On 30-year anniversary, Tinker participants look back at landmark case
One in a series of interviews with principals involved in First Amendment-related U.S. Supreme Court cases (see “SCT interview” keyword below).
When 15-year-old John Tinker, his sister, Mary Beth Tinker, 13, and Christopher Eckhardt, 16, wore black armbands to their Iowa public schools in December 1965 to protest the Vietnam conflict, they never imagined that their actions would lead to a landmark First Amendment decision.
But 30 years ago today, the U.S. Supreme Court handed down arguably the most important First Amendment decision yet for public school students — Tinker v. Des Moines Independent Comm. Sch. Dist., preserving the three students forever in First Amendment lore. The case established that public school students did not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gates.”
However, some free-speech experts — including the attorney who successfully argued the case before the U.S. Supreme Court — fear that public school students today are losing their free-speech rights.
Virtually every observer — legal and layperson alike — views Tinker as the high-water mark for student First Amendment rights. “It is the biggest First Amendment case for public schools and public school students ever,” Kevin O’Shea, publisher of First Amendment Rights in Education, said.
University of Northern Iowa history professor John W. Johnson, author of the 1997 book The Struggle for Student Rights: Tinker v. Des Moines and the 1960s, said the case was the “Roe v. Wade for public school students.”
Eckhardt, one of the three plaintiffs in Tinker, also considers the case to be of extreme importance.
“What George (Washington) and the boys did for white males in 1776, what Abraham Lincoln did to a certain extent during the time of the Civil War for African-American males, what the women’s suffrage movement in the 1920s did for women, the Tinker case did for children in America,” he told the First Amendment Center Online.
Armbands, suspensions, lower-court decisions
In early December 1965, a group of adults and students met at the Eckhardt home to discuss ways to convey anti-war sentiments. Several students, including the three who became litigants, decided to wear black armbands to school.
“We had two official reasons for wearing the armbands,” John Tinker told freedomforum.org. “First, we wanted to mourn the dead on both sides of the war. Secondly, we wanted to show support for Robert Kennedy’s call for a Christmas truce.”
School officials in Des Moines became aware of the students’ plans and on Dec. 14, 1965, passed a policy forbidding the wearing of armbands in school. If a student refused to remove an armband, he or she would be suspended.
A few days later, John Tinker and Eckhardt wore their armbands to their high schools and Mary Beth Tinker wore hers to her junior high. All three were suspended.
They challenged their suspensions in federal court, contending that school officials violated their First Amendment free-expression rights by punishing them for the conveyance of their beliefs. “The school board was trying to suppress and did suppress the expression of our ideas,” John Tinker said.
However, in 1966, a federal judge sided with school officials who argued that they had enacted the policy out of a reasonable fear that the anti-war armbands would create school disturbances. The next year, a full panel of the 8th U.S. Circuit Court of Appeals issued a split opinion, which meant that the federal district court’s opinion stood.
The only place left for the students to take their case was to the U.S. Supreme Court.
Dan Johnston, who represented the students, said he never thought the case would get to the Supreme Court.
“I thought it was an easy case and that we would win a long time before that in the federal district court,” Johnston said.
“The school board in my opinion did not have sufficient justification to suspend the students and we developed enough of a factual record that I thought we would win there,” he said.
Tinker agreed, saying that “I expected to win in the first court and the court of appeals.” Eckhardt said that “fortunately, looking back, we did lose at the lower court level, because if we had won there, this case could never have become such a landmark decision.”
Supreme Court justices side with students
“I knew at the time that the U.S. Supreme Court consisted of nine dudes in black robes who made decisions that affected the rest of the country,” Eckhardt said. “But never in my wildest dreams did I ever think we would end up in front of the Supreme Court.”
After attending oral arguments before the high court in 1968, however, Eckhardt said he knew that a majority of the justices would side with the students. “When I heard Justice Thurgood Marshall ask the question — ‘seven out of 18,000, and the school board was afraid that seven students wearing armbands would disrupt 18,000. Am I correct?’ — then I was confident we would prevail.”
And the students did prevail as the high court voted 7-2 that school district officials had violated the First Amendment rights of the three students suspended for wearing the black armbands.
In reaching its historic decision and reversing the lower courts, the high court noted that “the wearing of armbands in the circumstances of this case was entirely divorced from actually or potentially disruptive conduct by those participating in it” and was “closely akin to ‘pure speech.’”
The Court stressed that school officials needed more than an “undifferentiated fear or apprehension of disturbance … to overcome the right to freedom of expression.”
Justice Abe Fortas, author of the majority opinion, wrote: “Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says that we must take this risk; and our history says that it is this sort of hazardous freedom — this kind of openness — that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious society.”
Fortas determined that when balancing the right of school officials to control the learning environment and students’ right to freedom of expression, school officials could only restrict expression if they could reasonably forecast that the expression would create a “substantial disruption” or “material interference” with school activities or violate the rights of others.
