Landmark Cases: Tinker v. Des Moines (Armband Case)

First, the Court concludes that the wearing of armbands is "symbolic speech," which is "akin to pure speech,'"and therefore protected by the First and Fourteenth Amendments. Secondly, the Court decides that the public schools are an appropriate place to exercise "symbolic speech" as long as normal school functions are not "unreasonably" disrupted. Finally, the Court arrogates to itself, rather than to the State's elected officials charged with running the schools, the decision as to which school disciplinary regulations are "reasonable."

It might be useful to open with a summary by a dissenter (Justice Black, who also dissented in the "Fuck the Draft" jacket case) of the opinion. Black, who thought it unconstitutional to stop sixteen year olds from buying porn magazines drew some questionable lines later in his career. The first part, though Black is wary about accepting it, is fairly uncontroversial.  The Supreme Court recognized flags or being able to refuse to salute them (separate cases) is a free speech matter.  Symbols and expressive conduct (again, the flag salute) count here.

Next, it was repeatedly recognized -- particularly in the flag salute case -- that the First Amendment protects students.  Black is wary about some sort of hazy "reasonableness" test for the First Amendment. But, his dissent is not merely about bright line rules. It broadly would allow the state to ban First Amendment activities, to phrase it that way, even at colleges. This is shown by his reference to a case from 1915 that upheld the ban of Greek letter fraternities.  Black also supported suspending his grandson for his role in creating an underground newspaper that attacked [public] school officials. "No law" apparently doesn't quite mean "no law."

[Black at some points does what amounts to trolling. If you protect students here, do you have to allow them to vote too? No. Stewart concurs briefly to emphasize students don't have equal rights as others and the majority doesn't really seem to say that.]

The majority was clear to say that the case is not about "length of skirts or the type of clothing, to hair style [the subject of loads of lower court opinions into the 1970s], or deportment" but direct, primary First Amendment rights akin to "pure speech."  That is, "a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners."  And, this was not a general ban of "all symbols of political or controversial significance."  The oral argument, e.g., had a back/forth on how an armband took one's mind off a lesson. But, so would any political button for that matter. A general ban would be more complicated. 

[White concurs briefly to say he doesn't agree with all a lower court opinion relied upon to make a core point said. He also noted he assumed that majority treated "communicating by words and acts or conduct which sufficiently impinges on some valid state interest" differently. This touches upon the "pure speech" -- quoting a past case -- aspect. So, e.g., burning a draft card would be somewhat different.]

The majority emphasized the importance of the school in training future adult citizens to underline the rights of freedom of expression. There needs to be a disruption and merely fearing it will happen isn't enough.  "Controversy" isn't enough since freedom of speech will do that. Black cited somewhat more:

While the record does not show that any of these armband students shouted, used profane language, or were violent in any manner, detailed testimony by some of them shows their armbands caused comments, warnings by other students, the poking of fun at them, and a warning by an older football player that other nonprotesting students had better let them alone. There is also evidence that a teacher of mathematics had his lesson period practically "wrecked," chiefly by disputes with Mary Beth Tinker, who wore her armband for her "demonstration."

The majority cites a lower court opinion to formulate a basic test: "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school." Thus, freedom buttons could be worn, but not if people were starting to be forced to wear them by other students. Here, the majority argued,  armbands "caused discussion outside of the classrooms, but no interference with work and no disorder." Black's comment suggests this a matter of degree. Mere debate among students was not enough.  Merely discussing Vietnam might do that too.  Still, the majority seemed to basically ignore Black's argument here, which is seems a bit too much.  Harlan's whole dissent:

I certainly agree that state public school authorities, in the discharge of their responsibilities, are not wholly exempt from the requirements of the Fourteenth Amendment respecting the freedoms of expression and association. At the same time, I am reluctant to believe that there is any disagreement between the majority and myself on the proposition that school officials should be accorded the widest authority in maintaining discipline and good order in their institutions. To translate that proposition into a workable constitutional rule, I would, in cases like this, cast upon those complaining the burden of showing that a particular school measure was motivated by other than legitimate school concerns -- for example, a desire to prohibit the expression of an unpopular point of view, while permitting expression of the dominant opinion.

Finding nothing in this record which impugns the good faith of respondents in promulgating the armband regulation, I would affirm the judgment below.

There does seem to be some disagreement on the "widest authority" point. The allowance of controversial political buttons and iron crosses does seem to show a specific "unpopular point of view" was favored.  The statement here, especially given the importance of symbolic speech, is rather conclusionary.  One would hope Harlan offered more detail. In certain cases, including multiple ones in this series, Harlan's separate opinions provided useful commentary. This one is a tad thin.

Meanwhile, the author of the opinion (who was a dead man walking -- he would retire before the end of the term) was no libertarian on '60s protests. He wrote a book the year before entitled: Concerning Dissent and Civil Disobedience - "We Have an Alternative to Violence" drawing the line against certain types of protest. For instance, in another case that turn, a case involving burning the flag was deciding narrowly (in an opinion by Harlan) because pure speech was also involved while four justices (including Fortas and Black) dissented.  

Tinker results in various lower court opinions drawing various lines regarding disruption, but it has limited staying power in the Supreme Court. The Supreme Court if anything seemed to focus on trivial matters such as a school election speech involving crude sexual metaphor (7-2 upholding restriction) and an inane somehow supportive of drugs banner (5-4, fractured majority allowing limits on speech promoting illegal drug use). There were a few cases involving colleges. And, 5-3 upholding limits on a school newspaper, but that added a special "school as messenger" concern.  Meanwhile, a fractured 5-4 majority to some degree also protected school libraries.  The question still is somewhat open, including how much off campus speech can lead to school discipline.  

The case is best seen for drawing a basic line that shows that students have rights at school [non-First Amendment cases later also can be cited], particularly regarding freedom of speech.*  

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* The questions raised therefore can be seen in various areas, but my comment above is focused on the specific issue of controversial speech at public schools, including certain types of t-shirts.  A separate freedom of expression issue arose in various cases that also raised religious clause issues, such as the rights of student religious clubs and so forth.