Tinker v Des Moines

Supreme Court Case Essay

Joselyn Salazar

C.E U.S Gov Pols 1100

NUAMES North
 According to the First Amendment, all people have the right to freedom of speech. The

written words on the Constitution blur out when it comes to deciding what specifically is

protected by the First Amendment, and what does not make the cut. Deciding the specifications

of the Amendment leads us to the court case of Tinker v. Des Moines (1969); where students

John, MaryBeth Tinker, and a fellow classmate conducted a protest against the Vietnam war. The

court had to decide whether the armbands used by the students, as a symbol of their protest, were

protected by the First Amendment. The students were expressing their opinion through a

peaceful protest; so, would their actions fit into the First Amendment’s safe haven?

The United States’ involvement in the Vietnam war was a topic many Americans

questioned and were against. The Vietnam war clashed with the U.S in 1954 because of certain

conflicts in the region going back several decades. 3 million U.S troops were placed in Vietnam,

and,” According to a survey by the Veterans Administration, some 500,000 that served suffered

from post-traumatic stress disorder, rates of divorce, suicide, alcoholism, and drug addiction.”

History.com Editors (2009).Vietnam War. A&E Television Network. The Vietnam war became so

controversial among American citizens that some individuals began to protest for troops to be

removed. In October 1987, A group of about 35,000 citizens (about twice the seating capacity of

Madison Square Garden) performed a protest outside of the Pentagon against the Vietnam war.

In the same way, students John (15) and Mary Beth Tinker (13) decided to show their view on

the topic with another school friend and conducted a protest showing their opinions on the

Vietnam war by wearing black armbands to school. Their peaceful protest resulted in all three

students being suspended until they agreed not to wear the armbands to school.

Information about the protest reached the school administration and they were quick to

act on the issue. The School Board of the Des Moines Independent Community School District
shut down anyway for the students to proceed with their plans by administering a policy banning

any wear of armbands in school. As the students continued with their plans, they were suspended

from attending school until they obeyed the school policy. The Tinkers reacted and argued that

the school board was violating the First Amendment by suspending the students from school for

conducting their protest. The First Amendment in the Constitution states that congress shall

make no law respecting an establishment of religion or prohibiting the free exercise thereof; or

abridging the freedom of speech, or the press, or the right of the people peaceably to assemble

and to petition the government for a redress of grievances.” Constitute.(Date not available).

United states of america 1789 (rev.1992). Publisher not available. Therefore, the Tinkers took the

school board to court and the case went to the Supreme Court in 1968.

In my eyes, the case was given many connections to how it could fit into the First

Amendment’s requirements and how it is blocked out. The court case included evidence of the

aftermath the Tinkers were pushing through during the whole situation, and how the school

responded. The court did a respectable job keeping in mind both sides of the story to make their

final decision. Through the DBQ of the court case, the documents presented are on the Tinker’s

side of the argument. The documents show the unfairness of the actions the school district

directed towards the students, but they also help us see the reasoning for their actions. The court

sticking with the First Amendments’ description and that the students’ protest did not disrupt

anyone on the school grounds, helped to make the final decision of siding with the Tinkers.

The Tinkers’ argument to court had to do with the removal of free expression of the three

students who were suspended, but does the First Amendment protect expression? An expression

can be shown in many ways including speech, writing, visual art, fashion. The First Amendment

protects expression because it states that congress cannot prohibit freedom of speech, peaceful
assembly, or grievances. Expression falls into place with all the above and ties into symbolism as

well. Most groups that have multiple followers have a symbol that they use to represent

themselves and their ideas. The three suspended students used a black armband as their form of

symbolism for their protest.

In many protests we see people write messages on posters explaining what they are

fighting for and in this case, other protesters have written “youth against war and fascism” and

“bring the GI’s home now” (Document C). Not only do the students have strong feelings and

opinions on the way the U.S is handling the Vietnam war but so do other citizens. In fact,

citizens who had opinions on the Tinker v. Des Moines case showed their expression through

words and sent the Tinkers hate mail. These mails included sentences like,” nobody's right of

“free speech” is being denied” (Document D). The people who wrote these letters showed

negative opinions on the subject. I think some of these individuals reacted this way because they

do not believe school should be a place for politics or talk about current issues. People believe

school should be instructing their children like normal and not “distract” them with talking about

anything else.

In court, the Tinkers’ representative, Johnston, explained to Justice White that the

students wore armbands to express their message and help others absorb the reason for the

protest. Johnston’s explanation of the students’ intentions takes us back to symbolism and how

the students used the armbands to represent their protest to others. Justice White then questions

the protest by saying,” wouldn’t it cause students to think about something other than what they

should be thinking in class?” (Document E). Johnston replies saying that the armbands might

have taken a moment of a student’s attention but that the protest was designed to not cause any

sort of disruption. He says,” none of the teachers testified [of disruption] at the hearing in the
district court.” He then ends by noting, “I think it might have distracted some students just as

many other things do in the classroom which are allowed from time to time.” (Document E).

