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U.S. Supreme Court
TINKER v. DES MOINES SCHOOL DIST., 393
U.S. 503 (1969)
393
U.S. 503
TINKER ET AL. v. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT.
No. 21.
Argued November 12, 1968.
Decided February 24, 1969.
Petitioners, three public school pupils in Des Moines, Iowa,
were suspended from school for wearing black armbands to protest the
Government's policy in Vietnam. They sought nominal damages and an
injunction against a regulation that the respondents had promulgated
banning the wearing of armbands. The District Court dismissed the
complaint on the ground that the regulation was within the Board's
power, despite the absence of any finding of substantial interference
with the conduct of school activities. The Court of Appeals, sitting en
banc, affirmed by an equally divided court. Held:
1. In wearing armbands, the petitioners were quiet and
passive. They were not disruptive and did not impinge upon the rights
of others. In these circumstances, their conduct was within the
protection of the Free Speech Clause of the First Amendment and the Due
Process Clause of the Fourteenth. Pp. 505-506.
2. First Amendment rights are available to teachers and students,
subject to application in light of the special characteristics of the
school environment. Pp. 506-507.
3. A prohibition against expression of opinion, without any
evidence that the rule is necessary to avoid substantial interference
with school discipline or the rights of others, is not permissible
under the First and Fourteenth Amendments. Pp. 507-514.
383 F.2d 988, reversed and remanded.
Dan L. Johnston argued the cause for petitioners. With him on the brief were Melvin L. Wulf and David N. Ellenhorn.
Allan A. Herrick argued the cause for respondents. With him on the brief were Herschel G. Langdon and David W. Belin.
Charles Morgan, Jr., filed a brief for the United States National Student Association, as amicus curiae, urging reversal.
[393
U.S. 503, 504]
MR. JUSTICE FORTAS delivered the opinion of the Court.
Petitioner John F. Tinker, 15 years old, and petitioner
Christopher Eckhardt, 16 years old, attended high schools in Des
Moines, Iowa. Petitioner Mary Beth Tinker, John's sister, was a
13-year-old student in junior high school.
In December 1965, a group of adults and students in Des Moines
held a meeting at the Eckhardt home. The group determined to publicize
their objections to the hostilities in Vietnam and their support for a
truce by wearing black armbands during the holiday season and by
fasting on December 16 and New Year's Eve. Petitioners and their
parents had previously engaged in similar activities, and they decided
to participate in the program.
The principals of the Des Moines schools became aware of the
plan to wear armbands. On December 14, 1965, they met and adopted a
policy that any student wearing an armband to school would be asked to
remove it, and if he refused he would be suspended until he returned
without the armband. Petitioners were aware of the regulation that the
school authorities adopted.
On December 16, Mary Beth and Christopher wore black armbands
to their schools. John Tinker wore his armband the next day. They were
all sent home and suspended from school until they would come back
without their armbands. They did not return to school until after the
planned period for wearing armbands had expired - that is, until after
New Year's Day.
This complaint was filed in the United States District Court by
petitioners, through their fathers, under 1983 of Title 42 of the
United States Code. It prayed for an injunction restraining the
respondent school officials and the respondent members of the board of
directors of the school district from disciplining the petitioners, and
it sought nominal damages. After an evidentiary hearing the District
Court dismissed the complaint. It upheld
[393
U.S. 503, 505]
the constitutionality of the school authorities' action on the
ground that it was reasonable in order to prevent disturbance of school
discipline. 258 F. Supp. 971 (1966). The court referred to but
expressly declined to follow the Fifth Circuit's holding in a similar
case that the wearing of symbols like the armbands cannot be prohibited
unless it "materially and substantially interfere[s] with the
requirements of appropriate discipline in the operation of the school."
Burnside v. Byars, 363 F.2d 744, 749 (1966).
1
On appeal, the Court of Appeals for the Eighth Circuit
considered the case en banc. The court was equally divided, and the
District Court's decision was accordingly affirmed, without opinion.
383 F.2d 988 (1967). We granted certiorari. 390
U.S. 942
(1968).
I.
