Black Armbands Research Articles

Review: The End of the Myth: From the Frontier to the Border Wall in the Mind of America, by Greg Grandin

Review: <i>The End of the Myth: From the Frontier to the Border Wall in the Mind of America</i>, by Greg Grandin

Freedom of Expression: Another Look at How Much the Public Will Endorse

Since World War II, U.S. citizens have reported overwhelming agreement that freedom of expression is a basic right. But, like the law on free expression, public opinion shows that citizen rights to free expression are not absolute or unidimensional, but conditional. To better understand the extent of citizen rights to free expression according to the U.S. public, this study examines data from an online national survey (N = 2,600) in which twenty-five types of expression were offered for respondent agreement that “U.S. citizens should have a right to….” According to the respondents, the free expression types to which citizens have the most rights were expressing political opinions, making a political speech, picketing as a union member, and wearing a black armband in protest. The least endorsed rights were lying in the news, lying generally, protesting outside a church funeral service for a veteran, using racist language in a speech, and burning the American flag. Demographic analyses showed agreement with rights to free expression was highest among younger respondents, non-whites and males. Further analysis confirmed that freedom of expression is not unidimensional, with four main dimensions underlying perceptions of the twenty-five types. These dimensions were identified as repugnant expression, historical political expression, un-patriotic expression, and avoiding compelled expression.

Student Speech and Social Media: The Supreme Court Finally Enters the Fray

Tinker v. Des Moines Independent Community School District was a watershed moment involving the First Amendment free speech rights of students in American public schools. In Tinker, the Supreme Court affirmed that absent a reasonable forecast of material and substantial disruption, educators could not discipline students who wore black arm bands to school protesting American military action in Viet Nam. Not surprisingly, litigation continues on the boundaries of student speech, coupled with the extent to which educators can limit expression on the internet, especially social media. As the Justices finally entered the fray over cyber speech, this three-part article begins by reviewing Tinker and other Supreme Court precedent on student expressive activity plus illustrative lower court cases before examining Levy v. Mahanoy Area School District. In Levy, the Court will consider whether educators could discipline a cheerleader, a student engaged in an extracurricular activity, who violated team rules by posting inappropriate off-campus messages on Snapchat. The article then offers policy suggestions for lawyers and educators when working with speech codes applicable to student use of the internet and social media by pupils involved in extracurricular activities.

The History Bubble

The History Bubble

Freedom of speech: A recent history of political t-shirts in the United States

Since their invention in the 1930s, t-shirts have become one of the most common styles of casual clothing in the United States – worn by all ages, genders and social classes. Although ‘graphic’ t-shirts have existed for decades, twenty-first-century technologies have made them much faster and easier to produce. Students protesting the Vietnam War in the 1960s and 1970s wore black armbands and grew their hair long; today, students (and activists of all ages) are more likely to wear political t-shirts. In a time when anyone with modest computer skills can design a graphic and get t-shirts professionally printed and shipped in just two or three days, this medium for self- and group-expression is well-suited to the turbulence of politics. This article explores the recent history of political t-shirts in the United States in two parts. The first focuses on legislation and legal rulings, including a case heard by the US Supreme Court in 2018 regarding whether activists can wear political t-shirts in polling places (a space where any kind of campaign activity is generally forbidden). The second part explores the definition of a ‘political’ t-shirt. This section is grounded in a study of t-shirts that are currently turning up in thrift shops in Bloomington, IN – a small, politically active community in a conservative state that voted for Obama in 2008 and then Trump in 2016.

