In the forty years since the landmark decision in Tinker v. Des Moines Independent Community School District, the Supreme Court has narrowed the expansive vision of student-protected speech espoused in that case. Tinker held that school officials cannot restrict a student’s expression of opinion unless it will contribute to a disturbance in the educational environment. Since then, Tinker has governed situations where a school district implements content- or viewpoint-based regulations of student expression. For example, Tinker has been applied where a school punished students who wore “scab” buttons to protest replacement teachers during a school strike and where school administrators implemented a policy against inappropriate public displays of affection in part because “such conduct . . . sends the wrong message.”

There remains a long-standing fault line under the Tinker doctrine that the Court has acknowledged but has yet to repair: is Tinker’s standard limited to only content- and viewpoint-based regulations of student speech, or does it also apply to content-neutral restrictions? Content-neutral regulations are speech limitations “justified without reference to the content of the regulated speech,” such as a school uniform policy enacted for purposes unrelated to restricting student expression through clothing or a leaflet policy designed to “decrease distractions” at school by controlling when students may distribute materials.

The lack of guidance from the Court on Tinker’s reach has recently caused the Second Circuit to openly throw up its hands: “It is not entirely clear whether Tinker’s rule applies to all student speech that is not sponsored by schools [or lewd and indecent], or whether it applies only to political speech or to political viewpoint-based discrimination.” Noting the confusion among the circuit courts, commentators have also begun to question Tinker’s scope with regard to content-neutral regulations.

Instead of applying Tinker to content-neutral restrictions on student speech, a number of lower courts have recently turned to the test enunciated in United States v. O’Brien. The O’Brien testbalances the strength of the government’s interest in regulating expressive conduct with the magnitude of the speech restriction. In 2001, Canady v. Bossier Parish School Board first applied O’Brien in the school context after concluding that the content-neutral policy at issue did not “conform” to a Tinker analysis. Since then, courts in the Fifth Circuit, Sixth Circuit, Ninth Circuit, and Eleventh Circuit have shifted away from a Tinker analysis in favor of O’Brien.

Whether Tinker or O’Brien governs content-neutral regulations has generated significant jurisprudential uncertainty in the school setting, suggesting that the Court must address the issue directly. O’Brien is the better standard to apply for two reasons. First, it doctrinally distinguishes between content-based and content-neutral regulations, and accordingly applies the appropriate level of scrutiny. Second, the structure of the O’Brien test is better calibrated to confer the proper level of deference upon school officials.

I. The Current State of the Law

In the school context, the lower courts have voiced confusion on the issue of whether a content-neutral regulation of speech is controlled by the Tinker standard or the O’Brien test.

A. The Tinker Standard

In Tinker, a group of high school students arranged to wear black armbands to protest the Vietnam War. School officials learned of the plan and, fearing a disturbance, adopted a policy prohibiting students from wearing armbands. Several students sued when they were suspended for wearing the armbands, claiming that their First Amendment rights had been violated. The Court agreed: “[I]n our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” The Court’s principal objection to the armband prohibition was that it was motivated by a “desire to avoid the discomfort and unpleasantness that . . . accompany an unpopular viewpoint.” That is, the Court rejected the school district’s policy because it prohibited student speech based on the particular opinion the students espoused.

Doctrinally, Tinker’s standard focuses on a single, dispositive issue: student expression may not be suppressed unless school officials reasonably conclude that the speech “would materially and substantially disrupt the work and discipline of the school.” Two factors have been crucial to the lower courts applying Tinker. First, can the school district point to past incidents arising out of similar speech that establish a “well-founded expectation of disruption”? Second, if a school cannot pinpoint past incidents, can it demonstrate substantial facts that reasonably support a “specific and significant fear of disruption”? If a school can establish “past incidents” or a “specific and significant fear of disruption,” the Tinker standard is satisfied, and a policy restricting student expression is constitutional.

B. The O’Brien Test

In United States v. O’Brien, a Vietnam War protestor was prosecuted for burning his draft card on the steps of a courthouse. He argued that the statute was an unconstitutional infringement upon his right to engage in political speech. Applying an intermediate level of scrutiny, the Court’s analysis balanced the strength of the government’s interest in the regulation with the degree of interference with the protester’s speech. The Court concluded that the draft card statute was not unconstitutional as applied to O’Brien.

