Student Speech, Symbolic Speech
“
. . . 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.”
— Justice Abe Fortas, speaking for the majority
John and Mary Beth Tinker of Des Moines, Iowa, wore black armbands to their public school as
a symbol of protest against American involvement in the Vietnam War. When school authorities
asked that the Tinkers remove their armbands, they refused and were subsequently suspended.
The Supreme Court decided that the Tinkers had the right to wear the armbands, with Justice Abe
Fortas stating that no one expects students to “shed their constitutional rights to freedom of speech
or expression at the schoolhouse gate.”
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Tinker v. Des Moines (1969)
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Background
Tinker v. Des Moines (1969)
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Background Summary & Questions (•••)
John and Mary Beth Tinker were public school students in Des Moines, Iowa in December of 1965.
As part of a group against American involvement in the Vietnam War, they decided to publicize their
opposition by wearing black armbands to school. Having heard of the students’ plans, the principals
of the public schools in Des Moines adopted and informed students of a new policy concerning
armbands. This policy stated that any student who wore an armband to school would be asked
immediately to remove it. A student who refused to take off his or her armband would be suspended
until agreeing to return to school without the band.
Two days later and aware of the school policy, the Tinker children and a friend decided to wear
armbands to school. Upon arriving at school, the children were asked to remove their armbands.
They did not remove the armbands and were subsequently suspended until they returned to school
without their armbands.
The children returned to school without armbands after January 1, 1966, the date scheduled for
the end of their protest. However, their fathers filed suit in U.S. District Court. This suit asked
the court for a small amount of money for damages and an injunction to restrain school officials
from enforcing their armband policy. Although the District Court recognized the children’s First
Amendment right to free speech, the court refused to issue an injunction, claiming that the school
officials’ actions were reasonable in light of potential disruptions from the students’ protest. The
Tinkers appealed their case to the U.S. Court of Appeals but were disappointed when a tie vote in
that court allowed the District Court’s ruling stand. As a result they decided to appeal the case to the
Supreme Court of the United States.
The case came down to this fundamental question: Do the First Amendment rights of free speech
extend to symbolic speech by students in public schools? And, if so, in what circumstances is that
symbolic speech protected? The First Amendment states “Congress shall make no law . . . abridging
the freedom of speech.” The Fourteenth Amendment extends this rule to state governments as well,
of which school systems are a part. The First Amendment, however, does not identify which kinds of
speech are protected. For example, it is not clear whether hate speech against an individual or group
is protected. Neither does the First Amendment specify what types of expressive actions should be
considered as speech.
The Supreme Court of the United States has made many attempts to determine what types of
symbolic speech are protected under the First Amendment. In 1919, the Court decided in Schenck
v. United States that an individual could be punished for distributing anti-World War I pamphlets
urging non-compliance with the draft because the pamphlets “create[ed] a clear and present
danger that they will bring about [a] substantive evil[ . . .] Congress has a right to prevent”—draft
obstruction. The Court wrestled with the issue of the right to symbolic speech again in the case of
Thornhill v. Alabama (1940) when the Court ruled that picketing was a form of symbolic speech
protected by the First Amendment because no clear and present danger of destruction of life or
property or of breach of the peace was inherent in the action. Three years later in West Virginia v.
Barnette (1943), the Court extended the First Amendment protection of symbolic speech to students
in public schools. In Barnette, the Court held “[i]f there is any fixed star in our constitutional
(Continued on next page)
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Tinker v. Des Moines
BACKGROUND
constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion. . . .”
In 1968 the Supreme Court of the United States agreed to hear Tinker’s case and consider the
constitutionality of the Des Moines principals’ anti-armband policy. The Court’s decision in Tinker v.
Des Moines was handed down in 1969.
Questions to consider
1. Do you think that the school policy banning armbands was fair? Why or why not?
2. The students knew they would be suspended if they wore armbands to school and chose to do so
anyway. Why do you think they ignored the rule?
3. The First Amendment says “Congress shall make no law . . . abridging the freedom of speech.”
Why do you think the Supreme Court of the United States has ruled that certain actions should
have the same protection as verbal speech? Are these reasons valid?
4. In both Schenck and Thornhill, the Court seemed to make a rule that certain actions were
guaranteed protection under the First Amendment’s freedom of speech clause as long as those
actions did not . . . What rule or test did the Court seem to make?
5. Pretend that students in your school wanted to protest the school-wide ban on smoking. Should
they legally be allowed to protest by wearing T-shirts that read “Up with ‘Butts’!”? Why or why
not?
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Tinker v. Des Moines
BACKGROUND
Background Summary & Questions (••)
John and Mary Beth Tinker attended public school in Des Moines, Iowa. In December of 1965 a
community group in Des Moines decided to protest American involvement in the Vietnam War
by wearing black armbands. The Tinkers agreed to wear their black armbands to school. However,
principals in the school district, aware of the students’ plans created a rule that any student wearing
an armband to school would be suspended unless the student removed the armband. Although
the Tinkers knew about this rule, they decided to come to school wearing armbands anyway. After
refusing to take the armbands off, John and Mary Beth Tinker were sent home by the principal.
Their suspension lasted until they agreed to come back to school without the armbands.
The Tinkers filed a suit in the U.S. District Court to stop the school principals from enforcing the
rule in the future. Although the District Court said that this type of protest was a form of expression
protected under the First Amendment’s freedom of speech clause, the Court sided with the school
officials, saying that the rule was needed to “prevent the disturbance of school activities.” The Tinkers
appealed their case to the U.S. Eighth Circuit Court of Appeals, but they lost. The Tinkers decided
to appeal the case to the Supreme Court of the United States.
The fundamental question of the case came down to this: Does the First Amendment’s promise
of free speech extend to the symbolic speech of public school students? And, if so, in what
circumstances is that symbolic speech protected? The First Amendment to the Constitution says,
“Congress shall make no law . . . abridging the freedom of speech.” The Fourteenth Amendment
extends this rule to state government as well, of which schools are a part. However, the First
Amendment does not say which kinds of speech are protected. It also does not specify what types of
expressive actions should be considered as speech.
The question of what kind of speech or action is protected under the First Amendment has been
considered many times by the Supreme Court of the United States. Generally, the Court has held
that the First Amendment protects adult symbolic speech that does not harm or threaten to harm.
However, at the time of Tinker, it was unclear whether students’ rights in this area were different.
In 1968 the Supreme Court of the United States agreed to hear the Tinker’s case and consider
whether the Des Moines public schools ban on armbands was an unconstitutional violation of the
students’ right to free speech. The Court’s decision in Tinker v. Des Moines was handed down in
1969.
Questions to consider
1. Do you think that the school policy banning armbands was fair? Why or why not?
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Tinker v. Des Moines
BACKGROUND
2. The students knew they would be suspended if they wore armbands to school and chose to do so
anyway. Why do you think they ignored the rule?
3. The First Amendment says “Congress shall make no law . . . abridging the freedom of speech.”
Why do you think the Supreme Court of the United States has ruled that certain actions should
have the same protection as verbal speech? Are these reasons valid?
4. Pretend that students in your school wanted to protest the school-wide ban on smoking. Should
they be allowed to protest by wearing T-shirts that read “Up with ‘Butts’!”? Why or why not?
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Tinker v. Des Moines
BACKGROUND
Background Summary & Questions (•)
John and Mary Beth Tinker attended public school in Des Moines, Iowa in 1965. Their school did
not allow students to wear armbands to protest the Vietnam War. However, the Tinkers decided to
wear armbands to school anyway. The school officials asked the Tinkers to remove their armbands,
but the Tinkers refused. John and Mary Beth Tinker were suspended from school until they agreed
to remove the armbands.
The Tinkers sued the school district in the U.S. District Court. The Tinkers believed that the Des
Moines school district violated their right to free speech under the First Amendment to the U.S.
Constitution. Even though the students were not speaking with their voices, they believed that
wearing armbands was like speaking. This is called symbolic speech.
The District Court sided with the school officials. The Court said that wearing the armbands could
disrupt learning at the school. Learning without disruption was more important than the free speech
of the students.
The Tinkers appealed their case to the next level of courts, U.S. Court of Appeals for the Eighth
Circuit: But the Circuit Court agreed with the District Court. The Tinkers then appealed their case
to the Supreme Court of the United States. The Court had to answer this basic question: Does the
constitutional right of free speech protect the symbolic speech of public school students?
In 1968, the Supreme Court of the United States agreed to hear the case of Tinker v. Des Moines.
They issued their decision in 1969.
Questions to Consider
1. Do you think that the school policy banning armbands was fair? Why or why not?
2. The Tinkers knew they would be suspended if they wore armbands to school. They decided to
wear the armbands anyway. Why did they do this?
(Continued on next page)
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Tinker v. Des Moines
BACKGROUND
3. The First Amendment says “Congress shall make no law . . . abridging the freedom of speech.”
Do you think that actions, like wearing an armband to protest, are the same as speech? Why or
why not?
4. Imagine that students in your school wanted to protest the smoking rule. Do you think they
should be allowed to wear T-shirts that read “Up with ‘Butts’!”? Why or why not?
