Sarah Tillery

February 26, 2010

AP Government E Block

Tinker Et Al. v. Des Moines Independent Community School District Et Al.

1965 was a turbulent year for the United States of America. In the midst of the Cold War and Civil Rights movement, the people were beginning to distrust their government and learn a valuable lesson in dissent. From Equal Rights activists to Anti-War protesters, many American citizens were finding new ways to get their opinions heard by the government, many through non-violent protest, following the leads of such great leaders as Martin Luther King, Jr. and Gandhi. Young people especially were influenced by such leaders and activists, and sought to get their voices heard as well. John Tinker and his friend, Christopher Eckhardt were no different. Along with other students and adults, they met at the Eckhardt house to discuss ways in which they could peacefully protest the war in Vietnam and show their support for the Christmas Truce. The students decided to wear black armbands for a duration ending on January 1, 1966. There was no picketing involved or petitioning, the point of the armbands was simply to show their support and raise awareness to the issue of American involvement in the Vietnam War.

However, soon school administrators got word of this new trend, and the School District created a new rule stating: any student wearing one of these armbands to school would be asked to leave the premises and should they refuse to comply, they would be sent home and suspended from school until they did. Mary Beth Tinker, John’s little sister, his younger brother, an eight year old, and Christopher Eckhardt were the first students out of seven to be suspended for wearing the arm bands, and then John was suspended for wearing his the next day. After the duration of their protest, they were permitted back at school. John Tinker and Christopher Eckhardt’s fathers soon sued to school for a breach in the students’ constitutional rights. The District Court sided with the School District, stating the school had every right to maintain order and cease disruptions during school hours. The fathers filed for an appeal, the Appeal Court resulted in a tie and then the two fathers appealed to the Supreme Court. The Justices at the time were Justice Abe Fortas, who wrote for the majority opinion, Chief Justice Earl Warren, and Justices William O. Douglas, William J. Brennan, Jr., Byron White, Thurgood Marshall for the majority. As well as Justices Hugo Black and John M. Harlan II, who presented dissent, and Justice Potter Stewart. The question behind the case that interested the Supreme Court enough to take it was whether or not the armbands and wearing something symbolically was protected under the First Amendment of the Constitution. Justice Fortas argued that it was, so long as it was not disruptive to the continuing everyday of the classrooms and school, saying: “It was closely akin to "pure speech" which, we have repeatedly held, is entitled to comprehensive protection under the First Amendment.”[1] The main issue of the case is when does Freedom of Speech collide with the need to maintain order in an environment such as a school.

Justice Fortas says that it has been the precedent of the Supreme Court for fifty years to believe that the rights of American citizens are not abandoned when one enters into a school, citing many previous court cases dealing with similar issues such as Meyer v. Nebraska, (1923), and Bartels v. Iowa, (1923),[2] which specifically dealt with cases where students were not allowed to be taught a foreign language in school. The protection of pure speech had also been precedent by this time on account of the Thornhill v. Alabama (1940)[3] case in which the Court ruled that picketing, like the armbands the students wore, were examples of symbolic speech and were protected under the First Amendment. However, had the armbands interrupted class time or disrupted the order of the school, the Constitution would not have protected it. Justice Fortas wrote regarding this issue that: “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. …. There is no indication that the work of the schools or any class was disrupted. Outside the classrooms, a few students made hostile remarks to the children wearing armbands, but there were no threats or acts of violence on school premises.”[4]

Despite issues regarding ‘pure speech’ and the first amendment, the case also called into question how the armbands were being treated through the fourteenth amendment. The rule brought to the school specifically stated that any student wearing these armbands were to be asked to leave, but Justice Fortas notes that other students were permitted to wear other articles representing political or religious beliefs without punishment: “The record shows that students in some of the schools wore buttons relating to national political campaigns, and some even wore the Iron Cross, traditionally a symbol of Nazism. The order prohibiting the wearing of armbands did not extend to these.”[5] By singling out the one particular opinion of few to discriminate against, Justice Fortas felt that the school was violating the Fourteenth Amendment rights given to all, and thus their actions were not constitutionally permissible on two accounts: the disruption of freedom of speech, and the discrimination of one group of people based on their political beliefs.

Writing in dissent, Justice Black stated though the constitution does protect ‘pure speech’ there is a time and place for everything and that school grounds are not the place to present your political opinions or protest: “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.”[6] Justice Black believed that the wearing of the armbands was inappropriate for school grounds and that the punishment was justified because the school had a right to maintain order and that it was not violating any rights if it was done for this reason. While Justice Fortas stated that the armbands never provoked any straying in discipline, Justice Black notes that “detailed testimony by some of them shows their armbands caused comments, warnings by other students, the poking of fun at them… 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.’ … the record shows that this armband did divert students' minds from their regular lessons, and that talk, comments, etc., made John Tinker ‘self-conscious’ in attending school with his armband.”[7] Justice Black notes that while there was a general lacking in outright and prominent disorder in the classroom which would lead other members of the court to believe that nothing of significance detracted from the running of the school, clearly from the record, there was some disturbance caused by the armbands, enough in Justice Black’s opinion, that they could not be protected under the Constitution as ‘pure speech.’

Despite the efforts of Justice Black, the Supreme Court came to a decision in favor of the Tinker students, ruling that the First Amendment and the Fourteenth Amendment do not allow the school to punish students for representing their beliefs and opinions by wearing a black armband, especially if the armbands were not disruptive to the everyday school life. Justice Black wrote that the ramifications of this decision would bring about an “era of permissiveness”[8] that would detract from the discipline of young people. He believed that by allowing them to disregard disciplinary rules for maintaining order in school, such as wearing the armbands when they were expressly told not to, would create spoiled children, writing: “It may be that the Nation has outworn the old-fashioned slogan that "children are to be seen not heard," but one may, I hope, be permitted to harbor the thought that taxpayers send children to school on the premise that at their age they need to learn, not teach.”[9] However, instead the case has acted as precedent for similar cases ever since, some more deserving than others. Such is the case with Bethel School District v. Fraser, in which a student sued for being suspended for giving an inappropriate speech at a school meeting. In this regard, it is possible to see Justice Black’s prediction for what would occur on account of the Court’s decision. However in other cases, it has served well as precedent for maintaining the rights of students everywhere.

In my personal opinion, it was the right decision to make. Despite the record showing that there were minor conversations and confrontations regarding the armbands outside of the classroom, other students were permitted to wear politically based accessories without punishment, then the Tinker children and Christopher Eckhardt had every right to wear theirs. There was no preaching or protesting on account of the armbands, they were simply worn as another article of clothing to raise awareness, much like Livestrong bracelets and other such items are worn today. In regards to the Bethel School District v. Fraser case, the Tinker’s situation is much more deserving because it was an actual issue. It was students peacefully presenting their opinion and raising awareness for a prominent issue at the time, whereas Fraser simply was trying to get a laugh with inappropriate language. It’s a fuzzy line where ‘pure speech’ and thoughtless and inappropriate speech are distinguished, but the Supreme Court has ruled to protect all speech, so long as it does not disrupt the flow of order, no matter how insignificant or silly, and that is a right that all free people must be grateful to have.