Chapter 18: Freedom of Speech in Public Schools

Tinker v. Des Moines Independent Community School District (1969)

A primary purpose of public schools in the United States is to educate students for competent citizenship within the system of constitutional government. Thus, local school boards throughout the country authorize teachers to instruct students about their constitutional rights and the obligations of citizenship associated with them. Among the rights of citizens and noncitizens in the United States—which citizens are obligated to use responsibly—is a constitutional guarantee of free speech.

Are these rights and responsibilities, which the public expects the schools to convey to students, the same for individuals within the school as for individuals, including students, in the community outside it? During the autumn of 1965, this question was raised dramatically in the city of Des Moines, Iowa, by students who protested in their public schools the escalating participation of the United States in the Vietnam War. The U.S. Supreme Court responded nearly four years later with its decision in Tinker v. Des Moines Independent Community School District (1969).

The controversy that led to the Tinker decision began at a late-November 1965 antiwar demonstration in Washington, D.C. Among the thousands of protestors at the nation’s capital were about fifty Iowans, including two high school students from Des Moines, John Tinker and Christopher Eckhardt. Along with John’s sister Mary Beth, they became the principal figures in a lawsuit about the constitutional rights of students. On the return trip from the nation’s capital, the passengers on the bus discussed how to protest the Vietnam War back home in Iowa. From this conversation came the idea of wearing black armbands as symbols of opposition to U.S. military involvement in Vietnam.

On December 11, at the Eckhardts’ home there was a meeting of antiwar activists, including John and Mary Beth Tinker and their parents. The group agreed that local students should be encouraged to express their antiwar sentiments by wearing black armbands at school.

Christopher Eckhardt and the Tinker children resolved to carry out the group’s plan of protest. They would wear black armbands to school. Christopher was a fifteen-year-old tenth-grade student at Theodore Roosevelt High School; John Tinker, a fifteen-year-old eleventh grader, attended North High School; and Mary Beth Tinker, age thirteen, was an eighth-grade student at Warren Harding Junior High School.

Heated conversations about imminent antiwar activities spread wildly through the community. Public school officials in Des Moines were alarmed. They imagined scenes of unruly antiwar protestors wreaking havoc in the classrooms and hallways of the schools, and they quickly made rules to prevent such a catastrophe.

The school principals issued a statement informing all teachers, students, and other relevant personnel that wearing black armbands or other symbols of protest in the public schools was prohibited. Students displaying such symbols would be asked to remove them; refusal would be punished by suspension from school, and offenders would not be readmitted until they pledged to comply with the rules.

The statement did not deter Christopher Eckhardt, John Tinker, and Mary Beth Tinker and they went to their respective schools wearing black armbands. When asked to remove them by teachers and principals, they refused and were suspended from school.

The Iowa Civil Liberties Union (ICLU), an affiliate of the American Civil Liberties Union (ACLU), became interested in the freedom of speech issue raised by the confrontation. They had no doubt that the three public school students had a constitutional right to wear the black armbands as a symbol of antiwar protest in the community outside the school. No local, state, or federal government official could have constitutionally prevented their freedom of expression in this manner. At issue here was the place the students chose to express their antiwar opinion, and leaders of both the ICLU and ACLU believed that students had the same constitutional rights inside their public school that they had on the streets outside it.

Leaders of the ICLU contacted the Eckhardt and Tinker families and offered help in responding to the school officials. By this time, the students had returned to school after a very brief suspension, and they agreed not to continue their armband-wearing protest. However, they and their parents were interested in taking this controversy from the classroom to the courtroom, and they accepted the ICLU offer of support. Thus an ICLU lawyer, Dan Johnston, went to the federal district court and filed suit against the Des Moines Independent Community School District in the name of the students’ fathers. He sought compensation for damages incurred and an injunction to prevent school authorities from punishing the students. Johnston argued that the school district’s rules prohibiting the display of black armbands violated the students’ rights to freedom of speech under the First and Fourteenth Amendments to the Constitution.

