Politics & International Relations
Tinker v. Des Moines
Tinker v. Des Moines was a landmark US Supreme Court case in 1969 that upheld the First Amendment rights of students in public schools. The case involved students who were suspended for wearing black armbands to protest the Vietnam War. The Court ruled that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."
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11 Key excerpts on "Tinker v. Des Moines"
eBook - ePubDefending the First
Commentary on First Amendment Issues and Cases
- Joseph Russomanno(Author)
- 2006(Publication Date)
- Routledge(Publisher)
and gave the rest of us the opportunity to learn from the ruling. In the pages that immediately follow, Dan Johnston opens a new door to this fascinating case.***The U.S. Supreme Court case of Tinker vs. Des Moines Independent Community School District,1 decided in 1969, is often called a “landmark” freedom- of-speech case, implying that it was “new” law. But when one examines U.S. Supreme Court decisions prior to Tinker that apply U.S. constitutional principles to public school authorities’ duties and students’ rights, it is hard to see any new legal principles in Tinker.The central issue in Tinker—whether public school officials can restrain an exercise of free expression by students in school, absent some evidence of disruption as a result of the expression—had long before Tinker been settled law in the United States in favor of students. Tinker is an example of a recurring conflict in American politics and law between a majority urge to enforce patriotism and loyalty, and a resistance to those urges when they impose requirements contrary to individual religious or political beliefs. As with Tinker most of these conflicts occur during times of war. As with Tinker, in most of these conflicts, the majority, including judges and other public officials, find it difficult to adhere to our Constitution and laws.THE PRECEDENTS
The pertinent U.S. Supreme Court precedents of Tinker begin with Minersville District v. Gobitis 2 Children who were Jehovah’s Witnesses refused a mandate from the state legislature and their public school to pledge allegiance to, and salute, the U.S. flag. They were suspended from school and their father argued that he and his children were denied their right to public education. Lower federal courts ruled for the children.3 There could be no doubt that constitutional protections of freedom of speech applied to public school authorities. During World War I, the Supreme Court had overturned prohibitions against the teaching of German language in public schools.4
eBook - PDFFree Speech
From Core Values to Current Debates
- Len Niehoff, E. Thomas Sullivan(Authors)
- 2022(Publication Date)
- Cambridge University Press(Publisher)
175 Over time, however, it became increasingly clear that these are not the only relevant considerations with respect to student expression. In their effort to please parents and other constituents, and to prevent problems before they materialize, school administrators may overestimate the risks posed by student expression. They may foreclose students from engaging in debate over the important issues of the day, depriving them of the opportunity to learn how to become politically engaged and responsible participants in our democracy. In a country that prides itself on the primacy of free speech, repressive school policies may provide only a harsh lesson in the primacy of censorship. The critical and foundational change in our thinking about student speech came in the Supreme Court’s 1969 decision in Tinker v. Des Moines Independent School District. 1 That case arose when a handful of teenage students were suspended for wearing black armbands to school in protest of the Vietnam War. In an opinion written by Justice Fortas, the Court flatly rejected the notion that “either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” 2 It is difficult to overstate the importance of this ruling. It acknowledges that minors have First Amendment rights away from school. And it makes clear that those rights do not vaporize the instant a minor takes on the identity of a student. Justice Fortas’s use of the image of the “schoolhouse gate” suggests a porous border between the extracurricular and curricular environments, making it important that rights continue to be recognized as a student passes from the one to the other. Of course, the Tinker Court recognized that the right of students to speak in school is not absolute. The Court acknowledged that administrators have a legitim- ate interest in controlling the conduct of the students in their charge.
eBook - PDFFrom Schoolhouse to Courthouse
The Judiciary's Role in American Education
- Joshua Dunn, Martin R. West, Joshua M. Dunn, Martin R. West(Authors)
- 2010(Publication Date)
- Brookings Institution Press(Publisher)
The Return to Tinker Noticeably absent so far in this analysis has been any discussion of Tinker v. Des Moines. Since the Court’s public forum doctrine has only a limited reach, ulti-mately the conflict over religious speech will have to confront this decision. It is here that strange political coalitions are forming between religious public inter-est law firms and their usual opponents such as the ACLU. Tinker famously announced in 1969 that students and teachers do not shed their rights at the schoolhouse door. However, the Court qualified this categori-cal language to censor speech that was likely to materially disrupt the educa-tional process and could “impinge upon the rights of others.” Thus instead of creating firm guidelines, the Court’s standard necessitated a case-by-case analy-sis of whether student expression caused a substantial disruption. As a result, Tinker prompted seemingly endless litigation during the 1970s and early 1980s on everything from sideburns to student elections. The Court tried to distin-guish between the political speech at issue in Tinker, which revolved around three students wearing black armbands to protest the Vietnam War, and restric-tions on appearance: “The problem posed by the present case does not relate to regulation of the length of skirts or the type of clothing, to hair style or deport-ment.” However, it took little legal creativity for attorneys to argue that hair length and other attributes of personal appearance could be political statements. Because of the vagueness of “substantial disruption,” the courts often reached divergent results on similar issues. The Supreme Court did nothing to clarify students’ free speech rights until Bethel School District v. Fraser (1986) and Hazelwood School District v. Kuhlmeier (1988). In Fraser, school officials suspended a student for an extended and “elab-orate sexual metaphor” in a speech nominating a classmate for vice president of the student body.
