Copyright (c) 2000 Drake University
Drake Law Review
STUDENTS DO LEAVE THEIR FIRST AMENDMENT RIGHTS AT THE SCHOOLHOUSE GATES: WHAT'S LEFT OF TINKER?
48 Drake L. Rev. 527
Erwin Chemerinsky *
Tinker v. Des Moines Independent Community School District is the most important Supreme Court case in history protecting the constitutional rights of students. 1 The decision is perhaps best remembered for its ringing pronouncement: "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." 2 This sentence powerfully conveys schools are not institutions immune from constitutional scrutiny: students retain their constitutional freedoms even when they cross the threshold into the school.
Tinker was decided in 1969, 3 the last year of the Warren Court. 4 Chief Justice Earl Warren already had announced his resignation and was soon to be replaced by the much more conservative Warren Burger. 5 The author of the majority opinion in Tinker, Justice Abe Fortas, already had been denied confirmation as Chief Justice when Tinker was released, and Fortas would shortly resign from the Court amidst a scandal. 6 Fortas's successor, Harry Blackmun, 7 would be a strong conservative voice and a consistent conservative vote in his first years on the Court. 8
Over the three decades of the Burger and Rehnquist Courts, there have been virtually no decisions protecting rights of students in schools. Indeed, there have been remarkably few rulings concerning students' speech, despite hundreds of lower court decisions on the topic. There have been only two Supreme Court cases concerning student speech in elementary, middle schools, and high schools, 9 excluding cases concerning religious expression: ...
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