JOHN F. AND MARY BETH TINKER, MINORS, ETC.,
ET AL., PETITIONERS
v.
DES MOINES INDEPENDENT
COMMUNITY SCHOOL DISTRICT ET AL.
393 U.S. 503, 89 S.Ct. 733, No. 21
Argued November 12, 1968
Decided February 24, 1969
In December 1965, at a meeting of a Quaker youth group, a discussion came up about how
the students could publicize their objections to the Vietnam War. It was determined at the
meeting that they would show their support for a truce that had been proposed by Attorney
General Robert Kennedy by wearing black armbands during the holiday season. Purposes for
wearing the black armbands were (1) to mourn deaths suffered by both sides; and (2) to
extend the Christmas truce.
Fifteen-year-olds John F. Tinker (a student at North High School) and Christopher Eckhardt (a
student at Roosevelt High School) lived in Des Moines, Iowa. Mary Beth Tinker, John's sister,
was a thirteen-year-old junior high school student. When the principals of their schools
became aware of the plan to wear the armbands, they adopted a policy that any student
joining the protest would be asked to remove it. If the student refused, the student would be
suspended from school until he or she returned without the armband. The students were all
aware of the policy that the school administration adopted. This policy was deemed
necessary in part because a former student had been killed in Vietnam and some of his
friends, who were still in school, might be upset by the demonstration. In addition, it was
rumored that other students planned to wear arm bands of other colors if the black bands
were worn.
On December 16, Mary Beth and Christopher wore two-inch wide black armbands to their
schools. John and several other high school students wore armbands to school on December
17. There was evidence that the armbands caused comments, warnings, and poking offun at
the demonstrating students, and a warning by one student that the protestors had better let
him alone. Further evidence showed that one teacher had his lesson "wrecked" because of
the demonstration and that the armbands diverted students' minds from their regular lessons.
Testimony for the school indicated that no disturbances or disorders on the school premises
occurred and that the demonstrating students merely went to their classes with a band of
black cloth, not more than two inches wide, around their upper arms. They caused discussion
outside of the classrooms, but there was no interference with work and no disorder.
Mary Beth was sent to the office and asked to remove the armband, which she did, and then
went back to class. Later, she was called to return to the office and sent home. Five
students, including John and Christopher, were also sent home from the high school. The
students were told that they could come back if they would do so without the armbands.
None of the students returned to their respective schools until after New Year's Day, the end
of the protest period that had been set at the meeting.
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Mary Beth and John's younger brother and sister (ages eight and ten) wore armbands to their
elementary school. There, the teacher used the incident to teach all the class about the First
Amendment and both remained in school.
The fathers of the three students filed a complaint with the United States District Court, asking
for an injunction to restrain the school officials and board of directors from disciplining the
petitioners. They also sought nominal damages. The district court dismissed the complaint in
an evidentiary hearing, citing the constitutionality of the school authorities' action on the
ground that it was a reasonable response to prevent disturbance of school discipline. The
court referred to, but did not follow, the Fifth Circuit's ruling in Burnside v. Byars, which states
that wearing of symbols cannot be prohibited unless it "materially and substantially interfere[s]
with the requirements of appropriate discipline in the operation of the school."
The petitioners then appealed the case to the Eighth Circuit Court of Appeals, which
considered the case en bane·· This court was equally divided between the parties, which
allowed the District Court's decision to stand. The case was then appealed to the United
States Supreme Court.
•
ISSUE: Are passive demonstrations, such as wearing armbands at school to protest a
war, protected under the First and Fourteenth Amendments' freedom of speech?
en bane-literally, on the bench; the court, with all qualified judges sitting in a case, particularly an appellate court.
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TINKER v. DES MOINES (1969)
-
Decision
/
Justice Fortas wrote the seven-to-two majority opinion in favor of the petitioner. He acknowledged that
the District Court recognized that wearing an armband to express views is a symbolic act that is within
the Free Speech Clause of the First Amendment. Fortas went on to explain that the action in this case
-the wearing of arm bands-was "closely akin to 'pure speech ,"' an action which the Supreme Court
has repeatedly held falls under First Amendment protection . Justice Fortas then declared , in words
that are now famous in law:
First Amendment rights, applied in light of the special characteristics of the school
environment, are available to teachers and students. It can hardlv be argued that
either students or teachers shed their constitutional rights to freedom of speech or
expression at the school-house gate (emphasis added) . This has been the
unmistakable holding of this Court for almost 50 years ....
On the other hand, the Court has repeatedly emphasized the need for affirming the
comprehensive authority of the States and of school officials, consistent with
fundamental constitutional safeguards, to prescribe and control conduct in the
schools... . Our problem lies in the area where students in the exercise of First
~ Amendment rights collide with the rules of the school authorities ....
r
ln order for the State in the person of school officials to justify prohibition of a particular)
expression of opinion, it must be able to show that its action was caused by something
more than a mere desire to avoid the discomfort and unpleasantness that always
accompany an unpopular viewpoint. Certainly where there is no finding and no
showing that engaging in the forbidden conduct would "materially and substantially
interfere with the requirements of appropriate discipline in the operation of the school,"
·
the prohibition cannot be sustained... .
In the present case, the District Court made no such finding, and our independent
examination of the record fails to yield evidence that the school authorities had reason
to anticipate that the wearing of the armbands would substantially interfere with the
work of the school or impinge upon the rights of other students .. ..
It is also relevant that the school authorities did not purport to prohibit the wearing of all
symbols of political or controversial significance. The record shows that students in
some of the schools wore buttons relating to national political campaigns, and some
even wore the Iron Cross, traditionally a symbol of Nazism. The order prohibiting the
wearing of arm bands did not extend to these.
