A pivotal court case, Tinker v. Des Moines School District, 393 U.S. 503 (1969), helped establish the First Amendment rights of public school students. In December 1965, 15-year-old John Tinker; his sister, 13-year-old Mary Beth Tinker; and a friend, 16-year-old Christopher Eckhardt, wore black armbands with peace symbols on them to school. Their attire was part of a protest against the Vietnam War and a symbol of support for the Christmas truce in that war that had been proposed by Senator Robert F. Kennedy. School officials had heard of the students’ plan in advance; in preparation for the event, days before they were planning to wear the armbands, the officials established a policy banning the wearing of armbands to school. The three wore the bands anyway, and all were suspended, per the new policy.
The Tinker and Eckhardt families, with the support of the Iowa Civil Liberties Union, filed suit in U.S. District Court, which upheld the school’s decision. The families next appealed to the U.S. Court of Appeals for the Eighth Circuit, which resulted in a tie vote that allowed the school’s decision to stand. The families then appealed to the U.S. Supreme Court directly, and the Court agreed to hear the case. Oral arguments were held on November 12, 1968.
In a 7-2 decision, the Supreme Court held that the First Amendment applies to public school students. While these rights can be limited, the court held that the school district would need a constitutionally valid reason to do so, and this was not it. Writing for the majority, Justice Abe Fortas noted that a valid reason to limit students’ free expression must be more than the avoidance of discomfort that comes with the expression of unpopular opinions. He supported allowing schools to forbid conduct that could “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” Fortas was concerned that schools would become totalitarian in their discipline, and uttered the now-famous phrase that school children do not “shed their constitutional rights to free expression at the schoolhouse gate.”
One of the dissenters to this decision, Justice John Marshall Harlan II, wrote that symbolic speech was not constitutionally protected. Justice Hugo Black, the other dissenter, disagreed with the majority and claimed that the Tinkers’ and Eckhardt’s behavior was indeed disruptive. Black maintained that allowing students this type of free expression would be a slippery slope that would prompt a “revolutionary era of permissiveness” in schools.
Subsequent decisions have generally limited students’ free expression. For instance, in Bethel School District v. Fraser in 1986, the Supreme Court ruled that a high school student’s speech before a school assembly was not constitutionally protected. In this case, the student’s speech had included crude sexual double entendres. In part, the Court sided with the school because the assembly took place during the school day. In Hazelwood v. Kuhlmeier, the Court ruled that schools can censor student newspapers when those publications are school sponsored, as in the case of a journalism class that produces the paper.
- Dautrich, K., & Yalof, D. (2008). The future of the First Amendment: The digital media, civic education, and free expression rights in America’s high schools. Lanham, MD: Rowman & Littlefield.
- Dupre, A. (2010). Speaking up: The unintended cost of free speech in public schools. Cambridge, MA: Harvard University Press.
- Rohr, M. (2000). How free is the speech of public school students? Florida Bar Journal, 74(6), 79.
- Tinker v. Des Moines School District, 393 U.S. 503 (1969).