This week’s readings in Law and Education focus on the power of school officials to regulate student speech. The first case reading is Tinker vs. De Moines Independent Community School District, which was heard in 1969, at the height of popular protest against the Vietnam War. The case focuses on a group of students who decided to register their opposition to the Vietnam War by wearing black armbands to school. The decision to wear the armbands was made in a private, off campus meeting with students and parents. The students also committed to fasting on two days during the holiday season.
The students wore the armbands to school, and were promptly suspended by the school principal. The students were told not to return to school until they took off the armbands. The students, through their fathers, issued a complaint to the US District Court, requesting an injunction restraining school officials; the District Court dismissed the complaint, arguing that the principal had the constitutional authority to prevent a disturbance of school discipline. The case was appealed, but the Court of Appeals affirmed the ruling, arguing in favor of the “comprehensive authority of the States or school officials… to prescribe and control school conduct.”
The Supreme Court, thankfully, reversed the Court of Appeals ruling. In his opinion, Judge Fortas argued that the principal was motivated mainly by a desire to avoid controversy, and that no disturbance or disorder was created by a “silent, passive expression of opinion.” Judge Fortas further argued that if other symbols were allowed (students were allowed to wear the Nazi Iron Cross), then it was pretty obvious that Vietnam protest bands were singled specifically out for prohibition– and for transparently partisan reasons. Finally, Judge Fortas argued persuasively for the fundamental free speech rights of children, who “may not be confined to the expression of those sentiments that are officially approved.” Basically, “teachers, leave those kids alone.”
The dissenting opinion, issued by Judge Black, argued that school officials were elected representatives of the state, vested with state authority, and thus had the state sanctioned power to suspend students for their actions. Black further argued that the First Amendment rights of children were not coextensive with adults, and that the majority decision would empower “pupils of state run schools” to “defy and flout the orders of school officials,” a result which would usher in the “beginning of a new revolutionary era of permissiveness on the country fostered by the judiciary.” Rather melodramatically, Black ends his dissent by suggesting that “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 taxes to hire the teachers for the benefit of the pupils.”
The case is fascinating because it turns on the meaning of symbolic speech, and it involves the censoring of speech which didn’t create a material or substantive disturbance. Though the armbands generated discussion in school, no disorder was created by the actions of the petitioners; it didn’t interfere with the school’s work, nor did it trespass on the rights of other students to be secure and left alone. The case is also interesting because it provokes inquiry into the meaning of first amendment rights; do they apply equally to adults and children, or do children only receive constitutional protection when they can make rational choices? What kinds of speech is worthy of protection? Does it matter is the speech takes place outside of school grounds, or during non-curricular activities? Does the Tinker precedent allow a student to unfurl a poster that reads “BONG HITS FOR JESUS,” which came up in Morse. vs. Frederick, or a principal to censor a school newspaper that reports on female students’ experiences with pregnancy, which came up in Hallowed School District vs. Kuhlmeier?
It is also hard to interpret the opinions of this case outside the context of the Vietnam War, and the popular movements that transformed political and social culture in the US. In Black’s dissent, you can hear the nervous anguish of a reverend conservative judge, anticipating an era when children felt justified to challenge authority in every respect. Implied in his opinion is also a picture of schools as transmitters of patriotic values, where political citizenship means supporting national interests, and rebellion is equal to anarchy.
Either way the Tinker standard became a pivotal case that played a starring role in future hearings about school censorship, obscene speech, and other 1st amendment controversies.