Whose Speech Is It Anyway? Ownership, Authorship, and the Redfern Address

Whose Speech Is It Anyway? Ownership, Authorship, and the Redfern Address

Letter from Howard Tharsing to Elizabeth Oehlkers Wright

Letter from Howard Tharsing to Elizabeth Oehlkers Wright Howard Tharsing O Beth! I have been avoiding writing this letter for day after day since I got the phone call. I have been scolding myself daily for not writing, but I guess I knew that doing what I am doing now would finally make it true: no more Franz. The other day I got on a bus and saw two boys who appeared to be of about high school age, a bit awkward and gangly-looking, as if pieces of them were growing at different rates and their faces and their bodies had not yet coalesced into the manhood they were so rapidly approaching. They were talking forcefully and with great seriousness to one another, then from time to time laughing in some shared sense of the ridiculousness of themselves or of others, their teachers or parents or girls in general perhaps, and I remembered Franz. Indeed, he has risen before me innumerable times in the past ten days. I knew two Franzes. The first, with his long hair and soft face, shy, gentle, but deeply serious and already committed irrevocably and without hesitation to poetry at an age when the rest of us were fumbling through a variety of imagined futures; the second, his visage craggy and his manner outspoken, defiant, and critical, secure in his being a poet, proud of his accomplishment and jealous of its value. Between them lay forty years untold. He and I had no communication, no contact, and lived in worlds wholly apart. Yet when we were reunited in the last few years, what a special joy it was to find the same man I had known as a boy. It was not just that we understood one another's references and touchstones. Any one of our contemporaries would make those same connections and understand one another in the same way. No, it was much more. The only way I can describe it is to say that when Franz spoke, I heard my own words, my thoughts, coming out of his mouth. Yet of course Franz wasn't me. I have stumbled through life. Franz pursued a path that if not always clear itself nevertheless always pointed at a clear destination. This clarity of purpose was matched by an inward assurance of righteousness, not some cheap belief that one is always right but the moral certainty of knowing right from wrong and being able, despite one's own weaknesses and failures, to judge with clarity the people and events one encounters in the world. I remember Franz arriving at school the day after the National Guard murdered four students at Kent State. A group of us were chatting and, no doubt, laughing about whatever nothings high school students chat and laugh about. Franz walked up to us wearing a black arm band. The anger in his quiet voice carried with it grief as well as indignation. "Don't you know what's happened?" he said. I think that all the rest of our little group must have been as immediately—and deeply—shamed as I was. I felt small and wrong and hung my head the rest of the day. And he was right. And we all wore black armbands from then on, and participated in the Moratorium and other demonstrations and struggles as we went forward through those days. [End Page 188] I remember his youthful smile, too. His eyes would narrow and a look of being settled, of peace, would gently lift the corners of his mouth. His happiness was quiet and full—the Cheshire cat, or the cat who swallowed the canary. I cannot thank you enough for having me come and stay with you for those four days last year. I will always treasure those hours with the second Franz, the accomplished and celebrated poet. I loved him for the beauty of his work and of his faith and also for his righteous anger at injustice and at the carelessness with which our culture is squandering its riches and devolving into a squalid and dangerous mess. I cherish the memory of us two old men sitting in those big chairs, talking...

Evolving Commemorations of Aboriginal and Torres Strait Islander Military Service

