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Case
Summary: Tinker v. Des Moines Independent Community School District
The Bill of Rights was adopted in 1791. But the First Amendment
wouldn’t be applied to school newspapers until nearly two centuries
later.
It was in 1969 that the U. S. Supreme Court decided the first of
two cases that have come to represent the issue of free speech and
First Amendment protection for student journalists: Tinker
v. Des Moines Independent Community School District. The
second case, Hazelwood
School District v. Kuhlmeier, was decided in 1988.
The Supreme Court first gave a specific standard for protection
of students’ First Amendment rights in the Tinker case. This
grand protector of student press rights didn’t involve a student
newspaper at all. It dealt instead with high school and junior high
school students from Des Moines, Iowa, who wore black armbands to
school in protest of the United States’ involvement in Vietnam.
Still, the Supreme Court’s decision in Tinker set the legal
standard for student free expression rights in newspapers, yearbooks
and other publications for the next 19 years.
The Tinker Tale
Tinker began on a snowy Saturday, Dec. 11, 1965. A large group
of students met at the home of Christopher Eckhardt in Des Moines,
Iowa, to make plans for a school protest against the Vietnam War.
After long discussion, they decided to wear black armbands to school
on Thursday, Dec. 16, and to continue wearing them until New Year’s
Day, 1966.
On Dec. 14, the principals of the Des Moines school system, having
learned of the students’ plan to wear armbands, adopted a policy
that all students wearing armbands to school would be asked to remove
them. If they refused, they would be suspended until they were willing
to return without the armbands.
Most of the original group of students who had planned to protest
backed out when they realized their records and their chances for
college entrance and scholarships might be threatened.
On Dec. 16, Christopher Eckhardt, 16, a student at Theodore Roosevelt
High, and 13-year-old Mary Beth Tinker, a student at Warren Harding
Junior High and family friend, wore their home-made black armbands,
complete with peace signs, to school. Mary Beth’s 15-year-old brother,
John, wore his the following day to North High School. More than
two dozen students wore black armbands on Dec. 16 and 17 in Des
Moines high, middle and elementary schools.
“Ultimately, only five Des Moines secondary-school students were
singled out for discipline for wearing armbands in December 1965:
Christopher Eckhardt, John and Mary Beth Tinker, Roosevelt sophomore
Christine Singer, and Roosevelt senior Bruce Clark,” according to
John Johnson in The Struggle for Student Rights.
More than two decades later, Christopher Eckhardt remembers what
happened as if it were yesterday. “I wore the black armband over
a camel-colored jacket.” There were threats in the hallway. “The
captain of the football team attempted to rip it off. I turned myself
in to the principal’s office, where the vice principal asked if
I ‘wanted a busted nose.’ He said the seniors wouldn’t like the
armband. Tears welled up in my eyes because I was afraid of violence.
“He called my mom to get her to ask me to take the armband off.”
Christopher’s parents were peace activists; his mother refused.
“Then he called a school counselor in. The counselor asked if I
wanted to go to college, and said that colleges didn’t accept protesters.
She said I would probably need to look for a new high school if
I didn’t take the armband off.
“The year before, they allowed everyone to wear black armbands
to mourn the death of school spirit . . . but on Dec. 15 the gym
coaches said that anyone wearing armbands the next day had better
not come to gym class because they’d be considered communist sympathizers.
“My former subversive activities had included being president of
the student council in elementary and junior high school, membership
in the Boy Scouts, listing on the honor roll, delivering The
Des Moines Register and shoveling snow for neighbors.”
Mary
Beth Tinker
Unlike her friend Christopher, Mary Beth Tinker remembers
very little about the events of 1965 and the court cases that followed,
although she thinks she attended all three court hearings.
“I think I’ve blocked a lot of it out. I didn’t realize the significance
of the case for years,” she says. “I had just moved to St. Louis
when the decision was announced in 1969. I was a high school junior,
and I just wanted to fit in, blend in with the crowd. Suddenly,
Newsweek and Time were descending on the school, wanting
to take pictures of me.
Plus we’d gotten a lot of threats [in 1965]. A man who had a radio
talk show threatened my father on the air. Red paint was thrown
on our house. A woman called on the phone, asked for me by name,
and then said, ‘I’m going to kill you!’
“I realized how hateful, how irrational people could be. Subconsciously
there was a part of me that withdrew. I got a little bit protective
of myself and our family.”
Winding
Through The Courts
A school board meeting was held on December 21, 1965,
with 200 in attendance. The armband ban had originated from a unanimous
vote of Des Moines high school principals, not the school board.
The board meeting was a lively exchange of different viewpoints.
The meeting ended in a vote to postpone a decision. The Des Moines
Register on Dec. 22 and The New York Times on Dec. 23
carried articles about the armband controversy. At the Jan. 3 meeting,
the school board voted 5-2 to uphold the administrative ban.
