Wednesday, October 29, 2014
I recently taught Tinker v. Des Moines Independent School District, the famous 1969 student speech case in which the Supreme Court held that the First Amendment protects the right of high school and junior high students to wear black armbands at school to protest the Vietnam War. There’s an odd reliance on precedent in a crucial passage of Tinker, though. Justice Fortas writes:
First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.
The authority for this sweeping characterization of half a century of student free speech rights? In the next sentence, Justice Fortas cites Meyer v. Nebraska (and its companion case, Bartels v. Iowa), the 1923 case striking down a state statute prohibiting foreign language instruction (a legacy of anti-German prejudice amid World War I) on the grounds that the Fourteenth Amendment protects the liberty of parents and teachers. (In dissent, Justice Black—ordinarily a free speech absolutist, but not for students—rejects Meyer as a vestige of Lochnerism.) The more obvious (but more recent) cite for student free speech, West Virginia v. Barnette (1943), is part of a string citation later in the paragraph and is discussed more fully in the next paragraph.
I suppose this is as an effort by the Court in Tinker to claim a longer historical precedent for recognizing student free speech, but it’s also an interesting re-reading of Meyer itself, albeit one that engages in rank anachronism and revisionism. Meyer was decided roughly a couple decades before incorporation of the First Amendment against the states, so the Court in Tinker (post-incorporation) is implausibly turning Meyer into a speech case (Justice McReynolds’s opinion in Meyer never refers to the First Amendment or to freedom of speech). And while those discomfited by Fourteenth Amendment substantive due process might like to save Meyer (and Pierce v. Society of Sisters, decided a couple years later) now by turning them into free speech cases, there’s something cavalier about Justice Fortas’s anachronistic treatment of Meyer. And then there’s the fact that the defendant in Meyer was a German language teacher (not the student), and Justice McReynolds refers throughout to the rights of teachers and parents but only once to any “rights” of students (the statute “interferes…with the opportunities of pupils to acquire knowledge”).
A final note about the political currents underlying these cases. Tinker and Meyer are surely the most famous constitutional cases to come out of Iowa and Nebraska, and they reflect the two neighboring states’ different political climates. Tinker recognizes the rights of anti-war protesting students in Des Moines, Meyer recognizes the rights of traditional German-American communities in rural central Nebraska to be free of conformist state interference. Iowa is slightly more urban (relatively speaking for the Midwest) and Nebraska more rural (Iowa has nine non-suburban cities with over 50,000 people, Nebraska only three—and Grand Island only barely), reflecting the urban-rural difference between the claimants in Tinker and Meyer. Iowa has historically had more Anabaptists (there are large Amish and Mennonite communities around the Amana Colonies, for example) and liberal Protestants, including the father of the Tinker children (a Methodist minister and American Friends Service Committee member). Late ninteteenth- and early-twentieth century Nebraska had an influx of German (like the defendant in Meyer) and Eastern European Lutherans and Catholics, historically more conservative groups. And so in next week’s US Senate elections, while Ben Sasse coasts to election as a conservative Republican in Nebraska, next door in Iowa another conservative Republican, Joni Ernst—while slightly favored to win—is in a much closer race. It’s all there in the rich history of Tinker and Meyer.