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Tinker v. Des Moines
BACKGROUND
Important Vocabulary (•••/••)
protest
Define:
Use in a sentence:
sued (to sue)
Define:
Use in a sentence:
violated (to violate)
Define:
Use in a sentence:
symbolic speech
Define:
Use in a sentence:
disrupt
Define:
Use in a sentence:
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Tinker v. Des Moines
BACKGROUND
appealed (to appeal)
Define:
Use in a sentence:
constitutional
Define:
Use in a sentence:
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Tinker v. Des Moines
BACKGROUND
Important Vocabulary (•)
protest
Define:
Express this term in your own words or in a drawing:
sued (to sue)
Define:
Express this term in your own words or in a drawing:
violated (to violate)
Define:
Express this term in your own words or in a drawing:
symbolic speech
Define:
(Continued on next page)
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Tinker v. Des Moines
BACKGROUND
Express this term in your own words or in a drawing:
disrupt
Define:
Express this term in your own words or in a drawing:
appealed (to appeal)
Define:
Express this term in your own words or in a drawing:
constitutional
Define:
Express this term in your own words or in a drawing:
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Tinker v. Des Moines
BACKGROUND
How the Case Moved through the Court System
Supreme Court of the United States
Ruled in favor of the students, declaring that the armband protest
was protected by the First Amendment right of free speech
Tinker v. Des Moines Independent Community School District (1969)
U.S. Court of Appeals for the Eighth Circuit
The Court was equally divided in the case, so the District Court
decision stood.
Tinker v. Des Moines Independent Community School District (1967)
United States District Court
The District Court sided with the school officials, declaring that the
regulation against armbands was reasonable in order to prevent
disturbances in the school.
Tinker v. Des Moines Independent Community School District (1966)
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Tinker v. Des Moines
BACKGROUND
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Teaching
Tinker v. Des Moines (1969)
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What Is Symbolic Speech? When Is It Protected?
The First Amendment says: Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech
or of the press; or the right of the people to peaceably assemble and to petition the
government for a redress of grievances.
Is all speech free?
The freedom of speech clause of the First Amendment guarantees the right to express information
and ideas. On its most basic level, it means you can express an opinion without fear of censorship by
the government, even if that opinion is an unpopular one. It protects all forms of communication: speeches, books, art, newspapers, telecommunications, and other media. The First Amendment does not mean you can say anything you want, wherever you want, or
whenever you want. For instance, fighting words – words that cause distress or incite violence – are
not protected. In addition, obscene expressions are not protected by the First Amendment. If you
tell a lie about someone who then sues you because you damaged their reputation, you will not be
able to claim that the First Amendment protects you. What is symbolic speech?
Sometimes speech is spoken or written. Sometimes speech is symbolic or an action. Symbolic
speech is conduct that expresses an idea. Although speech is commonly thought of as verbal
expression, we are all aware of nonverbal communication. Sit-ins, flag waving, demonstrations, and
wearing . . . protest buttons are examples of symbolic speech. While most forms of conduct could be
said to express ideas in some way, only some conduct is protected as symbolic speech. In analyzing
such cases, the courts ask whether the speaker intended to convey a particular message and whether
it is likely that the message was understood by those who viewed it.To convince a court that symbolic
conduct should be punished and not protected as speech, the government must show it has an
important reason. However, the reason cannot be that the government disapproves of the message
conveyed by the symbolic conduct.
So, just as there are limitations on the extent to which “free speech” applies to the spoken word, there
are restrictions on the actions that people seek to have protected as symbolic speech. Examine the
actions in the table on the next page. Based on the information you have just read, determine if each
action listed is a form of constitutionally protected “symbolic speech.” In the last column, provide a
brief rationale for your response.
(Continued on next page)
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Tinker v. Des Moines
TEACHING
Action
In order to protest against
a former employer, an
individual joins a picket
line. State law says
picketing is illegal. The
individual is arrested and
fined $100.
An individual burns a
draft card to express
opposition to the war.
Federal law says that
burning draft cards is a
crime.
A person taped a peace
symbol to an American
flag and then hung the
flag upside down in the
window of his apartment.
An upside down flag is
typically a symbol of
distress or danger. This
person believed the
nation was in trouble. He
was arrested and
convicted of violating a
state law against
improper use of the flag.
In response to increasing
racial tensions on
campus, school officials
banned images of the
Confederate flag from
their high school. A
group of students filed
suit saying they should be
allowed to wear t-shirts to
school depicting the
Confederate flag to show
their pride in their
Southern heritage.
Is the action a form
of constitutionally
protected
"symbolic speech?"
YES
NO
(Continued on next page)
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Rationale
Tinker v. Des Moines
TEACHING
An organization applies
for a permit to hold a
demonstration on the
National Mall. Members
plan to erect "tent cities"
in order to demonstrate
the plight of the
homeless. The permit
was denied on the
grounds that camping is
forbidden on the Mall.
New Hampshire's state
motto, "Live Free or Die"
appears on license
plates. An individual
covers "or die" on the
grounds that it goes
against his religious and
political beliefs. He is
convicted for violating a
state law, fined, and
sentenced to jail time.
Questions to consider:
1. Are there any general standards that seem to apply to symbolic speech?
2. Based on what you have learned about symbolic speech, how do you think the Court will rule in
Tinker v. Des Moines?
This material is used with permission and was originally published in Street Law: A Course in Practical
Law, Eighth Edition. Glencoe/McGraw-Hill. (2010)
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Tinker v. Des Moines
TEACHING
Classifying Arguments in the Case
The following is a list of arguments in the Tinker v. Des Moines (1969) case. Read through each
argument and decide whether it supports the Tinkers’ position (T), the position of the Des Moines
School District (DM), both sides (BOTH), or neither side (N). This activity can be used to help
students prepare for a mini-moot hearing in this case. 1. The First Amendment to the United States Constitution states:
“Congress shall make no law . . . abridging the freedom of speech. . . .”
The administration of a public school is an agent of the government. At a minimum, therefore, it
must uphold the basic rights protected by the U.S. Constitution.
________
2. In the case of Stromberg v. California (1931), the Supreme Court ruled that the First Amendment
protects symbolic speech by declaring unconstitutional a California law prohibiting a display of a
red flag as a symbol of opposition to established government.
________
3. Free speech is not an absolute right. The government, at all levels, must balance the rights of
individuals to free speech with other values the society holds dear. These other values may
include public safety and protecting the rights of other individuals.
________
4. In order for a school to function, there must be rules prohibiting behavior that could be
disruptive to the school’s educational mission. Schools contribute to making us a more lawabiding people, and school discipline is an important part of children’s development as good
citizens.
________
5. Schools are meant to be a forum for learning, which includes the possibility for debate of
controversial issues. Communication among students is an inevitable and important part of the
educational process.
________
(Continued on next page)
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Tinker v. Des Moines
TEACHING
6. The Des Moines School District did not ban all expressions of political or controversial subjects.
In the past the school had allowed the wearing of political campaign buttons, for instance.
________
7. Allowing students to flout a school rule regarding the wearing of armbands will lead us down a
slippery slope. It is not difficult to imagine that if the Tinkers are supported, that students will
see this as license to break other school rules as well.
________
8. In the late 1960s many student groups in universities around the country were conducting
sit-ins, lie-ins, and other forms of protest against the Vietnam War that interrupted the normal
functioning of schools.
________
9. The wearing of the armbands was a silent and passive expression of a position on the Vietnam
War. There was no evidence of substantial disruption to the school resulting from the armbands;
however, the school officials reasonably feared disruption and therefore took preemptive action to
protect the learning environment of the students.
________
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Tinker v. Des Moines
TEACHING
How Does a School Identify “Disruptive Speech?”
In the case of Tinker v. Des Moines, the Supreme Court of the United States ruled that student
“speech” (expression) could not be punished or stopped unless officials could prove the speech would
or did cause a substantial interference with the discipline required for the operation of the school.
However, at what level of disruption must the school step in?
Directions
Read each example below and determine whether you think the student expression described is
potentially disruptive enough to be punished or stopped by the school administration. There may
not be conclusive answers in terms of court precedent, but these instances should be used as a
springboard for discussion of what the Tinker case means for students.
1. Maggie and Sally come to school wearing new khaki pants. On the back of the pants, where
pockets usually are, the girls put patches of the American flag. Therefore, when the girls sat
down, they sat on the flag.
How disruptive are these actions?
Would it be constitutional for the school administration to restrict this form of speech? Why or
why not?
2. In order to protest the new cafeteria food offered at Valley High School, the student government
organizes a protest. During both lunch periods, SGA officials plan to lead a walk-out from the
cafeteria and a group march to the local McDonalds.
How disruptive are these actions?
Would it be constitutional for the school administration to restrict this form of speech? Why or
why not?
3. Local gang members wear colored plastic bracelets on their wrists to declare their affiliation.
How disruptive are these actions?
Would it be constitutional for the school administration to restrict this form of speech? Why or
why not?
(Continued on next page)
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Tinker v. Des Moines
TEACHING
4. During a pep rally, a student leader uses very obscene language in a speech.
How disruptive are these actions?
Would it be constitutional for the school administration to restrict this form of speech? Why or
why not?
5. Atheists in your school decide they want to publicize and educate others about their beliefs. To
make their point, they begin wearing T-shirts that portray Jesus as a monster with three heads.
How disruptive are these actions?
Would it be constitutional for the school administration to restrict this form of speech? Why or
why not?
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Tinker v. Des Moines
TEACHING
The Editorial Staff of the Valley High School Voice Reacts
The Supreme Court of the United States has just issued its ruling in the case of Tinker v. Des Moines.
You are an editor for the Valley Voice, your school newspaper. You believe that students in your
school should have an understanding of the Court’s decision on the issue of symbolic student speech.
Therefore, you decide to dedicate an issue of the Voice to addressing this topic. After soliciting
editorials from the student body, you must decide which editorials to print.