eBook - ePubLessons in Censorship
How Schools and Courts Subvert Students’ First Amendment Rights
- Catherine J. Ross(Author)
- 2015(Publication Date)
- Harvard University Press(Publisher)
Tinker applies to one category and not another.—Hazelwood School District v. Kuhlmeier (1988) (Brennan, J., dissenting)Tinker v. Des Moines hardly eradicated what a 1974 study called the “insidious and enduring” problem of censorship in schools. That inquiry into the conditions of student journalism lamented, “even [school] officials who are well aware of court decisions supporting a free high school press are prone to either ignore the court-approved standards for guidelines or apply them in such a way as to censor the paper.”1 When students turned to the federal courts to enforce their rights, however, judges steadfastly upheld the standard the Supreme Court had established: Students have the right to form their own thoughts and to express their views at school unless their speech would threaten to materially disrupt the educational process. This comparative golden age for student expression lasted less than two decades after Tinker . A counterattack by the proponents of order gained traction and made significant inroads into the doctrine governing student speech rights.Realignment
In the years after Tinker , the Supreme Court became more conservative as its composition changed. Presidents Nixon and Reagan pledged to remake the federal courts, and they did. Nixon, who had campaigned promising “law and order,” appointed four Justices, President Reagan three. As a series of new Chief Justices took the reins, the Court moved substantially rightward. The Burger, Rehnquist, and Roberts Courts each carved out successive exceptions to Tinker ’s single standard. Moving forward, the level of protection student speech received would depend on how the court characterized the speech and its function.2 This new complex framework would prove hard to understand, harder to administer, and prone to abuse. It would severely undermine the solicitude for the liberty of young people that Barnette and Tinker
eBook - PDF- Charles J. Russo, Charles Russo(Authors)
- 2008(Publication Date)
- SAGE Publications, Inc(Publisher)
Des Moines Independent Community School District, rendered in 1969. In Tinker, a few students were disciplined for wearing black armbands to protest the Vietnam War, in violation of a policy enacted when school board members learned about the planned silent protest. The board policy did not ban the wearing of all symbols but was very specific in prohibiting armbands. The Supreme Court found no evidence of any distur-bance from the students wearing the armbands and ruled that student expression may not be curtailed merely because it causes school officials some discomfort. The Court emphasized that students do not shed their consti-tutional rights when they enter a public school. In Tinker, the Supreme Court articulated the disrup-tion standard, echoing statements made in an earlier federal appellate ruling. The Court declared that students may express their ideological views in the classroom, cafeteria, or any other place, as long as they do not substantially disrupt the education process or interfere with the rights of others. At the same time, the Court also recognized that school personnel have the right as well as the duty to maintain discipline in schools and an environment conducive to learning. Once courts determined that protected private student expression is at stake, they had to assess whether restric-tions may be imposed in particular situations. Students have prevailed where their expression critical of school authorities or school policies has been the basis for dis-ciplinary action, which would cause ordinary students to refrain from such expression in the future. Under the Tinker principle, private expression may be curtailed if it is likely to disrupt the educational process; examples of such expression include wearing gang symbols or voicing racist comments.