The federal district court judge, Roy Stephenson, dismissed the suit, and Johnston appealed to the U.S. Court of Appeals for the Eighth Circuit. The Court of Appeals met in full court to consider this case and responded with an evenly divided vote, 4–4. Usually, the federal appellate courts sit in panel to decide cases rather than en banc, or with participation of all members. In the absence of a clear-cut decision, the lower court’s ruling was, in effect, affirmed. With support from the Iowa Civil Liberties Union and the American Civil Liberties Union, the Tinkers and Eckhardts appealed to the U.S. Supreme Court.

Oral arguments before the high court took place on November 12, 1968. Dan Johnston of the ICLU again represented the Eckhardts and Tinkers. Counsel for the Des Moines school district was Allan Herrick, the board’s long-time attorney. During his presentation, Johnston stressed that the students’ antiwar protest caused no disturbances at school. Justice Byron White pressed Johnston with several sharply worded questions about this point. But Johnston held his ground: “I think they [the students] chose a message, chose a method of expression, Your Honor, which would not be distracting.”

Later on, Johnston returned to this point, stating that “there was no indication, no testimony by teachers, by administrators or anyone else, of any reason to believe that it [the wearing of armbands] would be disruptive. And when the students, in fact, did wear the armbands, the record quite clearly shows that it was not in fact disruptive.” Johnston concluded with an argument against distinguishing between the right to free speech within and outside of the school.

I should not think that there would have to be a special rule for schools or any other part of our society for the First Amendment . . . [A]s far as the principles applied, we’d like to have the same principles applied in the school or perhaps especially in the school that are applied elsewhere.

In his presentation for the school district, Allan Herrick emphasized the need to balance the right to freedom of expression with the maintenance of order. He pointed to precedents for limiting free speech, such as Adderly v. Florida (1966), in which the Supreme Court had upheld restrictions against the speech of a student group protesting civil rights violations. In that case, the Court had held that the place of the protest, the grounds outside a jailhouse, was an inappropriate venue for this kind of activity.

Justice Thurgood Marshall interrupted Herrick and the following exchange occurred:

Marshall: How many students were involved in the Adderly case? Several hundred wasn’t it?

Herrick: It was quite a large number.

Marshall: How many were involved in this one?

Herrick: Well, there were . . . That’s a question, Your Honor, what do you mean by involved?

Marshall: How many were wearing armbands?

Herrick: Well, there were five suspended for wearing armbands.

Marshall: Well, were any wearing armbands who were not suspended?

Herrick: Yes, I think there were two.

Marshall: That makes seven . . . Seven out of eighteen thousand [students in the entire school district], and the school board was afraid that seven students wearing armbands would disrupt eighteen thousand. Am I correct?

Herrick: I think, if the Court please, that that doesn’t give us the entire background that builds up to what was existing in the Des Moines schools at the time the armbands were worn.

Marshall’s incisive questioning seemed to raise doubts among the justices about Herrick’s claims that the school district’s policy, restricting symbolic expression by armband-wearing students, was a reasonable attempt to maintain order in the schools. In response to questions from other justices, Herrick was forced to admit the paucity of evidence to support the school district’s policy as necessary to prevent disruption of the educational process.

The Court decided by a vote of 7–2 that the school district officials had violated the students’ right to free speech. In his opinion for the Court, Justice Abe Fortas raised the perennial challenge in a free society of balancing the individual’s constitutional right to free speech against the community’s expectation and need for public order and safety. The Court came down decisively on the side of the individual’s right to freedom of speech.

Justice Fortas said that the wearing of black armbands to protest the war in Vietnam was a form of “symbolic speech” protected by the First Amendment and applied against state and local governments through the due process clause of the Fourteenth Amendment. In the opening paragraph of his opinion, Justice Fortas wrote memorably in favor of the students’ rights in this case: “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Fortas acknowledged that school officials are responsible for maintaining an orderly educational environment conducive to teaching and learning. He recognized the school officials’ authority to limit a student’s constitutional rights to freedom of expression in order to prevent serious disruption of the educational process, which is vital to the continuation and improvement of the community. However, Fortas stressed that the burden of proof was on the school officials. They had to provide compelling evidence to show how a rule enforced by them, which curtailed First Amendment freedoms, was necessary to sustain the school’s educational mission. Fortas put forward a “rule of reason” as the governing criterion for the kind of issue raised by this case. For example, a regulation, such as the prohibition against wearing black armbands in school, must be a reasonable means of preventing disorders, which in the absence of the rule, would severely disrupt the educational process.

