ELIZABETH STROUT
The year was 1981; I was twenty-five years old and a law student. That spring, Alexander Haig, the secretary of state of the United States, came to speak to the graduating class of my university. I decided to protest. I had never gone to a protest before. I had essentially missed the sixties, living in isolated areas of this country, but here was a man I found to be dangerous, and so I decided to wear a black armband and stand with a number of other students outside the entrance to the dome where he was speaking. At the last minute, I was sent to the back entrance—on my own—by the person organizing us. Perhaps he thought I was disposable, not angry enough? Anyway, off I went alone to the back door.
The back door is where Haig entered. A black car pulled up and a man got out; suddenly there was Alexander Haig, walking into the back door. I yelled something—I can’t remember what—and stuck my arm with the black armband on it up into the air. And this is what I think I saw: he glanced at me and a tiny smile came to his mouth, and I thought, Oh my God, this makes him feel more important!
Doesn’t matter.
What matters is that I had the right to wear that black armband; I had the right to stand there with it on and protest this man. If I was nervous as a twenty-five-year-old adult, then just imagine what courage it took for a thirteen-year-old schoolchild to do the same sixteen years earlier in Des Moines, Iowa.
Mary Beth Tinker was the daughter of civil rights activists. Her father was a Methodist pastor, and her parents had been instrumental in getting the swimming pool in Des Moines desegregated, and they had traveled to the Deep South where they took part in many aspects of the civil rights movement. They came home and told their children about these things—about, as Mary Beth Tinker says in an ACLU podcast in 2009, “little old ladies being shot at in the night.”
At the age of thirteen, Mary Beth Tinker decided, along with her brother, John Tinker, aged fifteen, and a friend, Christopher Eckhardt, aged sixteen, to wear black armbands to school to protest the Vietnam War. The school sent them home. In fact, the school, having heard of their plans, had already put into place a policy that anyone wearing a black armband would be suspended from school until they returned without the armband. The school believed that the very existence of these black armbands was disruptive. It is interesting to note that at this time, there were other things students wore in that school; for example, some students wore the Iron Cross, a symbol of the swastika. These were not considered by the school to be disruptive. But the black armbands were. So the students wearing them went home. Eventually they came back to school and dressed in black for many weeks as a sign of protest. The school could do nothing about this.
But Mary Tinker’s father and Christopher Eckhardt’s father decided, on behalf of these children, to sue the school district on the grounds that the students had a First Amendment right to wear black armbands. The US District Court dismissed the complaint and therefore upheld the school’s position, as did the court of appeals. The case was argued in front of the US Supreme Court in 1968, and a decision came down in favor of the right to wear armbands in 1969.
The school’s policy claimed that the wearing of these armbands would incite disruptions within the student body, causing problems of discipline. Oddly (to me), the district court’s decision relied on an earlier decision by the Fifth Circuit Court of Appeals, Burnside v. Byars (1966), that had held that wearing symbols like these armbands was constitutionally protected except for when such a thing “materially and substantially interferes with the requirements of appropriate discipline in the operation of the school.” Using this standard, the district court upheld the decision of the school district, saying the school district had the right to make the decision that the armbands would cause a discipline problem and the court would not interfere. The court of appeals upheld this decision.
When the case reached the Supreme Court, it spoke to the district court’s decision, saying, “But in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” Justice Abe Fortas, who wrote the opinion, also said:
It does not concern aggressive, disruptive action or even group demonstrations. Our problem involves direct, primary First Amendment rights akin to “pure speech.”
The “Tinker Test,” as set forth in the Tinker opinion, asks: Did the speech or expression of the student “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school?”
Justice Fortas continued:
The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners. There is here no evidence whatever of petitioners’ interference, actual or nascent, with the schools’ work or of collision with the rights of other students to be secure and to be let alone.
The constitutional rights of students in schools was not a new issue for our Supreme Court. In 1943, at the height of World War II, Justice Robert Jackson, who later was the lead prosecutor in the Nuremberg trials, wrote a decision that upheld the right of students to not salute the flag (West Virginia v. Barnette, 1943). Given that war was ripping across the world and the country was feeling great patriotism, this was an extraordinary and brave decision.
But what is somehow especially moving to me in the Tinker decision is Justice Fortas’s use of a quotation by Justice William Brennan in an earlier case. Speaking for the Court in Keyishian v. Board of Regents two years earlier, Justice Brennan wrote:
The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.… The classroom is peculiarly the “marketplace of ideas.” 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.”
Look at that. In the defense of students and their rights—in American schools—the Supreme Court wrote that “this nation’s future depends” on the protection of a student’s right to free expression. The fundamental intelligence involved in this thinking is conspicuously striking.
Because of Tinker v. Des Moines, these students now had the constitutional right to wear armbands. These are hugely important decisions of our right to free speech and the First Amendment. Attempts have been made to override them, but none of them have yet been successful.
When I look back to the day I raised my arm in the face of Alexander Haig, I did not think about the fact that my right to do so was based on courageous decisions by our Supreme Court. I just did it because I knew, as an American, I could do this. My actions seem more important to me now than they did back then. There was a youthful confidence to me that day: we had the right to do this. But times have changed, and we must now worry about the erosion of these rights. One can only hope—ferociously—that the Supreme Court will continue to have these open-minded (and open-hearted) beliefs as our country goes forward.
We can hope.