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Student Well-Being Commentary

Black Armbands for Constitution Day

By Jamin B. Raskin & Mary Beth Tinker — September 07, 2005 4 min read

Forty years ago, one of us, Mary Beth Tinker, was among a group of students in Des Moines, Iowa, who wore black armbands to school to mourn the dead in Vietnam and show support for a Christmas truce. Then a student in the 8th grade at Warren Harding Junior High School, Mary Beth was promptly suspended by her principal.

Because the public school is our most pervasive public institution, it is possible to teach a whole semester or yearlong class about the Constitution through school cases.

The Des Moines students, however, stood their ground. Even as Mary Beth’s family received death threats and people threw red paint on her front door, she insisted that she had a right to make a political statement at school.

Four years later, in Tinker v. Des Moines Independent Community School District, the U.S. Supreme Court agreed, holding that students (and teachers) have First Amendment rights at school. Student speech is protected unless it threatens to “substantially” disrupt the educational process. In his majority opinion, Justice Abe Fortas made clear that, far from being disruptive, Mary Beth’s kind of expression—political, respectful, nonviolent—enriched the educational environment.

Americans who go abroad recognize how extraordinary the Tinker decision is. Even in France, a nation that cherishes freedom of expression, public school students are forbidden to make religious or political statements at school through their dress. Although the Supreme Court has cut back on the rights of students somewhat in the intervening years, the Tinker decision still stands as a towering constitutional landmark. It affirms that under the First Amendment to the U.S. Constitution, students have a right to speak truth to power, to express controversial opinions, to tell the community that the emperor has no clothes.

The right of students to speak can make grown-ups nervous. But there is no going back on Tinker, which defines the American approach to education, and even to childhood. Under our Constitution, young people may not be treated as objects of government indoctrination, the way they are treated in authoritarian societies. Instead, they are encouraged to become active and questioning participants in their own education. Their thoughts, feelings, and ideas count.

This month, we have the chance as a society to celebrate the value of student expression. Because of the leadership of Sen. Robert C. Byrd of West Virginia, who keeps a copy of the Constitution in his pocket, a new federal law requires public and private schools and universities that receive federal funding to observe Constitution Day, this year on Friday, Sept. 16. Importantly, the law leaves it up to schools and students to decide how to participate in its observance.

Teaching the Constitution does not have to be boring and abstract. On the contrary, Sen. Byrd’s law school alma mater at American University has taken a lead in showing that the promotion of constitutional understanding can be thrilling to students, and not just once a year. Through the Marshall-Brennan Constitutional Literacy Project, the school sends gifted law students into public schools to teach the Constitution and lead discussions of real cases and controversies that resonate in the lives of young people.

The trick is to teach students the Constitution through cases that affect them directly. American University’s Washington College of Law has designed an entire curriculum around decisions about censorship of student newspapers and yearbooks, locker searches, drug testing of student-athletes, prayer at high school football games, the posting of the Ten Commandments in the classroom, compulsory flag salutes, the inclusion of “under God” in the Pledge of Allegiance, desegregation and affirmative action, neighborhood inequities in school financing, the rights of students with disabilities, sexual harassment at school, girls’ participation on boys’ baseball teams, and more. Because the public school is our most pervasive public institution, it is possible to teach a whole semester or yearlong class about the Constitution through school cases.

To become thoughtful citizens, young people need to distinguish between the shrill position-taking that dominates public discourse today and serious constitutional analysis that transcends party lines. This is why Marshall-Brennan classroom volunteers have included not only liberal public-interest lawyers but conservative luminaries such as Judge Kenneth W. Starr, who loyally taught once a week at Anacostia High School in Washington.

The black armband has become a national symbol of respect for student rights. On Constitution Day this year, the Marshall-Brennan project, which has spread to law schools at Rutgers, Howard, Arizona State, and the University of Pennsylvania, will be distributing black armbands to schools, teachers, and students. We will encourage lively conversations about the state of student rights and civil liberties across America.

We will be wearing our Tinker armbands on Sept. 16, and hope that other educators will join us. (Those who don’t wish to make their own armbands can get one by going to www.band-of-rights.org.)

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