What is the other part of the Tinker test?

The other part of the Tinker test is sometimes called the “invasion of the rights” prong or “invasion of the rights of others” test.   The Court in Tinker explained that student speech is not protected by the First Amendment if it impinges on the rights of other students.  The Court has not explained the contours of this test.

However, lower courts have applied this test to prohibit student speech that sexually harasses other students or to student speech containing anti-gay themes.  For example, the 9th Circuit ruled in Harper v. Poway Unified School District (2006) that school officials could prohibit a student from wearing t-shirts containing Biblical verses condemning homosexuality. The appeals court explained: “Speech that attacks high school students who are members of minority groups that have historically been oppressed, subjected to verbal and physical abuse, and made to feel inferior, serves to injure and intimidate them, as well as to damage their sense of security and interfere with their opportunity to learn.”

Category: Lawyers