Tinker v. Des Moines
Students wore black armbands to demonstrate their support for the peaceful resolution in Vietnam. Can speech be curbed for the health of a school community?
The Case in Brief
History. The Vietnam War led to the rise of anti-war protests, some of which turned violent. That violence led school administrators to fear protests at their schools.
Case Facts. John Tinker, Mary-Beth Tinker, and Christopher Eckhardt protested the Vietnam War by wearing black armbands to school in Des Moines, Iowa, resulting in their suspension.
Majority Opinion. The Supreme Court found that in order for the school officials to justify banning the armbands, they must show their decision was done to prevent more than just an uncomfortable conversation. Their ruling found that avoiding discomfort was not a justifiable reason to limit free speech.
Results. The armbands were found to be symbolic speech protected by the First Amendment. The case created the substantial disruption test or ‘Tinker Test’, used to decide when destroyed property or interference with the school's work is enough to ban symbolic speech.
During the Vietnam War, though the vast majority of the American population still supported U.S. involvement, a small, outspoken liberal minority made its dissenting voice heard. This minority included students and members of the hippie movement who rejected authority — a growing trend disliked by many parents of the era. The Students for a Democratic Society began organizing “teach-ins” to express their opposition to the war, but the protests began to escalate. Most protests included the burning of draft cards and sit-ins, but not all anti-war events were peaceful. University of California Santa Barbara students expressed their anger toward U.S foreign policy through a series of violent protests in 1967, causing thousands of dollars worth of property damage in Isla Vista and the temporary shutdown of the Santa Barbara Airport. These events led to fears of student protests by school administrators throughout the nation.
John F. Tinker, 15 years old, and Christopher Eckhardt, 16 years old, attended high schools in Des Moines, Iowa. In December 1965, a group of adults and students in Des Moines held a meeting at the Eckhardt home. The group determined to publicize their objections to the Vietnam war by wearing black armbands during the holiday season and fasting on December 16 and New Year’s Eve.
The principals of the Des Moines school system became aware of the plan to wear armbands, and on December 14, 1965, the principals met and adopted a school district policy that any student wearing an armband to school would be asked to remove it. If the student refused, they would be suspended. On December 16, John’s sister Mary Beth and Christopher wore black armbands to their schools, with John Tinker joining them the next day. They were all promptly sent home and suspended from school until they would come back without their armbands. They did not return to school until after the planned protest period had expired - that is, until after New Year's Day.
This complaint was filed in the United States District Court by John Tinker and Christopher Eckhardt, through their fathers, under 1983 of Title 42 of the United States Code. It asked for an injunction restraining the school officials and the board of directors of the school district from disciplining the children, and it sought nominal damages.
Wearing an armband is very different from destroying school property in the name of your cause. The armband, in this case, is not an act but a symbol of free speech.
There is no evidence showing that the actions taken by the students interfered with the school's work. The armbands do not inhibit teaching.
In order for the school officials to justify the prohibition of the armbands, they must show that their banning was caused by something more than a mere desire to avoid the discomfort. Avoiding discomfort is no reason to ban speech.
Since students in the school district can practice other forms of political speech, such as wearing buttons from political campaigns, this political message about ending the war should also be protected. Speech cannot be banned based on the political message.
Schools should be allowed to limit speech if that speech could lead to violence, disorder, and disruption. The armbands showed support for violent protests around the country.
If students can defy school officials’ to avoid their schoolwork, they will protest against the authority figures in their schools, ultimately leading to chaos.
Public school students are not sent to the schools with taxpayer money to broadcast political views; they are there to learn.
Allowing political protests in schools will result in students not being able to study and could even result in political bullying against frightened students who just want an education.
Related Cases & Events
In Turlock, California, students staged a protest after a classmate was suspended over dress code violations. The student in question wore a crop top and leggings to class, which was called distracting by her teacher.
After refusing to change outfits, she was given a suspension and a warning to stay off-campus. The following day, she returned to campus and was detained. She was handcuffed in the administrator’s office, and a police report was filed for her breaking the rules of her suspension.
Students across the Turlock Unified School District protested the dress code saying it was “unevenly enforced” and that no student should be handcuffed “for a belly button.”
- Based on Tinker v. Des Moines, should schools have dress codes?
- Why are private schools allowed to mandate students to wear uniforms?