Evolving Commemorations of Aboriginal and Torres Strait Islander Military Service Noah Riseman (bio) In 1995 Australia’s Department of Veterans’ Affairs sponsored a series of commemorations dubbed Australia Remembers 1945–1995. A review indicated that over 70 percent of Australians and 90 percent of ex-service organizations and communities participated in associated events.1 Yet state reports suggested that one segment of the population did not significantly participate: Aboriginal and Torres Strait Islander Australians. These are Australia’s two Indigenous peoples: Aboriginal people’s traditional lands are on mainland Australia and Tasmania; while Torres Strait Islanders’ traditional lands are the islands of the Torres Strait, separating Australia from Papua New Guinea. Historian Liz Reed argues that the underparticipation of Indigenous communities during Australia Remembers underscored the different agendas of non-Indigenous and Indigenous Australians. Both Prime Minister Paul Keating and Veterans’ Affairs Minister Con Sciacca emphasized narratives of racial unity during the war, reflecting the Keating government’s Reconciliation agenda. Although Indigenous Australians did want their war service recognized, they also wanted reparations for their war efforts and recognition of their ongoing marginalization within Australia.2 Flash-forward twenty years to the centenary of the First World War, and Aboriginal and Torres Strait Islander inclusion in commemorative events was quite conspicuous. Indeed, in the new millennium there has been a “boom” in commemorations of Indigenous military [End Page 80] service. To an extent this is a symptom of the global “memory boom,” but it is also a significant consequence of the Reconciliation movement and the History Wars.3 The Reconciliation movement of the 1990s sought to unite Indigenous and non-Indigenous Australians through new understandings of shared histories, including discussions about violent colonial dispossession. While many Australians embraced the Reconciliation movement, among other sectors of the population there was a backlash against supposed special treatment accorded to Indigenous Australians.4 Part of this backlash manifested as the History Wars, which coincided with the 1996–2007 government of John Howard. Conservative pundits argued that academic historians exaggerated frontier violence and child removal, painting a wholly negative, “black armband” vision of Australian history. Most academic historians and public intellectuals retorted that conservatives were whitewashing Australian history to suit nationalist agendas.5 Indigenous military service comfortably transcended the History Wars while also supporting Reconciliation by showing a history of Indigenous and non-Indigenous Australians working together. Invoking the language of shared sacrifice and Indigenous inclusion within Australia’s Anzac mythology spoke a language palatable to conservative Australian values. Amidst this wider sociopolitical context, new Indigenous ex-service organizations emerged and received support from local, state, and federal governments for memorials, marches, and services. The boom in Indigenous military commemorations also parallels a widespread valuing of military achievement in Australian society. Marilyn Lake and Henry Reynolds, among other historians, have criticized this “militarization of Australian history.” They argue that the valorization of military achievement in Australia is a deliberately manipulated act of conservative propaganda seeking to undermine public memory of colonization and to marginalize the place of Aboriginal victims of frontier violence in Australian history.6 Yet Aboriginal and Torres Strait Islander peoples have also demonstrated a wish to honor their servicemen and servicewomen and have been doing so since the First World War. Such practices have incorporated Indigenous traditions while concurrently asserting military service as a legitimizing claim to Australian citizenship rights. The escalation of such commemorations in recent years and its increasing recognition by non-Indigenous Australians is in keeping with the global memory boom. While it may be argued that this offers a version of Indigenous Australian history that is “safe” for conservative, nationalistic, military-focused consumption, the boom has not diverted attention from the settler violence and Indigenous resistance to colonialism, sometimes dubbed the frontier wars.7 On the contrary, it has drawn attention to that missing chapter in the national military story. This [End Page 81] article will chronologically outline the history of commemorations of Australian Indigenous military service from the early, locally organized events to the recent boom in state and national commemorations. It relies on a mixture of Indigenous and newspaper sources, and the newspaper sources are especially interesting because they reveal examples of Indigenous participation in...

A Substantial Disruption of Public Concern: TINKER, BELL V. ITAWAMBA, and Internet Speech for High School Students

Over fifty years ago, Tinker v. Des Moines Independent Community School District established a standard for protected on-campus speech, allowing students to protest the Vietnam War by wearing black armbands during school hours.Fast-forward to the twenty-first century, and concerns about smart phones, social media, and the Internet have resulted in application of the Tinker test to off-campus speech in most of the United States circuit courts of appeals, with some dissent in the Third Circuit. Bell v. Itawamba County School District originated in rural northern Mississippi and made its way to the Fifth Circuit, where an en banc decision upheld a school board’s punishment of a student for a YouTube video, composed off-campus, full of violent rhetoric and allegations of teacher-on-student sexual impropriety. The majority of the panel of judges found that the school district’s policy banning conduct that threatens, harasses, or intimidates was constitutional, using Tinker to analyze the conduct. Originally a three-judge panel issued an opposite ruling that the student’s speech was protected and Tinker did not extend off-campus.The intermediate courts disagree over when and where Tinker applies. The current climate in public schools, where use of technology is encouraged yet boundaries and norms are constantly evolving, beckons for a new, consistently applied standard for high school student speech that takes the existence of a new online forum into account. This conflict should be resolved by the Supreme Court. Tinker is overdue for an update.

