Formulating a Legal Question
The Case of Tinker v. Des Moines
(1969)
Facts of the Case
• Students at public schools in Des Moines,
Iowa, wore black arm bands to school to
protest the Vietnam War. When ordered to
remove the arms bands, they refused, were
suspended from school, and challenged
their suspension in court as a violation of
free speech rights. In 1969 the U.S.
Supreme Court upheld the student's
challenge.
Formulating the Legal
Question
Formulating the legal question in a
case is as much art as science. The
art is finding the proper balance
between too specific (fact bound) and
too general.
Examples of Poorly
Formulated Questions
•Too Specific
•Too General
Too Specific
• “Did the Des Moines School District violate the
students’ rights?”
• The formulation of the question is fact-bound. It
applies only to this case.
• The answer is to the question is “yes,” but notice
that answering the question decides the case
without establishing any legal precedent or
principle. Answering “yes” to this question only
establishes that Des Moines loses and the students
win.
Too General
• “May symbolic speech be punished?”
• The formulation of the question insufficiently
specific and would apply to many other cases with
very different material facts.
• In the context of the Tinker case, the answer to the
question is “no,” but it would be insane to interpret
the court’s decision in Tinker to mean that
symbolic speech can never be punished. What if
the students had expressed their outrage over the
war by burning their school?
Neither too specific nor too
general
A good statement of the question has
to include the material facts at an
appropriate level of generality.
Are these facts material?
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the setting is a public school
the school is located in Iowa
those expressing their opinions are students
the arm bands were black
the expression was not disruptive
How about these?
• the students were Quakers
• the students’ older sister was a college classmate
of Craig Allin
• other symbolic expressions of opinion had been
allowed
Material facts plus
Constitution
Combining the material facts with the
specific portions of the Constitution
alleged to be infringed we can state a
question that is neither too specific
nor too general.
A Well Formulated Question
• “May public school officials, consistent with the
freedom of speech guaranteed by the 1st and 14th
amendments, prohibit the symbolic expression by
students of one particular opinion without evidence
that such prohibition is necessary to avoid material and
substantial interference with school work or
discipline?” (No.)
“But, how can I?”
“How,” I hear you cry, “can I, a mere
mortal without so much as a bachelor's
degree, conjure up a question with all the
artistry and precision exemplified in your
most excellent example?”
Here’s How!
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1 - Find the holding.
2 - Convert it to a question.
3 - Include material facts.
4 - Include Constitutional provisions.
5 - Fine tune for readability.
1 - Find the holding
• The holding is the court's answer to the
Constitutional question in the context of
particular material facts.
• You can convert the holding into a
question.
The holding from Tinker
• “The prohibition of expression of one
particular opinion, at least without
evidence that it is necessary to avoid
material and substantial interference
with schoolwork or discipline, is not
constitutionally permissible.”
2 - Convert it to a question
• “Is it constitutionally permissible to
prohibit expression of one particular
opinion when there is no evidence that it
is necessary to avoid material and
substantial interference with schoolwork
or discipline?”
3 - Include material facts
• “Is it constitutionally permissible for
public school officials to prohibit
expression by students of one particular
opinion when there is no evidence that it
is necessary to avoid material and
substantial interference with schoolwork
or discipline?”
4 - Include Constitutional provisions
• “Is it permissible under the 1st and 14th
Amendments for public school officials to
prohibit expression by students of one
particular opinion without evidence that
it is necessary to avoid material and
substantial interference with schoolwork
or discipline?”
5 - Fine tune for readability
• “May public school officials, consistent with the
freedom of speech guaranteed by the 1st and
14th amendments, prohibit the symbolic
expression by students of one particular
opinion without evidence that such prohibition
is necessary to avoid material and substantial
interference with school work or discipline?”
(No.)
Caveat
• Some court decisions are a lot harder to
analyze than this one.
• Sorry!