I had the pleasure of seeing Mary Beth Tinker speak at Gonzaga School of Law last night on the subject of the free speech rights of students.  In 1965, eighth grader Mary Beth Tinker was suspended from school for protesting the Vietnam War, and took her case all the way to the U.S. Supreme Court.  Although she was just thirteen, she donned a black armband with a peace sign, and politely refused to remove it when asked.

Mary Beth Tinker with her brother who also joined the protest.

She wore the armband to support a Christmas Truce, as urged by Robert Kennedy, and did not return to school until January 1st, when the protest was scheduled to end.  Although she lost her case at the lower courts, Mary Beth Tinker ultimately prevailed at the U. S. Supreme Court in the landmark case of Tinker v. Des Moines School District.

Mary Beth Tinker spoke at Gonzaga School of Law about her background growing up and how her parents were civil rights activists.  Her parents assisted with voter registration efforts for African-Americans in the South.  Although her parents were also active in the anti-war movement, she explained that the decision to protest was her own.  The ACLU took up her case, and the final ruling did not come out until 1969.

The most recent case addressing the freedom of speech for students is Morse v. Frederick, in which the U.S. Supreme Court ruled that a school district properly seized a banner from a student which read “Bong Hits 4 Jesus”.   The Supreme Court indicated that the First Amendment rights of a student did not protect speech that promoted drug use.  Many lawyers disagreed with the courts ruling because the student in question held the banner on a public sidewalk outside of the school.

One thing that I kept in mind when I heard about Mary Beth Tinker’s case,  is that student protests 40 years ago had the potential for being more volatile.  I think that the student anti-war protests that occur today do not concern the school administration because young people do not seem to be as involved.  (I should have asked Ms. Tinker if she agreed with this but I did not think of this at the time).  While at this time student political protests seem dormant in this country, in other countries student activists are a force to be reckoned with.   Remember what student free speech did to Iran last summer?  Do you remember seeing the images posted on Twitter and Flickr?  These are good reminders on why the protection of  free speech is so important, even for the high school set.  Similar student movements changed the Ukraine in 2004 (Orange Revolution) and Georgia in 2003 (Rose Revolution).

Although today it seems pretty basic that a student can wear an armband in the U.S., it was not so clear in 1966.   Look at the transcript of Justice White grilling the ACLU lawyer at the Supreme Court during oral argument in 1968:

JUSTICE WHITE: Then why didn’t they take it [the armband] off when they went to class?

MR. JOHNSTON: Well, there would be no reason to take it off when they went to class.

JUSTICE WHITE: Because it was ineffective, nobody would notice it.

MR. JOHNSTON: It was not disruptive in the class your honor.

JUSTICE WHITE: You mean physically, but how about the attention of the students?

MR. JOHNSTON: Well, there is no testimony by any of the teachers that it was in any way distracting or disruptive.

JUSTICE WHITE: Why did they wear, again, why did they wear the armband?

MR. JOHNSTON: They wore the armband to convey a message.

JUSTICE WHITE: To convey the message.

MR. JOHNSTON: That’s right.

JUSTICE WHITE: They anticipated students would see it and understand it and think about it.

MR. JOHNSTON: That’s correct.

JUSTICE WHITE: And when they did it in class, they intended the students to do it in class.

MR. JOHNSTON: Well, I think it’s a fair assumption that the method of . . .

JUSTICE WHITE: They intended the students to think about it outside of class but not in class.

MR. JOHNSTON: I think they intended; I think they chose a message, chose a method of expression your honor, which would not be disrupting, distracting, disrupting.

JUSTICE WHITE: Physically it wouldn’t make a noise. It wouldn’t cause a commotion, but don’t you think that it would cause some people to direct their attention to the armband and the Vietnam war and think about that rather than what they were thinking about, supposed to be thinking about in the classroom?

Justice White’s questions seem a little bit crazy today, but maybe at the time discipline may have been pretty strict.  I sometimes speak at schools (see here) and it does seem like students today definitely multi-task a little during class.   So while Justice White grilled the ACLU lawyer, Justice Thurgood Marshall had tough questions for the school’s lawyer.  In particular Thurgood Marshall was curious as to how seven children with armbands could threaten the order of a school district with 18,000 students.

JUSTICE MARSHALL: Seven out of eighteen thousand and the school board was afraid that seven students wearing armbands would disrupt eighteen thousand?

MR. HERRICK: I think . . .

JUSTICE MARSHALL: Am I correct?

MR. HERRICK: . . . the court plays, that that doesn’t give us the entire background that builds up to what was existing in the Des Moines schools at the time the armbands were worn. Uh, the, as we view it, the right of freedom of speech or the right of demonstration in the schoolroom and on the school premises must be weighed against the right of the school administration to make a decision which the administration, in good faith, believed and its discretion was reasonable to preserve order and to avoid disturbance and disruption in the schoolroom.

JUSTICE MARSHALL: Been any disruption?

MR. HERRICK: I’ll refer to that also, your honor. There had been with John Tinker, what I would call disruption. One or two of the boys who had been struck, I believe the record shows.

JUSTICE MARSHALL: Well, how many boys are struck in the Des Moines school system per day normally?

MR. HERRICK: Well, if the court please, I think the question there gets back to the first issue that I undertook in the states. Does the school if we have an aroused community have to wait until disruption occurs or may it act to prevent it?

JUSTICE MARSHALL: Well, the school system was aroused? Where is that in the record?

The transcript of this case, and the audio of the oral argument, are available through oyez.org.  Ultimately Justice White was convinced to rule that the armband was constitutionally protected speech and joined with the majority opinion.  Anytime you listen to the old oral arguments of court cases on constitutional law, you are reminded at how quickly attitudes about constitutional rights can change.

For questions about laws for teens, Mary Beth Tinker recommended the site //askthejudge.info/.  The content is by a retired judge and there is a lot of discussion on freedom of speech in school.

Anyway, my visit back to Gonzaga University School of Law was enjoyable.  It seems like there are more cool things going on at GU Law then when I went there.  After Tinker’s presentation, several law students were setting up a display for a project protesting human trafficking, see here.  The display was an “interactive passport installation” and was staffed by students and Gonzaga alumna Katie Stone Botezatu.  But that is the subject of a future blog post maybe.

This Tinker lecture was actually something I just happened to stumble onto when I used the law library after court Thursday.  Does anyone know of any good way to follow events down there at Gonzaga?  I track a lot of GU activities on facebook, but I am apparently still missing a lot.

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