From The Lost Notebook of Mary Day Brown August, 1833, and: Lost Letter , Mary Day Brown to Francis Harper, Elba, New York, Winter, 1850 | From The Lost Notebook of Mary Day Brown, Elba, New York, late evening, December 6, 1859

From The Lost Notebook of Mary Day Brown August, 1833, and: Lost Letter, Mary Day Brown to Francis Harper, Elba, New York, Winter, 1850 | From The Lost Notebook of Mary Day Brown, Elba, New York, late evening, December 6, 1859 Veronica Golos (bio) From The Lost Notebook of Mary Day Brown August, 1833 Each evening he schools meafter supper is done& before the lamp burns low— We have the slate and coalto mark the lines &together we copy the words of God. We print each letter careful:thou shalt not deliver unto his masterthe servant which is escaped from his master unto thee:he shall dwell with thee, evenamong you. I am newly married &in this learning I feela liking. Words open upas if I have washed my faceafter a long day of hard work. This—even more than whatcomes later—brings to merespect of John Brown. [End Page 27] Lost Letter, Mary Day Brown to Francis Harper, Elba, New York, Winter, 1850 Dear Mrs. Harper, Thank you for your dollar.We were at our last loaf.It is so cold—the ground is iron& I must ask favorof the men to axe the wood. In your letter, you inquire as towhat I believe. You are the first to ask. I hear those of good heart& I believe they are,tell us beneath our skinwe are but the same. It may bepolite of Mr. Garrison to say it so— I do not know. In this CauseI have become harsh. The same?How may that be? The Slaverswin their Fugitive law—while we hide those who fleeits mandate. Before my meager fire,runaways show me their scars.A hundred miles & more they walk,in cold and in heat. I have seen a man’s toes gone from frostbite;& yet he walked. They will [End Page 28] go to Freedom whatever thecost. Who could deny this?What we bear, what we have known,that makes us, does it not? I wish for myself to carry a Black heart:to see as those whobear this Slavery do—not out of Pity—but Trust—I believe they see this country True. Yours, Mary Day Brown From The Lost Notebook of Mary Day Brown, Elba, New York, late evening, December 6, 1859 (5 days after the hanging of my husband John Brown.) This morning they began to arrive. First onein a small wagon, his young sonbeside him. Then an entirefamily, three children, fathermother, grandmother.Even some we hadhelped on to Canada. I stoodin my doorway, as the tract around the housefilled with horses, wagons, those whohad walked. Mr. Epps was nearby,Mr. Riddick, silent as always. I will not weep. [End Page 29] All day, the crowd grew, many wearing black armbands,mostly the negroes & there werehundreds—& a numberof whites as well. There was little talk. Whispersas someone moved to make room.Dusk settled upon us; campfires flared—huge stars, the grounda hard sky. Somewhere, someonebegan to sing: My Lord what a MorningMy Lord What a MorningOh My Lord, what a Morningwhen the stars begin to fall. People stood, swaying, firelight flickering.It was a song well known,their voices came together, a keening sound.A sole harmonica,far back in the crowd. I could hear the horses snorting,the rustle of animals in the woods.The words, no, the feeling inside the words, for him, mademe tremble. I had to sit. His chair,where he liked to restas the sun went down. [End Page 30] Veronica Golos Veronica Golos is the author of A Bell Buried Deep and Vocabulary of Silence. In her manuscript ‘‘Root Work’’ she reexamines abolitionist John Brown and his wife, Mary Day Brown, about whom so little is known. Golos uses these poems to examine slavery, race, class, and gender in the imagined voices of the Browns. Copyright © 2014 University of Nebraska Press

'I Know That Face' Murundak: Songs of Freedom and the Black Arm Band

‘This black armband view of our history’ was a phrase used by Prime Minister John Howard in a 1996 Sir Robert Menzies Lecture. Howard used the phrase, first coined by historian Geoffrey Blainey, to counter the arguments of opponents who were insisting that the post-contact treatment of the Aboriginal people must be recognised and included in Australian historical discourse and public forms of remembrance. The musical ensemble that is the subject of Natasha Gadd and Rhys Graham’s documentary film, Murundak: Songs of Freedom (2011) developed its name and its intention in protest against Howard’s dismissive rhetoric. This article examines the ways in which the film extends the platform for the Black Arm Band’s performances of cultural-political intervention begun in their highly successful murundak concerts. We argue that the film constructs an alternative Australian history through strategies that authorise the personal memories disclosed by the Aboriginal band members – the film’s protagonists – and enable them to be gathered into a form of collective, social memory. Songs and song-writing provide the focal point for this work of remembrance, and the unifying thread that weaves a regenerative narrative through three major stages of Aboriginal history: the struggle to survive; the process of healing; and reconnection with kin, country and language.

