The Volokh Conspiracy
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"The Schoolhouse Gate": The Unpopularity of Free Speech in Public Schools
The Supreme Court's decision in Tinker is viewed as the high-water mark for students' First Amendment rights, but Justice Black's strident dissent-not the majority-spoke for most Americans at the time.
This post is the second in a series of edited excerpts from my new book, "The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind." The Supreme Court's 1969 decision in Tinker v. Des Moines Independent Community School District is now correctly revered as a landmark in protecting student rights. But Tinker's outcome was far from preordained, and its vehement dissent accurately captured many Americans' growing concerns over youth culture.
In December 1965, a group of students in Des Moines, Iowa—including Christopher Eckhardt, John Tinker, and Mary Beth Tinker—planned to protest the Vietnam War by wearing black armbands to school. When plans of the protest leaked, Des Moines school officials hastily created a plan to suspend pupils wearing armbands. This policy was necessary, the officials maintained, to avoid disruptions they believed would result from the protest. The officials noted that a former Des Moines student had been killed in Vietnam and expressed concern that his friends who remained in school would create a volatile environment.
When Christopher Eckhardt arrived at school, he made his way directly to the principal's office so that he could be suspended. One school official sought to coax Eckhardt into removing his armband by observing that "colleges [don't] accept demonstrators," and that he "was too young and immature to have too many views."
John Tinker wore his armband at school through lunchtime, before a teacher finally instructed him to report to the principal's office. Like her brother, Mary Beth Tinker wore her armband for much of the day—until she attracted the notice of her mathematics teacher, who had dedicated the entire previous day of class to condemning student demonstrators. The students filed a lawsuit contending that their suspensions violated the First Amendment right of free expression, setting in motion what would culminate in the Supreme Court's most consequential student rights opinion in its entire history.
In Tinker v. Des Moines Independent Community School District, the Supreme Court, by a 7–2 margin, vindicated the right of students to express their views in school. Justice Abe Fortas's majority opinion used a turn of phrase that not only became a staple of judicial opinions but even entered the larger national culture: "It can hardly be argued that … students … shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." That language established the fundamental terms of debate for students' rights cases.
Fortas made clear that public schools could not prevent students from expressing particular ideas simply because their message may contradict the school's preferred message. That the Des Moines school district sought to prohibit students from expressing an antiwar viewpoint—when it otherwise permitted students to express their viewpoints on a whole range of issues—rendered the policy constitutionally dubious: "In our system, state-operated schools may not be enclaves of totalitarianism."
Moreover, Fortas emphasized that it would be unwise to permit schools to suppress views, as today's students will soon assume responsibility for maintaining tomorrow's civic discourse: "The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, [rather] than through any kind of authoritative selection."
Justice Hugo Black's heated dissent made little effort to conceal his deep displeasure. "It may be that the Nation has outworn the old-fashioned slogan that 'children are to be seen not heard,' but one may, I hope, be permitted to harbor the thought that taxpayers send children to school on the premise that at their age they need to learn, not teach," he wrote. For Black, Tinker marked "the beginning of a new revolutionary era of permissiveness in this country." Black further contended that those inclined to protest were the public schools' "loudest-mouthed, but maybe not their brightest, students." In Black's estimation, Tinker did not merely permit the inmates to run the asylum but thrust the least equipped inmates among them into the warden's role.
Tinker garnered acclaim for reining in overzealous educators who had trampled upon students' First Amendment rights, and many elite observers condemned Justice Black's dissent. Criticism of Justice Black's dissent, however, obscured the prevalence of such views among many Americans during the late 1960s. Black tapped into a deep wellspring of cultural anxiety that engulfed the Court's efforts to extend constitutional rights to students.
Accordingly, Tinker's outcome was far from inevitable from the viewpoint of the 1960s. When Tinker initially arrived at the Court, Justice Fortas himself wrote, "this is a tough case" on a law clerk memorandum outlining the students' petition for certiorari. Fortas eventually voted to deny the students' petition, a stance that (if not overcome by his colleagues) would have permitted the school officials' suppression of student speech to remain intact from their victory at the circuit court level.
The notion that Tinker was far from an assured triumph for student rights finds further support in the events of the late 1960s. The Court heard oral arguments in Tinker only one week after Richard Nixon defeated Hubert Humphrey for the presidency. Nixon's campaign condemned the Supreme Court for its supposedly indulgent treatment of the criminal element and promised to restore "law and order" on behalf of "the forgotten Americans." Time designated "The Middle Americans" its "Man and Woman of the Year" for 1969, and quoted a resident of Pittsfield, Massachusetts, who groused, "Dissent is disgusting. If you have a complaint, write your Congressman or the President. School is to get an education."
Polling data suggests these "Middle Americans" would have embraced Justice Black's dissent. In a Harris poll taken only one month after Tinker, 52 percent of respondents opposed granting rights to student protesters, and only 38 percent of respondents supported granting such rights. Respondents to a February 1969 Gallup poll identified a lack of student discipline as the foremost problem confronting the nation's schools. Many respondents would doubtless have identified the behavior at issue in Des Moines, with students disobeying direct orders from their principals, as a cardinal example of the breakdown in student discipline that must be corrected.
Tinker represented a momentous innovation in the recognition of students' constitutional rights. For the first time, the Supreme Court recognized that students retain the essential power to communicate their ideas to one another; such communication is an integral part of the educational process; and public schools have a responsibility to tolerate dissident speech, so both the marketplace of ideas functions properly and citizens will be prepared to participate in the freewheeling debate that characterizes the United States. Tinker's constitutional contributions would deserve to be honored if they arrived at any time. But that Tinker resisted, rather than ratified, the era's prevailing attitudes on student dissent makes those contributions all the more remarkable.
