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Summary: When In Doubt, Rely On Tinker

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LESSONS OF THE DRESS CODE CASES

Lesson One: When in Doubt, Rely on Tinker

While I started this chapter with the Brandt case, to show that even forty-five years after Tinker, the courts still can't make up their minds what test to use in a very common student speech situation, a review of the entire body of dress code cases shows that the courts are indeed most likely to follow Tinker and find in favor of the student, unless facts exist that would reasonably lead school officials to forecast substantial disruption of or material interference with school activities. For example, in McIntire v. Bethel School, Independent School District No. 3, a student was disciplined for wearing a t-shirt that read "[t]he best of the night’s adventures are reserved for people with nothing planned," which was a take-off on a popular alcohol advertising slogan. The court found that under Tinker, the student’s First Amendment rights had been violated, because no evidence existed of any disruption caused by the wearing of the t-shirt. It did not help the school's cause that the student testified that she had worn the t-shirt on numerous prior …show more content…
Bush over the caption "International Terrorist." At lunch, a student approached the assistant principal, said that he was "angry" about the t-shirt, and stated that "someone should take care of Brett for wearing that shirt." A teacher who observed the shirt told the assistant principal that he thought the shirt "may be inappropriate." Although there had been no actual disruption, the principal, concerned about the effect of the shirt on the 31.4% of the school population that was of Arab descent, eventually sent the student home. The principal was also motivated by her own experience at another high school ten years earlier during Desert Storm, when students displaying pictures of Saddam Hussein caused fights, protests and

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