Timeline for Tinker v. Des Moines Independent Community School District:
Dec. 16-17, 1965: Several students in Des Moines, Iowa, wear black armbands to school
to protest the Vietnam War. They planned to wear them during the holiday season to
mourn those killed in the war and show support for a proposed Christmas truce. Two
days earlier, Dec. 14, school principals, who had heard of the plan, met to adopt a policy
requiring students to remove the armbands at school or face suspension until they agreed
to remove them before returning to school. Five students, who were aware of the policy,
wear the armbands and are suspended. Several incidents are reported that day, including
comments and warnings directed at the protesters by students, staff and teachers.
Dec. 21, 1965: The school board meets to discuss the armband policy, which had been
approved by the school principals but not the board. The board rejects a demand by the
Iowa ACLU to reinstate the suspended students. A decision on the policy is postponed.
Jan. 3, 1966: The school board votes to uphold the policy. Two students decide not to
take further action. Three students – Mary Beth Tinker, 13, John Tinker, 15, and
Christopher Eckhardt, 15 – return to school after New Year’s Day, when their planned
period for protest ended.
March 14, 1966: The fathers of the Tinkers and Eckhardt file a complaint in the U.S.
District Court of the Southern District of Iowa. The complaint is filed under Section 1983
of Title 42 in the United States Code, which allows lawsuits against state officials for
violations of “any rights, privileges or immunities” guaranteed by the U.S. Constitution.
The complaint seeks nominal damages and an injunction to stop school officials from
disciplining the students and enforcing the policy.
The plaintiffs argue that wearing the armbands is equivalent to speech and therefore
protected by the First and Fourteenth Amendments. The First Amendment protects free
speech, and the U.S. Supreme Court expanded that right to the states under the due
process clause of the Fourteenth Amendment. “No State shall deprive any person of life,
liberty or property without due process of law.” The justices have interpreted “liberty” as
meaning the basic rights guaranteed under the First Amendment.
Because it is a civil proceeding, the plaintiffs need only to prove by a fair preponderance
of evidence that they are right. Although the District Court recognizes that wearing the
armbands is protected under the First Amendment as free speech, it dismisses the
complaint. The court rules that the school board has a constitutional right to act to prevent
potential disruptions at school, despite a lack of any finding of substantial interference
with school activities.
1967: The plaintiffs appeal the ruling to the 8th U.S. Circuit Court of Appeals, which is
equally split and thus affirms the lower court’s ruling without issuing an opinion.
1968: The plaintiffs appeal to the U.S. Supreme Court, which agrees to hear the case.
Arguments are heard on Nov. 12.
Feb. 24, 1969: The U.S. Supreme Court, in a 7-2 decision, reverses the lower court,
ruling that the students’ wearing of armbands is protected under the First Amendment’s
right to free speech. Justice Abe Fortas writes for the majority with Justices Byron White
and Potter Stewart writing concurring opinions. Justices Hugo Black and John M. Harlan
write dissenting opinions.
Arguments for petitioners:
1) Wearing black armbands was a silent protest. They were not disruptive and did
not infringe on the rights of others. Under the circumstances, their protest is
protected under the First Amendment’s free speech clause and the Fourteenth
Amendment’s due process clause.
2) Teachers and students have First Amendment rights, subject to the special
circumstances of a school environment.
3) A prohibition on expression of opinion, under the First and Fourteenth
Amendments, is unconstitutional, without evidence that it is necessary to avoid
disturbing the school or infringing on the rights of others.
Arguments for school district:
1) The 10th Amendment gives states the power to regulate schools and take steps to
protect health, welfare and safety of students. School regulations are necessary to
maintain discipline.
2) The regulation barring armbands is necessary to maintain school discipline and prevent
any distractions from learning. The Vietnam War was controversial and divisive,
sparking protests, marches and draft-card burnings. A former student in the school district
had been killed in the war. His friends who were still in the district might have reacted
strongly to the armbands. There were rumors of counterprotests. School officials were the
best qualified to judge the situation.
