Remembering the Tinker case

A former Iowa student whose black armband led to an important U.S. Supreme Court decision of the 1960s died last week in Florida, the Des Moines Register reported yesterday. The Iowa Civil Liberties Union sued the Des Moines Independent Community School district on behalf of Christopher Eckhardt and his friends John Tinker and Mary Beth Tinker after all three students were suspended for wearing black armbands to their schools as an anti-war protest. The case eventually made it to the U.S. Supreme Court, which ruled in 1969 that the school principals were not justified in limiting the students’ free expression.

Tinker v. Des Moines Ind. Comm. School Dist. may be the most important case from Iowa ever to reach the Supreme Court. Judges have applied the “Tinker standard” in many other First Amendment cases. After the jump I’ve posted links about the case and some reflections on Eckhardt’s role.

Grant Rodgers reported for the Des Moines Register that Eckhardt was 62 years old when he died of cancer in Florida on December 27. He had been a social worker for 20 years, then an author. He occasionally spoke about his involvement in the Tinker case and “received the Earl Warren Civil Liberties Award from the American Civil Liberties Union Foundation of Northern California.”

Dan Johnston, a Des Moines attorney and former state lawmaker who represented the students in the case, remembered Eckhardt on Tuesday as “very articulate.” […]

Although Eckhardt’s name wasn’t on the case, his actions still play a significant role in its legacy, Johnston said. In court, Johnston remembers that Eckhardt gave testimony about how students in gym classes at Roosevelt were asked to chant anti-Vietnamese sentiments during exercises.

“He wasn’t any less of a plaintiff in terms of his claim and the courage of what he did,” he said.

The U.S. military involvement in Vietnam was still popular in 1965. Think about how strong teenagers would have to be to walk into a conformist public-school environment wearing a black armband. I had the false impression that all the students in the Tinker case attended Roosevelt. John Tinker was at North High School, and Mary Beth Tinker was at Harding Junior High School. Two other Roosevelt students also wore armbands and were suspended but opted later not to be involved in the lawsuit. According to this summary of the case, Eckhardt hosted a student gathering at his home to plan the armband protest. “More than two dozen students wore black armbands on Dec. 16 and 17 [1965] in Des Moines high, middle and elementary schools.” But only five were disciplined: Eckhardt, the Tinkers, and Roosevelt students Christine Singer and Bruce Clark.  

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.”

The Des Moines school board voted 5 to 2 in January 1966 to uphold the ban on black armbands. The Iowa Civil Liberties Union filed its lawsuit in March of that year. The U.S. District Court in the Southern District of Iowa dismissed the case, however. A full panel of the Eighth Circuit U.S. Court of Appeals issued a split decision in 1967, which allowed the lower-court ruling to stand. First Amendment scholar David L. Hudson Jr. wrote about the case 30 years later:

The only place left for the students to take their case was to the U.S. Supreme Court.

Dan Johnston, who represented the students, said he never thought the case would get to the Supreme Court.

“I thought it was an easy case and that we would win a long time before that in the federal district court,” Johnston said.

“The school board in my opinion did not have sufficient justification to suspend the students and we developed enough of a factual record that I thought we would win there,” he said.

Tinker agreed, saying that “I expected to win in the first court and the court of appeals.” Eckhardt said that “fortunately, looking back, we did lose at the lower court level, because if we had won there, this case could never have become such a landmark decision.”

You can listen to the Supreme Court oral arguments here. Eckhardt told Hudson that he knew they would win their case “When I heard Justice Thurgood Marshall ask the question – ‘seven out of 18,000, and the school board was afraid that seven students wearing armbands would disrupt 18,000. Am I correct?'”

In a 7-2 decision, the Supreme Court affirmed that neither teachers nor students “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” At this site you can read most of the majority opinion by Justice Abe Fortas as well as the concurring and dissenting opinions. Fortas writing for the majority:

In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,” the prohibition cannot be sustained. Burnside v. Byars, supra, at 749.

In the present case, the District Court made no such finding, and our independent examination of the record fails to yield evidence that the school authorities had reason to anticipate that the wearing of the armbands would substantially interfere with the work of the school or impinge upon the rights of other students. Even an official memorandum prepared after the suspension that listed the reasons for the ban on wearing the armbands made no reference to the anticipation of such disruption. [note 3] [510]

On the contrary, the action of the school authorities appears to have been based upon an urgent wish to avoid the controversy which might result from the expression, even by the silent symbol of armbands, of opposition to this Nation’s part in the conflagration in Vietnam. [note 4] It is revealing, in this respect, that the meeting at which the school principals decided to issue the contested regulation was called in response to a student’s statement to the journalism teacher in one of the schools that he wanted to write an article on Vietnam and have it published in the school paper. (The student was dissuaded. [note 5])

