The Tinker Case

Bleeding Heartland has a fine post remembering the famous Tinker case after one of its central participants, Christopher Eckhardt, died recently. 

Eckhardt and his friends John Tinker and Mary Beth Tinker were suspended from school for wearing black armbands to protest the Vietnam War in 1965. The Des Moines Independent School District Board upheld the suspensions and the Iowa Civil Liberties Union took the students' appeal all the way to the U.S. Supreme Court. The High Court, in 1969, ruled in their favor, delivering the famous line that students don't shed their First Amendment rights to speech and expression "at the schoolhouse gate."

Bleeding Heartland excerpts a passage from a summary of the case clearly showing that the students' protest was very risky at a time when the war was still popular:

More than two decades later, Christopher Eckhardt remembers what happened as if it were yesterday. “I wore the black armband over a camel-colored jacket.” There were threats in the hallway. “The captain of the football team attempted to rip it off. I turned myself in to the principal’s office, where the vice principal asked if I ‘wanted a busted nose.’ He said the seniors wouldn’t like the armband. Tears welled up in my eyes because I was afraid of violence.

“He called my mom to get her to ask me to take the armband off.” Christopher’s parents were peace activists; his mother refused. “Then he called a school counselor in. The counselor asked if I wanted to go to college, and said that colleges didn’t accept protesters. She said I would probably need to look for a new high school if I didn’t take the armband off.

 “The year before, they allowed everyone to wear black armbands to mourn the death of school spirit . . . but on Dec. 15 the gym coaches said that anyone wearing armbands the next day had better not come to gym class because they’d be considered communist sympathizers.

 “My former subversive activities had included being president of the student council in elementary and junior high school, membership in the Boy Scouts, listing on the honor roll, delivering The Des Moines Register and shoveling snow for neighbors.”

The Civil Liberties Union took the case to U.S. District Court, where it was dismissed. The 8th Circuit split but the Supreme Court sided with the students in a ruling written by Justice Abe Fortas:

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. We properly read it to permit reasonable regulation of speech-connected activities in carefully restricted circumstances. But we do not confine the permissible exercise of First Amendment rights to a telephone booth or the four corners of a pamphlet, or to supervised and ordained discussion in a school classroom.

I was a high school Boys Stater during the late Bronze Age when I first heard about the Tinker case. If you're unfamiliar with Boys State, it's basically a summer camp sponsored by the American Legion where kids learn about patriotism and government. In addition to electing a governor, senators, etc., a state Supreme Court and Court of Appeals were appointed. I was on the Court of Appeals.

We were asked to issue a ruling based on arguments in the Hazelwood School District v. Kuhlmeier case. In Hazelwood, the U.S. Supreme Court whittled away at the Tinker standard by ruling that officials in a suburban St. Louis school district didn't violate the rights of students by removing stories on teen pregnancy and divorce from the student newspaper.

I was the lone judge on the fake court to side with the students. I didn't see any reason to deviate from the wisdom of Tinker. As someone who, at the time, passed often through schoolhouse gates, I was very partial to that no-shedding part. And for my obstinance, I was given the task of having to write my own dissenting opinion. No idea what happened to it, but I bet it was well-argued. Yep.

Agree or disagree with those kids with the armbands, it clearly took guts. And that's usually what it takes to protect civil rights.

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