Choose two editorials to print from the four below by determining the accuracy of their information.
One editorial should explain and support the Court’s ruling and the other should explain how the
Court “got it wrong.”
Editorial Number One: “Power to the People!”
Last week, the Supreme Court of the United States (a.k.a. “The Court of Last Resort”) finally got it
right in the case of Tinker v. Des Moines. In this case, involving students’ protests against American
involvement in the Vietnam War, the Court at last realized that school officials couldn’t tell students
what to do. The Court, in its ruling, basically stated that, since schools are supported by the public’s
tax money, school officials are actually the employees of students and their parents. Therefore, as
employees, school officials cannot force either students or their parents to “behave” and “follow
school rules” without violating the First Amendment of the Constitution. When acknowledging
that both middle and high school students could wear black armbands to advertise their opinion
on American foreign policy, the Court agreed that students have virtually limitless rights to protest
anything they don’t like, even if the protests upset a few other students or teachers.
1. Does this editorial support or attack the Court’s ruling in Tinker?
2. What does the author think the Court’s ruling literally means?
3. Compare the author’s understanding of the Court’s ruling with the majority and dissenting
opinions. Is the author providing an accurate explanation of the Court’s decision? Why or why
not?
(Continued on next page)
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Tinker v. Des Moines
TEACHING
Editorial Number Two: “Teaching the Values of Democracy”
Last week the Supreme Court of the United States restated, through the case of Tinker v. Des Moines
that freedom of speech means exactly that. The Court’s interpretation of the First Amendment to
the Constitution was right on the mark in Tinker, it ruled. . . . “The Fourteenth Amendment, as
now applied to the States, protects the citizen against the State itself and all of its creatures - Boards
of Education not excepted. . . . [As]they are educating the young for citizenship [they must offer]
scrupulous protection of Constitutional freedoms of the individual . . . [in order] not to . . . teach
youth to discount important principles of our government as mere platitudes. . . . “ As much as
teachers might want their classrooms to be fully controlled and directed by them, the Court has
taught an important lesson to all American educators: students are citizens too, and the best way to
teach citizenship is to recognize and encourage it.
1. Does this editorial support or attack the Court’s ruling in Tinker?
2. What does the author think the Court’s ruling literally means?
3. Compare the author’s understanding of the Court’s ruling with the majority and dissenting
opinions. Is the author providing an accurate explanation of the Court’s decision? Why or why
not?
Editorial Number Three: “Apple Anyone?”
Imagine this. A student in social studies class decides to make public the fact that he hates women.
During a debate on the role of women in the military, he “goes off”, calling women (in general)
obscene names. Enraged, he begins to recount the biblical tale of Adam and Eve and says that sin in
the world exists only because of Eve’s faults. Furthermore, he says, because woman brought sin into
the world, women should be removed for reasons of world purification. Can he do this?
According to the Court’s recent ruling in the case of Tinker v. Des Moines, the answer is “yes”! If
the student attended an all-male high school and no evidence existed that his statements might
“substantially interfere with the work of the school or impinge upon the rights of other students”,
the student is free to spout such nonsense. In this ruling, the Court said that, “without evidence that
a student’s political comments might lead to imminent disruption” he might express himself as he
wishes. Absurd, isn’t it?
Oh, by the way apple, anyone?
1. Does this editorial support or attack the Court’s ruling in Tinker?
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2. What does the author think the Court’s ruling literally means?
3. Compare the author’s understanding of the Court’s ruling with the majority and dissenting
opinions. Is the author providing an accurate explanation of the Court’s decision? Why or why
not?
Editorial Number Four: “Free Speech” is a myth
Supreme Court Justice Black, in his minority opinion for Tinker v. Des Moines, says, “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 . . . “ Unfortunately for Justice Black, the majority of the Court disagreed. In a decision
upholding the right of students to wear black armbands protesting American involvement in the
Vietnam War, the Court held that without evidence that a student’s political comments might lead
to imminent disruption he can express himself as he wishes. The problem with the Court’s reasoning
in this case is that there was evidence that the armbands caused disruption in school. “ [D]etailed
testimony by some of them shows their armbands caused comments, warnings by other students, the
poking of fun at them, and a warning by an older football player that other, non-protesting students
had better let them alone”. This is clearly a case of imminent disruption, and should therefore be
prohibited by schools in order to ensure a safe and protective environment for students. Otherwise,
what speech will be considered disruptive enough?
1. Does this editorial support or attack the Court’s ruling in Tinker?
2. What does the author think the Court’s ruling literally means?
3. Compare the author’s understanding of the Court’s ruling with the majority and dissenting
opinions. Is the author providing an accurate explanation of the Court’s decision? Why or why
not?
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How Disruptive Is “Disruptive?”
In the case of Tinker v. Des Moines, the Supreme Court of the United States decided that student
political speech could not be restricted or punished unless school authorities could prove that the
action “would materially and substantially interfere with the requirements of appropriate discipline
in the operation of the school” or impinge upon the rights of other students.
Describe two politically motivated activities students might participate in that could “interfere with
the requirements of appropriate discipline in the operation of the school.”
a.
b.
Describe two politically motivated activities students might participate in that could impinge upon
the rights of other students.
a.
b.
Directions
You are now going to participate in an activity that may cause you to re-evaluate your opinion
of exactly what disruptive means. Read the scenario below and decide if, according to Tinker’s
standards, the school principal acted appropriately.
Scenario
A week after the September 11 terrorist attacks on the United States, Muhammed, an eleventhgrade student in Detroit, Michigan, was upset about the way Muslim Americans were being treated.
Muhammed witnessed a shopkeeper in his neighborhood verbally attack an Arab newspaper
deliveryman who was being harassed by a group of young men. Deciding he must take a stand,
Muhammed decided to go to school carrying a backpack covered with bumper stickers. The stickers
read, “Terrorism sucks . . . so why do Americans do it?” While many students did not even seem
to notice the stickers, one girl whose uncle was in the military became visibly upset. She asked
her teacher if she could leave class and went to the counselor’s office in tears. Her counselor called
the principal, who in turn asked Muhammed to come to his office. Once in the principal’s office,
Muhammed was told he must remove his stickers or leave his backpack at home. When he refused,
the principal warned Muhammed that his refusal to comply would lead to a two-week suspension.
“For the constitution,” Muhammed replied, “I’ll take that chance.”
Should the principal have suspended Muhammed for causing a substantial disruption?
Defend your position below.
Mark an “X” on the continuum to show exactly how disruptive you think Muhammed’s
actions were.
Least Disruptive
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Tinker v. Des Moines
TEACHING
You may have noticed that there are two signs at the front of the classroom. One sign reads, “Most
Disruptive” and the other reads “Least Disruptive.” Position yourself on the area on the continuum
that matches your opinion. Your teacher may ask you to think about the question posed earlier in
this lesson, “How disruptive is ‘disruptive’?” For each question your teacher asks you, adjust your
position on the continuum accordingly. Be prepared to explain why you have or have not moved.
Continuum Questions for Teachers:
What if . . .
1. The school Muhammed attends is in New York City?
2. The school Muhammed attends is in Boulder, Colorado?
3. The school Muhammed attends is near a military base?
4. Muhammed’s bumper stickers also show U.S. soldiers?
5. Muhammed’s bumper stickers also show a burning American flag?
6. Several students are upset by the stickers?
7. No students complain about the stickers?
8. A parent calls the school to complain about the stickers, but no students complain?
9. Muhammed convinces 10 other students to display the same stickers?
10. Muhammed convinces 50 others?
11. Muhammed convinces 100 others?
12. Muhammed’s protest took place the day after the attacks?
13. Muhammed’s protest took place a week after the attacks?
14. Muhammed’s protest took place a month after the attacks?
15. Muhammed’s protest took place a year after the attacks?
16. Muhammed begins displaying posters around school with the same slogan?
17. Other students begin wearing buttons that say “Arabs suck . . . “
18. At the end of his two-week suspension, Muhammed comes back wearing the same slogan on a
T-shirt, rather than displaying bumper stickers?
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Gangs, Tattoos, and Symbolic Speech
The rise of gangs has been a major problem. In June of 2000, the Los Angeles Police Department
(LAPD) issued statistical evidence of the problems associated with gang violence. At the time,
police were able to account for 407 gangs in Los Angeles whose combined membership totaled over
64,500. These gangs wreaked havoc in homes, communities, and schools where criminal activities
such as gang-related homicide and attempted homicide increased more than 130 percent between
1999 and 2000. As a result of statistics such as these and the fact that a large number of gang
members are under the age of 18, school districts around the United States attempted to reduce gang
violence by regulating which types of symbols students could display during school. Specifically,
school officials banned gang symbols.
If you were a school official, how easy or difficult would it be to enforce this ban? Look at the tattoo
below. Would you be able to say whether this was a gang symbol?
In 1969, the Supreme Court of the United States ruled on the
case of Tinker v. Des Moines. The Court decided that a student’s
constitutional right to freedom of expression existed in schools as
long as the expression did not cause—or could not reasonably be
predicted to cause—a substantial disruption to the work of the
school. At the time, the expression being considered was the right to
symbolic speech through the wearing of armbands to protest U.S.
involvement in the Vietnam War.
Now, over 30 years later, tattoo art has become an accepted form of
symbolic speech. In October of 2000, Massachusetts Judge Barbara
Rouse recognized the First Amendment implications of tattooing.
