18
Freedom of Speech in
Public Schools
Tinker v. Des Moines Independent Community
School District (1969)
Tinker v. Des Moines
Independent Community
School District
•
•
•
•
Decided: February 24, 1969
•
Dissenting opinions: Hugo Black
and John Marshall Harlan II
Vote: 7–2
Opinion of the Court: Abe Fortas
Concurring opinions: Byron White
and Potter Stewart
146 The Pursuit of Justice
A
primary purpose of public schools in the United States is to educate
students for competent citizenship within the system of constitutional
government. Thus, local school boards throughout the country authorize teachers to instruct students about their constitutional rights and the obligations of citizenship associated with them. Among the rights of citizens and
noncitizens in the United States—which citizens are obligated to use responsibly—is a constitutional guarantee of free speech.
Are these rights and responsibilities, which the public expects the schools
to convey to students, the same for individuals within the school as for individuals, including students, in the community outside it? During the autumn
of 1965, this question was raised dramatically in the city of Des Moines, Iowa,
by students who protested in their public schools the escalating participation
of the United States in the Vietnam War. The U.S. Supreme Court responded
nearly four years later with its decision in Tinker v. Des Moines Independent
Community School District (1969).
The controversy that led to the Tinker decision began at a late-November 1965 antiwar demonstration in Washington, D.C. Among the thousands
of protestors at the nation’s capital were about fifty Iowans, including two
high school students from Des Moines, John Tinker and Christopher Eckhardt. Along with John’s sister Mary Beth, they became the principal figures
in a lawsuit about the constitutional rights of students. On the return trip from
the nation’s capital, the passengers on the bus discussed how to protest the
Vietnam War back home in Iowa. From this conversation came the idea of
wearing black armbands as symbols of opposition to U.S. military involvement in Vietnam.
On December 11, at the Eckhardts’ home there was a meeting of antiwar
activists, including John and Mary Beth Tinker and their parents. The group
agreed that local students should be encouraged to express their antiwar sentiments by wearing black armbands at school.
Christopher Eckhardt and the Tinker children resolved to carry out the
group’s plan of protest. They would wear black armbands to school. Christopher was a fifteen-year-old tenth-grade student at Theodore Roosevelt High
School; John Tinker, a fifteen-year-old eleventh grader, attended North High
School; and Mary Beth Tinker, age thirteen, was an eighth-grade student at
Warren Harding Junior High School.
Heated conversations about imminent antiwar activities spread wildly
through the community. Public school officials in Des Moines were alarmed.
They imagined scenes of unruly antiwar protestors wreaking havoc in the classrooms and hallways of the schools, and they quickly made rules to prevent such
a catastrophe.
The school principals issued a statement informing all teachers, students,
and other relevant personnel that wearing black armbands or other symbols of
protest in the public schools was prohibited. Students displaying such symbols
would be asked to remove them; refusal would be punished by suspension from
school, and offenders would not be readmitted until they pledged to comply
with the rules.
The statement did not deter Christopher Eckhardt, John Tinker, and Mary
Beth Tinker and they went to their respective schools wearing black armbands.
When asked to remove them by teachers and principals, they refused and were
suspended from school.
The Iowa Civil Liberties Union (ICLU), an affiliate of the American Civil Liberties Union (ACLU), became interested in the freedom of speech issue
raised by the confrontation. They had no doubt that the three public school students had a constitutional right to wear the black armbands as a symbol of antiwar protest in the community outside the school. No local, state, or federal
government official could have constitutionally prevented their freedom of expression in this manner. At issue here was the place the students chose to express
their antiwar opinion, and leaders of both the ICLU and ACLU believed that
students had the same constitutional rights inside their public school that they
had on the streets outside it.