eBook - PDF- David C. Bloomfield(Author)
- 2016(Publication Date)
But the facts were very different, too, leading to different conclusions and a roadmap for us to use in our own practice. Tinker arose from student protest of the Vietnam War. Previously, the school district had allowed symbolic political speech in the form of candidate buttons and the like. However, threatened by the fear of political protest, the principals of the Des Moines public schools devised a specific policy to discipline the Tinker protesters, who consisted of a few students wearing black armbands to class. Prob- ably no policy would have survived First Amendment scrutiny in this case, since “abridging the freedom of speech” was clearly at the heart of the principals’ action. But importantly, the principals failed to follow district procedures for adopting such a policy, which required school-board approval. Moreover, since no evidence STUDENT ISSUES | 19 was presented that instruction was disrupted, the protest seemed not to interfere with regular school activities. In Bethel, however, a matter of decidedly lower public importance was clearly addressed by a properly approved, reasonable school policy that gave adequate notice to Fraser that his behavior—and the audience disruption purposely caused by his speech—would not be tolerated. That young children were in the audience during Fraser’s sexually charged speech was also given weight by the Court, a matter that school administrators would be wise to cite in any similar circumstance. In Morse v. Frederick, the Court ruled that even nondisruptive speech could be curtailed based on its content alone. In that case, a student’s off-campus banner during a school- sponsored event proclaimed “BONG HiTS 4 JESUS,” [sic] which appeared to vio- late a district policy against promotion of illegal drug use. That decision is all the more unusual in that the controlling opinion is not the majority opinion, but a concurrence by only two justices that provided the necessary votes for the school district’s victory.
eBook - PDF- Charles J. Russo, Charles Russo(Authors)
- 2012(Publication Date)
- SAGE Publications, Inc(Publisher)
Instead, the essay sug-gests that courts and school officials have, at times, gone too far in limiting student speech. NARROWING THE SCOPE OF STUDENT FREE SPEECH RIGHTS Between 1969 and 2007, the Supreme Court rendered four decisions address-ing student free speech. Although the initial case, Tinker , recognized the free speech rights of public school students, the three subsequent opinions signifi-cantly curbed those rights by focusing on and delineating administrators’ authority over student speech. The cases following Tinker appear to be out-comes that align with societal values; nevertheless, the rulings presented a symbolic shift away from student free speech rights with each increasingly granting administrators greater authority to limit student speech while impos-ing disciplinary sanctions. COUNTERPOINT: Jeffrey C. Sun School Law 186 Tinker v. Des Moines In Tinker , the Supreme Court declared that public school students have a right to express themselves when the questioned speech cannot reasonably lead officials to forecast substantial disruption of or material interference with school activities or when they cannot demonstrate actual material or substantial disruption of school operations. In Tinker , administrators sus-pended students for wearing black armbands that symbolized their objec-tions to the Vietnam War. Anticipating this silent protest, school principals adopted a policy that prohibited students from wearing armbands at school. On the next school day, five students who wore the armbands were sus-pended. Three of the students sued the board for violating their free speech rights. Ruling in favor of the students, the Court warned that public “schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students” (p. 511).
eBook - ePubThe SAGE Handbook of Educational Leadership
Advances in Theory, Research, and Practice
- Fenwick W. English(Author)
- 2011(Publication Date)
- SAGE Publications, Inc(Publisher)
Tinker arose when junior and senior high school students were suspended for refusing to remove the black armbands they wore to protest American involvement in Vietnam. The students challenged their being disciplined pursuant to a 2-day-old policy that the local school board adopted in anticipation of the protest.The Supreme Court ruled in favor of the students, noting that wearing armbands as a form of passive, nondisruptive protest was the type of symbolic act that placed the students’ actions within the free speech clause of the First Amendment. As such, the Court reasoned that because school officials lack absolute power and pupils do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” (p. 506), limits can be placed on the extent to which educators may regulate student speech. The Court ruled that absent a reasonable “forecast [of] substantial disruption of or material interference with school activities” (p. 514), educators cannot infringe on students’ constitutional right to freedom of expression. In not negating educators’ duty to maintain discipline, the Court emphasized the need to recognize the constitutional expression rights of pupils in acknowledging that “students in schools as well as out of schools are ‘persons’ under our Constitution. They are possessed of fundamental rights which the state must respect” (p. 511). The Court added that public schools are a particularly appropriate place to instill a respect for First Amendment freedoms.Tinker represents the turning point in the law of students’ rights. Prior to Tinker, many educators were of the opinion that children are in school to learn, not to express their own political opinions. After Tinker, school officials have had to consider students’ constitutional rights in all of their practices.In Bethel School District No. 403 v. Fraser (1986), the Court restricted the reach of Tinker in acknowledging that school officials in Washington state could discipline a student for violating school rules by delivering a lewd speech at a school assembly. In its analysis, the Court distinguished the speech from Tinker,