In a case that struck down a 38-year old ban on tattooing, she noted, “persons obtain tattoos to
demonstrate commitment to other persons, to institutions, to religious beliefs, and to political
and personal beliefs. The medium on which the drawn image appears should not be relevant when
determining whether something is ‘speech’; the tattoo itself is symbolic speech deserving of First
Amendment protection.”
If Judge Rouse is correct, it would seem that the right of students to display tattoos would be
governed by the standard applied to armbands in Tinker.
Read the case brief below and determine whether the U.S. Court of Appeals for the Eighth
Circuit applied the Tinker standard toward students’ tattoos.
Stephenson v. Davenport Community School District
Facts
In 1992, Brianna Stephenson was an honor roll student at West High School who teachers described
as “conscientious and diligent.” During this time, gang activity at West had become a significant
problem, with gang members using school grounds to intimidate and recruit other students. In
an attempt to combat the escalating gang activity, the school district created a new rule that said
“gang-related activities such as display of ‘colors’, symbols, signs, etc. will not be tolerated on school
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TEACHING
grounds. Students in violation will be suspended from school and/or recommended to the Board for
expulsion.”
Brianna went to visit her counselor in August of that year to discuss routine schedule matters.
During the meeting, the counselor noticed a small cross tattoo on her hand. After the counselor, the
assistant principal, the school’s police liaison officer, and another officer ruled that the tattoo was a
gang symbol, Brianna was told that she would be suspended with a recommendation for expulsion if
she did not remove or change the tattoo.
Although Brianna maintained that her cross tattoo was over two years old and she had no gang
affiliation, the school district stood by both its policy and disciplinary decision. After undergoing
painful and expensive laser surgery to remove the tattoo, Brianna was allowed to return to school.
Upon her return, she filed a lawsuit against the school district, claiming that her First Amendment
right to free speech was violated. The United States District Court dismissed her case, but the U.S.
Court of Appeals for the Eighth Circuit heard her appeal.
Question presented to the court:
Did the school district’s policy barring the display of gang symbols violate Brianna’s First
Amendment rights?
Ruling
The Eighth Circuit Court of Appeals ruled that the school district’s policy was unconstitutional.
Specifically, the Court found fault with two characteristics of the policy.
1. According to the Court, the school’s policy was too vague because it did not give students
enough information about exactly what conduct/expression was prohibited.
2. Furthermore, the Court held that such a vague policy invited unconstitutional, arbitrary, and
discriminatory enforcement because it allowed school administrators, police officers, judges,
and juries to determine on a case-by-case basis exactly which colors, symbols, signs, etc.
violated the policy.
Directions
You are a member of the Davenport Community School District’s School Board. As a board
member, it is your job to create and approve specific school policies. With your fellow board
members, revise the school’s policy prohibiting the display of gang symbols so that it is
constitutional.
“Gang-related activities such as display of ‘colors’, symbols, signs, etc. will not be
tolerated on school grounds. Students in violation will be suspended from school and/or
recommended to the Board for expulsion.”
Amend the policy to make it less vague.
What specific conduct and symbols would you prohibit?
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What guidelines would you provide school officials with to ensure that only those students
who were truly advertising gangs would be punished?
Specifically, how would you define “gang”?
What exact symbols would be prohibited?
Which colors/color combinations are gang-related?
Write your amended district policy in the box below.
Davenport Community School District
Revised Gang-Related Activity Policy
Date: ______________________
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TEACHING
The Internet, Schools, and Symbolic Speech:
A Jigsaw Activity
Directions
Each of the cases below represents a case heard in the federal or state courts. Your job will be to
become an expert on one of the cases. After becoming an expert on a case, you will teach the key
components of the case to your classmates.
Complete the appropriate section of the chart (following the cases) to “brief ” your case.
Cases
O’Brien v. Westlake City Schools Board of Education (1998)
Sean O’Brien was a junior at Westlake High School when he created a Web site, “raymondsucks.
org,” which criticized his band teacher. When school officials at Westlake accessed the site from
school, the assistant principal suspended Sean for 10 days for violating a rule in the Student Conduct
Handbook. The handbook stated “students shall not physically assault, vandalize, damage, or attempt
to damage the property of a school employee or his/her family or demonstrate physical, written, or
verbal disrespect/threat.”
As a result of his suspension, Sean’s grades plummeted and he failed band. Believing that the
suspension was an unconstitutional violation of the Free Speech Clause of the First Amendment,
Sean filed a lawsuit against the school district’s board of education. U.S. District Court Judge John
M. Manos heard the case and agreed with Sean’s lawyer who stated that school officials do not have
the authority to regulate speech made by students off campus grounds. While admitting that the case
may have been different had Sean “hurled obscenities at his teacher face-to-face on school grounds,
in front of other students”, the Judge recognized that “the involvement by the school in punishing
plaintiff for posting an Internet Web site critical of defendant . . . raises the ugly specter of Big
Brother.”
Upon losing the case, school officials expunged Sean’s suspension, wrote him a letter of apology for
“abridg[ing] students’ legitimate exercise of their constitutional rights”, and paid Sean $30,000.
Beussink v. Woodland R-IV School District (1998)
Brandon Buessink, a junior at Woodland High School, added comments to his personal home
page that criticized teachers and administrators at his school. When a student showed Brandon’s
Web site to a teacher, the teacher was upset by the vulgar language and criticism the site contained.
Woodland’s principal decided to suspend Brandon for five days due to the “offensive nature” of his
site. At the end of the five days, the principal decided to extend Brandon’s suspension for 10 more
days.
Brandon took his case to U.S. District Court, arguing that the First Amendment’s protection of
free speech meant his suspension was unconstitutional. District Judge Rodney Sippel agreed. In his
ruling, Judge Sippel said that school officials did not “show that its action [suspension of Brandon]
was caused by something more than a mere desire to avoid the discomfort and unpleasantness that
always accompany an unpopular viewpoint. “
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Summarizing his opinion, Judge Sippel concluded, “[t]he public interest is not only served by
allowing Beussink’s message to be free from censure, but also by giving the students at Woodland
High School this opportunity to see the protections of the United States Constitution . . . “
Emmett v. Kent School District Number 415 (2000)
The “Unofficial Kentlake High Home Page”, published by an 18-year-old student at that school,
allowed visitors to vote on which mock-obituary subject posted on the site should be “next to die”.
Shortly after school administrators gained knowledge of the site, a local news station ran a story in
which the site was described as containing a “hit list” of people to be killed. While the site contained
a disclaimer stating that the site was an independent effort and for entertainment purposes only,
school officials immediately placed the site’s author on emergency expulsion. The school’s action
was based on a school policy prohibiting “harassment, intimidation, disruption to the educational
process and violation of Kent School District copyright”.
Although the student’s expulsion was quickly converted to a five-day suspension, the student sued
in U.S. District Court on First Amendment/Freedom of Expression grounds. District Court Judge
John C. Coughenour admitted in his ruling that student Web sites “can be an early indication of
a student’s violent inclinations”. However, the judge also stated that the student-generated nature
of the site, combined with the failure of school officials to present any evidence that “the mock
obituaries and voting on this Web site were intended to threaten anyone . . .” did not meet the
standards laid out in preceding student free speech cases.
Upon conclusion of the case, the school district agreed to pay the student one dollar plus attorney’s
fees and remove the student’s suspension from school records.
Beidler v. North Thurston School District Number Three (2000)
While completing his junior year at Timberline High School, Karl Beidler created a Web site
depicting one of Timberline’s assistant principals as a Nazi, drunk, and graffiti artist. After teachers
complained about feeling uncomfortable with Beidler in their class and testifying that he found
the Web site “appalling and inappropriate”, the principal placed Beidler on emergency suspension.
Beidler was ultimately transferred to an alternative educational program in his school district, but he
was allowed to return to Timberline for his senior year.
Beidler took his case to a Washington state trial court and argued that his suspension and placement
were unconstitutional under the First Amendment. Specifically, Beidler’s attorney argued that
because the Web site “caused no substantial disruption” and school officials had no “authority to
police off-campus or Internet student speech”, the suspension was unconstitutional.
The state trial court agreed with Beidler’s attorney, ruling that the school district had failed to
meet Tinker’s standard governing disruptive speech.
J.S. v. Bethlehem Area School District (1998)
An eighth-grade student in Bethlehem, Pennsylvania was suspended for 10 days before being
permanently expelled from middle school as a result of the Web site he published from his personal
computer. This Web site contained vulgar and derogatory information about several employees from
his middle school, asking questions like, “Why should she [his algebra teacher] die? . . . Take a look
(Continued on next page)
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Tinker v. Des Moines
TEACHING
at the diagram and reasons I give, then give me $20 dollars to help pay for the hitman”.
After his expulsion, the student appealed the school board’s decision by taking his case to his the
Pennsylvania court of common pleas and the Commonwealth Court of Pennsylvania. Claiming a
violation of his First Amendment right to free speech, the student and his attorney argued that his
expulsion was unconstitutional.
A majority of the Commonwealth Court of Pennsylvania disagreed, stating that the student’s Web
site “materially disrupted the learning environment” because at school-sponsored activities and
during school students were discussing the site. Furthermore, the court ruled that the medical leave
taken by the teacher as a result of the Web site was clear evidence that the boy’s site was distracting.
Tying it all together . . .
Evaluate the following statement. Be sure to answer in paragraph form and include a topic sentence,
three specific supporting details, and a conclusion.
“The Supreme Court’s decision in Tinker v. Des Moines should be considered a landmark
decision because the standards developed in Tinker are being used today in student free
speech cases.”
