TINKER TOUR USA. The RV’s Captain has dubbed her “Gabby,” which is a play on “gab,” which is at least a little odd, since the act that spawned the Tour all the way back in 1965 involved no speech whatsoever. At least, not of the verbal variety.
All Mary Beth Tinker did was wear a black armband to protest the war in Vietnam and support Robert Kennedy’s call for a Christmas truce. Scandal ensued—and litigation, and appeals. Four years later, Supreme Court Justice Abe Fortas, writing for the seven-vote majority, famously declared that a student did not shed her constitutional rights “at the schoolhouse gate.”
“Students in school as well as out of school are ‘persons’ under our Constitution,” he wrote. “They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate.”
“It was a victory for American education,” writes Mary Beth Tinker on the Web site www.tinkertourusa.org.
Mike Hiestund, the “Captain” of the Tinker Tour RV and a Washington-based attorney specializing in school speech issues, got the idea for the Tinker Tour while in his hot tub last year. Its goal, as articulated by the eponymous Tinker, is to bring “real-life civics lessons to schools and communities.”
“I made a difference with just a simple, black armband,” she writes. “Can you imagine what a shy 13-year-old could do today with all of the extraordinary speech tools available?”
Jim Walsh, senior partner of Walsh, Anderson, Gallegos, Green & Treviño, P.C., and, like Hiestund, a lawyer who has spent his professional life specializing in issues related to public schooling, doesn’t need to imagine. He knows.
“The Tinker Test has eroded the authority of local school officials, even when dealing with inconsequential matters that can and should be left to their discretion,” he says.
According to Walsh, the Tinker decision opened the floodgates to a crushing tide of student First Amendment cases, a staggering quantity of billable hours corralled by attorneys, rampant opportunities for nauseating displays of self-righteousness from all parties on every side of the silliest issues, and—perhaps most damaging of all—a corrosion of respect for the authority of public school officials.
His essay is strewn with examples of clever young vulgarians who game the system to deliver carefully couched obscenities that enjoy the backing of the United States Constitution and add literally nothing to public discourse or civic health.
“I confess I have an attitude,” Walsh notes. “I went to Catholic school. We had no constitutional rights whatsoever,” going on to describe the hive-like orderliness in which “no one would think of openly defying the teacher or principal.”
Where Tinker bemoans the seemingly plummeting civic I.Q. of the American student, Walsh decries the hampering of school officials’ authority.
Where Tinker proudly notes that the decision (Tinker v. Des Moines) is cited in over 6,000 student first amendment cases, Walsh suggests, “perhaps it is time that we noticed the cost of such judicial oversight.”
Reasonable people can disagree about these issues. So we urge you to take a look at the Tinker Tour website at www.tinkertourusa.org, and keep reading the Texas School Administrators’ Legal Digest for future cases involving students, free speech and the authority of the local school official.Share the news.