|Protests by Marjorie Stoneman Douglas High School students in Parkland, Florida and their youthful supporters around the country have been an inspiration.|
In the past week we have witnessed the daring, inspired, and courageous leadership by the survivors of the mass murder at Marjorie Stoneman Douglas High School in Parkland, Florida and other teens in schools across the country. They have been game changers and may have effectively smashed the national deadlock over rational gun policy. Naturally, there has been pushback especially by the National Rifle Association (NRA) which has been thrown into a panic about this punk challenge to their total power to block any action through their purchase of the Republican Party. Podium insults and attacks were expected. And so were the orchestrated smears, harassment, and death threats directed at the young people, their families, and supporters.
Already there have been spontaneous student walk outs at schools across the nation and two national actions are in the works—a March 24 event being organized by the Parkland students and another on April 20, the anniversary of the Columbine Shooting that was already in the works organized by other student groups. Officials in a suburban Texas school district—an area where gun worship is at its most intense and reactionary authoritarianism if the default setting—have threatened mass suspension of students who participate in a planned action. Administrators in other districts have issued similar threats. Right wing state legislators and other politicos have urged even more draconian action including the use of the full range of police force up to and including immunity from causing the death of any “disruptor or rioter.”
|Students also put it on the line--and often risked more violent police repression--in the Black Lives Matter Movement.|
We are also reminded that the current wave of anti-gun activism is not as unique as the national media seems to think. Over the past three years students and youth were at the forefront of the Black Live Matter movement. And their walk-outs, sit-ins, and various forms of symbolic speech like wearing t-shirts were often met by punishment by school authorities to say nothing of attacks by police and arrests on and off campus.
Walkouts and demonstrations by Dreamers, their supporters, and immigration reform activists met similar responses.
There has been some effort to divide these young people and even turn them against each other based on the lavish attention the largely white Parkland students have received in the media. Some of this comes from the Left, which has decried the dearth of coverage that the minority led protests generated. But the Right, including the NRA spokeswoman Dana Loesch and the shadowy world of social media trolls have been quick to pounce to sow discord.
Today’s young people are not the first to take on authority in a fight for justice. A look back almost 50 years to an Iowa protest that set legal precedents that are painfully relevant again is more than just a little instructive. It all came down to a Supreme Court Decision handed down on February 24, 1969.
|Mary Beth and John Tinker display the arm bands that got them suspended from their Des Moines, Iowa schools in a1965 Vietnam War protest.|
They were rebel kids of rebel parents who refused to sit down and shut up. At tender ages they were already steeped in the Civil Rights Movement and growing opposition to the Vietnam War and were fully aware of the sacrifices and risks of speaking out. They did it anyway.
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.
|Reliably liberal Justice Abe Fortas wrote the rining 7-2 majority opinion that enshrined the free speech rights of public school students.|
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.
|Hugo Black was the former Alabama Senator and a one-time Ku Klux Klan member who became famous on the Supreme Court for his support of Civil Rights. But he was scathing and bitter in his dissent in the Tinker case.|
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 last phrase 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 the theoretical 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 is 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 that have wound their way to the Court in recent years include the right to 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.
|Mary Beth and John Tinker celebrating the anniversary of their landmark case. Both are still activists.|
As for the Tinker children. Well they grew up committed to the good fight. Mary Beth Tinker is a registered nurse and education activist. In 2014 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!