Lower courts applying the O’Brien test in the school setting have found that a regulation is constitutional when three requirements are met: the regulation “furthers an important or substantial governmental interest”; the asserted governmental interest “is unrelated to the suppression of student expression”; and “the incidental restrictions on First Amendment activities are no more than is necessary to facilitate that interest.” Under the first prong of O’Brien, the school district must demonstrate how its speech regulation advances the state’s interests. For example, in Palmer v. Waxahachie Independent School District, the school district implementing a dress-code policy provided evidence that the regulation “improve[d] the educational process” by increasing student test scores and attendance and decreasing disciplinary infractions and referrals. Under O’Brien’s second prong, the court analyzes whether the reason the school district has enacted a speech-restrictive policy is to “quell[] speech or limit[] expression.” Finally, under the third prong of the O’Brien test, the court considers whether the regulation, despite restricting certain speech, “leav[es] open ample alternative channels” for student communication.

II. Considering the Proper Standard for Content-Neutral Regulations

As the courts seek to resolve the jurisprudential confusion surrounding whether Tinker or O’Brien should be applied to content-neutral regulations in the school setting, they should consider two normative questions that resonate throughout the First Amendment doctrine. First, what level of scrutiny ought to be applied to regulations that incidentally affect student speech? The case law describes Tinker as applying a “heightened” standard because of the rigorous nature of the test by which a school district must establish a “substantial disruption” to justify restrictions on student expression. Alternatively, the O’Brien test is defined as an “intermediate” level of scrutiny, balancing the interest of the school in regulating speech with the students’ rights to free expression.

The second normative question that the courts should consider with respect to content-neutral regulations is which standard situates the courts in their proper role, given the deference owed to school authorities in overseeing student conduct. The Court’s recent cases have emphasized that school authorities should be granted deference in regulating student expression: “[T]he education of the Nation’s youth is primarily the responsibility of parents, teachers, and state and local school officials, and not of federal judges.” As such, an important consideration is whether Tinker or O’Brien can be consistently applied to calibrate the right level of deference to school authorities implementing content-neutral regulations.

A. Concerns About Tinker

With regard to the first normative consideration, Tinker’s “heightened” standard was designed to analyze content- and viewpoint-based regulations of student speech and accordingly applies too high a level of scrutiny to content-neutral regulations. Tinker’sstandard solely turns on whether the regulated speech in question will “materially and substantially disrupt” the school environment. This fails to distinguish between content-based and content-neutral regulations—a significant departure from the rest of First Amendment doctrine. Outside of the school setting, First Amendment doctrine has long held that content-neutral regulations of speech must be evaluated differently from the way in which content-based restrictions are evaluated. Based upon the “bedrock principle” that the First Amendment generally prevents the State from proscribing speech because of the content of the message expressed, the Court has stated that “[c]ontent-based regulations are presumptively invalid” and subject to “the most exacting scrutiny.” On the other hand, regulations justified without reference to the content of the restricted speech should be subject to only an “intermediate [level of] scrutiny.” By applying a heightened level of scrutiny to content-neutral regulations, Tinker’s application thus misaligns the school setting doctrine with the rest of First Amendment case law.

Furthermore, the Supreme Court has consistently held that student speech at school should be assigned less, not more, protection than adult speech. Because Tinker’s standard of scrutiny for the regulation of student speech is more demanding than O’Brien’s content-neutral regulation of adult expressive conduct, it would be a flaw to extend Tinker’s standard in the school setting. Such a holding would assign more protection to a student’s speech at school than an adult engaging in the same speech outside the school context would enjoy.

With regard to the second normative consideration, the case law demonstrates that Tinker’s standard does not consistently assign the courts their proper role given the deference owed to school authorities in regulating student conduct. Structurally, Tinker turns on whether a school district can prove that, without the restriction, the student speech in question “would materially and substantially disrupt the work and discipline of the school.” Because it is not clear whether deference considerations are separate from or part of Tinker’s substantial disruption test, the doctrine is under considerable strain. For example, at least one appellate court has found that a school-deference consideration outweighed and trumped a strict application of Tinker’s substantial disruption standard. In a case evaluating a third-grader’s claim that her First Amendment rights were violated because the school would not let her circulate a petition, the Third Circuit wrote:

Yet, in another case where students challenged a school district’s policy prohibiting inappropriate public displays of affection, the district court’s ruling suggested that deference was a particular subset of the Tinker analysis:

Still, other cases find that deferential considerations are entirely separate from a Tinker analysis. As the case law demonstrates, because of the structure of the Tinker standard, the lower courts have had some difficulty harmonizing deference considerations with the Tinker doctrine.

