We often take things for granted in our lives without realizing that some brave individuals in the past fought long and hard to earn those rights for all of us.  The Tinker v. Des Moines case is a prime example.  Junior high school students battled the school board and the legal system in their quest for freedom of speech in the schools.

What Led Up to The Legal Case.

The year was 1965, and opposition to the war in Vietnam was beginning to grow.  These were the early days of the protests. By 1965, hundreds of U.S. soldiers had been killed in Vietnam, and people began wondering what we were fighting for. Over the next few years the number and volume of protestors would grow as the death toll rose. By the end of the Vietnam War, more than 60,000 Americans had been killed in action, and many more were wounded.

John and Mary Beth Tinker were students in the Des Moines, Iowa public schools.  Mary Beth, at 13, was a student at Warren Harding Junior High.  The Tinker kids, along with Christopher Eckhardt, Christine Singer, and Bruce Clark, decided to wear black armbands with a peace symbol to school in protest of the war.  The school board learned that a protest was coming and announced a ban on all protests.  Despite the ban, the students wore their black armbands to school on December 16, 1965. 

Mary Beth was called to the principal’s office.  He demanded she remove the armband.  He then suspended Mary Beth. The other 4 students were also suspended for violating the ban on protests.  The entire community was in an uproar.  The December school board meeting was a highly charged event with people arguing both sides of the issue.  Tempers were hot.  The school board wanted to postpone a decision, but the crowd would not leave until they voted on the protest ban.  In the end, the board voted 5-4 to keep the ban on protests.  That meant the students would be taking the case to court. 

After Christmas break, the young protestors returned to school without armbands.  However, they all dressed completely in black for the rest of the school year.

The Legal Issues

          The Iowa Civil Liberties Union stepped forward to represent the students in a lawsuit against the school district with Mary Beth Tinker as the named plaintiff. There were two key legal issues to be decided by the courts:

          (1) Were the black armbands a form of symbolic speech protected under the First Amendment?

          (2)  If the armbands were symbolic speech, did the school district have the power to ban such speech in the interest of maintaining harmony and order in the schools?

Everything else – the suspensions, the ban on protests – all were covered by these two issues.

The Case Progresses Through the Courts and the Ultimate Supreme Court Ruling.

The case was first heard in the United States District Court for the Southern District of Iowa. After hearing arguments from both sides, the District Court judge decided that: (1) Yes, the armbands were a symbolic form of free speech, but (2) the school district’s right to maintain a controlled and orderly environment in the classroom was more important than the students’ First Amendment rights.  Mary Beth and her friends lost round one.

They appealed the case to the Eighth Circuit Court of Appeals.  The Court of Appeals was deadlocked, with an even number of justices on each side of the controversy.  The students, represented by the American Civil Liberties Union (ACLU), asked the United States Supreme Court to take review and decide the case.

Oral argument was held in the Supreme Court on November 12, 1968.  The students’ lawyer, Dan Johnston, argued that the school district had allowed other forms of political speech in the school, including political buttons.  No riots or upheavals resulted.  What was different about the armbands?  The school district argued that antiwar protests could incite violence at the school.

On February 24, 1969, the Supreme Court issued its ruling in an opinion by Justice Abe Fortas.  The Court ruled in a 7-2 vote that students have the same right of free speech as everyone else.  Justice Fortas wrote that students and teachers do not

shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  The Court held that schools cannot censor student speech unless it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”

The case was over with the Court deciding both legal issues in the students’ favor, ruling that the armbands constituted “pure speech.”

How the Court Analyzed the Issues.

The majority opinion, authored by Justice Fortas, clearly sets out the Court’s analysis and thought process.  In analyzing freedom of speech, he wrote:

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.

Tinker v. Des Moines, 293 U.S. 503 at 513.

In discussing the school’s right to restrict students’ speech, he wrote:

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 accompanies 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. (citation omitted).

         In the present case, the District Court made no such finding.

Tinker v. Des Moines, 293 U.S. 503 at 509.

However, not everyone on the Court agreed with the majority.  Two justices voted against the students.  Justice Hugo Black wrote a blistering dissenting opinion in which he said:

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 . . .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.

Tinker v. Des Moines, 293 U.S. 503 at 524.

In summary, the majority of the Court believed that students have the same rights as adults, and a school may only restrict their rights if it has a valid and pressing need to prevent violence or serious disruption in the classroom.  In this case, the school failed to present any real evidence that wearing black armbands would disrupt education at the school.


Since the Tinker case was decided in 1969, protests have become an accepted way for students to express their views.  Students have protested apartheid in South Africa, racial and sexual inequality, and many other issues.  Last year’s massive student protest following the Parkland school shooting and the recent global climate strike are prime examples of the power young people have to work for change.





Laws Section

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