The District Court recognized that the wearing of an armband
for the purpose of expressing certain views is the type of symbolic act
that is within the Free Speech Clause of the First Amendment. See West
Virginia v. Barnette, 319
U.S. 624
(1943); Stromberg v. California,
283
U.S. 359
(1931). Cf. Thornhill v. Alabama,
310
U.S. 88
(1940); Edwards v. South Carolina,
372
U.S. 229
(1963); Brown v. Louisiana,
383
U.S. 131
(1966). As we shall discuss, the wearing of armbands in the
circumstances of this case was entirely divorced from actually or
potentially disruptive conduct by those participating in it. It was
closely akin to "pure speech"
[393
U.S. 503, 506]
which, we have repeatedly held, is entitled to comprehensive protection under the First Amendment. Cf. Cox v. Louisiana,
379
U.S. 536, 555
(1965); Adderley v. Florida,
385
U.S. 39
(1966).
First Amendment rights, applied in light of the special characteristics
of the school environment, are available to teachers and students. It
can hardly be argued that either students or teachers shed their
constitutional rights to freedom of speech or expression at the
schoolhouse gate. This has been the unmistakable holding of this Court
for almost 50 years. In Meyer v. Nebraska, 262
U.S. 390
(1923), and Bartels v. Iowa,
262
U.S. 404
(1923), this Court, in opinions by Mr. Justice McReynolds, held
that the Due Process Clause of the Fourteenth Amendment prevents States
from forbidding the teaching of a foreign language to young students.
Statutes to this effect, the Court held, unconstitutionally interfere
with the liberty of teacher, student, and parent.
2
See also Pierce v. Society of Sisters,
[393
U.S. 503, 507]
268
U.S. 510
(1925); West Virginia v. Barnette,
319
U.S. 624
(1943); McCollum v. Board of Education,
333
U.S. 203
(1948); Wieman v. Updegraff,
344
U.S. 183, 195
(1952) (concurring opinion); Sweezy v. New Hampshire,
354
U.S. 234
(1957); Shelton v. Tucker,
364
U.S. 479, 487
(1960); Engel v. Vitale,
370
U.S. 421
(1962); Keyishian v. Board of Regents,
385
U.S. 589, 603
(1967); Epperson v. Arkansas, ante, p. 97 (1968).
In West Virginia v. Barnette, supra, this Court held that under
the First Amendment, the student in public school may not be compelled
to salute the flag. Speaking through Mr. Justice Jackson, the Court
said:
"The Fourteenth Amendment, as now applied to the States,
protects the citizen against the State itself and all of its creatures
- Boards of Education not excepted. These have, of course, important,
delicate, and highly discretionary functions, but none that they may
not perform within the limits of the Bill of Rights. That they are
educating the young for citizenship is reason for scrupulous protection
of Constitutional freedoms of the individual, if we are not to strangle
the free mind at its source and teach youth to discount important
principles of our government as mere platitudes." 319
U.S., at 637
.
On the other hand, the Court has repeatedly emphasized the
need for affirming the comprehensive authority of the States and of
school officials, consistent with fundamental constitutional
safeguards, to prescribe and control conduct in the schools. See
Epperson v. Arkansas, supra, at 104; Meyer v. Nebraska, supra, at 402.
Our problem lies in the area where students in the exercise of First
Amendment rights collide with the rules of the school authorities.
II.
The problem posed by the present case does not relate to regulation of the length of skirts or the type of clothing,
[393
U.S. 503, 508]
to hair style, or deportment. Cf. Ferrell v. Dallas Independent
School District, 392 F.2d 697 (1968); Pugsley v. Sellmeyer, 158 Ark.
247, 250 S. W. 538 (1923). It does not concern aggressive, disruptive
action or even group demonstrations. Our problem involves direct,
primary First Amendment rights akin to "pure speech."
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.
Only a few of the 18,000 students in the school system wore the
black armbands. Only five students were suspended for wearing them.
There is no indication that the work of the schools or any class was
disrupted. Outside the classrooms, a few students made hostile remarks
to the children wearing armbands, but there were no threats or acts of
violence on school premises.
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, 337
U.S. 1
(1949); and our history says that it is this sort of hazardous freedom - this kind of openness - that is
[393
U.S. 503, 509]
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.
Burnside v. Byars, supra, at 749.
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. Even an official
memorandum prepared after the suspension that listed the reasons for
the ban on wearing the armbands made no reference to the anticipation
of such disruption.
3
[393
U.S. 503, 510]
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.