Introduction

Introduction Melvin I. Urofsky Four of the six articles that appear in this issue come from the highly successful Leon Silverman lectures sponsored by the Society each year. Those members who live in the metropolitan Washington area are familiar with the events, which take place in the Courtroom of the Marble Palace. They include an introduction ofthe speaker by one ofthe Justices, a talk by a well-known scholar, and then a reception in the Conference rooms. I am sure that I speak not only for myself, but for others who have given these lectures, that it is a wonderful experience. So those of you who live outside of Washington, next time you have to travel to the nation’s capital, please check ifone ofthe Silverman Lectures is scheduled that week. The theme for this series involves the plaintiffs in some very important civil rights cases, and this reflects a trend among many constitutional scholars to look notjust at what the Justices say about a case, but about the people involved and the factual background. Philippa Strum, a former professor at Brooklyn College and then director of U.S. Studies at the Wilson Center, ran across a relatively unknown case involving the segre­ gation of Mexican-American children in California. She decided to explore it, and discovered that while it is unknown to the general—and even to much ofthe scholarly— community, Thurgood Marshall and his staff at the NAACP Legal Defense Fund knew it well. It is one ofthe first cases in federal court that tackled racial discrimination head on, and she here tells the stoiy of the Mendez family and their ultimately successful fight. Shelley v. Kraemer (1948) is considered a landmark case in many ways, although it is overshadowed by the more famous cases of the following decade attacking statesponsored segregation. Jeffrey Gonda, a history professor at Syracuse University, goes into a relatively unknown area of how houses could be bought and sold by AfricanAmerican families, and the restrictions—both legal and customary—that restricted those sales in post-war America. One of the most fascinating, and at the same time somewhat confusing, aspects of Warren Court jurisprudence is how the Justices dealt with the arrests following sit-ins v vi JOURNAL OF SUPREME COURT HISTORY by civil rights protestors prior to the enact­ ment of the Civil Rights Act of 1964. Professor Kenneth Mack of the Harvard Law School explores these cases, but espe­ cially that of a young man, Robert Bell, who would go on to attend law school and eventually become chiefjudge of the Mary­ land’s highest court, the Court of Appeals. The case of Tinker v. Des Moines (1969) is still studied in courses on constitutional law, the First Amendment, and education law. Two students, Mary Beth and John Tinker, were expelled from school for wearing black armbands to protest the Vietnam War. They and their family fought the case all the way to the Supreme Court, where they won a 7-2 decision. As Justice Abe Fortas put it, students do not abandon their rights as Americans when they walk through the schoolhouse door. Professor Kelly Shackelford, president and CEO of the Liberty Institute, spoke about the Tinker family, the courage of their convictions, and the ultimate meaning oftheir victory. What made the lectures come alive even more for the audiences was the presence of some of the participants—Mary Beth and John Tinker and members of their families, Judge Robert Bell, and David Duran, a Mendez grandson of the plaintiffs. A number of years ago scholars discov­ ered John Knox’s diary of the year he served as law clerk to Justice James Clark McRey­ nolds. It was not a happy tale, but it led Professor Barry Cushman ofthe Notre Dame Law School to wonder what happened to the other clerks of the Four Horsemen— McReynolds, Pierce Butler, George Suther­ land, and Willis Van Devanter. He has discovered that, unlike poor Knox, who had a hard time remaining employed, they went on to respectable and sometimes even stellar careers. Naturally, to cover the clerks of four men whose combined tenure on the High Court surpassed eight decades led to a...