Leaders of the ICLU contacted the Eckhardt and Tinker families and offered
help in responding to the school officials. By this time, the students had returned
to school after a very brief suspension, and they agreed not to continue their
armband-wearing protest. However, they and their parents were interested in
taking this controversy from the classroom to the courtroom, and they accepted
the ICLU offer of support. Thus an ICLU lawyer, Dan Johnston, went to the federal district court and filed suit against the Des Moines Independent Community
School District in the name of the students’ fathers. He sought compensation for
damages incurred and an injunction to prevent school authorities from punishing the students. Johnston argued that the school district’s rules prohibiting the
display of black armbands violated the students’ rights to freedom of speech
under the First and Fourteenth Amendments to the Constitution.
The federal district court judge, Roy Stephenson, dismissed the suit, and
Johnston appealed to the U.S. Court of Appeals for the Eighth Circuit. The Court
of Appeals met in full court to consider this case and responded with an evenly
divided vote, 4–4. Usually, the federal appellate courts sit in panel to decide
cases rather than en banc, or with participation of all members. In the absence
of a clear-cut decision, the lower court’s ruling was, in effect, affirmed. With
support from the Iowa Civil Liberties Union and the American Civil Liberties
Union, the Tinkers and Eckhardts appealed to the U.S. Supreme Court.
Oral arguments before the high court took place on November 12, 1968.
Dan Johnston of the ICLU again represented the Eckhardts and Tinkers. Counsel for the Des Moines school district was Allan Herrick, the board’s long-time
attorney. During his presentation, Johnston stressed that the students’ antiwar
protest caused no disturbances at school. Justice Byron White pressed Johnston
with several sharply worded questions about this point. But Johnston held his
ground: “I think they [the students] chose a message, chose a method of expres-
Freedom of Speech in Public Schools 147
sion, Your Honor, which would not be distracting.”
Later on, Johnston returned to this point, stating that “there was no indication, no testimony by teachers, by administrators or anyone else, of any reason
to believe that it [the wearing of armbands] would be disruptive. And when the
students in fact did wear the armbands, the record quite clearly shows that it
was not in fact disruptive.” Johnston concluded with an argument against distinguishing between the right to free speech within and outside of the school.
I should not think that there would have to be a special rule for schools or any
other part of our society for the First Amendment.... [A]s far as the principles
applied, we’d like to have the same principles applied in the school or perhaps
especially in the school that are applied elsewhere.
In his presentation for the school district, Allan Herrick emphasized the
need to balance the right to freedom of expression with the maintenance of order. He pointed to precedents for limiting free speech, such as Adderly v. Florida
(1966), in which the Supreme Court had upheld restrictions against the speech
of a student group protesting civil rights violations. In that case, the Court had
held that the place of the protest, the grounds outside a jailhouse, was an inappropriate venue for this kind of activity.
Justice Thurgood Marshall interrupted Herrick and the following exchange
occurred:
Marshall: How many students were involved in the Adderly case? Several
hundred wasn’t it?
Herrick: It was quite a large number.
Marshall: How many were involved in this one?
Herrick: Well, there were.... That’s a question, Your Honor, what do you
mean by involved?
Marshall: How many were wearing armbands?
Herrick: Well, there were five suspended for wearing armbands.
Marshall: Well, were any wearing armbands who were not suspended?
Herrick: Yes, I think there were two.
Marshall: That makes seven....Seven out of eighteen thousand [students
in the entire school district], and the school board was afraid that seven
students wearing armbands would disrupt eighteen thousand. Am I cor
rect?
Herrick: I think, if the Court please, that that doesn’t give us the entire
background that builds up to what was existing in the Des Moines schools
at the time the armbands were worn.
Marshall’s incisive questioning seemed to raise doubts among the justices
about Herrick’s claims that the school district’s policy, restricting symbolic expression by armband-wearing students, was a reasonable attempt to maintain
order in the schools. In response to questions from other justices, Herrick was
forced to admit the paucity of evidence to support the school district’s policy as
necessary to prevent disruption of the educational process.
The Court decided by a vote of 7–2 that the school district officials had violated the students’ right to free speech. In his opinion for the Court, Justice Abe
Fortas raised the perennial challenge in a free society of balancing the individual’s constitutional right to free speech against the community’s expectation and
need for public order and safety. The Court came down decisively on the side of
the individual’s right to freedom of speech.