eBook - PDF- Ronald J. Krotoszynski, Jr.(Authors)
- 2019(Publication Date)
- Cambridge University Press(Publisher)
The arc of the Supreme Court’s protection of student speech in the nation’s public schools is easy to make out. After the Warren Court provided limited protection to non-disruptive student speech on campus in Tinker, the Burger, Rehnquist, and Roberts Courts proceeded to limit Tinker’s potential scope of application by creating categorical exclusions for curricular speech, lewd or indecent speech, and speech advocating the use of illegal drugs. Moreover, Tinker itself did not provide particularly robust protection for student speech – and even that decision has been limited to non-curricular speech. It bears noting that immediately after the Supreme Court decided Tinker, some lower federal courts held that high school teachers possess a limited scope of academic freedom to make pedagogical choices within the prescribed public school curriculum. 100 To be clear, these decisions certainly recognized that the school district possessed the constitutional authority to determine the subject matter to be taught and even the lesson plan to be used – but the ability to define the curricular objectives did not necessarily extend to regulating the precise means an instructor would use to achieve them. As Professor William Van Alstyne – writing just after Tinker – observed, “[w]ithin the very classrooms where the nation’s future leaders are trained, no robust exchange at all would be possible if the State were constitutionally free to select just one view of any given subject and to instruct its teachers to avoid mention or consideration of any other.” 101 Judge Frank M. Johnson, Jr.’s opinion in Parducci v. Rutland 102 provides an illustrative example of how it would be possible to recognize a limited scope of academic freedom even in a public high school. Marilyn Parducci taught high school English classes at Jefferson Davis High School, a public high school located in Montgomery, Alabama.
eBook - PDF- Wayne K. Hoy, Michael DiPaola(Authors)
- 2012(Publication Date)
- Information Age Publishing(Publisher)
2 Internet Expression. Currently, student expression via the Internet is ex- tremely controversial, and some cases involving student Internet expression have focused on the conflict between protected private student expression and school policies governing civil and respectful expression. These cases are difficult because the expression often takes place off school grounds, but with one click can be readily accessible to the entire school community and beyond. The judiciary has relied on Tinker in almost all Internet cases involving student expression, and courts have rendered a range of opin- ions. Some courts have upheld restrictions on vulgar and offensive student expression via the Internet finding either a link to a disruption or a conflict with the school’s mission and goals. In upholding disciplinary action against a student for her vulgar and misleading message on an Internet blog, the Second Circuit stated that the “undoubted freedom to advocate unpopular and controversial views in schools must be balanced against the society’s countervailing interest in teaching students the boundaries of socially ap- propriate behavior” (Doninger v. Niehoff, 2008, p. 49). The court found it to be “a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse” (p. 49). Yet, students have prevailed in a number of cases by showing that their Internet expression was not linked to a disruption of the educational pro- cess or management of the school (see Thomas et al., 2009). Elsewhere, I have developed the argument that some of these decisions might have had a different outcome if instead Tinker’s disruption standard courts had ap- plied the second prong of Tinker, allowing expression to be restricted that interferes with the rights of others (McCarthy, 2008, 2009a,2009c).
eBook - ePubDeciding Communication Law
Key Cases in Context
- Susan Dente Ross(Author)
- 2004(Publication Date)
- Taylor & Francis(Publisher)
supra, at 602, the principal used a paper shredder. He objected to some material in two articles, but excised six entire articles. He did not so much as inquire into obvious alternatives, such as precise deletions or additions (one of which had already been made), rearranging the layout, or delaying publication. Such unthinking contempt for individual rights is intolerable from any state official. It is particularly insidious from one to whom the public entrusts the task of inculcating in its youth an appreciation for the cherished democratic liberties that our Constitution guarantees.IV. The Court opens its analysis in this case by purporting to reaffirm Tinker’s time-tested proposition that public school students “do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’” Ante, at 266 (quoting Tinker, supra, at 506). That is an ironic introduction to an opinion that denudes high school students of much of the First Amendment protection that Tinker itself prescribed. Instead of “teach[ing] children to respect the diversity of ideas that is fundamental to the American system,” Board of Education v. Pico, 457 U.S., at 880 (BLACKMUN, J., concurring in part and concurring in judgment), and “that our Constitution is a living reality, not parchment preserved under glass,” Shanley v. Northeast Independent School Dist., Bex ar Cty Tex., 462 F. 2d 960, 972 (CA5 [291] 1972), the Court today “teach[es] youth to discount important principles of our government as mere platitudes.” West Virginia Board of Education v. Barnette, 319 U.S., at 637. The young men and women of Hazelwood East expected a civics lesson, but not the one the Court teaches them today.I dissent.Board of Regents of the University of Wisconsin System v. Southworth
529 US. 217 (2000) (Excerpts only. Footnotes omitted.)
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