Tinker vs. DesMoines: Protest inside the schoolhouse door

By Lane Hendrick and Hannah Shaffer, F/G Scholars

Mary Beth Tinker and her mother at a Des Moines school board meeting, 1965 (Courtesy Mary Beth Tinker)

In December of 1965 a group comprised of both adults and students held a meeting and decided to share publicly their objections to the war in Vietnam and to show support for a Christmas Truce, they decided to wear black armbands in protest of such hostilities and to fast on Dec. 16 and on New Year’s Eve.

School principals in Des Moines were aware that people planned to protest the war in such a way and on Dec. 14, 1965 they created and adopted a policy saying that any student seen wearing an armband would be asked to take it off and if they refused they would be suspended until they returned to school without the armband.

On Dec, 16, 1965, Christopher Eckhardt and Mary Beth Tinker wore black armbands to school. John Tinker wore a black armband the following day. The group was sent home and suspended until they would come back without their armbands. The group did not return to school until after New Year’s Day – after the protest they had planned had been seen through to its planned end.

During this time of suspension, the students’ parents sued the school for violating the students’ rights to free speech.

The case started in U.S. District Court where the court sided with the school saying that students wearing armbands in protest could violate students’ learning.

According to the Justia Opinion Summary and Annotations, “After an evidentiary hearing, the District Court dismissed the complaint. It upheld the constitutionality of the school authorities’ action on the ground that it was reasonable in order to prevent disturbance of school discipline.”

The group appealed the ruling to the Court of Appeals for the Eighth Circuit but lost their case because it was considered en banc.

Finally, the students took their case to the Supreme Court.

The Court rules 7-2, but the actual breakdown was: 5-2-2 (five agreed with majority, 2 agreed just had different reasoning as to why – meaning they concurred, and two dissented)

Justice Abe Fortas (left-leaning) delivered the majority, citing the following amendments:

  • First Amendment, on which he famously said, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” He believed such rights were available not only to students, but teachers.
  • 14th Amendment’s protection of citizens against the state itself and “all of its creatures.” He believed that if the students had interfered with the rights of others or would prohibit productivity, there could have been a problem; however, the majority opinion mentions “the record fails to yield evidence that the school authorities had reason to anticipate that the wearing of the armbands would substantially interfere.” In this majority opinion, “symbolic speech” and “pure speech” were synonymous.

An interesting fact about Abe Fortas: his first stance on juvenile justice and children’s rights was in Kent v. United States (1966), when he (and other justices) established a bar of due process for youth waived to the adult system.

Two judges offered concurring opinions. Justice Stewart believed that the armbands did no harm, but that he disagreed on the “First Amendment rights of children” being coextensive with those of adults.” Justice White recognized a distinction between communication by words and by action, “which sufficiently impinges on some valid state interest.”

Justice Hugo Black (left-leaning) presented the dissenting opinion. He said, “While I have always believed that under the First and Fourteenth Amendments neither the State nor the Federal Government has any authority to regulate or censor the content of speech, I have never believed that any person has a right to give speeches or engage in demonstrations where he pleases and when he pleases. . . .”

He believed, as well, that the arm bands were indeed disruptive to coursework because it drew attention to the highly-emotional issue of the Vietnam War. He cited “detailed testimony by some” to prove this point. “I wish, therefore, wholly to disclaim any purpose on my part to hold that the Federal Constitution compels the teachers, parents, and elected school officials to surrender control of the American public school system to public school students. . . .” He said.

There were two main impacts of the decision of the case. First was the comparison between minors and adults in terms of freedom of speech. This decision was only the second that truly dictated the difference between a minor and an adult – situating each on different sides of the legal realm. Second was looking at the first amendment as a whole.

Despite Tinker’s decision in favor of the first amendment rights of students (and issuing of very broad first amendment protections), there were several cases post-Tinker that seemed to “chip away” at its progress.

In Hazelwood v. Kuhlmeier, a student journalism class published articles about birth control and teen pregnancy and the school deemed the articles inappropriate. It made its way through the federal district court in Missouri, then the US Court of Appeals for the Eighth Circuit, then the Supreme Court. The Supreme Court, in a 5-3 decision, claimed the school had not violated the First Amendment rights of the students because the school paper was not a “forum for public expression.”

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s