Law & Courts

Living History

By Mark Walsh — May 03, 2005 12 min read

John and Mary Beth Tinker are back in a classroom in their hometown, once again wearing black armbands and drawing attention to a war.

Now in their 50s, the siblings are living symbols of constitutional rights for secondary school students. In 1965, they and a handful of others were suspended for wearing black armbands to their public schools here to protest the Vietnam War. The Tinkers and another student, Christopher Eckhardt, took their case all the way to the U.S. Supreme Court, where in 1969 they won the landmark ruling in Tinker v. Des Moines Independent Community School District that wearing such an armband in school was symbolic speech protected by the First Amendment as long as school was not substantially disrupted.

Alyssa Mowitz, left, and Caitlin Sims speak with John Tinker at Central Academy. He is an activist for peace as well as free-speech rights.

“All of us are concerned about the war in Iraq,” Mary Beth tells a group of about 90 middle and high school students at Central Academy, a public magnet school where students take Advanced Placement courses and other specialized offerings.

Her brother is more direct.

“We’re in the middle of a war that many, many people think is illegal,” he says about the U.S. military operation in Iraq. He will say several times in four public appearances over two days in Iowa last month that while Saddam Hussein was “a bad guy,” the war is all about controlling resources such as oil.

John is soft-spoken and almost apologizes to the Central Academy students for hitting them with such contentious issues as the war, the Patriot Act, and the continuing influence of “the military-industrial complex.”

“I don’t want to step on anyone’s toes, politically,” he says. “We started out as peace activists before we became First Amendment activists.”

Today, nearly 40 years after the armband controversy unfolded, the Tinkers tend carefully to their legacy as advocates for student expression. They often crisscross the country to speak at schools. John, 54, happily answers e-mail queries from students of all ages, even when they have neglected to do the most basic background reading about the case. Mary Beth, 52, sometimes writes privately to lend encouragement to students embroiled in free-speech disputes in their schools.

Many students of this generation who study their case feel awestruck when they encounter the Tinkers in person.

“I idolize them,” says Thomas Clough, 18, a senior who was at the Central Academy event in April. “They were willing to stand up for what they believed in.”

Michael Schaffer, the AP government teacher at Central Academy, introduced the Tinkers as “two American heroes. These are people who made a difference.”

Later, he says that his classes, which draw students from every Des Moines high school and from suburban districts, are full of students “who would be the present-day Tinkers.”

“These are students who would be committed to taking a stand on principle,” he says.

But if recent evidence is correct, all too many high school students don’t understand their First Amendment rights. A survey of 112,000 students released this year by the John S. and James L. Knight Foundation found that a majority were apathetic about, or ignorant of, those rights. More than a third thought the amendment’s guarantees went too far.

While many educators and students are familiar with the basics of the Tinker case, Supreme Court Justice Abe Fortas’ opinion in the 7-2 decision was spare on the details of the events in Des Moines. Students do not “shed their constitutional right to freedom of speech or expression at the schoolhouse gate,” Fortas famously wrote.

John and Mary Beth Tinker and their four brothers and sisters were, as John puts it, “their parents’ children.” Their late father, the Rev. Leonard Tinker, was a Methodist minister who went to work for the American Friends Service Committee. Their mother, Lorena, now 83, has spent a lifetime devoted to pacifism and other liberal causes.

In the fall of 1965, John was a 15-year-old sophomore at North High School in Des Moines, where he played in the band and hung out with the chess players.

“I had plenty of friends, but I did tend to hang out with the nonconformists,” he says.

Mary Beth was a 13-year-old 8th grader at Warren Harding Junior High School who was interested in roller skating and pizza parties. But she was also paying more and more attention to the escalating U.S. involvement in Vietnam.

Moments in Time

In <em>The Des Moines Register</em>, the Vietnam War and the armband controversy shared headlines.

A look at key events surrounding the armband case in the Des Moines, Iowa, public schools.