Testing Citizenship, Regulating History: The Fatal Impact

Testing Citizenship, Regulating History: The Fatal Impact

The Stolen Generations and genocide: Robert Manne’s In Denial: The Stolen Generations and the Right

In recent years many Australians have been troubled over two words or terms, the Stolen Generations and genocide, and no more so than when they have appeared in tandem, as they did in the report of the Human Rights and Equal Opportunity Commission’s inquiry into the separation of Aboriginal children, Bringing Them Home, 1 and the inquiry that gave rise to it. 2 Subsequently many conservatives have increased their attacks upon so-called black armband history and particularly the Stolen Generations narrative. 3 This assault gathered momentum during 1999 and 2000, eventually provoking the political commentator and historian Robert Manne to pen In denial: the Stolen Generations and the Right, an essay in which, to quote the publicists for this new venture in Australian publishing, the Australian Quarterly Essay, he sets out to ‘demolish’ these critics and their ‘demolition’ of the history presented by Bringing Them Home. 4

Sports Injury Prevention Failure

All the warning signs were there: a $110-million luge track that turned out to be faster than the designer planned. There were several incidents prior to the Olympics in February 2010 that suggested that the track was not safe. A Hungarian slider was knocked unconscious the day before the fatal accident, while traveling at speeds in excess of 90 mph. Two days prior to the tragedy, a Swiss bobsled medal favorite withdrew from competition after sustaining a concussion and other injuries on a training run. Metal beams within 5 feet of the 98-mph track were not only exposed but not padded. Finally, a 21-year-old luger, Nodar Kumaritashvili, told his father that he feared the track. Tragedy struck on Friday, February 12, 2010, just 7 hours before the official start of the Olympic Games at a training run at Blackcomb Mountain in Whistler, British Columbia. The young luger was on the final curve, number 16, called Thunderbird, when his sled climbed the wall, catapulting him off the track and into a steel beam. Emergency crews were at his side almost immediately, but anyone who witnessed the crash realized what the outcome would be. Protective equipment, including the best-made helmets, cannot protect human beings at those speeds when crashing into immovable objects such as steel beams. The Olympic Games opened as planned that fateful day on a very somber note. The remaining Georgian athletes wore black armbands at the Opening Ceremony and were greeted by a standing ovation in memory of their lost teammate and fellow Olympian. Olympic officials were visibly shaken as the second-guessing began. Luge officials met late into that night to determine if competition could begin the next day. Multiple factors were discussed, including the weather at Whistler Mountain, which was warm and rainy. Although rain can make ice dangerously slick, the warm weather should have softened and slowed the course. Three years before the Olympic track was built at Whistler, the organizers of the games were told that the track would send racers through the course at record speeds, prompting 2 modifications of the course. After the Whistler course was completed in 2007, promotional materials called it “violent and rough . . . and not for the faint of heart.” (Wall Street Journal, Saturday, February 12, 2010). The Whistler Sliding Center course featured 20° slopes, almost 500 feet of vertical drop over its 1500-yard length, and is the steepest of the world’s 15 international sliding venues. The chief executive of the US Bobsled and Skeleton Federation emphasized the inherent dangers of the sport, saying that pushing for higher speeds is the nature of the luge. The International Luge Federation spokesman, Wolfgang Harder, called for safety changes to the track after the World Cup Competition in February 2009. Yet, after the fatal accident, the official word was that the young luger had failed to control his sled. In the aftermath, IOC chief Jacques Rogge said that “everyone was responsible” for the young luger’s death (Wall Street Journal, Thursday, February 26, 2010) and that the “IOC had a moral but not legal responsibility for the death.” Fatal accidents are not uncommon in the winter sports venue. Four occurred between 1964 and 1992; only one of those was from the luge. Three groups continue to investigate the fatal accident: the coroner, the Canadian police, and the Bobsled Federation. What other factors will be uncovered is not yet known, but this we do know: the luger was traveling very fast and the track had some dangerous features. The toughest luge run of the Olympic Games may have come from the first luger to go through the course after the accident. Tony Benshoof, a top US medal hopeful, was the slider. He cruised through a modified track without incident, no doubt with mixed thoughts and a heavy heart. Benshoof navigated a shortened course, which began at the women’s start. Three turns were eliminated to slow down the racers; the ice on the track was modified to prevent lugers from climbing the wall; 12-foot-high wooden barriers were erected around curves; and metal beams were padded. Before the Olympic Games in Vancouver ended, IOC president Jacques Rogge wrote a letter to the 2014 Winter Olympic Games organizers in Sochi, Russia, asking them to put “safety first” (Wall Street Journal, Friday, February 26, 2010) Hopefully, that will be the case. In the end, it is hard not to ask why this tragedy had to happen. All the warning signs appeared to be there: the speed, the warnings, the injuries. It may be our own fascination with speed seen in so many other venues that convinces athletes, coaches, designers, and organizers to venture into dangerous territory. Let’s all hope that we can learn from this unfortunate tragedy.

