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Slide 1

Tinker v.
Des Moines

Tinker v. Des Moines Independent Community School District


Since this case is well-covered in several of our course texts and weve discussed it generally in
Dr. As course, I wont quiz you on the expected outcome of the case. You know the outcome.
Instead, I want to gauge your first impressions of this case. You know its a 60s-era Vietnam
protest case. So . . .

Slide 2

Sixties Protest Quiz


What does a 60s protester look like?

Slide 3

Mary Beth and John Tinker

Two clean-cut, American teenagers the daughter and son of a Methodist minister.

Slide 4

1965: Growing Peace Protests

August 1964, Gulf of Tonkin


March 1965, Regular bombings in N. Vietnam
April 1965, Student march on Washington

August 1964 two U.S. destroyers were attacked by N. Vietnamese troops in the Gulf of Tonkin
President Johnson ordered retaliatory strikes which became a regular bombing campaign by
early 1965 (Operation Rolling Thunder)
News coverage of the war was increasing greatly, (between 1964 and 1966 the presence of
reporters in Viet Nam multiplied seven-fold) so by April 1965 a more active protest movement
was beginning to develop including 15,000 students marching on Washington
http://www.history.com/topics/vietnam-war/vietnam-war-protests

Slide 5

Basic Facts of the Case


In December 1965, several students in the Des Moines
Independent Community School district decide to wear
black armbands in protest of the Viet Nam War.
John Tinker (15) & Christopher Eckhardt (16)
Mary Beth Tinker (13)

School discovers this plan and bans the practice.


Students attend anyway and are suspended.
Parents file suit in the District Court on behalf of the
students.

Of particular import:
The protest is also in support of Senator Robert Kennedys call for a Christmas truce.
The school bans this practice specifically. Other student expressions including even the
wearing of certain Nazi paraphernalia are not prohibited.
The students know about the ban and attend school anyway. At various points they are
asked to leave, which they do.
The students are told they can return at such time as they agree to attend without the arm
bands.
The students return at the beginning of the new year, which is the point they originally had
agreed their protest would end.
ACLU approaches parents and supports suit.

Slide 6

Progression through the Courts


U.S. District Court (September 1, 1966)
Plaintiffs claimed their 1st (Free Speech) and 14th (Due Process)
rights were violated.
Court agreed that the students had 1st Amendment rights to this
kind of symbolic speech.
But Court said the school had acted in a reasonable manner in
proscribing the wearing of armbands. Specifically, the Court said
the schools concerns about possible disruptions caused by
other students reactions to the armbands was reasonable
given the current climate of protest.

Court does recognize that the armbands and students wearing them were protesting
peacefully/not disruptive.
Side Note: Burnside v. Byars and Blackwell v. Issaquena County Board of Education. Both
decided in 1966 on the same day by the same panel. Both hearing cases of students wearing
buttons. Burnside decided for the plaintiffs upholding their rights; Blackwell deciding against
specifically because of the facts of the case, namely that violence did occur. District Court
acknowledged that the decisions of the other district court were due respect, but chose not to
consider them because they werent bound to.

Slide 7

Progression through the Courts


Eight Circuit Court of Appeals (November 3, 1967)
Reviewed the case en banc (all eight judges)
Without opinion, the Court was equally divided (4-4)
In the absence of a majority, the District Courts verdict was
affirmed.

Eight judges: what does this sound like? Our current Supreme Court? A recipe for a deadlocked
verdict? Exactly.

Slide 8

Progression through the Courts


U.S. Supreme Court (Nov. 12, 1968 Feb. 24, 1969)
Court decides 7-2 to overturn the lower courts.
Writing for the majority, Justice Fortas says:
This is pure speech which is entitled to comprehensive protection under
the First Amendment.
There was no disorder or disturbance on the part of the students wearing
the armbands.
Therefore, the speech did not intrude upon the work of the schools or the
rights of other students.
The schools rule was not reasonable because undifferentiated fear or
apprehension of disturbance is not enough to overcome the right to freedom
of expression.

Of note:
In asserting pure speech protections, Fortas cites Cox v. Louisiana a 1965 Supreme Court
case. But Justice Black, in his dissent, uses Cox to assert that free speech doesnt mean you
may address a group at any public place and at any time.
One issue at the heart of this is the focus on the actions of the protesters vs. the people
responding to the protesters in determining whether the speech creates a disturbance.
Majority opinion relies significantly on Burnside, a case which the District Court acknowledged
but refused to apply. One area of relevance for Burnside is in this definition of disturbance.
The Court quotes Burnside in assessing whether the conduct materially or substantially
interfere[s] with the requirements of appropriate discipline in the operation of the school.

Slide 9

Relevance
Establishes student/juvenile rights under the Constitution
Muddied the waters a bit on the Courts support for
institutional control.
Helps establish or solidify standards for judgement:

Symbolic speech = Pure speech


Reasonableness as standard for Due Process
Burnside standard of material and substantial disruption
The rights of others standard to be secure and to be left
alone.

Though in his supporting majority opinion, Justice Stewart debates that the rights of children
are co-extensive with those of adults.
Justice Black strongly dissented about the Reasonableness standard, which, he argued, the
Court had previously done away with.
The rights of others standard to be secure and to be left alone can be tricky. Certainly, if I
grab you and go Hey, look at my t-shirt Im violating this standard. But if I am passively
wearing my message and you observe it, the court has said I am not violating your right to be
left alone as long as my message isnt lewd or urging you to engage in illegal activity (specifically
drug-related activity).

Slide 10

Subsequent Rulings
Bethel v. Fraser (1986)
Schools may ban pure speech that is lewd or vulgar.

Morse v. Frederick (2007)


Schools may ban expression promoting illegal drugs / drug use.

The dynamic legal landscape of case law since Tinker


demonstrates that the tug-of-war between students free
speech rights and institutional control is far from having a
clear winner.

Bethel v. Fraser and Morse carve out exceptions to the broad application of Tinker.
Refer class to:
Source: Waggoner, C. R. (2013). The Impact of Symbolic Speech in Public Schools: A Selective
Case Analysis from "Tinker" to "Zamecnik". Administrative Issues Journal: Education, Practice,
And Research, 3(1), 64-72. doi: 10.5929/2013.3.1.4

Slide 11

Main References
Tinker v. Des Moines, 393 U.S. 503 (1969).
Waggoner, C. R. (2013). The impact of symbolic speech in public
schools: A selective case analysis from "Tinker" to
"Zamecnik". Administrative Issues Journal: Education,
Practice, and Research, 3(1), 64-72.

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