• November 1965: The Vietnam War is on the front pages of newspapers almost every day. On Thanksgiving weekend, one of the first large marches on Washington against the war draws some 25,000 participants, including Des Moines high school students John Tinker and Christopher Eckhardt, both 15. On the trip home, students discuss the idea of wearing black armbands to school to mourn the dead and support a Christmas truce.

• Dec. 16, 1965: Eckhardt and Mary Beth Tinker, 13, wear black armbands to their schools and are suspended for violating a policy against armbands adopted by Des Moines principals, who had gotten wind of the plan. The next day, John Tinker wears an armband to his school. He is asked to leave, but is not formally suspended.

• Late December 1965: The United States resumes bombing after a Christmas truce. Some 170,000 U.S. troops are in Vietnam, and about 1,000 Americans have died in the war.

• Jan. 3, 1966: The Des Moines school board votes 5-2 to maintain the policy against wearing armbands and to uphold the suspensions of students who wore them. Eckhardt and the Tinkers return to school without armbands.

• July 25-26, 1966: A trial is held in U.S. District Court in Des Moines in a lawsuit challenging the armband policy. On Sept. 1, U.S. District Judge Roy Stephenson rules for the school district.

• Nov. 3, 1967: The full U.S. Court of Appeals for the 8th Circuit, in St. Louis, splits 4-4 on the plaintiffs’ appeal of the armband decision, thus affirming the district court without issuing an opinion.

•March 4, 1968: The U.S. Supreme Court grants review of the armband plaintiffs’ appeal.

• March 31, 1968: President Lyndon B. Johnson announces he will not seek re-election.

• Nov. 12, 1968: Oral arguments in Tinker v. Des Moines Independent Community School District are held before the Supreme Court. By late 1968, some 500,000 U.S. troops are in Vietnam, and the American death toll is approaching 30,000.

• Feb. 24, 1969: The Supreme Court rules 7-2 to uphold students’ right to wear the armbands in school unless it can be shown that school would be substantially disrupted.

• April 1975: Two years after U.S. combat troops are withdrawn from Vietnam, Saigon falls to the North Vietnamese. More than 58,000 Americans were killed during the war.

• July 7, 1986: Drawing a distinction with its Tinker ruling, the Supreme Court rules 7-2 in Bethel School District v. Fraser that school districts may discipline students for giving offensively lewd or indecent speech—in this case, a student’s speech full of sexual innuendo before a student assembly.

• Jan. 13, 1988: In Hazelwood School District v. Kuhlmeier, the high court rules 5-3 that school authorities do not violate the First Amendment rights of students by controlling the editorial content of student publications if the officials’ actions are reasonably related to legitimate pedagogical concerns. Writing in dissent, Justice William J. Brennan Jr. says the majority opinion “denudes high school students of much of the First Amendment protection that Tinker itself prescribed.”

Timeline Source: The Struggle for Student Rights: Tinker v. Des Moines and the 1960s, by John W. Johnson; Education Week research

“I just remember coming home and watching the war on TV and feeling real bad about it,” she says.

That fall, the Tinkers’ local morning newspaper, The Des Moines Register, carried headlines almost daily about the deepening war. Over Thanksgiving weekend of 1965, John Tinker, Chris Eckhardt, and Margaret Eckhardt, Chris’ mother and a local peace activist, rode buses to Washington to join 25,000 others for one of the first big marches against the U.S. military commitment.

On the bus ride home, an energized group of Iowans discussed what they might do next. Someone suggested the wearing of black armbands, and when the group returned to Des Moines, numerous students met at the Eckhardts’ home and agreed on a plan to wear armbands to school on Dec. 16 to mourn the dead in Vietnam and support Sen. Robert F. Kennedy’s call for a Christmas truce.