‘In good conscience’: Andy Flower, Henry Olonga and the death of democracy in Zimbabwe

Just before their first match of the 2003 Cricket World Cup, Zimbabwean cricketers Andy Flower and Henry Olonga issued a statement explaining their decision to protest the ongoing human rights abuses waged by the oppressive regime of Robert Mugabe. By donning black armbands, Flower and Olonga engaged in a political gesture designed to mourn the ‘death of democracy’ in Zimbabwe and draw attention to the social, political and economic problems of their homeland. For Flower and Olonga, the act of expressing their feelings represented an exercising of basic human rights denied to many of their fellow countrymen and women. In response, the authorities castigated the two athletes, reiterated the myth of apolitical sport, and tightened the connection between the government and the national team. While the protest failed to catalyse direct social change, it raised awareness of human rights issues in Zimbabwe and illustrated the relevance of sport in even the most beleaguered societies.

Speaking up: the unintended costs of free speech in public schools

* A Free Speech Primer: Outside Schoolhouse Gate * The Vietnam War and Hazardous Freedom * The Second Wave and Constraint of Civility * Student Press Rights and Responsibilities * Banning Books from School: The Right to Receive Speech, or Not * Religious Speech: On a Wing and a Prayer * Teacher Speech and the Priests of our Democracy&rdquo * A Long Way from Black Armbands

From Black Armbands to Bong Hits for Jesus: The 40th Anniversary of Tinker

2009 marks the 40th anniversary of the landmark Supreme Court case, Tinker v. Des Moines Independent Community School District. That case established that students, as well as teachers, do not shed their constitutional right to freedom of or expression at the schoolhouse gate. The justices held 7 to 2 that students had a First Amendment right to wear black armbands in school to protest the Vietnam War as long as school was not substantially disrupted. This case still remains the quintessential student rights case even though subsequent cases eroded some of those rights. One of those later cases was the 2007 U.S. Supreme Court ruling in Morse v. Frederick, also known as the Bong for Jesus case. The Morse Court ruled that a student, Joseph Frederick, who displayed a Bong 4 Jesus sign at a high school event, was not protected by the First Amendment because school officials had the right to control drug-related expression in schools. Nevertheless, a majority of the justices did reaffirm Tinker's basic principles. We recently had the opportunity to interview both John Tinker and Kenneth Starr for WGTD Public Radio in Kenosha, Wisconsin. Tinker continues to champion student rights. Starr, who is now dean of the law school at Pepperdine University, represented the Juneau, Alaska, high school principal, Deborah Morse, in the Bong Hits case before the U.S. Supreme Court. The following exchange of ideas between Tinker and Starr illustrates just how passionate they both are concerning student rights and the rights of schools to maintain order. Question: Justice [Abe] Fortas said in Tinker that students have the right of free in K-12 public schools as long as it does not create a material and substantial disruption to the educational environment. What exceptions, if any, would you make to students' freedom of expression in the classroom and at school? Starr: Staying with the Supreme Court's teaching, speaking through Justice Fortas in the case that bears John Tinker's name and continues to be the law of the land, the baseline is freedom. But there can be exceptions, just as there are general exceptions to the First Amendment. Congress shall make no law abridging the freedom of speech doesn't mean that there can't be defamation laws, the laws of libel. It does not mean that anything goes. As [Justice Oliver Wendell] Holmes said famously: You can't cry fire in a crowded theatre. Now why is that? That is because, where there are high concerns and demonstrable concerns about social evils, then, in fact, there can be regulation. So, the question is: What is it that a school is trying to achieve? Liberty is the baseline. Freedom of is the baseline. But, what is the school trying to achieve? And what the school cannot try to achieve is to limit political expression, but it can, we now know, by virtue of the Morse case, create limited exceptions to the baseline rule that liberty prevails, so as to forestall or prevent, as best as the school can, demonstrable social evil as in the Morse v. Frederick case involving the concern about drug use and the celebration more generally of the drug culture at that particular high school. Tinker: Well, I agree with the idea that freedom is the baseline. I think that when we are talking about exceptions--developing a list of exceptions--that we should realize that the baseline is really the most important thing and the exceptions should come where there are problems. And, where there are not problems, there should not be exceptions. In the Morse case, there's no evidence that that created a disruption. It was at a parade. It was outside of the school. It was, you know, the Olympic torch event. It was going by. There was no evidence that there was any disruption other than that caused by [principal Deborah] Morse insisting that the sign come down. I don't think that we should see our task here as developing some kind of index, a compendium, of exceptions. …