For Further Thought
All of these cases concerned the personal web sites of individual students. Do you think that these
cases would have been decided differently if the issues concerned a school-sponsored web site? (Chart on next page)
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Tinker v. Des Moines
TEACHING
Case
O'Brien v. Westlake
City Schools Board of
Education
Beussink v. Woodland
R-IV School District
Emmett v. Kent
School District
Number 415
Beidler v. North
Thurston School
District Number 3
J.S. v. Bethlehem
Area School District
Background Fact
Constitutional
Question Raised
Was the Tinker
Standard Applied?
How?
Court’s Ruling
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Tinker v. Des Moines
TEACHING
Teaching strategies used
Classifying Arguments
Continuum
Jigsaw
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Tinker v. Des Moines
TEACHING
Classifying Arguments
Classifying Arguments is one variation on a Case Study. In this exercise, students learn about
the facts and issue in a case, and are then given a list of arguments. The list should include some
arguments for each side, and can also include arguments for both sides or neither. Students read and
evaluate each argument and decide whether it’s an argument for the petitioner, respondent, both, or
neither.
This activity can be used as a scaffolding step to introduce students to the arguments in a Supreme
Court case. Once students have mastered classifying arguments in a case, they might move on to
generating their own arguments after reading background materials.
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Tinker v. Des Moines
TEACHING
Continuum
The continuum activity is a method that encourages students to express positions on controversial
issues. It is very useful to assess student knowledge before a lesson or to assess student understanding
after a lesson. Because the method involves physical movement of students, it often stimulates even
quiet students to speak out.
Procedure
1. Before the class begins, select a controversial question or statement that gets to the heart of
the subject being taught. For instance, if the subject of class is the Equal Protection Clause or
Brown v. Board of Education, you may want to pose the question, “Does treating people equally
mean treating them the same?” Post the question where all can see it. 2. If the question posed requires a “yes” or “no” answer, post signs at opposite ends of the
classroom with each of these responses. If a statement is posed to students, place signs at
opposite ends of the classroom with the words “agree” and “disagree” on them. 3. Pose the question or statement to students and ask all or some of the students to physically
place themselves next to a sign that corresponds with their opinion. Students may also stand
between the two signs to indicate different levels of agreement or disagreement along the
continuum. 4. Ask students to express their opinions orally, using follow-up questions to help them clarify,
elaborate on, or support their positions. Ask other students to respond to those who have already
expressed their opinions. Do they agree or disagree? Explain to students that if they change their
minds during the activity, they can move physically along the continuum to indicate that change. 5. You may wish to extend students’ thinking on the controversial question by changing
the wording and asking students to move themselves along the continuum according to their
position on the new question or statement being posed. Another alternative is to introduce
factual material that may sway students’ positions on the issues, asking students to reposition
themselves along the continuum after each fact is unveiled.
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Tinker v. Des Moines
TEACHING
Jigsaw
This is a strategy that has students learn about a concept or case and then teach other students. Procedure
1. Select several concepts or cases that you want the students to grasp. You should select 3-6
concepts or cases. 2. Put the students into groups. If you select 3 topics, you need three students in each group, if
you select 4 topics, you need 4 students per group, etc. Assign a letter to each group. These are
the students’ HOME groups. Have them all write their home group letter at the top of their
worksheet. Then assign one student in each group to each case or concept. For example, if you
were doing a jigsaw with student speech cases, one student would be assigned to Hazelwood v.
Kuhlmeier, one to Tinker v. Des Moines, one to Bethel v. Frasier, etc.
3. Now have the students regroup by case or concept. All the students assigned to the first case
or concept in one area of the room, and the second in another area, the third in another area
and so on. These are the Expert Groups. If there are more than 4-6 students for each case or
concept, have them split into two or more expert groups. 4. Give each expert group a reading about their topic or case. It should be a page or less in length.
The expert groups should all read their material and then discuss it and answer any questions. They should then decide which portions of the material the students in the other groups need to
learn about. They should create a list of points to teach other students. 5. After the allotted expert time, ask students to return to their HOME (letter) groups. Each
student (or pair if you have uneven numbers) will be asked to spend 5-7 minutes teaching their
other group members about their case or concept. Other students should take notes and ask
questions.
6. At the conclusion, every student should have studied one case or concept in depth and learned
about several others from their HOME group members.
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Tinker v. Des Moines
TEACHING
www.LandmarkCases.org
Decision
Tinker v. Des Moines (1969)
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Key Excerpts from the Majority Opinion
The Court ruled 7 to 2. Justice Fortas delivered the majority opinion of the Court.
Five justices agreed with the majority opinion. Two justices concurred, meaning that they agreed
with the Court’s decision that the school policy was unconstitutional, but they wrote separately to
explain their reasoning. Two justices dissented. Justice Fortas delivered the majority opinion of the
Court.
. . . First Amendment rights, applied in light of the special characteristics of the school environment,
are available to teachers and students. It can hardly be argued that either students or teachers shed
their constitutional rights to freedom of speech or expression at the schoolhouse gate. . . .
. . . The Fourteenth Amendment, as now applied to the States, protects the citizen against the State
itself and all of its creatures - Boards of Education not excepted. These have, of course, important,
delicate, and highly discretionary functions, but none that they may not perform within the limits
of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous
protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its
source and teach youth to discount important principles of our government as mere platitudes. . . .
. . . 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 involves
direct, primary First Amendment rights akin to “pure speech”
. . . In 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 . . .
. . . 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 . . . [and] the school officials banned and sought to punish petitioners for
a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of
petitioners. . . .
It is also relevant that the school authorities did not purport to prohibit the wearing of all symbols
of political or controversial significance . . . Instead, a particular symbol - black armbands worn to
exhibit opposition to this Nation’s involvement in Vietnam - was singled out for prohibition. Clearly,
the prohibition of expression of one particular opinion, at least without evidence that it is necessary
to avoid material and substantial interference with schoolwork or discipline, is not constitutionally
permissible. 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. 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
....
(Questions to Consider on next page)
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Tinker v. Des Moines
DECISION
Questions to Consider
1. In the majority opinion, the Court recognized the need to balance the specific rights in conflict
in this case. What rights are in conflict here?
2. According to the decision, what must a school prove in order to justify a rule prohibiting its
students’ rights to free speech?
3. Students in the Des Moines schools were permitted to wear other symbols of political statements
such as presidential campaign buttons. Why was this significant to the Court?
4. In light of this decision, what are some situations when the Supreme Court of the United States
might allow the school district to restrict students’ free speech?
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Tinker v. Des Moines
DECISION
Key Excerpts from the Dissenting Opinion
Two Justices dissented. Justice Black issued the more comprehensive dissent.
. . . As I read the Court’s opinion it relies upon the following grounds for holding unconstitutional
the judgment of the Des Moines school officials and the two courts below. First, the Court concludes
that the wearing of armbands is “symbolic speech” which is “akin to ‘pure speech’” and therefore
protected by the First and Fourteenth Amendments. Secondly, the Court decides that the public
schools are an appropriate place to exercise “symbolic speech” as long as normal school functions are
not “unreasonably” disrupted. . . .
. . . Assuming that the Court is correct in holding that the conduct of wearing armbands for the
purpose of conveying political ideas is protected by the First Amendment, the crucial remaining
questions are whether students and teachers may use the schools at their whim as a platform for the
exercise of free speech. . . .
. . . While I have always believed that under the First and Fourteenth Amendments neither the State
nor the Federal Government has any authority to regulate or censor the content of speech, I have
never believed that any person has a right to give speeches or engage in demonstrations where he
pleases and when he pleases. . . .
. . . I think the record overwhelmingly shows that the armbands did exactly what the elected school
officials and principals foresaw they would, that is, took the students’ minds off their classwork and
diverted them to thoughts about the highly emotional subject of the Vietnam war. . . .
. . . [D]etailed testimony by some of them shows their armbands caused comments, warnings by
other students, the poking of fun at them, and a warning by an older football player that other, nonprotesting students had better let them alone. There is also evidence that a teacher of mathematics
had his lesson period practically “wrecked” chiefly by disputes with Mary Beth Tinker, who wore her
armband for her “demonstration.” Even a casual reading of the record shows that this armband did
divert students’ minds from their regular lessons. . . .
. . . 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. . . .
. . . 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. . . .
(Questions to Consider on next page)
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Tinker v. Des Moines
DECISION
Questions to Consider
1. Why was Justice Black so concerned about the Court’s decision in the Tinker case?
2. How does Justice Black differ from the majority on how the balance between conflicting rights
should be resolved in this case? 3. Do you think the discussions/disruptions resulting from the students’ protests were significant
enough to justify the suppression of speech? If so, describe protest behavior that would not
be significant enough to justify the suppression of free speech. If not, how serious would the
disruption have to be in order to justify the suppression of free speech?
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Tinker v. Des Moines
DECISION
Summary of the Decision
In a 7-2 decision, the Supreme Court ruled in favor of the Tinkers. Justice Fortas wrote the majority
opinion, ruling that students retain their constitutional right of freedom of speech while in public
school. Justices Black and Harlan dissented.
