This past weekend at the national Education Law Association conference in Cleveland, Ohio, I had the honor to meet and participate on a panel discussion with Mary Beth Tinker, one of the original plaintiffs (along with her brother John and friend Christopher Eckhardt) from Tinker v. Des Moines Indep. Comm. Dist., 393 U.S. 503, 89 S. Ct. 733 (1969).  Despite the fact that as the school board lawyer I obviously played the role of the “bad guy” on the panel, Mary Beth could not have been nicer and more gracious.  Listening to her tell the story of her case — in particular her family’s connections to the Birmingham Children’s March and the Mississippi Freedom Summer of 1964 — was fascinating, and gave me a much deeper and richer understanding of why she felt she had to wear her black armband to school on December 16, 1965.
The final question from Kevin O’Neill, Associate Professor at Cleveland-Marshall College of Law and the moderator for our panel, was whether we thought that ELA would still be discussing the Tinker decision at its conferences in 25 years.  My answer:

I think that 25 years from now, when we’re having this conference at Lunar Base Two, because Cate thought that Lunar Base One was tacky and really too expensive, I think we are absolutely going to be talking about Tinker.  I think it’s still going to be a major test. Lamb’s Chapel is toast. But I think we absolutely will still be talking about Tinker.

I think where there’s going to be some interesting litigation is, there is an esoteric debate that runs through a number of decisions, including the Fifth Circuit’s uniform cases, the Canady and the Forney cases, about whether Tinker is an overarching test and the other cases are simply narrow carve-outs, and are exceptions, you know, Hazelwood for newspapers, Bethel for lewd speech and Morse for drug speech.  Or are they really co-equal tests, you know, Tinker for school-tolerated speech, Hazelwood for school-sponsored speech, at least those two cases. Sometimes that matters, sometimes it doesn’t, but there are definitely courts that have argued over that. I do think the current Supreme Court is likely to resolve that in favorite of Tinker being the dominant case and everything else being narrow carve-outs. I think we may see that.

So tune back in 25 years to see if I am right.  Oh, and I did get the chance to give Mary Beth a copy of my book, as you can see above.  Pretty exciting for an aspiring author!