Photo credit: Des Moines Public Schools

Last week hundreds of students in Des Moines Public Schools walked out of class in protest of Donald Trump’s election.

WHO TV included a video of event outside of Central Campus they warned about profanity in the video, so heads up. Not all of what the students chanted was appropriate or civil.

Des Moines Public Schools sent the following statement to parents that was part of a longer statement on their website.

Students at high schools throughout Des Moines took part in a protest this morning to voice their concerns about the outcome of last night’s presidential election.

Our students have the right to be heard. Des Moines, after all, was the beginning of the U.S. Supreme Court’s Tinker decision, which ruled their rights to speech are constitutionally protected at school.

The majority of students at Des Moines Public Schools are students of color. They represent more than 100 different nations. More than one out of five students are English Language Learners. The rhetoric of this past election has caused many concerns and divisions among them, their friends and their families. The school district will not stand in the way of our students peacefully expressing their concerns. The district is also not making changes to the school day at high schools, and classes and the schedule will continue as normal.

At the same time, this year’s election has been a lesson and reminder that our democracy is not always easy and the results do not always turn out as you might hope. That has been true throughout our history. But regardless of whatever their political positions might be, we hope our students will continue to be engaged and speak out on issues that matter to them, and that all of us will do more to listen to each other.

They’ve opened the door here, and if they are going to be consistent if pro-life students for instance want to walk out on the anniversary of Roe v. Wade to protest abortion – Des Moines Public Schools better let them do it.

The Des Moines Public Schools has put limits on free speech however. This fall East High School told a student who displayed a Confederate flag on his car had to remove it or face it being towed. I bring this up not to spark a debate about the Confederate flag, but in this instance they cited Tinker v. Des Moines Independent Community School District as well.

If you are not aware that lawsuit, argued before the U.S. Supreme Court in 1968, was filed in response to three students wearing arm bands protesting against the Vietnam War during which many of their classmates who graduated were drafted into fighting.

Oh the contrast is compelling here – students silently protesting a war that they could end up being drafted to fight compared to students walking out of class to boisterously (and with some vulgarity) throw a temper tantrum over a fair election because they didn’t like the result.

My how times have changed. Young people when they protested used to actually have a reason to protest. These kids were offended at the notion of President-Elect Trump.

But I digress. The Supreme Court ruled against the school district and Justice Abraham Fortas wrote in the majority opinion given in 1969 that it “can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

I totally agree with that statement. Fortas said more.

The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners. There is here no evidence whatever of petitioners’ interference, actual or nascent, with the schools’ work or of collision with the rights of other students to be secure and to be let alone. Accordingly, this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students.

Only a few of the 18,000 students in the school system wore the black armbands. Only five students were suspended for wearing them. There is no indication that the work of the schools or any class was disrupted. Outside the classrooms, a few students made hostile remarks to the children wearing armbands, but there were no threats or acts of violence on school premises.

So Justice Fortas indicates that school districts can restrict speech that: intrudes upon the work of the schools, intrudes upon the rights of others, class or work of school is disruptive, or there are threats or acts of violence on school premises as a result.

He goes on.

But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago, 337 U.S. 1 (1949); and our history says that it is this sort of hazardous freedom — this kind of openness — that is [p509] the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.

This doesn’t quite jive with the assertion that Tinker is the basis of telling a student he can’t have a Confederate flag unless there was a credible threat of a riot or his life was in danger as a result.

Also this….

It is also relevant that the school authorities did not purport to prohibit the wearing of all symbols of political or controversial significance. The record shows that students in some of the schools wore buttons relating to national political campaigns, and some even wore the Iron Cross, traditionally a symbol of Nazism. The order prohibiting the wearing of armbands did not extend to these. Instead, a particular symbol — black armbands worn to exhibit opposition to this Nation’s involvement [p511] in Vietnam — was singled out for prohibition. Clearly, the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible.

This points to the school’s need to be consistent. Since they are going to follow Tinker, the responsibility lies with the school district to make sure they are consistent.

Des Moines Public Schools has not been consistent. This was a protest outside the school building where classrooms on that side of the building would likely be able to hear. It was done during the school day which required the act of students walking out of class in order to protest.

I don’t see how one could logically conclude this isn’t disruptive when it is clear that it was and at the same time believe that a Confederate flag in a student’s car – not on a t-shirt, not taped to a locker, but in a car outside in the parking lot is somehow disruptive.


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