Student litigants reflect on Tinker case

Friday, September 21, 2012

KANSAS CITY, Mo. — “Kids do better when their rights are respected,” Mary Beth Tinker told an audience of students, educators, scholars and others at a student-speech symposium at the University of Missouri-Kansas City Law School yesterday.

She, John Tinker and Christopher Eckhardt reflected on the famous case they won before the U.S. Supreme Court — Tinker et al. v. Des Moines Independent Community School District (1969) — at the “Gathering at the Schoolhouse Gate” symposium.

The title of the event comes from oft-cited language from Justice Abe Fortas’ majority opinion in Tinker: “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 Court ruled that public school officials in Des Moines, Iowa, violated the students’ First Amendment rights when they punished them for wearing black peace armbands to school to protest the war in Vietnam.

“The black armband was a traditional symbol of mourning,” John Tinker said.

Dan Johnston, the attorney who successfully represented the three students years ago, also spoke on the panel. “These kids were so courageous,” Johnston told the audience, emphasizing that he was afraid that violence might befall the students for having the courage to stand up for their pacifist beliefs.

Eckhardt — who joked that he was the “et al.” in the case — said their political speech in wearing the armbands was unpopular to many other students. “You have to remember that in 1965 it was a time in Iowa that if you questioned the war, you were considered not patriotic.”

Johnston also recalled how the school officials had selectively targeted the symbol of the black armband, while allowing other students to wear other symbols, such as Iron Crosses. “I felt all along that we would win the case,” Johnston recalled — even after his clients lost in the lower federal courts. “The school officials’ actions showed the futility of banning a particular symbol.”

All four participants acknowledged that the Tinker precedent remains a significant force in student-speech law. John Tinker pointed out that it remains a great First Amendment victory even though some later decisions have created some exceptions.

Mary Beth Tinker said that one lesson that students could take from the case is “do what you really believe in … history changes.”

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