Do Students Have Free Speech in School? | Tinker v. Des Moines Independent Community School District
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Do Students Have Free Speech in School? | Tinker v. Des Moines Independent Community School District


Mr. Beat presents Supreme Court Briefs Des Moines, Iowa December 16, 1965 15-year old John Tinker, his 13-year old sister Mary Beth Tinker, his 11-year old sister Hope Tinker, and his 8-year old brother Paul Tinker along with his friend 16-year old Christopher Eckhardt, wear black armbands to school as a way to protest the ongoing Vietnam War. The principals of the schools all told their students they couldn’t wear these armbands or they would be punished. Well, they wore them anyway. So the principals suspended John, Mary Beth, and Christopher, saying they couldn’t come back to school unless they came not wearing the armbands. The students would not return to school until January, but in protest worse black clothing every day for the rest of the school year. Meanwhile, after the suspension of the students made the front page of The Des Moines Register, the Iowa Civil Liberties Union approached the Tinkers and said “hey, uh, the school district can’t do that. You should sue them. We will help you.” Actually, the ACLU, or American Civil Liberties Union, stepped in to help the Tinker family and Eckhardt sue the Des Moines Independent Community School District, arguing that the First Amendment protected the students’ right to protest at school. Obviously, the kids couldn’t sue, so their dads were the ones who filed suit. The U.S. District Court for the Southern District of Iowa upheld the prohibition of armbands. While it acknowledged the students had the right to protest under the First Amendment, their concern was that a school would have a hard time keeping an orderly environment where students could learn stuff if protests like this were going on. The Tinkers and Eckhardts appealed to the U.S. Court of Appeals for the Eighth Circuit, but that court was evenly divided, so they appealed directly to the Supreme Court, who heard arguments on November 12, 1968. So West Virginia State Board of Education v. Barnette had already said students had constitutional protections at school, but this case dealt specifically with free speech rights. Dan Johnston, the lawyer for the students, said the district had previously let other kinds of political speech occur and that it didn’t disrupt learning at school. Allan Herrick, the lawyer for the district, said the district should be allowed to limit speech if it seems like it could lead to “violence, disorder, and disruption.” That didn’t convince the Court, though. On February 24, 1969, it announced it had sided with Tinker and company. It was 7-2. The Court argued the armbands symbolized pure speech that was completely separate from any actions of those wearing them. The Court also argued that just because they were students on school property didn’t mean they lost their First Amendment right of freedom of speech. Justice Abe Fortas wrote, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Justice Hugo Black wrote a dissent saying that the armbands did, in fact, disrupt school activities, and later Supreme Court cases like Bethel School District v. Fraser and Morse v. Frederick would seem to favor his perspective with this case. Regardless, Tinker v. Des Moines Independent Community School District has been a hugely influential and frequently cited case regarding First Amendment rights for students. It created the Tinker Test, or a way to see if student speech is actually disruptive at school. It weakened the legal idea that the school takes the place of the parent while the student is in attendance. You could even say the Tinker decision paved the way for the recent National School Walkout that took place in schools across the country. In Los Gatos, California, a student got an F on a quiz after walking out during it as part of those protests, and now the teacher is getting a lot of hate for it. Was the teacher justified? Let me know in the comments. I sure know what Mary Beth Tinker would say. Today, she goes on speaking tours to schools around the country teaching them about their rights and promoting youth activism. Here’s a picture of her holding the actual detention slip she got for wearing an armband to school. I’ll see you for the next Supreme Court case, jury! So do you think this recent student National Walkout Day passed the Tinker Test? Let me know in the comments below. Also a shout out to my newest big time Patreon supporter, Van. Thank you so much! And also a shout out to another Patreon supporter, Matt Standish, who suggested I cover this case and I’m glad he did because “wow!” It’s extremely relevant based on what’s been going on with the student protests. And guess what? I will be back next week with another consecutive episode of Supreme Court Briefs. I’m a little bummed that these videos don’t get as much as my Compared videos So if you could, like, do me a favor and help spread the word about this series? Thank you so much. See you later. I’m out!