The question boils down to students’ First Amendment rights conflicting with school
regulations.
Justice Abe Fortas, writing for the majority: “Neither students nor teachers shed
their constitutional rights to freedom of speech or expression at the schoolhouse
gate.”
The wearing of black armbands is symbolic speech, “closely akin to pure speech” and
unconnected to any potential or actual disruptive conduct by the protesters. There is no
evidence that the petitioners’ action disrupted school or infringed on others’ rights. The
court has repeatedly said pure speech is entitled to comprehensive protection under the
First Amendment.
Teachers and students maintain their First Amendment rights in school. The due
process clause of the Fourteenth Amendment prevents the state, and by extension, the
school board, from infringing on the liberties of teachers, staff and students. “In our
system, state-operated schools may not be enclaves of totalitarianism. School officials
do not possess absolute authority over their students. Students in school as well as out
of school are ‘persons’ under our Constitution.”
The District Court upheld the school board’s policy, saying it was reasonable based on
a fear of disruption. But fear of disruption is not enough to overcome the right to
freedom of expression. “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…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.”
The school board did not show that it had any reason to believe that the protest
would “materially and substantially interfere” with school discipline. It must prove
that something other than a desire to avoid unpleasantness is behind its policy.
The District Court made no such finding, and the justices found no evidence that
school officials had reason to expect problems. An official memo after the students’
suspension listing the reasons for the ban did not refer to any expectation of a
disturbance. The school board’s action seemingly was motivated by a desire to avoid
controversy because the Vietnam War was an incendiary issue.
School officials singled out the black armband in its policy. Students were allowed to
wear other political or controversial symbols, such as campaign buttons or the Iron
Cross, traditionally a symbol of Nazism. Banning one expression of opinion, without
evidence of substantial interference at school, is unconstitutional.
Part of the educational process is the free exchange of ideas inside and outside the
classroom, such as the hallways, cafeteria or playing fields. Students should be able to
express their opinions, even on controversial topics, as long as they do not infringe on
the rights of others or substantially disrupt the school.
Key cases cited:
Terminiello v. Chicago (1949): The U.S. Supreme Court finds that Chicago’s breachof-the-peace ordinance violated the First Amendment. Father Arthur Terminiello was
arrested after giving a vitriolic speech in which he criticized various political and racial
groups and condemned protesters, causing several disturbances in the crowd. The
justices held that speech could be restricted only when it was likely to cause a “clear
and present danger” that “rises far above public inconvenience, annoyance, or unrest.”
Justice William O. Douglas writes that “a function of free speech … is to invite
dispute.”
Meyer v. Nebraska (1923): The U.S. Supreme Court strikes down a Nebraska law
forbidding the teaching of foreign languages to grade school students with the goal of
promoting assimilation. The court says it violates the Fourteenth Amendment’s due
process clause by infringing on the liberties of parents, students and teachers. Justice
James McReynolds writes of repudiating the principle that a state conduct its schools
so as to “foster a homogeneous people.”
Keyishian v. Board of Regents (1967): The U.S. Supreme Court strikes down New
York state laws disqualifying teachers who were charged with treasonous words or
acts; barring anyone who advocated the violent overthrow of the government or
supported any organization that advocated that action from working in schools or the
civil service; making membership in any “subversive” organization such as the
Communist Party grounds for disqualification. Justice William Brennan writes for the
majority: “The vigilant protection of constitutional freedoms is nowhere more vital
than in the community of American schools. The classroom should be a “marketplace
of ideas.”
Burnside v. Byars (1966, Fifth Circuit): The wearing of symbols such as armbands
cannot be prohibited unless it “materially and substantially interferes[s] with the
requirements of appropriate discipline in the operation of the school.” In this case, the
ruling said high school authorities could not enforce a regulation barring students
from wearing “freedom buttons.”