It is also relevant that the school authorities did not purport to prohibit the wearing of all symbols of political or controversial significance. The record shows that students in some of the schools wore buttons relating to national political campaigns, and some even wore the Iron Cross, traditionally a symbol of Nazism. The order prohibiting the wearing of armbands did not extend to these. Instead, a particular symbol–black armbands worn to exhibit opposition to this Nation’s involvement [511] in Vietnam–was singled out for prohibition. Clearly, the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible. […]

Under our Constitution, free speech is not a right that is given only to be so circumscribed that it exists in principle but not in fact. Freedom of expression would not truly exist if the right could be exercised only in an area that a benevolent government has provided as a safe haven for crackpots. The Constitution says that Congress (and the States) may not abridge the right to free speech. This provision means what it says. We properly read it to permit reasonable regulation of speech-connected activities in carefully restricted circumstances. But we do not confine the permissible exercise of First Amendment rights to a telephone booth or the four corners of a pamphlet, or to supervised and ordained discussion in a school classroom.

If a regulation were adopted by school officials forbidding discussion of the Vietnam conflict, or the expression by any student of opposition to it anywhere on school property except as part of a prescribed classroom exercise, it would be obvious that the regulation would violate the constitutional rights of students, at least if it could not be justified by a showing that the students’ activities would materially and substantially disrupt the work and discipline of the school. Cf. Hammond [514] v. South Carolina State College, 272 F.Supp. 947 (D. C. S. C. 1967) (orderly protest meeting on state college campus); Dickey v. Alabama State Board of Education, 273 F.Supp. 613 (D. C. M. D. Ala. 1967) (expulsion of student editor of college newspaper). In the circumstances of the present case, the prohibition of the silent, passive “witness of the armbands,” as one of the children called it, is no less offensive to the Constitution’s guarantees.

Justice Hugo Black (a strong voice for First Amendment rights in other contexts) wrote the main dissent. He warned that the majority was relying on a “reasonableness” standard that could give rise to what conservatives now call judicial activism: “I have many times expressed my opposition to that concept on the ground that it gives judges power to strike down any law they do not like.” Black also argued,

While the record does not show that any of these armband students shouted, used profane language, or were violent in any manner, detailed testimony by some of them shows their armbands caused comments, warnings by other students, the poking of fun at them, and a warning by an older football player that other, nonprotesting students had better let them alone. There is also evidence that a teacher of mathematics had his lesson period practically “wrecked” chiefly by disputes with Mary Beth Tinker, who wore her armband for her “demonstration.” [518] Even a casual reading of the record shows that this armband did divert students’ minds from their regular lessons, and that talk, comments, etc., made John Tinker “self-conscious” in attending school with his armband. While the absence of obscene remarks or boisterous and loud disorder perhaps justifies the Court’s statement that the few armband students did not actually “disrupt” the classwork, I think the record overwhelmingly shows that the armbands did exactly what the elected school officials and principals foresaw they would, that is, took the students’ minds off their classwork and diverted them to thoughts about the highly emotional subject of the Vietnam war. […]

Change has been said to be truly the law of life but sometimes the old and the tried and true are worth holding. The schools of this Nation have undoubtedly contributed to giving us tranquility and to making us a more law-abiding people. Uncontrolled and uncontrollable liberty is an enemy to domestic peace. We cannot close our eyes to the fact that some of the country’s greatest problems are crimes committed by the youth, too many of school age. School discipline, like parental discipline, is an integral and important part of training our children to be good citizens–to be better citizens. Here a very small number of students have crisply and summarily [525] refused to obey a school order designed to give pupils who want to learn the opportunity to do so. 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 is the more unfortunate for the schools since groups of students all over the land are already running loose, conducting break-ins, sit-ins, lie-ins, and smash-ins. Many of these student groups, as is all too familiar to all who read the newspapers and watch the television news programs, have already engaged in rioting, property seizures, and destruction. They have picketed schools to force students not to cross their picket lines and have too often violently attacked earnest but frightened students who wanted an education that the pickets did not want them to get. Students engaged in such activities are apparently confident that they know far more about how to operate public school systems than do their parents, teachers, and elected school officials. It is no answer to say that the particular students here have not yet reached such high points in their demands to attend classes in order to exercise their political pressures. Turned loose with lawsuits for damages and injunctions against their teachers as they are here, it is nothing but wishful thinking to imagine that young, immature students will not soon believe it is their right to control the schools rather than the right of the States that collect the taxes to hire the teachers for the benefit of the pupils. 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-mouthed, but maybe not their brightest, students. I, for one, am not fully persuaded that school pupils are wise enough, even with this Court’s expert help from Washington, to run the 23,390 public school [526] systems [note 4] in our 50 States. I wish, therefore, wholly to disclaim any purpose on my part to hold that the Federal Constitution compels the teachers, parents, and elected school officials to surrender control of the American public school system to public school students. I dissent.

During the 1980s, the Supreme Court led by Chief Justice Warren Burger limited students’ free expression rights in several other important rulings, but Tinker is still considered one of the landmark cases of the 20th century.

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