Law & Courts

Landmark Case on Student Free Speech Still Resonates 50 Years Later

By Mark Walsh — February 21, 2019 6 min read
Mary Beth Tinker and her brother John were suspended with three other Des Moines, Iowa, high schoolers in 1965 for wearing black armbands to protest the Vietnam War. In this 1968 photo, the Tinkers display armbands to which they had later added peace symbols.
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Fifty years ago this month, the U.S. Supreme Court issued a decision on student speech that was emblematic of its era, but has also reverberated and remained relevant for generations of public school students—and administrators—that followed.

In Tinker v. Des Moines Community Independent School District, the court ruled 7-2 to uphold the right of several students in Des Moines, Iowa, to wear black armbands in school to protest and draw attention to the Vietnam War. The court said the armbands were symbolic speech protected by the First Amendment as long as school was not substantially disrupted.

“It’s hard to believe it’s been 50 years,” John Tinker, now 68, said in an interview from his home in Fayette, Mo., shortly before he left to attend more than a week of school appearances and other events in Des Moines and around Iowa to observe the anniversary.

“I’ll be encouraging young student activists in these audiences to pay attention to the world around them,” he added.

Mary Beth Tinker, John’s 66-year-old sister, was reached just after she had arrived in Iowa this week from her home in the District of Columbia.

“It’s very emotional to be here in Des Moines where we grew up,” she said. “I never get tired of talking about our case because it has to do with one of the main interests in my life, which is to promote the input of young people into the policies that affect their lives.”

Back to Harding Junior High

It’s probably good that the Tinkers don’t tire of speaking about the landmark case, because this week they had eight visits to Des Moines schools on their schedule, plus several panel discussions, a national livestream, and a live interview on C-SPAN, to be followed next week with visits to the state’s main college towns, Ames and Iowa City.

On Sunday, Feb. 24, the actual anniversary of the Supreme Court ruling, the Tinkers will participate in several events at Warren Harding Middle School in Des Moines, where Mary Beth Tinker was a 13-year-old 8th grader in late 1965 when the plan to wear armbands was devised.

As the Vietnam War was escalating in late 1965, a group of Des Moines students agreed on a plan to wear black armbands to school as a silent protest of the war but also to mourn those who had died and to support a Christmas truce.

School administrators learned of the plan, and the district’s five high school principals adopted an ad hoc policy prohibiting the wearing of armbands in school.

Mary Beth wore her armband to Harding Junior High on Dec. 16, largely without incident until she reached her afternoon math class with Richard Moberly, who had warned students not to wear armbands in his class. Mary Beth was sent to the school office, where, she always points out to students today, she felt so intimidated she removed the armband at an administrator’s request but was suspended anyway.

Several other students wore armbands that day, including Christopher Eckhardt, who faced down threats from members of the football team at Roosevelt High School. (Eckhardt, who was the third student, along with the Tinkers, to take the case all the way to the Supreme Court, died in 2012.)

John Tinker, then 15, wore his armband to North High School on Dec. 17, over his white dress shirt, and despite some supportive words from his principal, he was disciplined.

The Tinkers, Eckhardt, and several other students were suspended, the Des Moines school board affirmed the ban, and the Eckhardt and Tinker families sued the district with the aid of the Iowa Civil Liberties Union. They lost in federal district court and a federal appeals court. By the time the case reached the U.S. Supreme Court, in 1968, opposition to the Vietnam War had grown, but so had the establishment’s concerns about protests on campuses and in the streets.

Writing for a 7-2 majority in the Tinker decision, Justice Abe Fortas said, “In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students.”

And in the opinion’s most often quoted line, Fortas wrote, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

‘A New Revolutionary Era’

Justice Hugo L. Black, normally a strong advocate of free speech, drew a line when it came to minors in school, and he wrote a particularly angry dissent.

“If the time has come when pupils of state-supported schools, kindergartens, grammar schools, or high schools can defy and flout orders of school officials to keep their minds on their own schoolwork, it is the beginning of a new revolutionary era of permissiveness in this country fostered by the judiciary,” Black wrote.

Justin Driver, a law professor at the University of Chicago and the author of The Schoolhouse Gate, a recent book examining student constitutional cases in the Supreme Court, said in an interview that the Tinker decision “was a momentous one, particularly for how Justice Fortas emphasized that students speaking to one another about the issues of the day was not a disruption but a vital part of the educational process itself.”

“On the other hand, one can ... lament that it didn’t go far enough in terms of protecting student speech.”

The issue arises frequently. The Supreme Court has since limited the scope of Tinker with three notable decisions. In Bethel School District No. 403 v. Fraser, in 1986, the court upheld the discipline of a high school student who delivered a speech full of sexual innuendo at a student assembly.

In 1988, in Hazelwood School District v. Kuhlmeier, the court ruled in favor of a Missouri principal who read a high school newspaper in advance of publication and ordered the deletion of articles on divorce and teenage pregnancy. And in Morse v. Frederick, the justices in 2007 ruled that a student could be punished for displaying a banner interpreted as a pro-drug message (“Bong Hits 4 Jesus”) at a school-supervised event.

In a concurrence in the Morse decision, Justice Clarence Thomas said he would overrule Tinker.

“In the name of the First Amendment, Tinker has undermined the traditional authority of teachers to maintain order in public schools,” Thomas wrote.

But it’s not clear that even every conservative member of the Supreme Court would go that far. Justice Samuel A. Alito Jr. has expressed concern for the free-speech rights of students, and in 2013, he warmly introduced John Tinker and Mary Beth Tinker at a lecture on their case at the court.

In the Des Moines school district, which now has about 33,000 students, there is a degree of pride over the landmark Tinker decision. Harding Middle School dedicated a locker to Mary Beth Tinker in 2013.

Thomas Ahart, the current superintendent, said a new generation of Des Moines students were looking forward to hearing firsthand from John and Mary Beth Tinker.

“It was special what they did,” he said. “Here in Des Moines, we do attach a certain responsibility to keeping that legacy alive.”

Reflecting on History

As the anniversary approached, the Tinkers reflected on the case’s legacy.

John recently launched the John Tinker Foundation to help spread the story of the case. Some school administrators, he said, “see the Tinker decision as an impediment to be gotten around. But it doesn’t have to be that way.”

Mary Beth recently unearthed her suspension notice from Harding Junior High, as well as a lengthy letter her mother, Lorena Tinker, wrote to Black in response to the justice’s fiery dissent.

She is gratified that some students from Marjory Stoneman Douglas High School in Parkland, Fla., who have been outspoken about gun control, are participating in this week’s events in Des Moines.

“Each of us has to decide what consequences we are willing to accept to take a stance. It might be wearing an armband that is ultimately upheld, or it might be walking out of school, which would be considered disruptive and a form of civil disobedience.”

“I didn’t necessarily understand all that when I was 13 years old,” she said.

A version of this article appeared in the February 27, 2019 edition of Education Week as Student Speech Landmark Case Still Resonates

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