The Court also noted that Des Moines school authorities did not ban the wearing of “all symbols of political or controversial significance” — including the Iron Cross.
Justices Hugo Black and John Harlan wrote dissenting opinions. Black warned that the court’s decision in Tinker would mark “the beginning of a new revolutionary era of permissiveness in this country fostered by the judiciary.”
Eckhardt said of Black’s warning of a “revolutionary era of permissiveness”: “Thank God it is more permissive — what is America if we don’t have freedom?”
“I wonder if Justice Black wasn’t being overly defensive because between the time we wore the armbands and the time of the court’s decision there was a marked increase in the number of student demonstrations, especially on college campuses throughout the country,” Tinker added.
Legal experts almost universally laud the case and the standard that developed from it — the so-called Tinker standard — when discussing the protection of student expression in schools.
“It really was — and is — the landmark student First Amendment case,” Mark Goodman, the executive director of the Student Press Law Center, said. “It set the stage for all First Amendment cases involving students.”
Goodman said that for at least 15 years it provided “ample protections” for students who ran afoul of school authorities for unpopular expression.
However, Goodman said that the Supreme Court began to “whittle away” at the protections granted in Tinker beginning with the 1986 decision Bethel Sch. Dist. No. 403 v. Fraser.
In Fraser, the high court ruled that school officials did not violate the First Amendment rights of Matthew Fraser when they suspended him for giving a speech containing sexual innuendo at a student assembly. Fraser’s speech was in support of a fellow student running for student government.
The Supreme Court distinguished the political speech of the Tinker students from what it termed the lewd and indecent speech of Fraser.
Many First Amendment experts believe that a more conservative Supreme Court went too far in limiting the Tinker standard not only in Fraser, but also in its 1988 decision Hazelwood School District v. Kuhlmeier.
In Hazelwood, the U.S. Supreme Court ruled that students’ First Amendment rights were not violated when a school principal censored two student articles on controversial topics: teen pregnancy and divorce.
The Court established the so-called Hazelwood standard, more deferential for educators, which provides: “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.”
O’Shea, who in addition to publishing also practices law, agreed with Goodman that the court had “chipped away at the sides” of Tinker but said this was to be somewhat expected. “It is only natural in the course of events that after a sweeping victory, which Tinker was for public school students, that the courts will set some limits,” he said. “Any decision of that nature will be limited somewhat.”
Tinker said that Fraser and Hazelwood didn’t bother him too much “because Fraser was not about pure political speech and the Hazelwood case involved a school newspaper — both are distinguishable.”
“The Supreme Court in Fraser, Hazelwood and the (1985) 4th Amendment case of New Jersey v. T.L.O. cut back on the freedoms given students in Tinker,” Professor Johnson said.
Joan Bertin, executive director of the National Coalition Against Censorship, agrees, saying that “the signals have certainly been in the direction of retrenchment.”
In fact, Dan Johnston, who now practices law in New York City, goes so far as to say that the current Supreme Court probably would decide Tinker differently than its predecessors.
“The real question now is whether the present-day Supreme Court would reach the same decision,” Johnston said. “I think the answer is probably not.”
Bertin agreed with Johnston’s assessment, saying that “the situation for high school students is grim as the current Supreme Court is not nearly as receptive to minors’ First Amendment rights as was the case in 1969.”
Some experts have suggested that any retrenchment has been partly the result of a different age with different issues. Johnson points out that in the late 1960s “students did not wear earrings, only the Beatles wore long hair and there were no gang symbols, body piercings and satanic symbols.”
“The issues today are a lot tougher,” he said.
Johnston said that Justice Black was partly correct when he warned of a more permissive age; “Schools are a lot freer than they were in those days.”
Legal experts say that today’s freedom came from Tinker. Goodman and others agree with Tinker and Eckhardt about the continued importance of the court’s 1969 decision. Goodman, for example, says that Tinker is “still very much vital law” and “not a day goes by” that he does not cite the case to some student who has been punished for engaging in non-school sponsored expression.
“The lasting legacy of Tinker — even though the knee-jerk reactions of many school officials resemble those of a pre-Tinker age — is that the burden is on school officials to reasonably show that student speech could very well be disruptive before they can censor,” O’Shea said.
Tinker and Eckhardt say the case leaves many lessons for today’s students and educators. “The continuing message of Tinker to all of us is that progress continues to be made.”
Eckhardt says he hopes the message young people take from the Tinker case is the “importance of nonviolence and nonviolent protest.”
Tinker says the case sends a message to educators about the importance of teaching democracy to young people. “If we intend to have a democracy, it is important that we teach democracy in the schools,” he said.
Both Tinker and Eckhardt stress that the ideals of democracy cannot be learned by students if constitutional rights to freedom of speech and expression must be left at the schoolhouse gate.