The Court ruled that students are entitled to exercise their constitutional rights, even while in school. The justices reasoned that neither “students (n)or teachers shed their constitutional rights to freedom
of speech or expression at the schoolhouse gate.” Because student expression is protected by the First
Amendment even while in school, school officials must provide constitutionally valid reasons for
regulating student expression. The justification for the regulation must be more than “a mere desire to avoid the discomfort and
unpleasantness that always accompany an unpopular viewpoint.” School officials must show that the
expression would cause a “material and substantial disruption” with the discipline and educational
function of the school. The Court decided that allowing the Tinkers to wear their armbands
protesting the Vietnam conflict would not “substantially interfere with the work of the school or
impinge upon the rights of other students.” Wearing the armbands was a “silent, passive expression
of opinion” that did not involve any “disorder or disturbance,” and was unlikely to cause a “material
and substantial disruption” in the school.
In addition, the justices noted that the school officials specifically targeted anti-war armbands, but
did not prohibit the wearing of any other symbols conveying a political message. Reasoning that
“the prohibition of expression of one particular opinion … is not constitutionally permissible,” they
concluded that “school officials do not poses absolute authority over their students.” In his dissenting opinion, Justice Black acknowledged that while the content of speech generally
cannot be regulated or censored, “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.” According to Justice Black, the Tinkers’
armbands did indeed cause a disturbance by taking students’ minds off their class work “and
divert[ing] them to thoughts about the highly emotional subject of the Vietnam War.” This was
exactly what school officials were trying to prevent. Justice Black believed that the majority’s ruling
was too restrictive on school officials, overly limiting their control over their schools, and subjecting
public schools to “the whims and caprices of their loudest-mouthed … students.” © 2010 Street Law, Inc. and the Supreme Court Historical Society
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Tinker v. Des Moines
DECISION
www.LandmarkCases.org
Resources
Tinker v. Des Moines (1969)
© 2010 Street Law, Inc. and the Supreme Court Historical Society
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Recommended Resources
 Listen to the oral arguments (Oyez.org)
 American Bar Association’s Online Conversation with the Plaintiffs
 Full text of the majority opinion (external link)
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Tinker v. Des Moines
resources
www.LandmarkCases.org
For Teachers Only
Tinker v. Des Moines (1969)
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Suggestions to differentiate this activity
What Is Symbolic Speech? When Is It Protected?
To differentiate this activity, you might challenge more advanced students by simply giving them the
case names and asking them to find the case summaries at http://www.oyez.org/. You could also give
them additional cases, such as Cohen v. California (1971).
To simplify this activity, you might consider eliminating some of the cases. You might also have
students work in teams, with each team considering only one or two cases. The teams can report
out to each other before a large group discussion of the questions at the end of the activity. Many
students would also benefit if you demonstrate how to answer one of the cases – so they can see how
you mark the paper and the thought process you use to answer the questions.
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Tinker v. Des Moines
for teachers only
Answers: Background Summary & Questions (•••)
Questions to Consider
1. Answers will vary. Some students will argue that it was fair because in certain localities, schools
place restrictions on the way students dress. The armbands could be viewed as an article of
clothing that could be subject to these rules. Others will argue that the policy was unfair in that
it put unnecessary or discriminatory restrictions on students. Unlike other articles of clothing,
like bandanas, which can be indicative of gang activity, and skimpy clothing, which can be
provocative, the armbands did not disrupt or threaten to disrupt the school.
2. They probably ignored the rule because they viewed wearing the armbands as a way of making
their point and they believed that they would not harm any other students by doing so.
3. The Supreme Court of the United States has ruled that certain actions have the same protection
as verbal speech because actions can be a way of expressing an opinion. Some students will argue
that these reasons are valid on the grounds that, at times, an action is the most effective way to
express an opinion—sometimes these actions can make a point more forcefully than words can.
As long as these actions do not violate the law or harm or threaten to harm anyone else, they
should be allowed. Others will say that they are invalid on the grounds that the Constitution
protects free speech and not free action. The government cannot mandate that people feel a
certain way or speak a certain way, but can regulate their behavior. Actions fall into the category
of behavior.
4. In both Schenck and Thornhill, the Court seemed to make a rule that certain actions were
guaranteed protection under the First Amendment’s freedom of speech clause as long as those
actions did not pose a “clear and present danger.”
5. Answers will vary. Some students will argue that students should legally be allowed to protest
by wearing T-shirts that read “Up with ‘Butts’!” because the message on the T-shirts is a form of
speech or expression that is protected by the First Amendment. Others will say that this message
is offensive, encourages illegal behavior, and could be disruptive to the learning environment, so
it should not be allowed.
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Tinker v. Des Moines
for teachers only
Answers: Background Summary & Questions (••)
Questions to Consider
1. Answers will vary. Some students will argue that it was fair because in certain localities, schools
place restrictions on the way students dress. The armbands could be viewed as an article of
clothing that could be subject to these rules. Others will argue that the policy was unfair in that
it put unnecessary or discriminatory restrictions on students. Unlike other articles of clothing,
like bandanas, which can be indicative of gang activity, and skimpy clothing, which can be
provocative, the armbands did not disrupt or threaten to disrupt the school.
2. They probably ignored the rule because they viewed wearing the armbands as a way of making
their point and they believed that they would not harm any other students by doing so.
3. The Supreme Court of the United States has ruled that certain actions have the same protection
as verbal speech because actions can be a way of expressing an opinion. Some students will argue
that these reasons are valid on the grounds that, at times, an action is the most effective way to
express an opinion—sometimes these actions can make a point more forcefully than words can.
As long as these actions do not violate the law or harm or threaten to harm anyone else, they
should be allowed. Others will say that they are invalid on the grounds that the Constitution
protects free speech and not free action. The government cannot mandate that people feel
a certain way or speak a certain way, but it can regulate their behavior. Actions fall into the
category of behavior.
4. Answers will vary. Some students will argue that students should legally be allowed to protest
by wearing T-shirts that read “Up with ‘Butts’!” because the message on the T-shirts is a form of
speech or expression that is protected by the First Amendment. Others will say that this message
is offensive, encourages illegal behavior, and could be disruptive to the learning environment, so
it should not be allowed.
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Tinker v. Des Moines
for teachers only
Answers: Background Summary & Questions (•)
Questions to Consider
1. Answers will vary. Some students will argue that it was fair because in certain localities, schools
place restrictions on the way students dress. The armbands could be viewed as an article of
clothing that could be subject to these rules. Others will argue that the policy was unfair in that
it put unnecessary or discriminatory restrictions on students. Unlike other articles of clothing,
like bandanas, which can be indicative of gang activity, and skimpy clothing, which can be
provocative, the armbands did not disrupt or threaten to disrupt the school.
2. They probably ignored the rule because they viewed wearing the armbands as a way of making
their point and they believed that they would not harm any other students by doing so.
3. Answers will vary. Some students will argue that actions, like wearing an armband to protest, are
the same as speech because, at times, an action is the most effective way to express an opinion—
sometimes these actions can make a point more forcefully than words can. Others will say they
are different, that actions are a form of behavior. The government cannot mandate that people
feel a certain way or speak a certain way, but can regulate their behavior.
4. Answers will vary. Some students will argue that students should legally be allowed to protest
by wearing T-shirts that read “Up with ‘Butts’!” because the message on the T-shirts is a form of
speech or expression that is protected by the First Amendment. Others will say that this message
is offensive, encourages illegal behavior, and could be disruptive to the learning environment, so
it should not be allowed.
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Tinker v. Des Moines
for teachers only
Answers: Important Vocabulary (•••/••)
protest (to protest)
Define: To oppose or object to
sued (to sue)
Define: To seek a remedy for a grievance or complaint in court
violated (to violate)
Define: To break or disregard (a law or promise, for example)
symbolic speech
Define: Conduct that is intended to convey a particular message which is likely to be understood by
those viewing it
disrupt
Define: To throw into confusion or disorder
appealed (to appeal)
Define: To formally request that a lower court decision be examined and reconsidered by a higher
court
constitutional
Define: In agreement with the principles set forth in the constitution of a nation or state
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Tinker v. Des Moines
for teachers only
Answers: Important Vocabulary (•)
Student answers will vary.
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Tinker v. Des Moines
for teachers only
Answers: Key Excerpts from the Majority Opinion
Questions to Consider
1. The rights in conflict are the First Amendment rights of students and the rights of school officials
to maintain order in the schools.
2. In order to justify a law stopping free speech, a school must prove that the action would
“materially and substantially interfere with the requirements of appropriate discipline in the
operation of the school.”
3. Students in the Des Moines schools were permitted to wear other symbols of political statements
such as presidential campaign buttons. This was significant to the Court because they did not
think it would be constitutional to single out and forbid one particular viewpoint—in this case,
opposition to the war in Vietnam, as expressed by the wearing of black armbands—especially
when there was no evidence that it would cause a disruption.
4. In light of this decision, the Supreme Court of the United States might allow the school
district to restrict students’ free speech in cases where it would, cause “material and substantial
interference with schoolwork or discipline.” For example, shouting in the hallways or wearing
extremely sexually provocative clothing might be “expressive conduct” but could be forbidden.
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Tinker v. Des Moines
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Answers: Key Excerpts from the Dissenting Opinion
Questions to Consider
1. Justice Black is concerned about the time, place, and manner of the speech. He does not want
schools to be used as a platform for free speech, because the message can cause students to be
distracted from their schoolwork, as it did in the Tinker case.
2. Justice Black differs from the majority on how the balance between conflicting rights should be
resolved in this case in that he thinks that the right of parents, teachers, and school officials to
control the school should take precedence over students’ right to free speech.
