Tinker v. Des Moines

Students Hold Peace Arm Bands
Mary Beth Tinker and her brother, John.

Bettmann /Getty Images

The 1969 Supreme Court case of Tinker v. Des Moines found that freedom of speech must be protected in public schools, provided the show of expression or opinion—whether verbal or symbolic—is not disruptive to learning. The Court ruled in favor of Tinker, a 13-year-old girl who wore black armbands to school to protest America's involvement in the Vietnam War.

Background of Tinker v. Des Moines

In December 1965, Mary Beth Tinker made a plan to wear black armbands to her public school in Des Moines, Iowa, as a protest to the Vietnam War. School officials learned of the plan and preemptively adopted a rule that prohibited all students from wearing armbands to school and announced to the students that they would be suspended for breaking the rule. On December 16, Mary Beth and more than two dozen other students arrived at their Des Moines high, middle, and elementary schools wearing black armbands. When the students refused to remove the armbands, they were suspended from school. Eventually, five of the older students were singled out for suspension: Mary Beth and her brother John Tinker, Christopher Eckhardt, Christine Singer, and Bruce Clark.

The fathers of the students filed a suit with a U.S. District Court, seeking an injunction that would overturn the school's armband rule. The court ruled against the plaintiffs on the grounds that the armbands might be disruptive. The plaintiffs appealed their case to a U.S. Court of Appeals, where a tie vote allowed the district ruling to stand. Backed by the ACLU, the case was then brought to the Supreme Court.

The Decision

The essential question posed by the case was whether the symbolic speech of students in public schools should be protected by the First Amendment. The Court had addressed similar questions in a few previous cases. In Schneck v. United States (1919), the Court's decision favored restriction of symbolic speech in the form of anti-war pamphlets that urged citizens to resist the draft. In two later cases, Thornhill v. Alabama (1940) and Virginia v. Barnette (1943), the Court ruled in favor of First Amendment protection for symbolic speech.

In Tinker v. Des Moines, a vote of 7–2 ruled in favor of Tinker, upholding the right to free speech within a public school. Justice Fortas, writing for the majority opinion, stated that "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Because the school could not show evidence of significant disturbance or disruption created by the students' wearing of the armbands, the Court saw no reason to restrict their expression of opinion while the students were attending school. The majority also noted that the school prohibited anti-war symbols while it allowed symbols expressing other opinions, a practice the Court considered unconstitutional.

The Tinker Test

Under the standard set by Tinker v. Des Moines, known as the "Tinker Test," student speech may be suppressed if it amounts to a 1) substantial or material disruption or 2) invades the rights of other students. The court said, "where there is no finding and no showing that engaging in the forbidden conduct would 'materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,' the prohibition cannot be sustained." 

However, three important Supreme Court cases since Tinker v. Des Moines have significantly redefined student free speech since that time: Bethel v. Fraser, Hazelwood v. Kuhlmeier, and Morse v. Frederick. 

After Tinker

  • Bethel School District No. 403 v. Fraser (7–2 decision handed down in 1986). In Washington state in 1983, high school student Matthew Fraser delivered a speech nominating a fellow student for student elective office. He delivered it at a voluntary school assembly: Those who declined to attend went to a study hall. During the entire speech, Fraser referred to his candidate in terms of an elaborate, graphic, and explicit sexual metaphor; the students hooted and hollered back. Before he gave it, two of his teachers warned him that the speech was inappropriate and if he gave it he would suffer the consequences. After he delivered it, he was told he would be suspended for three days and his name would be removed from the list of candidates for graduation speaker at the school's commencement exercises. 
  • The Supreme Court ruled for the school district, saying that students are not entitled to the same latitude of free speech as adults, and the constitutional rights of students in a public school are not automatically coextensive with the rights of students in other situations. Further, the judges argued that public schools have the right to determine what words are deemed offensive and therefore prohibited in schools: "the determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board." 
  • Hazelwood School District v. Kuhlmeier (5–3 decision handed down in 1988). In 1983, the school principal of Hazelwood East High School in St. Louis County, Missouri, removed two pages from the student-run newspaper, "The Spectrum," saying that the articles were "inappropriate." Student Cathy Kuhlmeier and two other former students brought the case to court. Instead of using the "public disruption" standard, the Supreme Court used a public-forum analysis, saying that the newspaper was not a public forum since it was part of the school curriculum, funded by the district and supervised by a teacher. 
  • By exercising editorial control over the content of student speech, the Court said, the administrators did not infringe the students' First Amendment rights, as long as their actions were "reasonably related to legitimate pedagogical concerns."
  • Morse v. Frederick (5-4 decision handed down in 2007). In 2002, Juneau, Alaska high school senior Joseph Frederick and his classmates were allowed to watch the Olympic Torch Relay pass by their school in Juneau, Alaska. It was the school principal's Deborah Morse's decision to "permit staff and students to participate in the Torch Relay as an approved social event or class trip." As the torchbearers and camera crews passed by, Frederick and his fellow students unfurled a 14-foot long banner bearing the phrase "BONG HITS 4 JESUS", easily readable by the students on the other side of the street. When Frederick refused to take the banner down, the principal forcibly removed the banner and suspended him for 10 days.
  • The Court found for the principal Morse, saying that a principal may "consistent with the First Amendment, restrict student speech at a school event when that speech is reasonably viewed as promoting illegal drug use."

Online Activity and Tinker

Several lower court cases explicitly referring to Tinker concern online activity of students and cyberbullying, and are making their way through the system, although none have been addressed on the Supreme Court bench to date. These include such cases as in Minnesota in 2012 when a student wrote a Facebook post saying a hall monitor was "mean" to her and she had to turn over her Facebook password to school administrators in the presence of a sheriff's deputy. In Kansas, a student was suspended for making fun of his school's football team in a Twitter post; in Oregon, 20 students were suspended over a tweet claiming a female teacher flirted with her students. There have been many others.

A cyber-bullying case in North Carolina—in which a 10th-grade teacher resigned after students created a fake Twitter profile portraying him as a hyper-sexualized drug addict—led to a new law (N.C. Gen. Stat. Ann. §14-458.1), which criminalizes anyone using a computer to engage in one of several specified prohibited behaviors.  

Sources and Further Information