united-states us-constitution common-law
Tinker Standard: Theoretical or Actual?
<p>So, when applying the Tinker standard, is the question whether or not a student’s activities is theoretically disruptive, or actually disruptive?  Case: Tinker v. Des Moines</p>
<p>To put the question into perspective, I’ll produce an example: Let’s say I wore a swastika to school.  Everybody in my class reacted (like normal people when somebody sees a swastika), and it caused a substantial disruption.  Now, let’s say I paid all my classmates just to not react, and pretend like everything was normal when I wore my swastika.  Because of the lack of reaction from my classmates, no disruption was caused.  Would my wearing of a swastika in the second scenario pass the Tinker standard, as there was no actual disruption; or would a Court analyze the scenario theoretically, and say that, theoretically, a substantial disruption would’ve been caused?</p>

<h2>The disruptive test is a prospective one</h2>
<p>Recent cases have focused on the display of the Confederate battle flag. Trial courts have held that the display of the flag meets the substantially disruptive test of Tinker. One imagines that Nazi symbology would be similarly caught.</p>
<p>This position was upheld in the Fourth Circuit in <a href="https://caselaw.findlaw.com/us-4th-circuit/1625810.html" rel="nofollow noreferrer">Hardwick v. Hayward</a>. A ban on the Confederate flag was unconstitutional in the Sixth Circuit’s <em>Castorina v. Madison County School Board</em> but only because that symbol was singled out - a more general ban on &quot;racially hostile or contemptuous speech&quot; can be restricted as that same circuit said in <em>Defoe v. Spiva</em>.</p>
<p>The Ninth Circuit said that a ban on US flag apparel during Cinco de Mayo celebrations was OK in <em>Dariano v. Morgan Hill Unified School District</em> but in that case, such apparel had caused disruption the previous year.</p>
