We forget the Constitution applies to kids, too

April 8, 2018

I came to the conclusion that there is an existential moment in your life when you must decide to speak for yourself. Nobody else can speak for you.
~Rev. Martin Luther King, Jr.

The Parkland, Florida, students are a reminder that student protests frequently galvanize us to fight the good fight. When children protest, we notice.  We listen. Sometimes we change.  

I first learned of student protests while studying the Civil Rights and anti-Vietnam War movements. Martin Luther King worked with children to engage in non-violent protest against racial segregation during the Birmingham marches of 1963.


Americans watched on television as police viciously attacked these kids. They were hosed down, bitten by dogs, struck with batons. The shock of seeing children beaten up on the six o’clock news finally focused the national discussion on racial inequality.

In 1965, Mary Beth Tinker, age 13, her 15-year-old brother John, and some of their friends protested the Vietnam War by wearing black armbands with peace signs, in defiance of a school policy explicitly enacted to ban this. They were suspended from school and their challenge won big at the United States Supreme Court.

In Tinker v. Des Moines Independent Community School District (1969), the Court held that neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” No disorder had accompanied this act, and the school rules allowed for other insignia—even Nazi symbols.  

Tinker recently reflected in The Daily Orange of Syracuse, New York: “[B]ecause of the case, I’ve been able to spend a lot of time encouraging kids to stand up for themselves and for a better, more just and peaceful world.”  

There are numerous examples of youth speaking out: 


Marie and Gathie Barnett, grade school age Jehovah’s Witnesses, refused to salute the American flag, as doing so violates their religion. They were expelled from school and their family subjected to criminal charges (West Virginia State Board of Education v. Barnette, 1943).  

Paul Cohen, a 19-year-old prosecuted for wearing “Fuck the Draft” on his coat in a Los Angeles County Courthouse during the Vietnam War, was convicted of disturbing the peace and sentenced to 30 days in jail (Cohen v. California, 1971).   

In 2014, Columbia University student Emma Sulkowicz carried a mattress around campus to protest the university’s failure to discipline a student accused of rape by multiple women. A lawsuit against Sulkowicz was dismissed on the grounds that carting her mattress around constituted protected speech.

When I was in law school in St. Paul, the Judge Advocate General (JAG) Corps, the legal branch of the military, wanted to hold on-campus interviews with students. JAG did not allow openly LGBTQAI+ individuals to serve in the military. The City of St. Paul, via ordinance, banned discrimination based on sexual orientation, so some friends and I formed an on-campus protest. A loud protest. In front of the media. Some professors joined us.  

Were we the only law school protesting? No. Did we all lose at the Supreme Court when the government threatened to withhold funding to law schools that barred military recruiters? Yes. (Rumsfeld v.  FAIR, 2006).  

Leslie and Friends v. the Military is never going to work out in my favor, but it was invigorating and liberating to know that my voice could be heard.

Not all student protests are protected. For one thing, “protest” is difficult to define. In Morse v. Frederick (2007), student Joseph Frederick was suspended for unfurling a “Bong Hits 4 Jesus” banner on live television across the street from a school athletic event. His suspension was upheld by the majority of the Supreme Court, which concluded the action advocated drug use.  

Particularly troubling was a concurrence by Justice Clarence Thomas, who, in addition to rejecting toking up in the name of the Lord, also decided the Court should overturn the Mary Beth Tinker case. Student protest of any kind, it seemed to him, lacked constitutional merit.  

Sometimes the speech in question is not so amusing. In Bethel School District No. 403 v. Fraser (1986), student Matthew Fraser nominated another student for school office in a speech using sexually graphic language at an assembly that students as young as 14 were mandated to attend.


Not knowing what awaited them, they were forced to sit through the following monologue by Fraser: “I know a man who is firm—he’s firm in his pants. He’s firm in his shirt. His character is firm—but most...of all, his belief in you, the students of Bethel, is firm. [He] takes his point and pounds it in. If necessary, he’ll take an issue and nail it to the wall. He doesn’t attack things in spurts—he drives hard, pushing and pushing until finally—he succeeds. [He] is a man who will go to the very end—even the climax, for each and every one of you.”

Any girl or woman listening to that speech would have learned—again—that sexism is alive and well in academia. The Court, somewhat surprisingly, given its general disdain for feminist issues, ruled against Fraser and upheld his suspension.

Overall, though, students should be applauded for their protests. They have not been beaten down by years of loss and frustration. They energize the rest of us. They don’t get enough credit for stepping up to the plate when it matters. And their protests have shaped First Amendment law to the benefit of us all.

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