Supreme Court Case First Amendment Tinker Vs. Des Moines

Supreme Court Case – First Amendment – Tinker vs. Des Moines U.S. History and Government/E.Napp Name: ______

The Supreme Court has the power of judicial review, the power to determine the constitutionality of a law, as a result of the Court’s decision in Marbury v. Madison (1803). Indeed, judicial review is part of the unwritten constitution for it is not stated in the Constitution. Yet the Supreme Court’s power of interpreting the Constitution has had a profound impact on the rights and freedoms of citizens. In the following case, students will be able to evaluate the Court’s decision in determining the rights and freedoms of individuals in the nation.

Tinker vs. Des Moines: The Vietnam War was a war that divided the American public. Some American supported the war. Other Americans believed that the Vietnam War was a civil war and not an American concern.

. A Few Facts about the Vietnam War:  Vietnam had been a French colony.  When the French were defeated by Vietnamese nationalists in 1954, Vietnam was divided into a communist North Vietnam led by Ho Chi Minh and a non- communist South Vietnam.  Elections were to be held to reunify the nation.  The South Vietnamese government refused to participate in the elections.  A communist guerrilla group formed in South Vietnam to reunify the nation under the leadership of Ho Chi Minh.  This guerrilla group was called the Vietcong.  A Civil War developed in South Vietnam.  The United States funded the South Vietnamese government against the communist insurgency.  When President Lyndon Baines Johnson claimed that the North Vietnamese had attacked American ships in the Gulf of Tonkin (1964), the American military became actively involved in the conflict.  Many American soldiers fought in Vietnam.

U.S. Beliefs and Policies during the Cold War:  The Domino Theory:  If one nation fell to communism in a region, other nations of the region would eventually fall to communism too.  Containment Policy:  The United States had to prevent the spread of communism by containing it or not allowing new communist nations to emerge.

The American Public during the Vietnam War: . Favored the War in Vietnam and supported U.S. foreign policy in the region . Opposed the War in Vietnam and supported non-intervention in the conflict. - Anti-war demonstrations developed in the United States. 1. What European power had conquered and colonized Vietnam? ______2. What happened in 1954 in Vietnam? ______3. Why was the division of Vietnam supposed to be temporary? ______4. Why were elections for the reunification of Vietnam never held? ______5. Who was Ho Chi Minh? ______6. Who were the Vietcong? ______7. Where did the Vietcong form? ______8. What happened in South Vietnam? ______9. What happened in the Gulf of Tonkin? ______10. How did the Gulf of Tonkin incident change U.S. foreign policy in Vietnam? ______11. Define the Domino Theory. ______12. Define containment. ______13. What was the Cold War? ______14. Why was the Vietnam War a Cold War conflict? ______15. In 1975, South Vietnam fell to Communists. Was the American objective achieved? ______16. Why was the American public divided during the Vietnam War? ______17. Analyze the political cartoon below. What is the main idea of one of the cartoons? 1968 Tinker vs. Des Moines

Background to the Case: “In December 1965, a group of students in Des Moines held a meeting in the home of 16- year-old Christopher Eckhardt to plan a public showing of their support for a truce in the Vietnam War. They decided to wear black armbands throughout the holiday season and to fast on December 16th and New Year’s Eve. The principals of the Des Moines school learned of the plan and met on December 14th to create a policy that stated that any student wearing an armband would be asked to remove it, with refusal to do so resulting in suspension. On December 16th, Mary Beth Tinker and Christopher Eckhardt wore their armbands to school and were sent home. The following day, John Tinker did the same with the same result. The students did not return to school until after New Year’s Day, the planned end of the protest.

