Purpose The purpose of this paper is to discuss public school districts' limits on "hate" speech and reconcile those limits with the decision in Tinker v. Des Moines.
Importance to Education
To avoid disturbance and disruption and to create and maintain a safe learning environment, public schools often adopt policies that forbid certain acts on the part of students. Included in many of these policies are prohibitions on hate speech. The opinion of the court in Tinker v. Des Moines (1969) broadly stated that students retain their first amendment rights when they enter the school, but the breadth of that statement is not without limit. Schools may narrowly curtail free speech rights to the extent necessary to maintain good
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Tyler Harper wore a t-shirt to school that carried several messages: "I will not accept what God has condemned." "Homosexuality is shameful Romans 1:27'" The next day, Harper wore the same shirt and added to the front, "Be ashamed, our school embraced what God has condemned." Harper refused to take the shirt off when told it was inflammatory and in violation of the school's dress code, and spent the day in the principal's office. He was not suspended. Harper filed suit in federal court, claiming his rights to free speech and free exercise of religion, equal protection and due process had been violated and sought an injunction to enjoin the school from continuing to violate his constitutional rights. After several motions, the trial court denied Harper's motion for preliminary injunction. Harper appealed the denial of injunctive relief. (Harper, 2006, p. 1173) In an opinion that apparently shrinks the scope of Tinker, the court of appeals for the ninth federal circuit affirmed the trial court. The court's ruling was based upon a finding that some speech is so psychologically damaging to vulnerable students that it can be banned completely. The Harper court characterized student speech that demeans other students' core characteristics, such as race, religion or sexual orientation, more akin to assault than constitutionally protected speech. (Harper v. Poway, 2006, p. 1178) Another recent