- Do dress codes limit free expression, or are the rules reasonable?
Climate Change Walk-Outs
In 2019, thousands of students across the globe took part in a global climate walk-out to protest government inaction towards fighting climate change. One of the dissent’s points in Tinker v. Des Moines was that the armbands were not a call to a specific action — like ending the draft. The climate walkouts have had similar criticism in that they call for action, but not a specific action. Justice Black cited that college protests would lead to high schools conducting “break-ins, sit-ins, lie-ins, and smash-ins.” However, he failed to anticipate walk-outs as a form of protest or the combined global efforts of students to protest.
The 2019 climate walk-out took place in the U.S., the United Kingdom, Australia, France, Germany, and Thailand, sparked by the 16-year-old Swedish speaker Greta Thunberg. Protests ensued, following an increasingly strong sentiment among younger activists like Greta Thunberg that they needed to make their voices heard for government action to happen.
- Does the escalation of student protests give Justice Black’s arguments credit?
- Would a walk-out pass the Tinker Test?
- Are school walk-outs fair to students that did not wish to participate in political activism?
Free Speech Zones
Free speech zones are areas on campuses where speech is not limited. Other sections of campus are limited with the intention of “protecting against disruptions to school operations.” Free speech zones have come under contention due to the disparity in how they are policed and the constitutionality of limiting speech to specific zones. Tinker v. Des Moines found that “freedom of expression would not indeed exist if the right could only be exercised in designated areas.” Colorado agreed and passed a bipartisan law banning free speech zones due to their limitations on students.
What is considered political speech can also be controversial. Los Angeles’ Pierce College was sued in 2017 because a student was passing out copies of the Constitution in Spanish. The student in question stated, “the community college violated his First Amendment rights when he was barred from passing out copies of the U.S. Constitution because he wasn’t in the free-speech zone.” Republicans in the Department of Justice supported his lawsuit to challenge free speech zones. Students at Pennsylvania State University were also removed for handing out the Constitution within a free speech zone. However, some argue it was due to their criticism of the university’s speech policies.
- How do you think the Tinker ruling would’ve been different if the school system only limited the armbands in class rather than on school grounds?
- Is passing out copies of the Constitution a political message?
- Is it free speech to prevent another person from speaking? Does protesting a speaker pass the Tinker Test?
In 2015, high school senior Taylor Bell decided to release a rap song he had been working on. The song depicted what he believed to be inappropriate behavior by one of the school coaches and included lines such as, “Heard you textin’ number 25 [a girl from the basketball team].” After being suspended for the song, his family decided to sue the school district.
The court concluded that pursuant to Tinker v. Des Moines, the song's lyrics, “in fact caused a substantial disruption at school.” Specifically, the court stated the coach's testimony that the song “adversely affected” their teaching styles constituted an “actual disruption” to school activities. The court also concluded that it was “reasonably foreseeable” that the song, which “levies charges of serious sexual misconduct, would cause a substantial disruption at school.”
The case, Bell v. Itawamba County School Board, was appealed and reversed in favor of Bell, citing that the rap did not constitute a “true threat” since it was artistic expression.
- Identify the constitutional amendment common in both Tinker v. Des Moines (1969) and Bell v. Itawamba County School Board (2015).
- Based on the constitutional amendment identified in Part A, explain why the facts in Bell v. Itawamba County School Board (2015) led to a similar holding as Tinker v. Des Moines (1969).
- Give an example and explain how the argument used in Bell v. Itawamba County School Board (2015) and in Tinker v. Des Moines (1969) permits free expression by students.
En Banc. An en banc panel is a session in which a case is heard before all the court judges rather than by one judge or a panel of judges selected from the Circuit Court. Usually, the Circuit Court randomly selects three judges to hear any given case. Tinker v Des Moines was heard by a panel of all judges from the 8th Circuit rather than the usual three. The split decision from en banc is what made the case ripe for the Supreme Court.
Granting Certiorari (Cert). In law, certiorari is a court process to seek judicial review of a decision of a lower court or government agency.
Sit-in. Students gathering in large groups to peacefully sit and block space, thereby disturbing the normal flow of school in protest.
Smash-in. Students causing property damage in the name of a protest.
Walk-out. Students conducting a protest by walking out of classes and refusing to take part in school.