Legal Brief: Tinker v. Des Moines, 393 U.S. 503

Facts of the Case

The school heard that the kids were going to wear black armbands to school to protest the Vietnam War and passed a policy banning the armbands. The kids were suspended until the New Year. The parents filed suit in U.S. District Court which agreed with the school board, U.S. Court of Appeals were tied meaning the ruling stood forcing the parents to take it to Supreme Court.

The Vote

The court’s 7 to 2 decision was handed down on February 24, 1969. It 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 Law and/or Constitutional Provisions at Issue

The First Amendment, as applied through the Fourteenth, did not permit a public school to punish a student for wearing a black armband as an anti-war protest, absent any evidence that the rule was necessary to avoid substantial interference with school discipline or the rights of others. Eighth Circuit reversed and remanded.

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”.

The Legal Questions

Does the First Amendment prevent a school district from disciplining a high school student for giving a lewd speech at a high school assembly? The questions included: Does the first amendment apply to public schools, whether or not symbolic speech is protected, and whether or not this was disruptive.

The Opinion of the Court

Supreme Court said school officials could only limit student free expression when they could demonstrate that the expression in question would cause a material and substantial disruption of school activities or an invasion of the rights of others. 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, and found students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.

Concurring/Dissenting Opinions

Black 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.”

Evaluation of the Case

Tinker remains a viable and frequently-cited Court precedent, though subsequent 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. Fraser qualified Tinker in making an exception 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. In Morse v. Frederick, 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. (Subsequent jurisprudence according to the summary on Wikipedia.)


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