Supreme Court Lecture Recognizes Student-Speech Pioneers

By Mark Walsh — November 07, 2013 4 min read
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The famous Tinker case on student free speech returned to the U.S. Supreme Court on Wednesday night. Not in the form of a new controversy over student expression, but as a history lesson.

The Supreme Court Historical Society featured the 1969 case of Tinker v. Des Moines Independent Community School District as part of its Leon Silverman lecture series, which focuses on litigants in several landmark high court cases of the 20th century.

John and Mary Beth Tinker, the brother and sister who wore black armbands to their Des Moines, Iowa, schools in late 1965 to protest the growing U.S. involvement in Vietnam, were the surprise guests at the lecture. They were warmly applauded by a crowd that filled the courtroom when they were introduced at the end of the lecture, though they didn’t speak.

“Cases like Tinker and many others eventually become names that we toss around,” Justice Samuel A. Alito Jr. said in introducing the lecture. “They come to stand for a legal principle or a legal test. But it’s good to remember these are not abstract things. ... They begin with actual people who are involved in actual disputes, and it’s fascinating to go back and recall that and see how these cases developed.”

Kelly Shackelford, the president of the Liberty Institute, a Plano, Texas-based organization that defends religious expression, often involving religious speech cases in the public schools, delivered the lecture on the history of Tinker.

“It’s not only one of my favorite cases, but it’s a case I use every week in our work,” Shackelford said. “In the schools, when you’re fighting a religious-freedom case, Tinker is the main case, because of that right to free speech.”

Shackelford walked through a concise but cogent history of the case. (He acknowledged a leading 1997 book detailing the case, The Struggle for Student Rights: Tinker v. Des Moines and the 1960s, by John W. Johnson. I also found that book useful for this 2005 Education Week story I did trailing John and Mary Beth Tinker at several Iowa speaking engagements about their case.)

Amid growing U.S. involvement in Vietnam in late 1965, a group of Des Moines secondary school students settled on a plan to wear plain black armbands to school to mourn the dead in that conflict and support U.S. Sen. Robert F. Kennedy’s call for a Christmas truce, Shackelford noted.

Des Moines school administrators got wind of the plan and hastily adopted a policy barring the wearing of such armbands in the district’s junior and senior high schools.

Despite the ban, students (the number has long been disputed) wore armbands to school on Dec. 16 and 17 of that year. They included John Tinker, then a 15-year-old high school student; his sister Mary Beth, a 13-year-old 8th grader; and Christopher Eckhardt, a high school student whose mother was a leading peace activist in Des Moines.

Those three would be the students to take the case all the way to the Supreme Court after being suspended for disobeying the protest policy. Eckhardt faced threats from football players in his high school for wearing an armband. John Tinker was “shy and Quaker-like,” as his lawyer once described him, and his armband wasn’t even noticed until he moved it from his dark blazer to his white dress shirt halfway through the school day. Mary Beth Tinker removed her armband when her junior high vice principal demanded, but she was suspended anyway.

The students’ First Amendment free speech challenge lost in federal district and appeals courts. But they won, of course, in the U.S. Supreme Court. Justice Abe Fortas wrote the opinion for a 7-2 court that wearing such an armband in school was symbolic speech protected by the First Amendment as long as school was not substantially disrupted.

Students do not “shed their constitutional right to freedom of speech or expression at the schoolhouse gate,” Fortas famously wrote.

Shackelford noted that Tinker remains an important precedent for students and schools. Such student speech disputes are often not about the children alone, but about them and their parents, he said.

“These cases are always about families that have a different belief system, maybe, than the majority not being allowed to express their beliefs,” Shackelford said. “In our country, children are not children of the state. They’re children of their parents.”

“We have all these millions of little governments called families,” he added. “They’re each producing these unique products—young adults, with their own philosophical, moral, religious, and political belief system. And then they compete in the marketplace of ideas. ... So this case to me is ultimately about the very heart, the very core of our free society.”

After the lecture, the Tinkers had their picture taken with Alito, who some view as an unlikely champion of student free speech.

In its 2007 decision in Morse v. Frederick, the Supreme Court upheld the confiscation by school officials of a student’s pro-drug banner, the famous “Bong Hits 4 Jesus” message. In a concurrence to that ruling, Alito said he went along with upholding the regulation of pro-drug messages in schools on the understanding that “it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue.”

The Tinkers later mingled with Historical Society members at a reception at the court.

Mary Beth Tinker recently retired from a career as a pediatric nurse. She lives in the Washington area and sometimes attends Supreme Court arguments. She is in the middle of the “Tinker Tour,” a recreational-vehicle tour in which she and First Amendment lawyer Michael Hiestand are visiting schools and colleges throughout the 2013-14 school year.

John Tinker lives a more low-key life, though he continues to help students who want to learn more about the case.

Christopher Eckhardt died in Florida in December 2012 at age 62.

A version of this news article first appeared in The School Law Blog.