Vol. 8 No. 4 (April 1998) pp. 192-195.

THE STRUGGLE FOR STUDENT RIGHTS: TINKER V. DES MOINES AND THE 1960S By John W. Johnson. Lawrence, Kansas: University of Kansas Press, 1997. 250 pp. Cloth $35.00. Paper $12.95. ISBN 0-7006-0866-4, ISBN 0-7006-0867-2 (pbk).

Reviewed by Frank Kemerer, College of Education, University of North Texas.

 

It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. . . . In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are "persons" under our Constitution. They are possessed of fundamental rights, which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. Handed down during the tumultuous Viet Nam war protest era, the U.S. Supreme Court's decision in TINKER V. DES MOINES SCHOOL DISTRICT is one of its most important First Amendment rulings. By extending rights of expression to public school students, this 1969 decision made American public schools more democratic. It also marked the beginning of what would be a relatively short-lived period of rapidly expanding student rights.

This carefully researched and well written book by University of Northern Iowa history professor John Johnson describes the origins of the case and reveals some of the major underlying issues that continue to divide the education community.

The case began in December 1965 when several Des Moines students elected to wear black arm bands to school as a form of protest against the Viet Nam hostilities in the face of a hastily developed school policy against doing so. Three students, 16-year-old Christopher Eckhardt, 15-year-old John Tinker, and 13 year-old Mary Beth Tinker, were suspended. This triggered a lawsuit that resulted in the landmark ruling.

Were the students merely parroting the views of their parents? If so, the First Amendment claims were about parents, not students. This assertion was made by the school district from the very beginning, but most prominently in the brief the district filed with the U.S. Supreme Court. In it, school district attorney Allan Herrick pointed out that The Reverend Leonard Tinker was a Methodist minister working for the American Friends Service Committee, and Lorena Tinker was involved in numerous liberal causes. Margaret Eckhardt was president of the Des Moines chapter of the Women's International League for Peace and Freedom. Both the Tinkers and the Eckhardts had been active in peace causes in the 1960s. Christopher Eckhardt and John Tinker had participated with their mothers in the 1965 march on Washington to protest the Vietnam War. The arm band wearing grew out of that event. In response to assertions that she was damaging her children by involving them in controversial social causes so early in life, Lorena Tinker said, "We don't think we're damaging them. We're committed to certain values, and we want our children to be part of it, and they would jump in the car and go with us willingly." (p. 14). The students consistently maintained that, though they shared their parents' liberal values, they were acting independently.

Even if the parents were highly influential in the decision of their children to wear arm bands to school, should that make a difference in the First Amendment rights of children? The school's argument essentially was that the First Amendment has no place in elementary and secondary education because the purpose of the public school is to inculcate community values. The Des Moines community did not support the values being expressed by the students/parents and thus the arm band wearers were appropriately excluded. The contra position is that the school constitutes a marketplace of ideas where students develop their own values and beliefs through unfettered inquiry and belief. From this perspective, it wouldn't make any difference whether the students were parroting their parents or not. From whatever source, the resulting exchange of views at school prompts students to think about their own values and perhaps even rethink those of their parents.

Ironically, there was no anti-arm band rule at the elementary school where eleven-year-old Hope and eight-year-old Paul Tinker wore their arm bands. Instead of confrontation with school officials, the pair reported that their teachers used the opportunity to engage the students in a discussion about freedom of expression. They were not part of the lawsuit because they were not suspended. Perhaps had they been, the matter of the age at which students obtain First Amendment rights might have surfaced.

The school attorney argued that the arm band wearing was orchestrated by the radical Students for a Democratic Society (SDS), a few members of which had been tangentially involved in early meetings at the parents' homes. By the time of the filing of the briefs with the Supreme Court in 1968, the nation's college campuses were in turmoil largely at the hands of the SDS, with some of it spilling over onto secondary school campuses. The school attorney wanted this to be fresh on the minds of the justices. However, the linkage was so attenuated and speculative that the Supreme Court never cited it in its majority opinion.

The heart of the school district's argument was that the arm band wearing was intended to, and did, disrupt school activities. The argument carried weight with the lower courts, but it was not persuasive with the Supreme Court. As Johnson points out, the facts belie the point. Christopher Eckhardt wore his armband on Thursday, December 16, 1965 when he arrived at his high school, and he went straight to the principal's office. In intimidating terms, the principal directed him to remove the armband. Eckhardt began to cry. He was suspended. Mary Beth wore the armband to her eighth grade classes the same day. The armband generated some interest and a little teasing. It wasn't until her afternoon math class that the armband created a problem. The teacher had earlier excoriated student protesters. Mary Beth was sent to the office where she voluntarily removed the armband. She was later suspended. The next day John Tinker wore his armband to high school and was greeted with some unfriendly remarks. He noted that there was discussion around the lunch table regarding whether wearing or not wearing armbands was a good idea. Later, he was suspended.