148 The Pursuit of Justice
Justice Fortas said that the wearing of black armbands to protest the war in
Vietnam was a form of “symbolic speech” protected by the First Amendment
and applied against state and local governments through the due process clause
of the Fourteenth Amendment. In the opening paragraph of his opinion, Justice Fortas wrote memorably in favor of the students’ rights in this case: “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.”
Fortas acknowledged that school officials are responsible for maintaining
an orderly educational environment conducive to teaching and learning. He recognized the school officials’ authority to limit a student’s constitutional rights
to freedom of expression in order to prevent serious disruption of the educational process, which is vital to the continuation and improvement of the community. However, Fortas stressed that the burden of proof was on the school
officials. They had to provide compelling evidence to show how a rule enforced
by them, which curtailed First Amendment freedoms, was necessary to sustain
the school’s educational mission. Fortas put forward a “rule of reason” as the
governing criterion for the kind of issue raised by this case. For example, a regulation, such as the prohibition against wearing black armbands in school, must
be a reasonable means of preventing disorders, which in the absence of the rule,
would severely disrupt the educational process.
The school officials had failed to satisfy the “rule of reason” criterion, said
Fortas. They could not demonstrate that the regulation against wearing black
armbands in school had any reasonable connection to the prevention of disorder
that could have seriously interfered with teaching and learning. “There is no indication that the work of the schools or any class was disrupted,” wrote Fortas.
Therefore, he concluded, “the prohibition cannot be sustained.”
Fortas stressed the importance of protecting the constitutional rights of students against any unfounded fear of disruptions that might ensue from their
exercise of these rights. “School officials do not possess absolute authority over
their students,” said Fortas. He believed adolescent students to be rights-bearing individuals, just like adults, both inside and outside the schoolhouse doors.
“Students in school as well as out of school are ‘persons’ under our Constitution.
They are possessed of fundamental rights which the State must respect, just
as they themselves must respect their obligations to the State,” wrote Justice
Fortas.
The Court remanded, or sent back, the case to the federal district court for
judgments, consistent with Justice Fortas’s opinion, about how to compensate
the plaintiffs or otherwise provide what was due them. The court ordered the
Des Moines Independent Community School District to expunge the students’
suspensions from their school records and to pay all costs of the litigation.
Two justices, John Marshall Harlan II and Hugo Black, dissented from the
Court’s opinion. Harlan’s dissent was brief. He disagreed with Fortas that the
school officials had the burden of proof in justifying a rule that limited students’
freedom of expression. “I would in cases like this cast upon those complaining
the burden of showing that a particular school measure was motivated by other
than legitimate school concerns,” wrote Justice Harlan.
Justice Black’s dissent, by contrast, was a long and passionate denunciation
of the Court’s decision. Here is the nub of his strong disagreement with Fortas:
Freedom of Speech in Public Schools 149
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. This Court has
already rejected such a notion....
One does not need to be a prophet or the son of a prophet to know that after the
Court’s holding today some students in Iowa schools and indeed in all schools,
will be ready, able, and willing to defy their teachers on practically all orders....
This case, therefore, wholly without constitutional reasons in my judgment, subjects all the public schools in the country to the whims and caprices of their loudest, but maybe not their brightest students.
Justice Black’s dissent in the Tinker case surprised and even shocked many
civil libertarians, who had revered Hugo Black as a staunch and uncompromising champion of the right to free speech. Had Hugo Black changed his often
stated belief that the Constitution’s First Amendment was an absolute guarantee
of the right to free speech? Justice Black strongly maintained his long-standing
belief that there should be no restriction on the content of a person’s speech.
However, he argued in his Tinker dissent, as he had in other instances, that the
person’s manner of expression may be limited under certain conditions, just as it
may be appropriate to regulate the times and places of speaking. In his opinion,
the school building, especially during the daily schedule of events, was not an
appropriate forum for antiwar protests nor was the wearing of armbands in this
place an appropriate form of expression for students.