Herrick, who represented the DesMoines Independent School District, spoke in the

schools’ defense by saying that freedom of speech needs to be kept to a certain extent in school,

for it can cause unnecessary problems among the students. The school board says that they did

not want this to become an “explosive situation” (Document F), meaning they did not want to

have to control any of the many arguments they believed would spark through the school.

Therefore, the school board decided to put a stop to any misunderstandings by suspending the

students who are the cause of a probable inconvenient situation. Most students in the school have

been exposed to the Vietnam war aftermath and continuing problems, so it should not come as a

surprise how any argument could burst out anywhere and anytime on the subject. Previously in

paragraph 4 of this essay we see how people outside of the school have reacted to the situation.

The evidence shows that the protests and controversy revolving around the Vietnam war is

happening outside of the school more than it is happening in the school.

The majority opinion in the court decided that the students’ protest does not create any,”

aggressive-disruptive action,” and that this problem,” involves direct, primary First Amendment

rights akin to “pure speech.” (Document G). The armbands used for the protest brought no

disruption to the school’s students or staff. If the school board were to not allow any talk or

expression of the Vietnam war, they are striping the students’ constitutional rights. The actions

the students are performing cannot be stopped as if they were a dress code violation or having

distracting hair color. (Document G).

The concurring opinion on the case says that they agree with the judgement made by the

court. Towards the end of their statement they say,” I cannot share the Court’s uncritical
assumption that, school discipline aside, the First Amendment rights of children are coextensive

with those of adults.” (Document H). They are stating that they do not believe children stand at

the same level of First Amendment rights as adults, hence shutting down the students’ protest.

The concurring opinion is objecting to the green light the Majority opinion gave the students.

Freedom Form Institute brings back what is said in the First Amendment,” Congress shall make

no law… abridging the freedom of speech.” Hudson Jr., D.L (2010). It’s Elementary, Children

Have First Amendment Rights Too. Publisher not available. There is no specification that the

First Amendment only applies to adults.

Hugo Black comes into play expressing his opinion contradicting the freedom of speech

rights being discussed. He states that he has never believed it to be proper for anyone to get up

and speak their mind anywhere at any time. He uses locations like the catholic church and Jewish

synagogues as examples of where you cannot just go in and preach the opposite of their own

beliefs. “Uncontrolled and uncontrollable liberty is an enemy to domestic peace,” (Document I),

Hugo Black believes that blindly following the Federal Constitution is not an option since

children need discipline. He ends by saying, “The Federal Constitution does not compel teachers,

parents, and elected school officials to surrender control of the American public school system to

public school students.” (Document I).

John Marshall Harlan continues to agree with Hugo Black and his idea that schools

should be allowed to go to any extent they believe is necessary to keep discipline and order in

their premises. Harlan points out that the school knows their students and the limits they put into

place are there because the school officials know the reaction that could erupt within the

building. In this situation the school officials are trying to prevent students from expressing their

opinions because it is a topic they believe should not be talked about in school. The topic at hand
is avoided by most and the school officials wanting to stop the students’ opinion from spreading

in school by suspending them is a violation of the students’ First Amendment rights.

When seeing a photo of the armbands used for the protest, they are hardly noticeable

unless you pay close attention to the students wearing them. The usage of the armbands was a

very peaceful and almost discreet way of protesting the Vietnam war. They are in no way

distracting or capable of causing disruption in class. You would think that because of how much

controversy was being created because of the armbands they would be bigger and have a symbol

on them to make them very visible, on the contrary the armbands were small and all black. I

agree with most justices stating that the armbands should not have been as big of a problem as

they were built up to be. I think that this form of freedom of speech should be protected by the

First Amendment, especially because of how peaceful the protest was.

The First Amendment protects freedom of speech, and it is hard to put certain actions

done by individuals into the category of being protected by the First Amendment or not.

Dissenting opinion by Street v. New York,1969 believes not all actions can be protected by the

First Amendment for the Amendment only protects speech. They conclude it is correct to have

an order in which both agreeing and disagreeing sides of the argument are given attention

(Document L).

Other symbolic protests against the Vietnam war were seen at the time, and in 1976

protesters tested the flexibility of the First Amendment’s protection. Banners were placed by

protesters on the Statue of Liberty’s face and hanging from her crown. This type of symbolic

speech is larger than the calm protest the Tinkers conducted. Yes, the banners are a form of

speech and expression but the problem making it difficult to be protected is where the banners
were placed. The Statue of liberty is a praised symbol of freedom and having banners stating

opinions against the countries involvement in the war offends many more deeply.

After looking at all the documents, we are given strong opinions on both sides of the case

that could pull the court to either side. The court’s final decision of having their majority opinion

be in favor of the Tinkers was decided by analyzing how the school cannot prohibit any talk of

the Vietnam war. The armbands used by the students to protest were in no way offensive or

disruptive, and if the school were to prevent the students from speaking their opinions through

expression, they would be taking away their constitutional rights.

History.com editors,(2009).Vietnam war. Retrieved from

https://www.history.com/topics/vietnam-war/vietnam-war-history

Hunter Jr., D.L (2010). It’s elementary, children have first amendments too. Retrieved from

https://www.freedomforuminstitute.org/2010/08/19/its-elementary-children-have-first-am

endment-rights-too/