58 Comments

  • Mr. Beat

    Do you agree with that California teacher who failed a student on a quiz after the student participated in the National Walkout Day protests? Why or why not?

    Also, how do you feel about this anti-abortion student protest walkout that is coming up?

  • Knowing Better

    You asked about the California teacher on twitter, but you leave out some of the details here. The teacher specifically says he failed them to "defend the constitution" – not because they walked out during a test. And the district said walking out was okay and told teachers not to have graded activities that day.

    So… the teacher is just being a jerk.

  • Gad Yariv

    It seems like the American judiciary system had a huge fatal flaw.
    I've been watching these supreme court briefs since the start, time and time again local courts are denying American of their constitutional rights, and the case has to go to the supreme court.
    why don't lower court judges suffer any penalties for making decisions that go against the constitution…If a judge knows he'd lose his/her job for ignoring the constitution, it would happen less often, and fewer cases would have to go to the supreme court and would be solved on the state level.
    Iowa district court was essentially an accomplice of the Public school, in denying this American citizen their civil liberties.
    maybe it's because I'm not an American, but something is extremely inefficient here, the law is the law, different courts shouldn't have different verdicts.

  • Bobby Ferg

    Is it weird I thought they were holding paddles in the thumbnail. My expectations were certainly different for this video, also that gets me thinking: when did spanking generally go away as a punishment.

  • Luke Detering

    3:46 I agree with the teacher about the Los Gatos case. If the student walked out during class during the quiz, he deserves a 0, just as if he was taking a final exam.
    However I agree the student in question should be entitled to a full re-do to the quiz since he was skipping school for what he believed was right.

  • CuriousGeorge

    If I walk out of my job on a day we have a big event planned, I can’t make that time up. My employer has every right to replace me with someone more reliable. This kid went to protest something he likely knows nothing about on the same day he was responsible for taking a test on information that will likely contribute to the adult he will become. Sometimes there is nothing better for a student than a hard lesson in the realities of life.

  • lildubuoy

    This is A good one! I agree with the teacher unfortunately because the walkout isn't a school supported event (legally anyway). The only thing the teacher is guilty of is being a jerk…

  • siamiam

    shame i could not use this ruling when i went to high school in florida where they banned student from having facial hair and males from wearing shorts that go above the knee, i could have found something to protest 😛

    florida and alaska schools were such polar opposites 😀

  • Delightfully Dakota

    I think as long as the Walkout was approved by the school system and no students disrupted classes while walking out, the protest itself was not disruptive, and no one skipped class past the 17 minutes then it seemed to pass the Tinker Test to me. If the Walkout was approved by the school and the student wasn’t disrespectful then I don’t see why the teacher failed the student? As for the anti-abortion student protest, I don’t agree since I’m pro-choice but they 100% have the right to do it as long as it is non-disruptive.

  • KMTForChina

    Funny how I live in Los Gatos, I didn't go too CT English but it's pretty near me, one time I actually used one of these cases to protect my self while arguing with other students and he reported me for being "racist" and the principle said that once i'm in school I lose my rights too him and that I would get suspended, then I told him that he could not and also showed him the cases,then he sent me back too class.

  • Mummy Neo

    I think that the court was right on this case because the Constitution allows Free Speech in the country. The children did not cause violence by protesting. Great video!

  • 中原マリ

    This rulling jeopardizes the very existence of dress codes in public schools, which might be a good thing but might also be going too far.

  • sunnycorax

    Good video as always. Always enjoy a good episode of Supreme Court briefs.

    As for the question of if the recent national gun protests pass the Tinker Test, I'm not so sure. I think these new protests fall into a new legal grey area and the ACLU has even said as much. I recall a statement that was made that was made by them on the eve of the protests that while schools can't punish students simply for protesting they can enforce punishments, like truancy policies, on students for violating already established school rules. So students can still be punished so long as the punishment isn't out of line with standard school policy but extra punishment can't just be handed out for their political speech.

