Do Students Have Free Speech in School? | Tinker v. Des Moines Independent Community School District

In episode 29 of Supreme Court Briefs, students protest the Vietnam War by wearing armbands to school. After some of them get suspended for doing so, the families sue the school district, arguing the students' First Amendment rights were violated.

Check out cool primary sources here:

Photo credits:
Amalex5
Rhododendrites
WestportWiki
Andrew Imanaka

Sound credits:
Mike Koening

15-year old John Tinker, his 13-year old sister Mary Beth Tinker, his 11-year old sister Hope Tinker, and his 8-year old brother Paul Tinker, along with his friend 16-year old Christopher Eckhardt, wear black armbands to school as a way to protest the ongoing Vietnam War.

The principals of the schools all told their students they couldn’t wear these armbands or they would be punished. Well, they wore them anyway. The principals suspended John, Mary Beth, and Christopher, saying they couldn’t come back to school unless they came not wearing the armbands. The students would not return to school until January, but in protest worse black clothing every day for the rest of the school year.

Meanwhile, after the suspension of the students made the front page of The Des Moines Register, the Iowa Civil Liberties Union approached the Tinkers and said “hey, uh, the school district can’t do that. You should sue them. We will help you.” Actually, the ACLU, or American Civil Liberties Union, stepped in to help the Tinker family and Eckhardt sue the Des Moines Independent Community School District, arguing that the First Amendment protected the students’ right to protest at school. Obviously, the kids couldn’t sue, so their dads were the ones who filed suit.

The U.S. District Court for the Southern District of Iowa upheld the prohibition of armbands. While it acknowledged the students had the right to protest under the First Amendment, their concern was that a school would have a hard time keeping an orderly environment where students could learn stuff if protests like this were going on. The Tinkers and Eckhardts appealed to the U.S. Court of Appeals for the Eighth Circuit, but that court was evenly divided, so they appealed directly to the Supreme Court, who heard arguments on November 12, 1968.

So West Virginia State Board of Education v. Barnette had already said students had constitutional protections at school, but this case dealt specifically with free speech rights. Dan Johnston, the lawyer for the students, said the district had previously let other kinds of political speech occur and that it didn’t disrupt learning at school. Allan Herrick, the lawyer for the district, said the district should be allowed to limit speech if it seems like it could lead to “violence, disorder, and disruption.”

That didn’t convince the Court, though. On February 24, 1969, it announced it had sided with Tinker and company. It was 7-2. The Court argued the armbands symbolized pure speech that was completely separate from any actions of those wearing them. The Court also argued that just because they were students on school property didn’t mean they lost their First Amendment right of freedom of speech. Justice Abe Fortas wrote, "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 Hugo Black wrote a dissent saying that the armbands did, in fact, disrupt school activities, and later Supreme Court cases like Bethel School District v. Fraser and Morse v. Frederick would seem to favor his perspective with this case.

Regardless, Tinker v. Des Moines Independent Community School District has been a hugely influential and frequently cited case regarding First Amendment rights for students. It created the Tinker Test, or a way to see if student speech is actually disruptive at school. It weakened the legal idea that the school takes the place of the parent while the student is in attendance. You could even say the Tinker decision paved the way for the recent National School Walkout that took place in schools across the country.

[iammrbeat]

My book about everything you need to know about the Supreme Court is now available!

[tompatterson]

ah, yes, a protest AGAINST A WAR could result in violence.

[mummyneo]

I think that the court was right on this case because the Constitution allows Free Speech in the country. The children did not cause violence by protesting. Great video!

[KnowingBetter]

You asked about the California teacher on twitter, but you leave out some of the details here. The teacher specifically says he failed them to "defend the constitution" - not because they walked out during a test. And the district said walking out was okay and told teachers not to have graded activities that day.

So... the teacher is just being a jerk.

[yetigriff]

Interesting fact: the tinkers grew up to be a tailor, soldier and a spy.

[ravenho]

According to that decision, non-disruptive protest is allowed, such as armbands, t-shirts, pamphlets, etc. However protest such as that of the National School Walkout is not protected by that ruling and students could’ve faced consequences for their actions depending on their local school district.