The Eckhardt and Tinker families expressed great satisfaction with the
Court’s decision. Both the parents and their children were pleased to receive
credit from legal scholars and journalists for their advancement of civil liberties under the Constitution. And they readily responded to the many newspaper
reporters, magazine writers, and radio and television broadcasters who rushed
them for interviews about their campaign to expand and amplify the rights of
students.
In retrospect, the Tinker decision represents a high point in the recognition of student rights under the Constitution. This decision continues to protect
free expression of students that neither disrupts the educational purposes of the
school nor violates the rights of other students. However, subsequent Supreme
Court decisions have favored the authority of school officials to impose certain “reasonable” restrictions upon the rights of students in order to protect the
school’s educational mission against disruption. For example, in Bethel School
District No. 403 v. Fraser (1986), the Court ruled in favor of restrictions against
vulgar student speech in a school assembly hall. And in Hazelwood School District v. Kuhlmeier (1989), the Court upheld restrictions and censorship by school
authorities of hypersensitive content in a student newspaper produced by a journalism class. The school principal had decided that two articles, one providing
information about birth control and the other describing intimate details about
the divorce of a student’s parents, were not appropriate for the intended readers.
150 The Pursuit of Justice
Mary Beth Tinker Recalls Her Stand
for Student Rights
As a middle-aged woman, Mary Beth Tinker remembered vividly and proudly the stand
she took as a teenager against the Vietnam War and for the constitutional rights of students
in public schools. In the mid-1980s, University of California, San Diego, law professor
Peter Irons interviewed her about the case for his book The Courage of Their Convictions,
which includes the stories of sixteen citizens who appealed their cases to the U.S. Supreme
Court.
After the Vietnam War started to escalate and
became controversial, we were going to these various demonstrations and pickets against the war.
There was a teen group also that had its own activities. I was kind of a hanger-on because I was a little
young. I remember sitting at Bill and Maggie Eckhardt’s house one night—their son, Chris, was also
involved in our group, along with my older brother,
John—and we decided to wear these black armbands
to school....
After we had our meeting at the Eckhardt’s
and decided to wear the black armbands, we were
all going to do it on the same day. I told this kid at
school about it, and the day before we were going
to wear the armbands it came up somehow in my
algebra class. The teacher got really mad....I went
back and told the group and the next thing we knew,
the school board made this policy against wearing
armbands. They had a special meeting and decided
that any student who wore an armband would be suspended from school.
The next day I went to school and I wore the
armband all morning. The kids were kind of talking,
but it was all friendly, nothing hostile. Then I got to
my algebra class, right after lunch and sat down. The
teacher came in, and everyone was kind of whispering; they didn’t know what was going to happen.
Then this guy came to the door of the class and...
they called me down to the principal’s office.
The girls’ counselor was there in the office....
I took off the armband because I was intimidated.
I was in this office with these people, the principal
was there, and they were giving me these threats and
I didn’t know what was going to happen, so I took
it off.
The principal was pretty hostile. Then they suspended me anyway....
The principal sent me home and called my parents. I went home and everyone was getting a little
bit hysterical. It was getting to be a big deal. Everyone was sort of milling around the house. My brother
John, who was in the eleventh grade at another school
didn’t wear an armband until the next day, and he got
suspended right after he got to school. The two little
kids in the family, Hope and Paul, were in elementary
school. Hope was in the fifth grade and Paul was in
the second grade. They wore black armbands too but
nothing happened to them. I don’t think the schools
thought people would support suspending little kids
for something like that.
We got suspended about a week before the
Christmas holiday started. We were out of school that
week, and every day there was a lot of activity. We
were going to meetings, discussing this, figuring out
what was going on. The school board had a meeting after we were suspended that hundreds of people
went to, and there was a lot of argument and coverage in the newspapers and television. We all went
there, wearing these armbands, and they decided to
maintain their policy.
After the Christmas holiday, we went back to
school but we didn’t wear armbands. What we did
was to wear black clothes every day for a long time,
I think until school ended for the year. We wore all
black because there was nothing they could do about
that, but it was still this statement. It was our way of
fighting back.
Freedom of Speech in Public Schools 151