    I think that is also what makes the issue with David Kissner complicated. If the policy of the teacher or the school is that you can't leave the classroom during the test and that has been well established well sorry to say it sounds like that F is going to stick. Now if the student can prove Mr. Kissner did it on purpose or to punish the students political speech then yeah he is going to get crushed in court.

    It is really just hard to say and it depends on each instance and I'm not even sure if Tinker is really all that applicable because in Tinker it was simply setting in class with speech that never disrupted class. Here with these recent protests it is a clear disruption the only question is in the ability to prove the school is simply following the rules they set out or trying to crush speech they don't like.

  • raven ho

    According to that decision, non-disruptive protest is allowed, such as armbands, t-shirts, pamphlets, etc. However protest such as that of the National School Walkout is not protected by that ruling and students could’ve faced consequences for their actions depending on their local school district.

  • gingergargoyle

    Yes the teacher was justified – this is not an issue of Free Speech, it was an issue of not finishing said test/remaining in your seat until the test was finished (unless the school had a policy which excuses students once they have finished)

  • Fermitu Poupon

    Any teacher who punishes a student for walking out and protesting against gun violence in schools, ought to be fired and interrogated for terrorist sympathies.

    I'm not normally one to say you're either for us or against us. But that does apply here.

  • Mae Mae

    Hey Mr. Beat, when will the upcoming videos about US States comparison? I can’t wait to see for that part. All you videos is great for learning for an students.

  • Andrew Lankford

    Good for the Tinkers for standing up for free speech. As for promoting "student activism", they should go jump in a lake. People who try to make a living out of politics are LOSERS.

  • Daniel

    It's disgusting that activists are willing to use children to further a political agenda regardless of your political philosophy, full stop.

  • Daniel

    It's disgusting that activists are willing to use children to further a political agenda regardless of your political philosophy, full stop.

  • 「Ҝ工𠘨厶 匚尺工从丂口𠘨」

    How was this posted yesterday if comments from 2 months ago are in the comment section?

  • alex krakowski

    The photo in the video looks like they’re about to beat some freshman with paddles like in the move Dazed and Confused, quick someone play Alice Cooper’s ‘no more Mr. nice guy’.

  • brian thomas

    I could see the NFL Players Association looking at these cases when I comes to defending players getting punished for taking a knee during the national anthem to protest police brutality.

  • John A Doe

    why is it always termed "constitutional rights" if as the people who wrote the bill of rights said that these were rights people had and the bill of rights was a constitutional protection of those rights.
    a constitutional right would be something that is granted or given by the government and not a protection of something you already have.

  • Baserocklove

    Since i like your content but my time is limited i will only give the requested thumbs up and not both a comment AND a thumbs up. Sorry but that's just the way it is.

  • suiterd62

    The communists strategic leaders, during the Vietnam War, planned strategy in part, based on coordinating it with the anti-war crowd in America. Wonder if the little darlings knew, or cared that their little activities helped the enemy against those of us who faced them on the battlefield. Oh yeah. being anti freedom and anti American is O.K. within the public and private school systems in America. The intelligentsia has no obligation to support those of us who fight their wars. DRS / RVN Vet.

  • Michail Maris

    The teacher does have the right to give the kid an "F". This is because the teacher is not limiting any free speech but merely following the schedule they have made ahead of time. The students decided not to show up to class and thus get a zero. If the kids really cared about what they were protesting, they should be fine with the F as every action has consequences. If let's say their grade depended on it to pass or something, that still is not the teacher's fault as the student's grade is solely dependent on the student.

  • Niesha McCoy

    Adults today need to understand that regardless of how they feel about an issue and a student's right to protest, they have that right.

  • RumbleRish

    No the school walkout does not qualify as free speech protecting him from getting an F… it’s not an “excused absence” just like walking out on a quiz for almost every other reason is not excused. If you walk out of a quiz you get an F, how hard is that to understand? Of course there are valid reasons to miss quizzes (weddings, funerals, illness).

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