Christine and Bruce decided to take no further action. Christopher
Eckhardt, John and Mary Beth Tinker returned to school without armbands,
but each wore black clothing. On March 14, Dan Johnston of the Iowa
Civil Liberties Union filed a formal complaint on behalf of Chris,
John, Mary Beth and their fathers as “next friends” in the U. S.
District Court of the Southern District of Iowa.
They claimed that by suspending them, their schools had infringed
on their First Amendment right to free expression. After an evidentiary
hearing, the District Court dismissed the complaint, upholding the
constitutionality of the schools’ actions, saying that they presented
a disturbance of school discipline.
The case went to the U. S. Court of Appeals for the 8th Circuit,
where the judges were split and so the District Court’s ruling stood.
It finally reached the Supreme Court in Nov. 12, 1968.
On Feb. 24, 1969, the Supreme Court ruled that the Des Moines schools
violated the First Amendment rights of the students by suspending
them for wearing armbands. But the Court did not say that the schools
could never control freedom of expression. It said students are
entitled to some First Amendment rights but not necessarily all
the First Amendment rights that others would have outside the school
context.
The key: “Material and substantial disruption of school activities
or invasion of the rights of other students” must be proved if student
expression is to be controlled. School officials could censor only
when they could show that the expression would disrupt the school
environment or invade the rights of other students.
The Supreme Court said this standard had not been met — that by
suspending the students for refusing to remove the armbands, the
school violated the students’ right to free speech. The Court also
held that the act of wearing black armbands was “closely akin to
‘pure speech’ ” and, as such, was protected by the First Amendment.
A
Reflection Of The Times
Justice Abe Fortas, writing for the majority in Tinker vs. Des
Moines Independent Community School District, declared, “Neither
students nor teachers shed their constitutional rights to freedom
of speech or expression at the schoolhouse gate” — thus asserting
that students are persons under the Constitution and that states
would have to respect their rights in the same way they would citizens
in other contexts. This idea became the guiding principle for student
free expression rights.
The Tinker decision was embraced by First Amendment advocates,
but others feared that giving students greater First Amendment rights
was setting a dangerous precedent. This concern was particularly
relevant in the late 1960s and early 1970s, when student activism
and free expression were at their peak.
“Tinker came out of the Vietnam era, which was a time of
great social ferment,” says Paul McMasters, ombudsman of the First
Amendment Center. “It was all right to question authority and to
protest and to state your beliefs loudly and clearly, which is what
the students in Des Moines did.”
Despite the prevailing climate of free expression in the 1960s,
Tinker was the first Supreme Court ruling that specifically
provided protection for students’ First Amendment rights.
“Within a year of the decision we saw dress codes relaxed, hair
codes relaxed,” says Christopher Eckhardt. “Justice Black was correct
in his dissent when he said the decision would usher in a new era
of permissiveness.”
School press reformers were able to use the Tinker decision
to bolster high school journalism. Many faculty advisers interpreted
Tinker as a blueprint for keeping school administrators away from
school newspapers. Under the Tinker ruling, the advisers
believed, students could be prevented from publishing articles in
a school newspaper only if the articles were libelous, obscene or
“materially and substantially interfered with the requirements of
appropriate discipline in the operation of the school.”
Questions
For Discussion
- When or under what circumstances is wearing an armband protected
speech?
- Under what
circumstances may student speech be limited in school according
to the Tinker standard?
- What other forms of student speech in school are protected under
the Tinker decision?
- Are there any forms of student protest on school grounds that
are not protected under the Tinker decision?
- Why is protecting
the expression of controversial views important? Why do we tolerate
hurtful or unpopular expression?
- Are the
desires of parents and administrators for a safe school environment,
an academic environment and positive public relations necessarily
in conflict with an active, unencumbered student media?
Points
To Assist Discussion
- When or under what circumstances is wearing an armband protected
speech?
The armband is considered “symbolic” speech rather than “pure”
speech. Whether as an expression of mourning or protest, the black
armband has been used for many years. Justice Abe Fortas wrote
the opinion of the Supreme Court. In it he stated that the wearing
of black armbands was correctly classified as a “type of symbolic
act that is within the Free Speech Clause of the First Amendment.”
-
Under what circumstances may student speech be limited in
school according to the Tinker standard?
Speech that is libelous or invades privacy is not protected.
Speech that will materially and substantially disrupt school
activities may be controlled. The First Amendment only prohibits
government officials from suppressing speech; it does not prevent
school censorship at private schools. A state constitution,
statute or school policy could provide private school students
with free speech protections.
- What other forms of student speech in school are protected
under the Tinker decision?
The Tinker decision was applied to student newspapers, literary
magazines, yearbooks and broadcast media.
- Are there
any forms of student protest on school grounds that are not protected
under the Tinker decision?
In Cox v. Louisiana (1965): the Supreme Court ruled that
the rights of free speech and assembly do not mean that anyone
with opinions or beliefs to express may address a group at any
public place and at any time.
