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Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), was a landmark decision by the United States Supreme Court that defined First Amendment rights of students in U.S. public schools. The Tinker test, also known as the "substantial disruption" test, is still used by courts today to determine whether a school's interest to prevent disruption infringes upon students' First Amendment rights.

Background of the case

In 1965, Des Moines, Iowa twelve students decided to wear black armbands to school in protest of the Vietnam War and supporting the Christmas Truce called for by Senator Robert F. Kennedy. Among the students were John F. Tinker (15 years old), his siblings Mary Beth Tinker (13 years old), Hope Tinker (11 years old), and Paul Tinker (8 years old), along with their friend Christopher Eckhardt (16 years old). The students wore the armbands to several schools in the Des Moines Independent Community School District (North High School for John, Roosevelt High School for Christopher, Warren Harding Junior High School for Mary Beth, elementary school for Hope and Paul).

The Tinker family had been involved in civil rights activism before the student protest. The Tinker children's mother, Lorena, was a leader of the Peace Organization in Des Moines. Christopher Eckhardt and John Tinker attended a protest the previous month against the Vietnam War in Washington, D.C. The principals of the Des Moines schools learned of the plan and met before the incident occurred on December 14 to create a policy that stated that school children wearing an armband would be asked to remove it immediately. Students violating the policy would be suspended and allowed to return to school after agreeing to comply with it. The participants decided to violate this policy. Hope and Paul Tinker were not in violation of the policy, since the policy was not applicable to elementary schools, and were not punished. No violence or disruption was proven to have occured due to the students wearing the armbands. Mary Beth Tinker and Christopher Eckhardt were suspended from school for wearing the armbands on December 16 and John Tinker was suspended for doing the same on the following day.

Legal precedents and issues

Previous decisions, such as West Virginia State Board of Education v. Barnette, had established that students did have some constitutional protections in public school. This case was the first time that the court set forth standards for safeguarding public school students' free speech rights. This case involved symbolic speech, which was first recognized in Stromberg v. California.

Facts of the case

A suit was filed after the Iowa Civil Liberties Union approached the Tinker family and the ACLU agreed to help with the lawsuit. Dan Johnston was the lead attorney on the case. The Des Moines Independent Community School District represented the school officials who suspended the students. The children's fathers filed suit in the U.S. District Court, which upheld the decision of the Des Moines school board. A tie vote in the U.S. Court of Appeals for the 8th Circuit meant that the U.S. District Court's decision continued to stand, and forced the Tinkers and Eckhardts to appeal to the Supreme Court directly. The only students involved in the lawsuit were Mary Beth Tinker, John Tinker, and Christopher Eckhardt. During the time of the case, the Tinker family received hate mail and death threats, among other hateful messages.

The case was argued before the court on November 12, 1968. It was funded by Des Moines residents Louise Noun, then the president of the Iowa Civil Liberties Union, and her brother, Joseph Rosenfield, a businessman.

The Court's decision

Majority opinion

The court's 7–2 decision held that the First Amendment applied to public schools, and that administrators would have to demonstrate constitutionally valid reasons for any specific regulation of speech in the classroom. The court observed, "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Justice Abe Fortas wrote the majority opinion, holding that the speech regulation at issue in Tinker was "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." This decision made students and adults equal in terms of First Amendment rights while at school. Bethel School District v. Fraser and Hazelwood v. Kuhlmeier later rewrote this implication, limiting the freedoms granted to students.

The Court held that for school officials to justify censoring speech, they "must be able to show that [their] action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint," that the conduct that would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school." The Court found that the actions of the Tinkers in wearing armbands did not cause disruption and held that their activity represented constitutionally protected symbolic speech. The Court ruled that First Amendment rights were not absolute, and could be withheld if there was a “carefully restricted circumstance.” Student speech that has the potential to cause disruption is not protected by Tinker.

Dissents

Justices Hugo Black and John M. Harlan II dissented. Black, who had long believed that disruptive "symbolic speech" was not constitutionally protected, wrote, "While I have always believed that under the First and Fourteenth Amendments neither the State nor the Federal Government has any authority to regulate or censor the content of speech, I have never believed that any person has a right to give speeches or engage in demonstrations where he pleases and when he pleases." Black argued that the Tinkers' behavior was indeed disruptive and declared, "I repeat that if the time has come when pupils of state-supported schools, kindergartens, grammar schools, or high schools, can defy and flout orders of school officials to keep their minds on their own schoolwork, it is the beginning of a new revolutionary era of permissiveness in this country fostered by the judiciary."

Harlan dissented on the grounds that he "[found] nothing in this record which impugns the good faith of respondents in promulgating the armband regulation."

Legacy

Mary Beth Tinker speaks at Ohio University in 2014 during her Tinker Tour USA.

Subsequent jurisprudence

Tinker remains a viable and frequently cited Court precedent, though Court decisions have determined limitations on the scope of student free speech rights. In Bethel School District v. Fraser, a 1986 case, the Supreme Court held that a high school student's sexual innuendo-laden speech during a student assembly was not constitutionally protected. Though Fraser applies the Tinker test of disruption to school decorum, if not undermining of educational mission, the effect is to make an exception to Tinker for "indecent" speech. Hazelwood v. Kuhlmeier, where the court ruled that schools have the right to regulate, for legitimate educational reasons, the content of non-forum, school-sponsored newspapers, also limits Tinker's application. The Court in Hazelwood clarified that both Fraser and Hazelwood were decided under the doctrine of Perry Education Association v. Perry Local Educators Association. Such a distinction keeps undisturbed the Material Disruption doctrine of Tinker, while deciding certain student free speech cases under the Nonpublic Forum doctrine of Perry.

The Court's rulings in Fraser and Hazelwood state that a “substantial disruption” or infringing on the rights of other students was reason enough to restrict student freedom of speech or expression. Some experts argue that the three individual cases each act independently of one another and govern different types of student speech. It is argued that Fraser does not interfere with Tinker, since Fraser questions sexual speech while Tinker protects political speech. While some believe that Tinker's protections were overturned by Fraser and Kuhlmeier, others believe that the latter cases created exceptions to the Tinker ruling. Others argue that a broad reading of Tinker allows for viewpoint discrimination on certain topics of student speech.

In Morse v. Frederick, the so-called "Bong Hits For Jesus" case of 2007, the Court held that schools may, consistent with the First Amendment, restrict student speech at a school-sponsored event, even those events occurring off school grounds, when that speech is reasonably viewed as promoting illegal drug use. In 2013, the full U.S. Court of Appeals for the Third Circuit re-heard a case en banc that had been argued before a panel of three of its judges, considering whether middle school students involved in a charitable effort—a breast cancer awareness drive—could be prohibited from wearing bracelets imprinted with "I ♥ Boobies! (Keep a Breast)". The Third Circuit cited Tinker when ruling that the school's ban on the bracelets violated the students' right to free speech because the bracelets were not plainly offensive or disruptive and were speech conducted to raise awareness of a social issue. The Supreme Court later declined to take up the case.

Several cases have arisen from the modern display of the Confederate flag. Courts applying the "disruption" test under Tinker have held that schools may prohibit students from wearing clothing with Confederate symbols.

Tinker Tour

Mary Beth Tinker decided to embark on a tour around the United States, called the Tinker Tour, beginning in 2013 to "bring real-life civics lessons to students through the Tinker armband story and the stories of other young people." The tour is a project of the Student Press Law Center.