2019 First Place Winner – Tobin Hirsch

Greenwich High School, Grade 11
Teacher: Aaron Hull

In Tinker v. Des Moines , the Supreme Court set “the general rule for regulating school speech,” establishing that speech is protected unless it “materially and substantially disrupt[s] the work and discipline of the school.” In three later cases, it created “several narrow exceptions.” The photograph of the students seemingly Nazi saluting does not fit into any of these exceptions and does not pass the Tinker test. Therefore, the school district made the correct decision in not punishing the students.

The first of these cases was Bethel School District v. Fraser , where the Court upheld a school’s right to discipline a student for “offensively lewd and indecent speech at [an] assembly.” However, this case explicitly provides that “if respondent had given the same speech outside of the school environment, he could not have been penalized.”

In a statement following the release of the photograph of the Baraboo students, the head of the Baraboo School District said, “the image was taken off school district property and the photographer was not contracted by the district …”

Furthermore, the photos were taken just before the students’ prom ­ not at their prom ­ which occurred on a Saturday, so the speech clearly occurred “outside of the school environment,” and therefore the lewdness exception created in Fraser does not apply.

The next exception was created in the case Kuhlmeier v. Hazelwood, where the court wrote that schools have the right to restrict speech that someone “might reasonably perceive to bear the imprimatur of the school.” Given that the students were not wearing any school merchandise, the event occurred off campus outside of school hours and there were no school employees or subcontractors present, it would not be reasonable for a member of the public to make this assumption.

Most recently, Morse v. Frederick allowed a school to censor speech encouraging illicit drug use at a school-sponsored event. This does not apply to the case at hand for two reasons. The first is that it does not fit the court’s definition for what is considered a “school speech case” established in Morse, where Chief Justice Roberts wrote that “the event occurred during normal school hours. It was sanctioned by Principal Morse as an approved social event or class trip, and the school district’s rules expressly provide that pupils in approved social events and class trips are subject to district rules for student conduct.”

None of these criteria apply to the event at which the students were photographed. Furthermore, the court in Morse explicitly wrote that “this is plainly not a case about political debate.” The ideas of Nazis, on the other hand, have been legally recognized as constitutionally protected “political views,” and therefore, even if this were a “school speech case,” Morse would not apply.

Because these three exceptions do not apply, the only way that the students could be punished is if it passed the Tinker test, requiring that it “be justified by a showing that the students’ activities would materially and substantially disrupt the work and discipline of the school.”

There is no indication that this was the case, and given that the picture ­ taken in the spring ­ did not gain national attention until a tweet in November, it seems reasonable to conclude that “the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred.”

Therefore, this case fails the Tinker test and does not fit into any of the exceptions to Tinker, so the students’ actions were protected by the First Amendment.