Tinker v. Des Moines, 393 U.S. 503; 89 S. Ct. 733; 21 L. Ed. 2d 731 (1969)

Tinker v. Des Moines, 393 U.S. 503; 89 S. Ct. 733; 21 L. Ed. 2d 731 (1969)

Facts—Three students, two in high school and one in junior high, were suspended from school after they wore black armbands to class in protest of the Vietnam War. Principals had previously announced that this form of protest would result in suspension. The U.S. District Court dismissed the complaint brought by the petitioners through their fathers, and the U.S. Eighth Circuit, sitting en banc, equally divided, left the lower court decision in place.

Question—Does the First Amendment (as applied to the states through the Fourteenth) protect the rights of public school students to wear black armbands to school in protest of the Vietnam War?


ReasonsJ. Fortas (7–2). The wearing of black armbands in silent protest “was closely akin to ‘pure speech’ which, we have repeatedly held, is entitled to comprehensive protection under the First Amendment.” Moreover, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The schools’ policy was based on fear of disturbance, but “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” Here there was no finding that the student speech was disruptive. Moreover, the schools had previously allowed the wearing of other political symbols including the iron cross. “In our system, state-operated schools may not be enclaves of totalitarianism.” Student rights embrace school-related as well as classroom activities.

J. Stewart concurred, but said that he did not believe that student rights were coextensive with those of adults.

J. White, concurring, continued to recognize a distinction “between communicating by words and communicating by acts or conduct which sufficiently impinges on some valid state interest.”

J. Black, dissenting, did not think that schools were an appropriate forum for such speech. He feared that this decision could signal “the beginning of a new revolutionary era of permissiveness in this country fostered by the judiciary.” Black believed the evidence indicated that the student protest had disrupted classes. He did not believe the Court should be in the business of examining the “reasonableness” of speech any more than it once looked into the reasonableness of economic legislation, and he feared that the decision would undermine school discipline.

J. Harlan, dissenting, would have deferred to the judgments of school officials that wearing armbands was disruptive, absent a showing of lack of good faith by such officials.

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