School administrators in the Des Moines district, which then had about 18,000 students, got wind of the plan and met to respond. The district’s five high school principals decided to prohibit the wearing of armbands in school, word of which made it onto the front page of the Register on Dec. 15. Accounts vary as to how many students wore armbands to school, but John Tinker says it was at least a dozen. Seven students were suspended, including the three who would be at the center of the legal challenge: Chris Eckhardt and John and Mary Beth Tinker.

Mary Beth wore her armband on the sleeve of her sweater Dec. 16. While she drew attention and whispers from classmates, she did not face any problems until she reached her math class in the early afternoon. Her teacher, Richard Moberly, had held a discussion the previous day about protests and strongly suggested that no one wear an armband to his class. Mary Beth was sent to the school office, where, she points out to students today, she felt so intimidated she actually removed her armband. But she was suspended anyway.

John Tinker did not wear his armband until the next day. He wore a coat and tie, which was dressier than the norm but not highly unusual in that less-casual era for school attire.

“I wanted to keep the issue on the armband,” John says. “I wanted to exhibit respect generally.”

But when John pinned his armband on over his dark jacket, it wasn’t very noticeable. Only at midday, after he had changed out of his gym clothes, did he decide to wear the armband over his crisp white dress shirt. Then it got noticed.

John’s principal at North High told him that being disciplined for wearing an armband would look bad on his permanent record, and that a more appropriate way to mourn the war dead would be to take part in a Memorial Day ceremony.

After several weeks of debate, the Des Moines school board upheld the administrative ban on armbands. Meanwhile, the Christmas break had brought a cooling-off period. The students agreed to return to school in January 1966 without armbands. But John and Mary Beth continued their protest another way: They wore all-black clothing for the rest of the year. John says he discarded the armband he wore to school at some point. Mary Beth saved hers and intends to donate it to a new First Amendment museum being planned in Chicago.

With the help of the Iowa Civil Liberties Union, the Eckhardt and Tinker families sued the Des Moines district over the armband prohibition. The district won in U.S. District Court in Des Moines. The full U.S. Court of Appeals for the 8th Circuit, in St. Louis, split 4-4 on the appeal, thus affirming the district court without a formal opinion.

When the case reached oral arguments in the Supreme Court in the fall of 1968, the school district’s lawyers sought to link the armband protest with Students for a Democratic Society, the national activist group that had been associated with the violent anti-war street protests at the Democratic National Convention in Chicago that summer.

John Tinker recalls that in 1965,SDS had been involved in calling for the wearing of armbands, and there were some college-age members on the Iowans’ bus ride to and from Washington. But the decision to wear armbands to school was ultimately one the Des Moines students made themselves, he says.

By 1969, the Tinkers had moved to St. Louis, and Mary Beth was adjusting to life in a new high school. She remembers Time magazine shooting photos in her chemistry class when she would rather have just blended into the crowd.

Mary Beth shunned higher education at first, working to repair and tune pianos. She eventually became a nurse, and went to work for several years for the Veterans Administration. She now works as a nurse in the pediatric unit of a Los Angeles hospital.

“As a nurse, I work with kids a lot,” she says. “I know kids need to have self-expression. It strengthens their core personality and ability to speak out later.”

She has a son, who now attends Princeton University. When he was in the 6th grade, he got in trouble at school for throwing an eraser at the chalkboard. When Mary Beth came to school for a conference, the principal told her that her son had said: “Have you ever heard of the Tinker case? That’s my mom.” The principal told the boy: “That’s not going to help you today.”

John Tinker was attending the University of Iowa when the case reached the Supreme Court. He missed the oral arguments in Washington because he fell asleep in the airport and failed to catch his flight. He later dropped out of college and obtained conscientious-objector status in the military draft.

Mary Beth and John Tinker on March 4, 1968, the day the U.S. Supreme Court granted review of their appeal.

“I had become convinced that academia was not the answer,” he says. “If academia were the answer, the problem would already be solved.”

He moved to Corpus Christi, Texas, where his maternal grandparents lived, and went to work on a shrimp boat. He remembers trying to further educate himself by reading quotation books cover to cover.

