Where is Canada’s Tinker?

Posted March 6, 2019
By Danielle S. McLaughlin

In February 2019, public school students of the United States marked a major victory. Fifty years ago, the decision in Tinker v. Des Moines Independent Community School Districtexonerated one middle school and two high school students who had been forbidden to wear black arm bands to school to protest the war in Vietnam. The most-often quoted line from the decision, written by Justice Abe Fortas, is that students do not “shed their constitutional rights to freedom of speech at the schoolhouse gate.” So long as their expression is not disruptive, and does not promote illegal drug use (Morse v. Frederick), students in the U.S. retain their right to freedom of expression. 

So, fifty years after Tinker, what does freedom of expression look like for Canadian kids? The somewhat disturbing answer is that we just don’t know. Why don’t we know?

From time to time, when I was director of education for the Canadian Civil Liberties Association and Education Trust, we would hear from a student or a parent who had experienced an incident in a school where the student had been disciplined or threatened with discipline for speaking out or for wearing “offensive attire.” Each time I received such a call or message, I would become excited. Maybe this would be the one that CCLA could take to court to test the Charter Right to freedom of expression in public education. Could Canada get a decision like that in Tinker? To make a very long story short, it never happened.

What is it about Canada, or about the way in which our various systems of authority view young people, that makes it so unlikely that a case like Tinker would happen here? 

I think there are a few issues at play. Firstly, I believe that, on the whole, most adults do not see minors as being fully endowed with rights. Because there are age-limits on a wide variety of privileges and obligations, many assume that ALL rights are unavailable until the age of majority. Simply because we have laws that require young people to attend school, to be cared for by their adults, and laws that keep them from driving, voting, purchasing certain substances, and entering into contracts, does not mean that they do not have the same fundamental freedoms that we all enjoy. 

Section 1 of the Charter tells us that all our rights will be subject to “reasonable limits.” While it may be reasonable to curtail young people’s behavior where that behavior could harm them or others, what is reasonable about a school dress code, a no-hats rule, prior restraint for student publications, and punishment for dissent? While adults can voluntarily enter into agreements to limit their expression in workplaces, young people, by virtue of mandatory education, are obliged to surrender many of their rights “at the schoolhouse gate.”

It appears to me that in Canada, young people and their families are very unlikely to challenge school censorship. This may be because some families believe that the censorship is a good way for kids to learn about the “real world” – they will need to obey unreasonable limits in the workplace as well in society at large. Perhaps adults think that kids’ expression is trivial. It could not be worth going to the barricades over something a young person wants to express -- even if the kids are making a good argument, it’s not worth the fuss. And, besides, school suspension is not a very severe form of punishment – who cares if a kid is kept from going to school for a few days? And of course, some adults think that kids will develop “good manners” if they learn to curtail their expression early. After all, no one likes a complainer, right? All the above arguments are, in fact, self-fulfilling.

We can still teach our children to have good manners. They can learn that it is important to think critically before they express themselves. We all need to ask: Why do it? Can we achieve or begin to effect change? What are some of the possible side effects or outcomes of our expression? Could we be causing more harm than good? 

But, if we teach our children that their rights are unimportant or negligible, they will grow up believing that they cannot change or even rail against injustice. If we do not, as adults, stand up for the free expression of our children, even where we might believe that expression to be inconsequential, how can we expect those young people to protect our rights when they are older? 

Teaching young people to think about, understand, and practicetheir rights should be an obligation of adults everywhere. Since Canadians do not have court decisions that set a standard for the protection of expression of young people in schools, it is up to the rest of us to keep fighting for and listening to our kids.