3. Answers will vary and students should use their imagination. Students who think the
discussions/disruptions resulting from the students’ protests were significant enough to justify
the suppression of speech might say, for instance, that wearing the armbands after school would
not be significant enough to justify the suppression of free speech. Students who think otherwise
might argue that to justify the suppression of free speech, the students would have had to gather
a large group of students wearing armbands and marched down the hallway while class was in
session.
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Tinker v. Des Moines
for teachers only
Teaching Tips/Answers: What Is Symbolic Speech? When Is
It Protected?
Teaching Tips
 This activity also appears in the teaching materials for the case of Texas v. Johnson. For that
reason, the cases of Tinker and Texas v. Johnson are purposely left off of both charts. Depending
on your plans to teach about flag burning and Texas v. Johnson, you may want to add it to the
chart you give your students here.  When you assign this activity, you may want to invite a lawyer or law student to help with
discussion of these cases. For recommendations on using community resources, visit the Teaching
Strategies page.
Answers
Action
In order to protest against a
former employer, an individual
joins a picket line. State law
says picketing is illegal. The
individual is arrested and fined
$100.
Case Summary (from
Oyez.org)
An individual burns a draft card
to express opposition to the
war. Federal law says that
burning draft cards is a crime.
Case Summary (from
Oyez.org)
A person taped a peace
symbol to an American flag
and then hung the flag upside
down in the window of his
apartment. An upside down
flag is typically a symbol of
distress or danger. This
person believed the nation was
in trouble. He was arrested
and convicted of violating a
state law against improper use
of the flag.
Case Decision (from Legal
Information Institute)
Is the action a form of
constitutionally protected
"symbolic speech?"
YES
NO
X
X
X
(Continued on next page)
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Rationale
In Thornhill v. Alabama (1940),
the Court ruled that the law
prohibiting picketing was invalid
because it did not inherently
pose a "clear and present
danger."
In United States v. O'Brien
(1968), the Court ruled that the
law was justified because it
furthered an important
government interest.
In Spence v. Washington (1974),
the Court reversed Spence’s
conviction and pointed out four
important factors:
1. The flag was privately
owned.
2. The flag was on private
property.
3. There was no risk of
“breach of peace,”
incitement to riot, or
disorderly conduct.
4. Spence’s actions were
symbolic speech. The
Court rejected the state’s
arguments concerning the
importance of respect for
our national emblem.
However, the Court left
open the possibility of
prosecuting someone if the
factors listed above did not
apply.
Tinker v. Des Moines
for teachers only
In response to increasing racial
tensions on campus, school
officials banned images of the
Confederate flag from their
high school. A group of
students filed suit saying they
should be allowed to wear tshirts to school depicting the
Confederate flag to show their
pride in their Southern
heritage.
Case Decision (from US
Courts)
An organization applies for a
permit to hold a demonstration
on the National Mall. Members
plan to erect "tent cities" in
order to demonstrate the plight
of the homeless. The permit
was denied on the grounds
that camping is forbidden on
the Mall.
Case Summary (from
Oyez.org)
New Hampshire's state motto,
"Live Free or Die" appears on
license plates. An individual
covers "or die" on the grounds
that it goes against his
religious and political beliefs.
He is convicted for violating a
state law, fined, and sentenced
to jail time.
Case Summary (from
Oyez.org)
X
X
X
In Barr v. LaFon (2008), a
federal judge upheld the ban, as
did the Sixth U.S. Circuit Court of
Appeals, saying that school
officials could reasonably predict
that images of the Confederate
flag would “substantially and
materially disrupt the school
environment.”
In 2009, the Supreme Court
declined to hear this case,
leaving in place the lower court’s
decision.
In Clark v. CCNV (1984), the
Court mentioned that the
government can restrict the time,
place, and manner of
demonstrations, the government
had a legitimate interest in the
upkeep of the parks, and there
were other ways for the group to
express their message.
In Wooley v. Maynard (1977)
the Court said the state could not
require people to use these
license plates. It said, among
other things, that it is okay for
"individuals to hold a point of
view different from the majority
and to refuse to foster . . . an
idea they find morally
objectionable."
Questions to Consider
1. Yes, there are general standards that seem to apply to free speech. First, in order to be protected,
the conduct must communicate a message that can be understood by those who observe it.
Second, if the action is illegal, threatens to be disruptive, or incite lawless action, then it is
generally not protected. In determining whether the action is illegal, the Court examines whether
the government has an important reason to limit the action and whether the opinion could be
expressed in another manner. Finally, if the law discriminates by favoring one form of symbolic
expression (e.g., “I love the flag”), but not another (e.g., “I hate the flag”), the government will
lose.
2. Answers will vary. A case could be made that the Court should rule in favor of the Tinkers on
the grounds that wearing armbands was not disruptive and was not going to provoke large
numbers of people to commit violent actions. Furthermore, the government had no real reason
to limit the wearing of armbands other than to prevent the Tinkers from making their point.
A case could be made that the Court should rule in favor of Des Moines on the grounds that
the government can regulate the time, place and manner of protests. The school, acting as the
government, could prevent students from protesting during school hours because a protest could
be disruptive.
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Tinker v. Des Moines
for teachers only
Answers: Classifying Arguments in the Case
1. T, or BOTH if one argues that as an agent of the government, schools, like the government
could restrict the time, place, and manner of speech.
2. T
3. DM
4. DM
5. T
6. T
7. DM
8. T, or N if one argues that elementary and secondary schools must maintain a greater degree of
authority than colleges and universities.
9. DM, if you look at the fact that school officials “reasonably feared disruption”; T if you consider
that there was no actual disruption.
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Tinker v. Des Moines
for teachers only
Answers: How Does a School Identify “Disruptive Speech?”
1. Maggie and Sally come to school wearing new khaki pants. On the back of the pants, where
pockets usually are, the girls put patches of the American flag. Therefore, when the girls sat
down, they sat on the flag.
These actions do not seem to be very disruptive.
It would not be constitutional for the school administration to restrict this form of speech
because the action did not cause “material and substantial interference with schoolwork or
discipline.” (Note: There are rules that govern the proper display of the flag that may forbid
this type of display. These rules are broken quite frequently—often inadvertently.)
2. In order to protest the new cafeteria food offered at Valley High School, the student government
organizes a protest. During both lunch periods, SGA officials plan to lead a walk-out from the
cafeteria and a group march to the local McDonalds.
If students do not normally leave school grounds for lunch, this would jeopardize student
safety and could disrupt the normal lunch period.
If there were a school rule that prevents students from leaving school property during lunch,
it would be constitutional for the school administration to restrict this form of speech.
3. Local gang members wear colored plastic bracelets on their wrists to declare their affiliation.
At face value, the bracelets do not seem to be disruptive. However, if there is a problem with
gang activity and gang-related violence, they could be very disruptive.
In the case of Stephenson v. Davenport Community School District, the Eighth Circuit
Court of Appeals ruled that a school policy saying, “gang related activities such as display of
‘colors’, symbols, signs, etc. will not be tolerated on school grounds. Students in violation
will be suspended from school and/or recommended to the Board for expulsion” was
unconstitutional on the grounds that it was “too vague.” If a specific policy existed at this
school, it would be constitutional to outlaw the bracelets. (Note to teacher: See the activity
“Gangs, Tattoos, and Symbolic Speech.”)
4. During a pep rally, a student leader uses very obscene language in a speech.
The use of profanity violates the school’s rules, and thus, is disruptive.
It would be constitutional for the school administration to restrict this form of speech on
the grounds that profanity is not a protected form of speech.
5. Atheists in your school decide they want to publicize and educate others about their beliefs. To
make their point, they begin wearing T-shirts that portray Jesus as a monster with three heads.
These shirts may bother some students and initiate some conversation, but it does not seem
that they would cause “material and substantial interference with schoolwork or discipline.”
If the courts gave the same latitude toward anti-religion speech as is given toward antigovernment speech, it would be unconstitutional for the school administration to prohibit
the wearing of these shirts. However, a court may treat T-shirt as a personal attack on
deeply religious Christians and permit the school to ban it for that reason.
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Tinker v. Des Moines
for teachers only
Answers: The Editorial Staff of the Valley High School Voice
Reacts
Editorial Number One: “Power to the People!”
1. This editorial supports the Court’s ruling in Tinker.
2. The author thinks the Court’s ruling means that students’ rights are unlimited even if their
actions violate school rules.
3. The author has not given an accurate explanation of the Court’s decision. In the majority
opinion, the Court said that school administrators might limit students’ free speech if the
conduct causes “material and substantial interference with schoolwork or discipline.” In the
dissenting opinion, Justice Black says, “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 . . . “ He, too, would disagree
with this editorial.
Editorial Number Two: “Teaching the Values of Democracy”
1. This editorial supports the Court’s ruling in Tinker.
2. The author thinks the Court’s ruling means that students have the same free speech rights as
adults. If we want students to grow up to be good citizens, we should recognize those rights.
3. What the author says about the majority opinion is mostly correct, but he gives an incomplete
picture. The Court did say that there are times when school officials can restrict students’ speech,
for instance, when that speech causes “material and substantial interference with schoolwork or
discipline.” In the minority opinion, Justice Black mentions that adults’ free speech rights are
regulated as to the time, place and manner. Students are subject to these same restrictions, which
the author has not mentioned.
Editorial Number Three: Apple Anyone?
1. This editorial attacks the Court’s ruling in Tinker.
2. The author thinks the Court’s ruling means that students can say anything they want as long as
their words do not substantially interfere with the work of the school or impinge upon the rights
of other students.