Student
protest that will disrupt school activities or endanger the safety
of others is not protected. “Reasonable regulation of speech-connected
activities in carefully restricted circumstances,” according to
Justice Abe Fortas (Tinker), is permitted.
- Why is
protecting the expression of controversial views important? Why
do we tolerate hurtful or unpopular expression?
Justice Abe Fortas delivered the opinion of the Court. He states,
“Any departure from absolute regimentation may cause trouble.
Any variation from the majority’s opinion may inspire fear. 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. But our Constitution says we must take
this risk … and 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,
[argumentative] society.”
- Are the
desires of parents and administrators for a safe school environment,
an academic environment and positive public relations necessarily
in conflict with an active, unencumbered student media?
Gwen Gregory, deputy general counsel for the National School Board
Association, spoke with understanding of both sides’ views at
a session on student press rights at the fall 1993 convention
of the Journalism Education Association.
While she enthusiastically supported the legal reasoning of Hazelwood,
she said she did not feel that principals should clamp down so
hard on journalists that they’re not allowed to write about anything
except school events. If agreement can’t be reached with the principal,
she said “go to the school board to see if you can get more power.”
“A lot of schools,” Gregory added in a later comment, “don’t have
the freedom that, as a matter of education, I think they should
have. Kids can be helpful in covering a lot of areas — crime for
instance. If they let their feelings be known to people in power,
there might be some changes made.”
“We are not talking about a conspiracy of high school officials
across the land to put a gag on high school students,” says Paul
McMasters, the Freedom Forum’s First Amendment ombudsman. “Almost
without exception, I would dare say, these are good, dedicated
and sincere people who have a public trust and are trying to carry
it out the best way they can.”
Administrators and school board members who want to support student
press rights often must face parents and pressure groups that
are far less tolerant.
Fay Hartog-Rapp, acting as legal counsel to about three dozen
school districts in the Chicago area, said, “It is the responsibility
to the entire school community that school officials must consider
when they make the difficult decision on censorship.”
Hartog-Rapp acknowledges that student journalists can learn valuable
lessons from the mistakes they make, but cautions, “One must always
question what price [is paid by] those mistakes . . . if [they
are] to the detriment of other students’ personal privacy or their
reputation or their view of themselves in the school,” Hartog-Rapp
said. Codes limiting hate speech exist for that reason, she said.
“You need to look at it as a lesson not only in civics, but in
economics and accountability,” she continued. “The question is,
what is our responsibility to the greater community who we serve,
and is the educational lesson more important than the harm that
might befall the rest of the community.”
Temple University Professor Dr. Tom Eveslage discussed student
press rights in an honors lecture delivered at the August 1993
convention of the Association for Education in Journalism and
Mass Communication. “The Tinker Court removed some barriers;
the Hazelwood Court erected a few,” he said. “Both cases
altered the school terrain of student journalists, but neither
case stopped students from covering the territory. In both rulings,
the Court acknowledged the critical-thinking process, and said
— in far different language — that the process must be preserved.
“After Mary Beth Tinker slipped on her armband that December morning
in 1965, she of course went to a much different school [from student
journalists today]. But Mary Beth had a lot in common, too, with
many of today’s student journalists — a sense of concern and caring,
a belief that what she had to say was important and worth saying,
a feeling that she deserved the chance to tell others what she
thought, to make a difference.”
University of Colorado’s Robert Trager and Joseph A. Russomanno
offered, perhaps, the deepest consideration of freedom of
expression in schools in a paper presented at the Association
for Education in Journalism and Mass Communication 1993 convention.
“When free expression is limited in order to instill majoritarian
societal values in their schools, this turns the First Amendment
on its head. Rather . . . students’ expressive rights should
be at the core of the societal values that public schools
teach — and that schools should allow students to practice.
“The First Amendment is instrumental in providing the foundation
for dissent, self-fulfillment, human dignity and liberty —
all vital in the realization of both the polity and the individual.
“Every organization, including the school, has a culture,
serving to inform its membership about how to interpret and
respond to social life. . . . Schools are societal surrogates
for students. The school is one of the few — perhaps the only
— institutions with which the pre-adult has contact outside
the home.
“By providing structure and standards, the school can bestow
a sense of significance to its students, letting them ‘know
they belong to a functioning and complete society.’ Alternatively,
a system that distinguishes between what is permitted within
the school and outside its door symbolically conveys to students
— citizens who are in their politically formative years —
that viewpoints can be constrained based not merely on their
content, but also on their location.”
A school environment devoid of free expression is not likely
to produce an adult ready to support the sentiment attributed
to Voltaire: “I disapprove of what you say, but I will defend
to the death your right to say it.”
Much of this file is excerpted from "From Tinker to Hazelwood:
Landmark Supreme Court decisions and how schools deal with them"
originally published in Death By Cheeseburger: High School
Journalism in the 1990s and Beyond by Alice Bonner, et. al. Reprinted
by permission, The Freedom Forum.
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