B. Toward a Better Standard: the O’Brien Test

In comparison to Tinker,the O’Brien test better serves the normative considerations emphasized in First Amendment jurisprudence. First, O’Brien’s intermediate level of scrutiny is the appropriate standard to be applied in evaluating content-neutral regulations. In order to meaningfully effectuate the decision to distinguish between content-based and content-neutral speech regulations, the Court has subjected speech regulated for purposes unrelated to the content of the message to a lower degree of scrutiny. As one Fifth Circuit decision noted, where a school has implemented a content-neutral policy, “a level of scrutiny should apply . . . that is higher than the [rationality-based] standard in Kuhlmeier, but less stringent than the school official’s burden in Tinker.” Unlike Tinker, applying the O’Brien testto content-neutral regulations brings harmony to the First Amendment doctrine, and assigns the proper level of scrutiny to school regulations.

Second, in contrast to Tinker, O’Brien’s first prong provides a structured point at which courts can consider and assign an appropriate level of deference to school authorities acting within their official capacities. Under the first prong, the court must “determine whether the government’s stated goalsqualify as important or substantial.” The case law demonstrates that this first prong forces courts to internalize the deference considerations advanced by the Court. In Canady, the Fifth Circuit considered the plaintiffs’ argument that a uniform policy did not adequately further the school district’s interest in improving education. In rejecting the argument, the court observed that “it is not the job of federal courts to determine the most effective way to educate our nation’s youth.” The court in Littlefield v. Forney Independent School District noted that “federal courts should defer to school boards to decide, within constitutional bounds, what constitutes appropriate behavior . . . in public schools.” Similarly, in Palmer, the Fifth Circuit’s analysis under O’Brien’s first prong found that “federal courts should give substantial deference to schools where they present their reasons for passing a given [policy].” Unlike Tinker, the structure of O’Brien contains a built-in consideration that enables lower courts to clearly and consistently apply a measure of deference to school authorities acting in their official capacity.

C. Addressing an Alternative Framework

In the school setting, applying O’Brien to content-neutral regulations best serves the two normative considerations at issue in applying the First Amendment in this consequence—the appropriate level of scrutiny and deference to school officials. In Jacobs v. Clark County School District, a dissenting Judge Sidney Thomas argued instead that Tinker should govern content-neutral restrictions and offered a counter-framework to the majority’s application of O’Brien. He reasoned that the majority turned to the O’Brien test because its “initial inquiry” focused on the wrong question—whether the speech regulation at issue was content-neutral or content-based. Instead, the proper standard should be dictated by first determining the character of the speech at issue: “It is the character of the speech, not the content of the governmental regulation that forms the framework of the First Amendmentanalysis in student speech cases.”

Thomas’s framework is ultimately unpersuasive. Evaluating the “character of the speech” at issue is not a principle by which the school setting cases are governed; as the Supreme Court recently acknowledged in Morse v. Frederick, “the mode of analysis set forth in Tinker is not absolute.” Although the content-based/content-neutral dichotomy is not grounded in the text of the First Amendmentitself, it has long served the Supreme Court’s focus of distinguishing regulations that seek to advance “a legitimate regulatory goal” from those that seek to “suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion.” Tinker’s application of “heightened scrutiny” to content-neutral regulations in the school context stands out as an inconsistency that cannot be reconciled with the remainder of First Amendment jurisprudence.

Conclusion

Courts should address content-neutral regulations in the school setting through O’Brien instead of Tinker. It provides the appropriate level of scrutiny, and its structure confers the appropriate degree of deference to school officials. The lower courts turning to O’Brien have capably incorporated the test into the school context, and thus far the opinions have not relied on the First Amendment case law applying O’Brien outside of the school context. This is likely due to the fact that the courts have significant experience with the contours of O’Brien as the governing test for content-neutral regulations and do not need to import outside applications of the O’Brien test. Such institutional competence in applying O’Brien diminishes the risk that content-neutral restrictions in the school setting will continue to cause discord in First Amendment jurisprudence.

Geoffrey Starks is a recent graduate of Yale Law School. The author is grateful to the Yale Law Journal editors for their thoughtful suggestions. The author thanks Christopher and David Starks, and in particular Lauren Thompson, who helped refine the piece. Most of all, I would like to thank my parents, Janet and Gregory Starks, whose support and dedication are unparalleled.

Preferred citation: Geoffrey A. Starks, Tinker’s Tenure in the School Setting: The Case for Applying O’Brien to Content-Neutral Regulations, 120 Yale L.J. Online 65 (2010), http://yalelawjournal.org/forum/tinkers-tenure-in-the-school-setting-the-case-for-applying-obrien-to-content-neutral-regulations.