3. The author has not given an accurate picture of the majority opinion. The author does not
mention the part of the Court’s ruling that says speech that causes “material and substantial
interference with schoolwork or discipline” is not protected. The example given would probably
not be protected speech because the speaker used profanity in violation of school rules. The
author does not mention anything about the dissenting opinion.
(Continued on next page)
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Tinker v. Des Moines
for teachers only
Editorial Number Four: “Free Speech” is a myth
1. This editorial attacks the Court’s ruling in Tinker.
2. The author thinks the Court’s ruling means that students can express any political opinion as
long as their words do not cause an imminent disruption.
3. The author has given an accurate explanation of both the majority and dissenting opinions. The
author agrees with the dissent that “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.” and takes issue with whether or
not the armbands caused a disruption in school. The author thinks that wearing them was, in
fact, disruptive, as evidenced by the comments and warnings that were exchanged.
Which Two Should Be Printed?
Support — While number two paints an incomplete picture, it is better than number one,
which is inaccurate.
Attack — Number Four clearly understands both the majority and dissenting opinions.
While Number Three gives an example that is relevant to the students and would be easily
understood by them, it is not totally accurate.
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Tinker v. Des Moines
for teachers only
Answers: How Disruptive Is “Disruptive?”
Describe two politically motivated activities students might participate in that could “interfere with
the requirements of appropriate discipline in the operation of the school.”
Answers will vary. Some politically motivated activities that could “interfere with the
requirements of appropriate discipline in the operation of the school” include organizing a
“skip-out” to take place during the school day or holding a demonstration in the parking lot
while school is in session. (Both of these would be done to protest a certain policy or action of
some level of government).
Describe two politically motivated activities students might participate in that could impinge upon
the rights of other students.
Answers will vary. Examples of two politically motivated activities students might participate
in that would impinge upon the rights of other students include organizing a lock-out in
which they plug locks to all of the classrooms so teachers and students cannot enter them
and marching through the halls while class is in session using bullhorns to vocalize their
opinions. (Both of these would be done to protest a certain policy or action of some level of
government).
Scenario
Students will place an “X” on various places on the continuum. There is no right or wrong response
but students should be able to defend their position.
Continuum Questions for Teachers:
Again, there is no right or wrong response but students should be able to defend their position.
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Tinker v. Des Moines
for teachers only
Answers: Gangs, Tattoos, and Symbolic Speech
There is no right or wrong answer for the amended policy., but below are two rubrics that can be
used to assess them. The first is holistic; the second assesses each individual component. If using
the second one, place an “X” on the continuum for each component, then “average” the scores.
Suggestion: Give the rubric to students ahead of time so they know how they are being assessed.
Rubric One
Score Point 3
The policy includes specific conduct and symbols that would be prohibited, specific guidelines to
ensure that only those students who were truly advertising gangs would be punished, a definition
of the term “gang”, a listing of exact symbols would be prohibited and a description of colors/ color
combinations that are gang-related. There is a high degree of likelihood that the Court would find
this policy to be constitutional.
Score Point 2
The policy includes most of the following information: specific conduct and symbols that would be
prohibited; guidelines to ensure that only those students who were truly advertising gangs would
be punished; a definition of the term “gang”; a listing of exact symbols would be prohibited and a
description of colors/ color combinations that are gang-related. It is likely that the Court would find
this policy to be constitutional.
Score Point 1
The policy contains some of the following information: specific conduct and symbols that would
be prohibited; guidelines to ensure that only those students who were truly advertising gangs would
be punished; a definition of the term “gang”; a listing of exact symbols would be prohibited and a
description of colors/ color combinations that are gang-related. It is unlikely that the Court would
find this policy to be constitutional.
Score Point O
The policy lacks most of the following required information: specific conduct and symbols that
would be prohibited; guidelines to ensure that only those students who were truly advertising
gangs would be punished; a definition of the term “gang”; a listing of exact symbols would be
prohibited and a description of colors/ color combinations that are gang-related. The policy is clearly
unconstitutional.
(Continued on next page)
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Tinker v. Des Moines
for teachers only
Rubric Two
Mark student achievement for each component along a continuum like this:
Unsatisfactory
Satisfactory
Excellent
Components
Conduct and symbols that would be prohibited
Guidelines to ensure that only those students who were truly advertising gangs would be
punished
Definition of the term “gang”
A listing of exact symbols would be prohibited
Colors/color combinations that are gang-related
Likelihood that the policy would be constitutional
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Tinker v. Des Moines
for teachers only
Answers: The Internet, Schools, and Symbolic Speech:
A Jigsaw Activity
Case
O'Brien v. Westlake City
Schools Board of
Education
Beussink v. Woodland RIV School District
Background Facts
A student created a Web
site on which he criticized
his band teacher. He was
suspended for violating a
rule in the Student
Conduct Handbook that
stated, "students shall not
physically assault,
vandalize, damage, or
attempt to damage the
property of a school
employee or his/her
family or demonstrate
physical, written, or verbal
disrespect/threat."
A student created a Web
site that contained vulgar
language and a criticism
of teachers. He was
suspended for 15 days.
Constitutional Question
Raised
Did the suspension
violate the students' free
speech rights?
Did the suspension
violate the student's free
speech rights?
The Court ruled in favor of
the student, saying that
punishing him for
statements made off
school property and on
his Web site "raises the
ugly specter of Big
Brother."
Court’s Ruling
No.
The Court ruled in favor of
the student, saying that
school officials did not
"show that its action
[suspension of Brandon]
was caused by something
more than a mere desire
to avoid the discomfort
and unpleasantness that
always accompany an
unpopular viewpoint."
Was the Tinker
Standard Applied?
How?
Yes. The Court looked at
why the school
suspended the student
and found that school
officials did not "show that
its action [suspension of
Brandon] was caused by
something more than a
mere desire to avoid the
discomfort and
unpleasantness that
always accompany an
unpopular viewpoint."
© 2010 Street Law, Inc. and the Supreme Court Historical Society
www.landmarkcases.org
(Continued on next page)
Tinker v. Des Moines
for teachers only
A student created an
unofficial school Web site
on which he asked other
students to vote for who
should be "next to die."
The school expelled him,
and then reduced his
punishment to
suspension. The school
justified this punishment
on the grounds that the
student's action was,
"harassment, intimidation,
disruption to the
educational process and
violation of Kent School
District copyright."
A student created a Web
site in which he depicted
an assistant principal as a
Nazi, drunk, and graffiti
artist. The student was
suspended and was
transferred to an
alternative school.
A student published a
Web site that had vulgar
language, gave reasons
why certain school
employees should die,
and asked for
contributions to hire a hit
man. He was expelled
from the school.
Did the suspension and
transfer violate the
student's free speech
rights?
Yes. The Court ruled that
the student's Web site
"materially disrupted the
learning environment"
Yes. The Court examined
whether or not the Web
site caused a "substantial
disruption".
Yes. The Court examined
whether or not the Web
site was an actual threat
to anyone.
The state trial court ruled
that the school district had
failed to meet Tinker's
standard governing
disruptive speech.
The Court found in favor
of the student, saying that
because the Web site
was student-generated
and did not threaten
anyone, the school was
not justified in suspending
the student.
Did the suspension
violate the student's free
speech rights?
Did the expulsion violate
the student's free speech
rights?
© 2010 Street Law, Inc. and the Supreme Court Historical Society
www.landmarkcases.org
Emmett v. Kent School
District Number 415
Beidler v. North Thurston
School District Number 3
J.S. v. Bethlehem Area
School District
The Court ruled in favor of
the school, saying that the
student's Web site
"materially disrupted the
learning environment"
because at schoolsponsored activities and
during school students
were discussing the site.
The fact that one of the
teachers mentioned on
the site had to take
medical leave also
indicated significant
disruption.
(Continued on next page)
Tinker v. Des Moines
for teachers only
Tying it all together
Use the rubric below to assess students on the final question. Circle the score in each category then
average the scores to get a total. Suggestion: Give the rubric to students ahead of time so they know
how they are being assessed.
Topic Sentence
Supporting
Details
Conclusion
Mechanics
Outstanding
Very Good
Satisfactory
Position is clearly
stated.
Three specific
details are used
to support the
argument.
Conclusion is
concise, returns
to the idea stated
in the topic
sentence, and
contains ideas
for further
thought.
Paragraph is free
of spelling and
grammatical
errors. It is well
organized, there
is a logical flow,
and the
arguments are
persuasive.
Position is
stated.
Two specific
details are used
to support the
argument.
Conclusion
returns to the
idea stated in the
topic sentence.
Position is
unclear.
One specific
detail is used to
support the
argument.
Conclusion
restates the topic
sentence.
Paragraph has
one or two
spelling or
grammatical
errors.
Arguments are
clearly stated
and support the
position taken.
Paragraph has
several spelling
or grammatical
errors.
Arguments
generally support
the position
taken. There are
some problems
with flow and
organization.
Needs
Improvement
Position is not
stated.
No details are
used to support
the argument.
There is no
conclusion or the
conclusion does
not relate to the
topic sentence.
Paragraph has
numerous
spelling or
grammatical
errors.
Arguments are
illogical and/or
not clearly
stated.
For Further Thought
None of these cases involved school-sponsored web sites, but if they did, the outcome would
undoubtedly be different. In Hazelwood v. Kuhlmeier, the Court ruled that the school has greater
control over school-sponsored activities and publications than it does over ordinary speech.
© 2010 Street Law, Inc. and the Supreme Court Historical Society
www.landmarkcases.org
Tinker v. Des Moines
for teachers only