Blackwell v. Issaquena County Board of Education (1966, Fifth Circuit): The court
refuses to prohibit enforcement of a similar regulation at another high school, where
students wearing freedom buttons harassed students who did not wear them and caused a
disturbance.
Hammond v. South Carolina State College (1967, District Court of South Carolina): In a
case involving an orderly meeting on campus of 300 students to express their views on
school practices, the judge says the school is a public place and students maintain their
constitutional rights there.
Dickey v. Alabama State Board of Education (1967, District Court of Middle
Alabama): The editor of a college paper printed “censored” in place of an editorial
criticizing the state legislature and governor that had been censored by the adviser
and president. He was suspended for “insubordination.” A U.S. District Court judge
ordered him reinstated, saying the rule against criticism of state officials was
“unreasonable.”
West Virginia v. Barnette (1943): The U.S. Supreme Court holds that requiring public
schoolchildren to salute the U.S. flag is unconstitutional. The court says school boards’
actions must fall within the limits of the Bill of Rights. “That they are educating the
young for citizenship is reason for scrupulous protection of Constitutional freedoms of
the individual.”
Justice Potter Stewart concurs with most of the ruling, but disagrees with the court’s
assumption that children have the same First Amendment rights as adults.
Key case cited:
Ginsberg v. New York (1968): The U.S. Supreme Court, in an obscenity case, says that
children do not have the same constitutional right as adults to access certain types of
sexually explicit material.
Justice Hugo Black’s dissent: “It is a myth to say that any person has a constitutional
right to say what he pleases, where he pleases, and when he pleases.”
No person has the right “to give speeches or engage in demonstrations where he
pleases, and when he pleases.” Although the petitioners did not actively disrupt
school discipline, their testimony indicated the armbands provoked comments and
criticism by students, staff and teachers. Also there was evidence that a math teacher
had his lesson nearly “wrecked” by disputes with Mary Beth Tinker. The protest was
a distraction for students, just as school officials had feared. Black writes:
“Uncontrolled and uncontrollable liberty is an enemy to domestic peace…. School
discipline, like parental discipline, is an integral and important part of training our
children to be good citizens – to be better citizens.”
Courts should not put themselves in the position of usurping the authority of elected
officials in charge of schools and deciding which regulations are reasonable. Iowa
officials should have the right to determine the extent of freedom of expression
allowed in their schools.
If students are allowed to defy school officials, it is the “beginning of a new revolutionary
age of permissiveness in this country,” Black writes. Students have not achieved the
maturity and wisdom to educate the public about their viewpoints; they are being sent to
school to learn, not teach.
Key cases cited:
Cox v. Louisiana (1965): The U.S. Supreme Court says rights to free speech and
assembly do not mean that anyone with an opinion or belief can express them “at any
public place and at any time.” In this case, the court struck down Louisiana breach-ofpeace laws as “unconstitutionally vague. The ruling affirms government’s
responsibility to regulate the use of public places when people exercise their right to
freedom of expression. The court says the government’s commitment to protecting
free speech and assembly must be balanced with its duty to maintain order.
Adderley v. Florida (1966): Protesters are convicted of “trespass with a malicious and
mischievous intent” when they refuse a police request to leave a nonpublic jail
driveway where they are protesting the racial segregation of jails. The U.S. Supreme
Court upholds the convictions because the sheriff acted to maintain access to the jail,
not because of objections to the content of the protest. The court says the state has the
power to control its property for lawful, nondiscriminatory purposes.
Waugh v. Mississippi University (1915): The U.S. Supreme Court upholds the state of
Mississippi’s constitutional right to curtail the First Amendment’s right to peaceable
assembly. The state had passed a law barring students from assembly in Greek
fraternities and expelling students who joined them. The court said the state, which
established and controlled the school, could decide that membership in such groups
distracted from the school’s mission of education