4
It is revealing, in this respect, that the meeting at which the
school principals decided to issue the contested regulation was called
in response to a student's statement to the journalism teacher in one
of the schools that he wanted to write an article on Vietnam and have
it published in the school paper. (The student was dissuaded.
5
)
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
[393
U.S. 503, 511]
in Vietnam - was singled out for prohibition. Clearly, the
prohibition of expression of one particular opinion, at least without
evidence that it is necessary to avoid material and substantial
interference with schoolwork or discipline, is not constitutionally
permissible.
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. In the absence of a
specific showing of constitutionally valid reasons to regulate their
speech, students are entitled to freedom of expression of their views.
As Judge Gewin, speaking for the Fifth Circuit, said, school officials
cannot suppress "expressions of feelings with which they do not wish to
contend." Burnside v. Byars, supra, at 749.
In Meyer v. Nebraska, supra, at 402, Mr. Justice McReynolds
expressed this Nation's repudiation of the principle that a State might
so conduct its schools as to "foster a homogeneous people." He said:
"In order to submerge the individual and develop ideal
citizens, Sparta assembled the males at seven into barracks and
intrusted their subsequent education and training to official
guardians. Although such measures have been deliberately approved by
men of great genius, their ideas touching the relation between
individual and State were wholly different from those upon which our
institutions rest; and it hardly will be affirmed that any legislature
could impose such restrictions upon the people of a
[393
U.S. 503, 512]
State without doing violence to both letter and spirit of the Constitution."
This principle has been repeated by this Court on numerous
occasions during the intervening years. In Keyishian v. Board of
Regents, 385
U.S. 589, 603
, MR. JUSTICE BRENNAN, speaking for the Court, said:
"`The vigilant protection of constitutional freedoms is nowhere
more vital than in the community of American schools.' Shelton v.
Tucker, [
364
U.S. 479
,] at 487. 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.'"
The principle of these cases is not confined to the
supervised and ordained discussion which takes place in the classroom.
The principal use to which the schools are dedicated is to accommodate
students during prescribed hours for the purpose of certain types of
activities. Among those activities is personal intercommunication among
the students.
6
This is not only an inevitable part of the process of attending
school; it is also an important part of the educational process. 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
[393
U.S. 503, 513]
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 interfer[ing] with
the requirements of appropriate discipline in the operation of the
school" and without colliding with the rights of others. Burnside v.
Byars, supra, at 749. But conduct by the student, in class or out of
it, which for any reason - whether it stems from time, place, or type
of behavior - materially disrupts classwork or involves substantial
disorder or invasion of the rights of others is, of course, not
immunized by the constitutional guarantee of freedom of speech. Cf.
Blackwell v. Issaquena County Board of Education, 363 F.2d 749 (C. A.
5th Cir. 1966).
Under our Constitution, free speech is not a right that is given
only to be so circumscribed that it exists in principle but not in
fact. Freedom of expression would not truly exist if the right could be
exercised only in an area that a benevolent government has provided as
a safe haven for crackpots. The Constitution says that Congress (and
the States) may not abridge the right to free speech. This provision
means what it says. We properly read it to permit reasonable regulation
of speech-connected activities in carefully restricted circumstances.
But we do not confine the permissible exercise of First Amendment
rights to a telephone booth or the four corners of a pamphlet, or to
supervised and ordained discussion in a school classroom.
If a regulation were adopted by school officials forbidding
discussion of the Vietnam conflict, or the expression by any student of
opposition to it anywhere on school property except as part of a
prescribed classroom exercise, it would be obvious that the regulation
would violate the constitutional rights of students, at least if it
could not be justified by a showing that the students' activities would
materially and substantially disrupt the work and discipline of the
school. Cf. Hammond
[393
U.S. 503, 514]
v. South Carolina State College, 272 F. Supp. 947 (D.C. S. C.
1967) (orderly protest meeting on state college campus); Dickey v.
Alabama State Board of Education, 273 F. Supp. 613 (D.C. M. D. Ala.
1967) (expulsion of student editor of college newspaper). In the
circumstances of the present case, the prohibition of the silent,
passive "witness of the armbands," as one of the children called it, is
no less offensive to the Constitution's guarantees.