The school officials had failed to satisfy the “rule of reason” criterion, said Fortas. They could not demonstrate that the regulation against wearing black armbands in school had any reasonable connection to the prevention of disorder that could have seriously interfered with teaching and learning. “There is no indication that the work of the schools or any class was disrupted,” wrote Fortas. Therefore, he concluded, “the prohibition cannot be sustained.”

Fortas stressed the importance of protecting the constitutional rights of students against any unfounded fear of disruptions that might ensue from their exercise of these rights. “School officials do not possess absolute authority over their students,” said Fortas. He believed adolescent students to be rights-bearing individuals, just like adults, both inside and outside the schoolhouse doors. “Students in school as well as out of school are ‘persons’ under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State,” wrote Justice Fortas.

The Court remanded, or sent back, the case to the federal district court for judgments, consistent with Justice Fortas’s opinion, about how to compensate the plaintiffs or otherwise provide what was due them. The court ordered the Des Moines Independent Community School District to expunge the students’ suspensions from their school records and to pay all costs of the litigation.

Two justices, John Marshall Harlan II and Hugo Black, dissented from the Court’s opinion. Harlan’s dissent was brief. He disagreed with Fortas that the school officials had the burden of proof in justifying a rule that limited students’ freedom of expression. “I would in cases like this cast upon those complaining the burden of showing that a particular school measure was motivated by other than legitimate school concerns,” wrote Justice Harlan.

Justice Black’s dissent, by contrast, was a long and passionate denunciation of the Court’s decision. Here is the nub of his strong disagreement with Fortas:

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. This Court has already rejected such a notion . . . One does not need to be a prophet or the son of a prophet to know that after the Court’s holding today some students in Iowa schools and indeed in all schools, will be ready, able, and willing to defy their teachers on practically all orders . . . This case, therefore, wholly without constitutional reasons in my judgment, subjects all the public schools in the country to the whims and caprices of their loudest, but maybe not their brightest students.

Justice Black’s dissent in the Tinker case surprised and even shocked many civil libertarians, who had revered Hugo Black as a staunch and uncompromising champion of the right to free speech. Had Hugo Black changed his often-stated belief that the Constitution’s First Amendment was an absolute guarantee of the right to free speech? Justice Black strongly maintained his long-standing belief that there should be no restriction on the content of a person’s speech. However, he argued in his Tinker dissent, as he had in other instances, that the person’s manner of expression may be limited under certain conditions, just as it may be appropriate to regulate the times and places of speaking. In his opinion, the school building, especially during the daily schedule of events, was not an appropriate forum for antiwar protests nor was the wearing of armbands in this place an appropriate form of expression for students.

The Eckhardt and Tinker families expressed great satisfaction with the Court’s decision. Both the parents and their children were pleased to receive credit from legal scholars and journalists for their advancement of civil liberties under the Constitution. And they readily responded to the many newspaper reporters, magazine writers, and radio and television broadcasters who rushed them for interviews about their campaign to expand and amplify the rights of students.

In retrospect, the Tinker decision represents a high point in the recognition of student rights under the Constitution. This decision continues to protect the free expression of students that neither disrupts the educational purposes of the school nor violates the rights of other students. However, subsequent Supreme Court decisions have favored the authority of school officials to impose certain “reasonable” restrictions upon the rights of students in order to protect the school’s educational mission against disruption. For example, in Bethel School District No. 403 v. Fraser (1986), the Court ruled in favor of restrictions against vulgar student speech in a school assembly hall. And in Hazelwood School District v. Kuhlmeier (1989), the Court upheld restrictions and censorship by school authorities of hypersensitive content in a student newspaper produced by a journalism class. The school principal had decided that two articles, one providing information about birth control and the other describing intimate details about the divorce of a student’s parents, were not appropriate for the intended readers.