“The language Abe Fortas used in writing his majority opinion applies quite broadly to the nature of a democratic society.” -John Tinker
In 1965, the Vietnam War was new, but heating up.
During his excellent presentation Sept. 10, Dr. Marc McCoy of Mount Mercy was careful to talk “context” as he led an audience of around 35 at the CRST Graduate Center through a key First Amendment case that changed American education.
Himself a long-time principal of a large middle school in the Linn-Mar district, McCoy clearly had a point of view on the case, but he also was careful to present a pleasingly nuanced picture as he covered the background and impact of “Tinker v Des Moines Independent School District,” a 1969 landmark U.S. Supreme Court decision.
McCoy described how a group of some two dozen pupils in Des Moines were caught up in following the war on the nightly news, and, motivated primarily by their religious faith, wanted to act.
These were mostly children—a mixed group of elementary, junior high and high school students. One of the best known was Mary Beth Tinker, who was a 13-year-old seventh grader at Warren G. Harding Junior High in 1965. She, several of her siblings and friends decided to wear black arm bands to school on one day in December to show support for a Christmas truce that had been proposed by Sen. Robert Kennedy.
Noting how he was the same age as Mary Beth, McCoy marveled a bit at such attention to larger issues at such a young age. “That takes some chutzpah,” he noted.
School principals in Des Moines learned of the students’ plans—it wasn’t hard. McCoy said the plans had been mentioned in a student newspaper story. And Des Moines principals let it be known that the arm bands were not welcome.
McCoy said that, in his opinion, those Des Moines school officials were acting in good faith, using common academic practices of the day. He also said that they were wrong–but their actions were not surprising. An African-American who had recently graduated from high school in Des Moines had just died in Vietnam, and administrators were worried that a group of white students protesting against the war could create racial tensions and incidents in school.
That was, after all, the year of what some have called the “long, hot summer.” Frustrated with poverty and racial discrimination had boiled over into riots in some American cities—not Des Moines, but then again, those riots had been on the evening news like Vietnam had, and their impact had to be on administrators’ minds.
And the doctrine of “in loco parentis,” that schools had parental authority, was stronger in 1965.
Mary Beth wore her arm band. The principal called her into the office, and told her to take it off. She complied, but later in the school day was suspended anyway. Her brother wore a band to school the next day and went directly to the office to earn his suspension without the bother of having to attend class first.
About two dozen students engaged in the completely peaceful, silent protest in various schools, but only six were suspended from school. Administrators had wide latitude on what exactly to do, and exercised that latitude. The parents appealed to the school board, which voted to back the administrators and leave the suspensions on the students’ records.
And then the ACLU offered help with a lawsuit challenging the district’s actions under the First Amendment. At trial in a federal district court, the judge said both the students and the school made valid, compelling arguments—he said the arguments, in effect, balanced. Like in baseball, “a tie goes to the runner,” McCoy said—and in this context, the school district, as the local authority trying to enforce the status quo, was the runner.
Three students appealed. The appeal was heard by a panel of judges who evenly split on the case—and in this case, the trial court was the runner, so the students lost and then appealed to the Supreme Court.
The court ruled in 1969, 7-2, that the school district was wrong—primarily, the judges ruled, because the students had neither caused a disruption nor posed a likelihood that their actions would disrupt school. One reason for the ruling is that no teachers testified during the trial or the appeals of any classroom problems caused by the protesting students.
“It can hardly be argued that either students or teachers shed their constitutional rights to freedom of expression at the schoolhouse gate,” Abe Fortas wrote in the court’s majority opinion.
Some predicted that the ruling would cause chaos. It certainly increased lawsuits, but McCoy said that, by and large, it did not lead to lots of disruptions in schools. Partly, that’s because Tinker dealt with political speech—the most highly protected form of speech, and as Kathryn Coulter, another MMU professor, pointed out in discussion after McCoy’s presentation, other forms of speech, such as threats or harassment of teachers, do not (and never did) enjoy the same level of First Amendment protection. Coulter is a lawyer.
The academic landscape has changed a lot since 1965. The country first became more liberal (photos of the Tinkers and their friends at the time of the protest look like they came straight off the set of “Leave it to Beaver”) and then began a slow conservative turn. Subsequent court decisions have not overturned Tinker, but have clarified that school administrators still enjoy wide latitude to control student behavior.
Today, McCoy said, one key issue is: Where does the schoolhouse gate even exist? With Twitter and Facebook, objectionable student communication may take place on a random night in July at 3 a.m.
It’s a good question.
I was also thinking of today’s anniversary. 9/11—what does Tinker mean in this world? As a country, we declared “war” on terrorism, which to my mind was a terrible idea simply because being against terrorism is like being against sin. You can declare war on it if you want to—but the war will never end. You’re starting a war that by definition has no victory point.
And that war mindset is clearly not very kind to freedom of expression. The quote at the start of this post was from an e-mail correspondence Dr. McCoy had with John Tinker before the presentation.
Today, on this 14th anniversary of 9/11, I don’t want to forget that America was attacked. But, I don’t want us to burn down freedom in an attempt to provide what we can’t get—absolute security.
It may be messy and dangerous, but I prefer democracy.