[gyz]

I just came here to learn how to pronounce Des Moines

[Kylefassbinderful]

These Supreme Court briefs are my fav series from this channel. They're so quick but incredibly interesting. It's like grabbing fast food of trivia/knowledge. I would like the election videos more but there's only so many elections so that makes Court Briefs Supreme my fav item on the Mr. Beat fast food menu.

[iammrbeat]

Do you agree with that California teacher who failed a student on a quiz after the student participated in the National Walkout Day protests? Why or why not?

Also, how do you feel about this anti-abortion student protest walkout that is coming up?

[DaglasVegas]

It seems like the American judiciary system had a huge fatal flaw.
I've been watching these supreme court briefs since the start, time and time again local courts are denying American of their constitutional rights, and the case has to go to the supreme court.
why don't lower court judges suffer any penalties for making decisions that go against the constitution...If a judge knows he'd lose his/her job for ignoring the constitution, it would happen less often, and fewer cases would have to go to the supreme court and would be solved on the state level.
Iowa district court was essentially an accomplice of the Public school, in denying this American citizen their civil liberties.
maybe it's because I'm not an American, but something is extremely inefficient here, the law is the law, different courts shouldn't have different verdicts.

[delightfullydakota]

I think as long as the Walkout was approved by the school system and no students disrupted classes while walking out, the protest itself was not disruptive, and no one skipped class past the 17 minutes then it seemed to pass the Tinker Test to me. If the Walkout was approved by the school and the student wasn’t disrespectful then I don’t see why the teacher failed the student? As for the anti-abortion student protest, I don’t agree since I’m pro-choice but they 100% have the right to do it as long as it is non-disruptive.

[leslyegriffin]

In 1968 I was a freshman at Catalina High School here in Tucson, AZ. I thought it unconstitutional that girls had to wear dresses to school so I talked some like minded girls, girls who cared and would fight for our rights. We wore jeans to school and were promptly sent home to change our clothes and come back to school.
Eventually the Supreme Court ruled that public schools could not dictate what we wore to school as long as it wasn't distasteful or cause a disturbance. That felt great!
Almost as great as protesting lowering the voting age. For those of you who don't remember lowering the voting age from 21 to 18 was mainly to do with Vietnam. 18 year old boys were being drafted, sent halfway across the world to kill people that had never done anything except want their country back. These 18 year old boys had no say in the matter as they couldn't even vote. Sounds a bit like the reason we had a revolutionary war. Remember, "Taxation without Representation!"
My point is fight for your rights or we will lose them. ✌️

[lildubuoy]

This is A good one! I agree with the teacher unfortunately because the walkout isn't a school supported event (legally anyway). The only thing the teacher is guilty of is being a jerk...

[Willinat-Archive]

S - The Tinker gang and Christopher Eckhardt wanted to wear black arm bands to school to protest the Vietnam war, but the school disliked that and suspended the gang.

C - In 1968, the vietnam war was raging on, and as any rational human would be, the gang did not approve of this

O - Des Moines School District believed that the arm bands potentially could result in violence or disruption of orderly education. As for the majority of the court, they saw it as "pure speech" with no rational cause toward problems. The votes were 7-2.

T - November 12, 1968

U - This case relates to the first amendment, particularly the right to peaceful protest and free speech.

S - The case represents the fact that students and teachers do not leave their ability to free speech behind upon entering school grounds. The court case relates to future cases such as the Bethel v. Fraser case and the Morse v. Fredrickson case.

Just a little something if you're having a hard time figuring it out yourself.

[ayenul]

This video is getting recommended again in 2024, how topical…

[amirahannah]

This was awesome! thank you so much for the breakdown.

[packardwitt]

Just my opinion but the student deserved the F ONLY because of incomplete assignment. The protest should not be accounted for by the teacher in grading for any reason.

[jamellfoster]

I live in Alabama & we have a courthouse named after Hugo Black...

[ashtoncollins]

President During this time: Lyndon B. Johnson/Richard Nixon
Chief Justice: Earl Warren
Argued November 12, 1968
Decided February 24, 1969
Case Duration: 104 Days
Decision: 7-2 in favor of Tinker (Warren, Marshall, Brennan Jr., Douglas, White, Stewart, Fortas. Black, Harlan for Des Moines)

[bobbyferg]

Is it weird I thought they were holding paddles in the thumbnail. My expectations were certainly different for this video, also that gets me thinking: when did spanking generally go away as a punishment.