Do Students Have Free Speech in School? | Tinker v. Des Moines Independent Community School District

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In episode 29 of Supreme Court Briefs, students protest the Vietnam War by wearing armbands to school. After some of them get suspended for doing so, the families sue the school district, arguing the students' First Amendment rights were violated.

Check out cool primary sources here:
https://www.oyez.org/cases/1968/21
https://www.aclu.org/other/tinker-v-d...
https://en.wikipedia.org/wiki/Tinker_...
https://constitutioncenter.org/blog/t...
http://time.com/5171160/gun-control-s...
https://www.desmoinesregister.com/sto...
http://www.sacbee.com/news/state/cali...

Photo credits:
Amalex5
Rhododendrites
WestportWiki
Andrew Imanaka

Sound credits:
Mike Koening

15-year old John Tinker, his 13-year old sister Mary Beth Tinker, his 11-year old sister Hope Tinker, and his 8-year old brother Paul Tinker, along with his friend 16-year old Christopher Eckhardt, wear black armbands to school as a way to protest the ongoing Vietnam War.

The principals of the schools all told their students they couldn’t wear these armbands or they would be punished. Well, they wore them anyway. The principals suspended John, Mary Beth, and Christopher, saying they couldn’t come back to school unless they came not wearing the armbands. The students would not return to school until January, but in protest worse black clothing every day for the rest of the school year.

Meanwhile, after the suspension of the students made the front page of The Des Moines Register, the Iowa Civil Liberties Union approached the Tinkers and said “hey, uh, the school district can’t do that. You should sue them. We will help you.” Actually, the ACLU, or American Civil Liberties Union, stepped in to help the Tinker family and Eckhardt sue the Des Moines Independent Community School District, arguing that the First Amendment protected the students’ right to protest at school. Obviously, the kids couldn’t sue, so their dads were the ones who filed suit.

The U.S. District Court for the Southern District of Iowa upheld the prohibition of armbands. While it acknowledged the students had the right to protest under the First Amendment, their concern was that a school would have a hard time keeping an orderly environment where students could learn stuff if protests like this were going on. The Tinkers and Eckhardts appealed to the U.S. Court of Appeals for the Eighth Circuit, but that court was evenly divided, so they appealed directly to the Supreme Court, who heard arguments on November 12, 1968.

So West Virginia State Board of Education v. Barnette had already said students had constitutional protections at school, but this case dealt specifically with free speech rights. Dan Johnston, the lawyer for the students, said the district had previously let other kinds of political speech occur and that it didn’t disrupt learning at school. Allan Herrick, the lawyer for the district, said the district should be allowed to limit speech if it seems like it could lead to “violence, disorder, and disruption.”

That didn’t convince the Court, though. On February 24, 1969, it announced it had sided with Tinker and company. It was 7-2. The Court argued the armbands symbolized pure speech that was completely separate from any actions of those wearing them. The Court also argued that just because they were students on school property didn’t mean they lost their First Amendment right of freedom of speech. Justice Abe Fortas wrote, "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate"
Justice Hugo Black wrote a dissent saying that the armbands did, in fact, disrupt school activities, and later Supreme Court cases like Bethel School District v. Fraser and Morse v. Frederick would seem to favor his perspective with this case.

Regardless, Tinker v. Des Moines Independent Community School District has been a hugely influential and frequently cited case regarding First Amendment rights for students. It created the Tinker Test, or a way to see if student speech is actually disruptive at school. It weakened the legal idea that the school takes the place of the parent while the student is in attendance. You could even say the Tinker decision paved the way for the recent National School Walkout that took place in schools across the country.