“In quotation books, you’re getting the condensed values of the culture,” he says.

Eventually, he learned about computers, and even joined the “cubicle culture” by going to work as a systems analyst for MCI. But he also kept his interest in liberal causes. He ran a program called Peace Parts, which brought leftover electronics components to Nicaragua.

John, his wife, and their 8-month-old son live in Massachusetts, largely so John can be near his 4-year-old daughter, who lives there with her mother.

Mary Beth says that for many years, she shied away from speaking about the case. She traces her reluctance to threats her family received during the height of the armband protest. She eventually convinced herself that speaking about the case, especially to young audiences, would encourage more individuals to stand up for their rights.

Jamin B. Raskin, a law professor at American University in Washington and the author of book about students’ rights, has brought Mary Beth to the nation’s capital numerous times to speak to students.

“She’s like a rock star when we take her out to schools,” he says. “She is not a person who is frozen in time. She continues to be passionate in her politics and daring in her speech.”

Last month, the Tinkers returned to Iowa for the first time in several years. They have been back to Des Moines before, notably in 1994 to speak with Chris Eckhardt at Roosevelt High School, where Eckhardt had worn his armband in 1965.

And in 1999, they attended a 30-year retrospective here sponsored by the Drake University law school. One participant then was Edgar H. Bittle, who in 1965 was a law student and clerk to Allan A. Herrick, the lawyer for the Des Moines school board at the time and the chief defender of the armband prohibition. Herrick was a World War I veteran and was said to be personally offended by the armbands. Bittle was an associate in Herrick’s firm by the time the case reached the high court, and he stayed in Des Moines for a law career in which education law has been a major part.

Mary Beth Tinker wears a small photo of the late Supreme Court Justice Thurgood Marshall and a black armband similar to the one she wore as a student  during an appearance before students in Des Moines last month.

“There was concern by the principals that there was going to be a problem,” says Bittle, now 63. “It was a legitimate concern.”

When the Supreme Court decided in 1988, in Hazelwood School District v. Kuhlmeier, that administrators could censor school newspapers, a First Amendment ruling widely viewed as chipping away at Tinker’s protections, Bittle sent a note to the elderly Herrick that said, “You finally won.”

On this trip to Iowa, preceding their visit to Central Academy, John and Mary Beth Tinker have traveled about 45 minutes north of Des Moines to Iowa State University in Ames.

Joining college students in the audience of nearly 200 people are a handful of 8th graders from Akron-Westfield Middle School in Akron, Iowa. They have driven four hours to be here to meet the Tinkers, and they have to drive back the same night.

“There is no topic that has gotten our students excited like this,” says teacher Val Philips. The students have selected the Tinker case for a dramatic performance as their entry in a National History Day competition. They have been e-mailing John for details about the case, and he has obliged. After the event, the students crowd around the siblings and ask for their autographs, with one 8th grader telling Mary Beth: “We’ve been counting down the days and hours.”

“We picked Tinker v. Des Moines because we didn’t know that much about it at first,” says Becca Meerdink, 14. “We didn’t really know we had our rights.”

At the Iowa State forum, the Tinkers are asked a question they often get: What would happen if their case came before the Supreme Court today?

Mary Beth says, “I’d think we’d lose, but I don’t know.”

Some scholars agree. John W. Johnson, a history professor at the University of Northern Iowa and the author of The Struggle for Student Rights, a 1997 book about the armband case, says the current Supreme Court would view the case through the lens of the 1999 Columbine High School shootings.

“Times have changed,” Johnson says. “Threats to schools have changed. If this case were up in this term of the Supreme Court, it would go the other way.”

But Raskin of American University says that while “there has been a lot of bad news on the Supreme Court for student rights in the last couple of decades,” the Tinker decision “has achieved a kind of sacrosanct status in our law.”

John Tinker shares that view. “For the court to reverse this decision,” he says, “they would really have a lot of explaining to do.”

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