|John and Mary Beth Tinker in their black arm bands with their supportive activist mom.|
Note: I let the anniversary of this historic court case slip by a couple of days ago. Worthy of a somewhat tardy notice.
In December of 1965 as the Vietnam War continued to escalate three students plotted a silent protest—they would wear black arm bands with a small peace symbol on them at their Des Moines, Iowa public schools to mourn the dead and support Senator Robert F. Kennedy’s call for a Christmas truce. 15 year old John F. Tinker and his 16 year old friend Christopher Eckhardt planned to wear theirs at their high school and 13 year old Mary Beth Tinker at her junior high.
The Tinkers came from a locally notorious family. Their father the Rev. Leonard Tinker had lost his local Methodist pulpit after publicly complaining about a Whites only policy at the public swimming pool. The kids had joined their mother picketing a local drug store that refused to hire Negros. An older sister took the prize money she won in an NAACP essay contest on What the Emancipation Proclamation Means to Me to finance her trip to participate in the 1963 March on Washington for Jobs and Freedom with the Rev. Martin Luther King, Jr. In August of 1964 the parents went to Mississippi to volunteer with the Student Nonviolent Coordinating Committee (SNCC) Mississippi Freedom Summer.
The kids at home in Des Moines closely followed all of the dramatic, and often bloody, developments in the Civil Rights movement in the South. They took note of a case in which a group of public school students at an all-black school in Philadelphia, Mississippi wore buttons reading One Man, One Vote SNCC to school to protest racial segregation in the state. They were suspended and the case, supported by the American Civil Liberties Union was working its way through the courts.
The example inspired the kids to their own anti-war protest.
The principals at the two schools got word of the protest and rushed to adopt new rules that students wearing an armband would be asked to remove it immediately and would be summarily suspended for refusing to do so. Protestors would only be re-admitted to classes after formally agreeing to abide by the rule.
The day after the rule was announced on December 14 Mary Beth Tinker and Christopher Eckhardt violated the policy, and were joined the next day John Tinker. All were suspended.
The case caused a local uproar and the national news media picked up on the story.
In fact the suspensions lasted only a few days. The protest had only been planned up to Christmas break because it was tied to Kennedy’s truce plan. All were allowed to resume classes in January without having to agree to the policy.
But the uproar caused by this act of civil disobedience in the exercise of free speech did not die down. The ACLU stepped up and offered to handle a suit by the Tinker and Eckhardt families.
The case became known as Tinker v. Des Moines Independent Community School District. The local Federal District Court upheld the School Board’s action. The appeal to the U.S. Court of Appeals for the 8th Circuit resulted in a tie vote, leaving the rule in place. The ACLU and families appealed to the Supreme Court.
Meanwhile other cases involving school free speech issues were also winding their way through the appeals process and Appeals courts had issued conflicting rulings. Among those cases was that of the Philadelphia, Mississippi students known as Burnside v. Byars. The Supreme Court agreed to hear the Tinker case, letting it stand for the others.
Earlier decisions including West Virginia State Board of Education v. Barnette, a case involving mandatory salute to the Flag and recitation of the Pledge of Allegiance, had already established the students did enjoy some Constitutional protections. But conflicting appeals court rulings left it unclear if those protections extended to free speech, especially symbolic speech.
The case was argued on November 15, 1967. A divided court issued a decision in favor of the plaintiffs on February 24, 1969. Reliable liberal Abe Fortas wrote the opinion for the 7 member majority:
It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate….[regulating speech was] based upon an urgent wish to avoid the controversy which might result from the expression, even by the silent symbol of armbands, of opposition to this Nation’s part in the conflagration in Vietnam….[to justify censoring speech schools must] be able to show that [their] action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint…[but would continue to allow schools to forbid conduct that would] materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.
The majority held that the students conduct had not risen to a level of disruption as to abrogate their speech rights.
Justices Hugo Black and John M. Harlan II dissented. Black was bitter and blistering in his opinion:
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…[the Tinkers’ behavior was indeed disruptive] I repeat that if the time has come when pupils of state-supported schools, kindergartens, grammar schools, or high schools, can defy and flout orders of school officials to keep their minds on their own schoolwork, it is the beginning of a new revolutionary era of permissiveness in this country fostered by the judiciary.
The later quote would become a treasured mantra of a right wing increasingly enraged by so called liberal judicial activism.
Tinker v. Des Moines Independent Community School District has stood the test of time and is frequently cited in judicial opinions. Although it remains mostly in force, some cases have chipped away at was once considered absolute speech rights. Courts have found that obscene speech can be regulated on the basis of indecency similar to the community standards approach to pornography. Cases have limited permissible speech in school sponsored student newspapers in which there is no promise of “a public forum.” And have OKed rules banning the promotion of illegal drugs.
Still the Post-Warren court has drifted ever more conservative and opponents of judicial activism now have an operational majority on most issues. The modern court has shown itself to be reflexively deferential to authority—at least when authority is not wielded by liberal Democrats. The natural inclination of the court is to restrict free speech and protest unless it is by the wealthy and powerful. Given that, it possible that the court would be amenable to further weakening of the Tinker decision.
But they have a problem. The many cases arising each year from over-reaching School restrictions no longer are confined to perpetually dissatisfied lefties, commies, faggots and bull dykes, dangerous Black thugs and illegal aliens which the court might ache to uphold. Increasingly appeals are being brought by “persecuted” Evangelical Christians—Second Amendment enthusiasts, anti-Gay crusaders, White Rights groups.
Cases winding their way to the Court include the right to openly wear Crosses and Crucifixes, T-shirts emblazoned with guns and Second Amendment wording, student led spontaneous prayer, verbal attacks on the homosexual agenda, and similar issues.
The Supreme Court may soon be caught between a rock and a hard place—how to limit the dissent of those it despises without goring their own pet oxen.
As for the Tinker children. Well they grew up committed to the good fight. Mary Beth Tinker is a registered nurse and education activist. She is traveling across the U.S. to promote youth activism with the Tinker Tour sponsored by the Student Press Law Center (SPLC.) Way to go, Mary Beth!