Through their parents, the students sued the school district for violating the students’ right of expression and sought an injunction to prevent the school district from disciplining the students. The district court dismissed the case and held that the school district’s actions were reasonable to uphold school discipline. The U.S. Court of Appeals for the Eighth Circuit affirmed the decision without opinion.” ~ Chicago-Kent College of Law

 Thus, the question before the Supreme Court:  Does a prohibition against the wearing of armbands in public school, as a form of symbolic protest, violate the students’ freedom of speech protections guaranteed by the First Amendment? “I wore the black armband over a camel-colored jacket. The captain of the football team attempted to rip it off. I turned myself in to the principal’s office where the vice principal asked if ‘I wanted a busted nose.’ He said seniors wouldn’t like the armband. Tears welled up in my eyes because I was afraid of violence. He called my mom to get her to ask me to take the armband off. Then he called a school counselor in. The counselor asked if I wanted to go to college, and said that colleges didn’t accept protesters. She said I would probably need to look for a new high school if I didn’t take the armband off.” ~ Christopher Eckhardt

1- Why were several students wearing black armbands to school? ______2- What was the school’s planned response to the wearing of black armbands? ______3- What was the response of the parents of the students wearing the armbands? ______4- What amendment did the parents believe was violated? ______5- What is stated in this amendment? ______6- How did Christopher Eckhardt describe his treatment the day he wore the armband? ______7- How did the lower courts rule in the case? ______

Reflections before the Court’s Ruling: 1- Why do you think the school officials did not want the students to wear the armbands? ______2- Do you think that the armbands would disrupt the school’s learning environment? ______3- If you were a judge in one of the lower courts, what would your ruling have been? Write a paragraph explaining your decision in this case in the space below: ______The Ruling of the Supreme Court: “In a 7 to 2 decision, the Supreme Court ruled in favor of the Tinkers and the students. The Court determined that the wearing of armbands was protected by the First Amendment’s free speech clause.

Justice Abe Fortas wrote the Court’s opinion. Justice Fortas wrote that wearing armbands was an action “akin to pure speech.” Further, he wrote, “It can hardly be argued that either students or teachers shed their constitutional rights . . . at the schoolhouse gate.” He found little evidence that this silent protest disrupted the school environment. Justice Fortas wrote that the school board officials acted out of an “urgent wish to avoid controversy,” rather than a fear of disrupting school activities.

Justice Potter Stewart wrote, however, in a concurring opinion, that, “[A] State may permissibly determine that, at least in some precisely delineated areas, a child . . . is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees.”

The Tinker case remains controversial to this day. In more recent cases, the Court has limited students’ First Amendment rights. In Bethel School District v. Fraser (1986), the Court upheld the disciplining of a student for using offensive speech in a school assembly. In Hazelwood School District v. Kuhlmeier (1988) the Court ruled in favor of a school district that censored student newspaper articles with mature subject matter.” ~The American Vision Questions: 1- Who did the Supreme Court rule in favor of in the Tinker case? ______2- What did the Supreme Court determine about the wearing of armbands? ______3- Who wrote the Court’s opinion? ______4- What did this Supreme Court justice write about constitutional rights and the schoolhouse gate? ______5- According to this Supreme Court justice, why had the school board acted as it had? ______6- What did Justice Potter Stewart write about the Tinker case in a concurring opinion? ______7- Why has the Tinker case remained controversial to this day? ______8- What did the Supreme Court rule in Bethel School District v. Fraser? ______9- What did the Supreme Court rule in Hazelwood School District v. Kuhlmeier? ______10- Write your opinion about the First Amendment and schools in the space below. ______Annotate the Excerpt from Justice Abe Fortas’ Opinion for the Court:

“…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. Accordingly, this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students…

The District Court concluded that the action of the school authorities was reasonable because it was based upon their fear of a disturbance from the wearing of the armbands. But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago (1949); and our history says that it is this sort of hazardous freedom– this kind of openness– that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.

In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly 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.

In the present case, the District Court made no such finding, and our independent examination of the record fails to yield evidence that the school authorities had reason to anticipate that the wearing of the armbands would substantially interfere with the work of the school or impinge upon the rights of other students…

On the contrary, the action of the school authorities appears to have been based upon an urgent wish to avoid the controversy which might result from the expression, even by the silent symbol of armbands, of opposition to this Nation’s part in the conflagration in Vietnam…

It is also relevant that the school authorities did not purport to prohibit the wearing of all symbols of political or controversial significance. The record shows that students in some of the schools wore buttons relating to national political campaigns, and some even wore the Iron Cross, traditionally a symbol of Nazism. The order prohibiting the wearing of armbands did not extend to these. Instead, a particular symbol – black armbands worn to exhibit opposition to this Nation’s involvement in Vietnam – was singled out for prohibition…”