Balancing Students' Constitutional Rights

must learn how to become responsible citizens, and few places are more significant in developing those skills of citizenship than the public schools. However, if students are going to learn to become responsible citizens in a democracy, they must be able to exercise their constitutional rights. In its seminal 1969 case on student expression, Tinker v. Des Moines Independent School District, the Supreme Court declared: Students in school as well as out of school are 'persons' under the Constitution. They are possessed of fundamental rights that the state must respect. (1) In the last half of the 20th century, this ruling served as the basis for courts when defining and elaborating specific legal rights of students, as well as when balancing those rights with school officials' responsibilities for maintaining an appropriate educational environment. A few legal issues stand out from others regarding students' constitutional rights. The Supreme Court rulings in these areas have established significant precedents. FREEDOM OF EXPRESSION Some of the most notable Supreme Court decisions in the last century relating to students' rights involve freedom of expression claims under the First Amendment. Beginning with Tinker in the late 1960s, the Court clearly noted that students' expression in school is protected by the First Amendment as long as the expression does not materially and substantially interfere with the operation of the schools. (2) In Tinker, students were suspended from school when they wore black armbands to protest the Vietnam War. In the absence of disorder in the situation, the Supreme Court ruled that undifferentiated fear or apprehension of disturbance is not enough to overcome the right of freedom of expression. (3) However, this ruling does not prevent educators from acting when they can reasonably forecast that a particular student expression will be disruptive or pose a danger in the school. In fact, courts over the years have upheld restrictions on a wide range of behaviors when those behaviors threatened to disrupt education (e.g., threatening written and oral remarks, inappropriate t-shirts, display of disruptive symbols, and boycotts and walkouts). Two Supreme Court decisions in the 1980s gave school officials broader leeway to limit student expression on the school campus. First, in a 1986 decision, Bethel School District No. 403 v. Fraser, the Supreme Court ruled that officials can censor lewd, vulgar, and indecent speech. (4) The student, Fraser, had used a sexual metaphor in his nomination speech for a classmate during a school assembly. Both students and teachers were embarrassed and offended by Fraser's obscene language. According to the Court, the First Amendment does not protect obscene speech, and school officials can determine what speech is appropriate in the school setting. In 1988, the Supreme Court followed with its second decision on student expression, Hazelwood School District v. Kuhlmeier. (5) In this case, the Court upheld a high school principal's removal of several pages from the school newspaper, finding that he had based the decision on legitimate educational concerns. The Court distinguished between purely private speech and speech that represents the school. If a student's expression appears to bear the school's imprimatur, the school can restrict such speech when inconsistent with the school's educational mission. Hazelwood grants considerable latitude to school officials to censor school-sponsored expression but doesn't permit intentional viewpoint discrimination merely because certain views may offend some in the school community. The Tinker, Hazelwood, and Fraser standards are regularly invoked when students challenge restrictions on their First Amendment speech rights. Hazelwood and Fraser gave school officials greater discretion in limiting expression that can be viewed as school sponsored. Tinker, however, still applies fully to students' private expression, requiring school authorities to show that such expression is disruptive before they can restrict it. …

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