In our system, state-operated schools may not be enclaves of totalitarianism. School
officials do not possess absolute authority over their students. Students in school as
well as out of school are "persons" under our Constitution. They are possessed of
fundamental rights which the State must respect, just as they themselves must respect
their obligations to the State. In our system, students may not be regarded as closedcircuit recipients of only that which the State chooses to communicate. They may not
be confined to the expression of those sentiments that are officially approved. In the
absence of a specific showing of constitutionally valid reasons to regulate their speech,
students are entitled to freedom of expression of their views .. ..
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"The vigilant protection of constitutional freedoms is nowhere more vital than in the
community of American schools. The classroom is peculiarly the 'marketplace of
ideas.' The Nation 's future depends upon leaders trained through wide exposure to
that robust exchange of ideas which discovers truth 'out of a multitude of tongues .... "'
Under our Constitution, free speech is not a right that is given only to be so
circumscribed that it exists in principal but not in fact. Freedom of expression would not
truly exist if the right could be exercised only in an area that a benevolent government
has provided as a safe haven for crackpots .. ..
As we have discussed, the record does not demonstrate any facts which might
reasonably have led school authorities to forecast substantial disruption of or material
interference with school activities, and no disturbances or disorders on the school
premises in fact occurred. These petitioners merely went about their ordained rounds
in school. Their deviation consisted only in wearing on their sleeve a band of black
cloth, not more than two inches wide. They wore it to exhibit their disapproval of the
Vietnam hostilities and their advocacy of a truce, to make their views known, and, by
their example, to influence others to adopt them. They neither interrupted school
activities nor sought to intrude in the school affairs or the lives of others. They caused
discussion outside of the classrooms, but no interference with work and no disorder. In
the circumstances, our Constitution does not permit officials of the State to deny their
form of expression.
Justice Stewart wrote a concurring opinion , stating that he could not share the Court's assumption that
First Amendment rights of children are the same as those of adults. He quoted Ginsberg v. New York
(1968) , in which the Court stated that a child does not have "full capacity for individual choice .... "
Justice Byron White also concurred , but indicated that there is a distinction between communicating by
words and by an act "which sufficiently impinges on some valid state interest."
Justice Black dissented , questioning the right of students and teachers to use schools "at their whim as
a platform for the exercise of free speech .... " He begins :
The Court's holding in this case ushers in what I deem to be an entirely new era in
which the power to control pupils by the elected "officials of state supported public
schools .. . "in the United States is in ultimate effect transferred to the Supreme Court.
The Court brought this particular case here on a petition for certiorari urging that the
First and Fourteenth Amendments protect the right of school pupils to express their
political views all the way "from kindergarten through high school. ".. ..
Black continued by disagreeing with Justice Fortas' conclusion that the Bill of Rights does not stop at
the schoolhouse gate:
I deny, therefore, that it has been the "unmistakable holding of this Court for almost 50
years" that "students" and "teachers" take with them into the "schoolhouse gate"
constitutional rights to "freedom of speech or expression. ". .. The truth is that a teacher
of kindergarten, grammar school, or high school pupils no more carries into a school
with him a complete right to freedom of speech and expression than an anti-Catholic or
anti-Semite carries with him a complete freedom of speech and religion into a Catholic
church or Jewish synagogue. Nor does a person carry with him into the United States
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Senate or House, or into the Supreme Court, or any other court, a complete
constitutional right to go into those places contrary to their rules and speak his mind on
any subject he pleases. It is a myth to say that any person has a constitutional right to
say what he pleases, where he pleases, and when he pleases ....
Justice Black stated he had always believed that the Court does not have the right to censor speech
based on content. In this case, however, he referred to testimony at the trial that the arm bands did
cause comments and interruptions of at least one class, along with diverting students' minds from their
regular lessons. He continued:
... This case, therefore, wholly without constitutional reasons in my judgment, subjects
all the public schools in the country to the whims and caprices of their loudest-mouthed,
but maybe not their brightest, students. I, for one, am not fully persuaded that school
pupils are wise enough .. . to run the 23,390 public school systems in our 50 states. 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. I dissent.
Justice Harlan also dissented, stating that he would "cast upon those complaining the burden
of showing that a particular school measure was motivated by other than legitimate school
concerns --for example, a desire to prohibit the expression of an unpopular point of view .... "
He concluded by stating, "Finding nothing in this record which impugns the good faith of
respondents in promulgating the armband regulation, I would affirm the judgment below."
The Supreme Court therefore reversed and remanded for further proceedings the case.
FOLLOW-UP: The Tinker family received many threatening letters and phone calls during
and after the incident. On December 24, 1965, they got a call that their house would be
bombed by morning (it was not bombed) . When the students returned to school, they wore
all-black clothing the rest of the year as a continued protest. From her parents' experiences
of losing jobs for being controversial, Mary Beth first chose the non-controversial and nonpoliticaljob of piano repairing and tuning. Later, she became a registered nurse. In the late
1980s, Mary Beth reported that she went through a period of being cynical about the
armband case but was not sorry she did it. In fact, she reported that she felt privileged to
have been a part of that time and proud to have been a part of anything that stopped the
Vietnam War. Today (2006), she often speaks before student and/or teacher groups about
the case. She works as a nurse practitioner and a union organizer for her nursing union in
California. One of the armbands is now in the McCormick Museum in Chicago, and another
one is in the Newseum in Washington, D.C. (Information from Mary Beth Tinker, LRE
Conference, February 10-11, 2006.)
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Texas.
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