The transparency of the school's disruption argument was revealed when Justice Thurgood Marshall questioned attorney Herrick:

 

Q. [Marshall] How many students were involved in the ADDERLEY case? Several hundred, weren't there?

A. [Herrick] It was quite a large number.

Q. How many were involved in this one [the TINKER case]?

A. Well, it is a question of what do you mean by "involved."

Q. How many were wearing arm bands?

A. There were five suspended for wearing arm bands.

Q. Any wearing arm bands that were not suspended?

A. Yes, sir, I think there were two.

Q. That makes seven . . . . Seven out of 18,000? And the School Board was advised that seven students wearing arm bands were disrupting 18,000? Am I correct?

A. I think, if the Court please, that doesn't give us the entire background that builds up to what was existing in the Des Moines Schools at the time the arm bands were worn. (p. 157).

 

The school attorney tried to argue that the reason there was so little disruption was because of prompt action of school officials in suspending the students. But the argument never was persuasive. Another problem that the school district could never effectively neutralize was that for years they had allowed the wearing of political and religious symbolic attire, e.g., political buttons and Third Reich iron crosses. At one point the school's attorney asserted that the wearing of political buttons was part of the educational process. If political buttons, why not arm bands? The majority opinion noted the inconsistency.

Johnson's narrative is enriched by his interviews with most of the primary players and his careful study of judicial records. More use of trial testimony would have enlivened portions of the story. This is particularly true with regard to Christopher Eckhardt's trial testimony. Johnson points out that Eckhardt was "the key witness for both sides in the trial," and that "Christopher's time on the witness stand was the longest and most contentious of any at the trial." (p. 85). But Johnson never effectively demonstrates the point.

Johnson is particularly good in portraying the human interest side of the story through comprehensive profiles of the students, their parents, and the attorneys. For example, Johnson describes how the inexperienced Illinois Civil Liberties Union attorney, Dan Johnston, worried about his appearance before the Supreme Court. The attorney told the author that he recalls thinking, "If anything really went bad, [Chief Justice] Earl Warren would come down off the bench and put his arm around [me]." (p. 146) The last chapter profiles the lives of the principal characters to the present.

Another strength of this book is the author's reliance on the notes of the individual Supreme Court justices as to what transpired at the conference following oral argument and how the writing of the opinions took place. While liberal Justice Abe Fortas did not want to hear the case in the first place, he ended up writing the majority opinion in the 7-2 ruling. Johnson speculates that with his close friend and benefactor Lyndon Johnson out of the White House by the time the Court took up the case, Fortas was free to take an independent position. Warren selected Fortas in part because Fortas had earlier authored the well known IN RE GAULT decision in favor of due process rights for juvenile offenders. Johnson also does a fine job of pointing out how Hugo Black, then 83 years old, came to write a bitter dissent seemingly at complete odds with his long support for unfettered right of expression. The dissent echoed the feelings of school officials around the country and, ironically with the conservative hue of the judiciary today, has enjoyed something of a rebirth.

The book is not without a few shortcomings, the most significance of which is a dearth of discussion on the continuing significance of the decision to student classroom expression. One of the most important passages in the Supreme Court's majority decision is this one: "A student's rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without 'materially and substantially intefer[ing] with the requirements of appropriate discipline in the operation of the school' and without colliding with the rights of others." In writing for the majority in HAZELWOOD SCHOOL DISTRICT V. KUHLMEIER, 108 S.Ct. 562 (1988), a decision giving school officials the authority to censor the contents of a school-sponsored student newspaper, Justice Byron White quotes this passage in affirming TINKER but omits the first sentence indicating that a student's First Amendment rights extend to the classroom.

What is the significance of the omission? Several lower courts have given school boards the authority to control what students say in class. A case-in-point is SETTLE V. DICKSON COUNTY SCHOOL BOARD, 53 F.3d 152 (1995), in which the U.S. Court of Appeals for the Sixth Circuit upheld a teacher's decision to prohibit a student from writing a research paper on the life of Jesus. Has the U.S. Supreme Court retreated on classroom expression rights for young students? Johnson does not explore the matter.

Overall, this is an excellent book. It offers a comprehensive history of one of the Supreme Court's seminal First Amendment decisions, and it does so without boring the layman reader. It is a book that I had hoped to write some day. Johnson has deprived me of the opportunity.


Copyright 1998