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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

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?

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  • Can you pay the teachers and classified personnel also ?
    – George White
    Commented Apr 12, 2022 at 4:08
  • Alternately, suppose a school passes an arbitrary law against something that shouldn't cause a disruption to a reasonable class, say wearing blue skirts or something. Then, suppose, several students lose sense of sense and react negatively to a student wearing a blue skirt, causing a disruption. Does the no-blue-skirts rule activate the Tinker standard because an actual disruption occurrs, or does it not apply because no reasonable school would be disrupted by such attire?
    – Robert Columbia
    Commented Apr 13, 2022 at 1:37

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The disruptive test is a prospective one

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.

This position was upheld in the Fourth Circuit in Hardwick v. Hayward. A ban on the Confederate flag was unconstitutional in the Sixth Circuit’s Castorina v. Madison County School Board but only because that symbol was singled out - a more general ban on "racially hostile or contemptuous speech" can be restricted as that same circuit said in Defoe v. Spiva.

The Ninth Circuit said that a ban on US flag apparel during Cinco de Mayo celebrations was OK in Dariano v. Morgan Hill Unified School District but in that case, such apparel had caused disruption the previous year.

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    @RobertColumbia asked my question in a much clearer way. Can you answer his question?
    – Oh Yea
    Commented Apr 17, 2022 at 12:11

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