As we have discussed, the record does not demonstrate any facts
which might reasonably have led school authorities to forecast
substantial disruption of or material interference with school
activities, and no disturbances or disorders on the school premises in
fact occurred. These petitioners merely went about their ordained
rounds in school. Their deviation consisted only in wearing on their
sleeve a band of black cloth, not more than two inches wide. They wore
it to exhibit their disapproval of the Vietnam hostilities and their
advocacy of a truce, to make their views known, and, by their example,
to influence others to adopt them. They neither interrupted school
activities nor sought to intrude in the school affairs or the lives of
others. They caused discussion outside of the classrooms, but no
interference with work and no disorder. In the circumstances, our
Constitution does not permit officials of the State to deny their form
of expression.
We express no opinion as to the form of relief which should be
granted, this being a matter for the lower courts to determine. We
reverse and remand for further proceedings consistent with this
opinion.
Footnotes
[
Footnote 1
] In Burnside, the Fifth Circuit ordered that high school
authorities be enjoined from enforcing a regulation forbidding students
to wear "freedom buttons." It is instructive that in Blackwell v.
Issaquena County Board of Education, 363 F.2d 749 (1966), the same
panel on the same day reached the opposite result on different facts.
It declined to enjoin enforcement of such a regulation in another high
school where the students wearing freedom buttons harassed students who
did not wear them and created much disturbance.
[
Footnote 2
] Hamilton v. Regents of Univ. of Cal.,
293
U.S. 245
(1934), is sometimes cited for the broad proposition that the
State may attach conditions to attendance at a state university that
require individuals to violate their religious convictions. The case
involved dismissal of members of a religious denomination from a land
grant college for refusal to participate in military training. Narrowly
viewed, the case turns upon the Court's conclusion that merely
requiring a student to participate in school training in military
"science" could not conflict with his constitutionally protected
freedom of conscience. The decision cannot be taken as establishing
that the State may impose and enforce any conditions that it chooses
upon attendance at public institutions of learning, however violative
they may be of fundamental constitutional guarantees. See, e. g., West
Virginia v. Barnette, 319
U.S. 624
(1943); Dixon v. Alabama State Board of Education, 294 F.2d 150
(C. A. 5th Cir. 1961); Knight v. State Board of Education, 200 F. Supp.
174 (D.C. M. D. Tenn. 1961); Dickey v. Alabama State Board of
Education, 273 F. Supp. 613 (D.C. M. D. Ala. 1967). See also Note,
Unconstitutional Conditions, 73 Harv. L. Rev. 1595 (1960); Note,
Academic Freedom, 81 Harv. L. Rev. 1045 (1968).
[
Footnote 3
] The only suggestions of fear of disorder in the report are these:
"A former student of one of our high schools was killed in Viet
Nam. Some of his friends are still in school and it was felt that if
any kind of a demonstration existed, it might evolve into something
which would be difficult to control."
"Students at one of the high schools were heard to say they would wear arm bands of other colors if the black bands prevailed."
Moreover, the testimony of school authorities at trial
indicates that it was not fear of disruption that motivated the
regulation prohibiting the armbands; the regulation was directed
against "the principle of the demonstration" itself. School authorities
simply felt that "the schools are no place for demonstrations," and if
the students "didn't like the way our elected officials were handling
things, it should be handled with the ballot box and not in the halls
of our public schools."
[
Footnote 4
] The District Court found that the school authorities, in
prohibiting black armbands, were influenced by the fact that "[t]he
Viet Nam war and the involvement of the United States therein has been
the subject of a major controversy for some time. When the arm band
regulation involved herein was promulgated, debate over the Viet Nam
war had become vehement in many localities. A protest march against the
war had been recently held in Washington, D.C. A wave of draft card
burning incidents protesting the war had swept the country. At that
time two highly publicized draft card burning cases were pending in
this Court. Both individuals supporting the war and those opposing it
were quite vocal in expressing their views." 258 F. Supp., at 972-973.
[
Footnote 5
] After the principals' meeting, the director of secondary
education and the principal of the high school informed the student
that the principals were opposed to publication of his article. They
reported that "we felt that it was a very friendly conversation,
although we did not feel that we had convinced the student that our
decision was a just one."
[
Footnote 6
] In Hammond v. South Carolina State College, 272 F. Supp. 947
(D.C. S. C. 1967), District Judge Hemphill had before him a case
involving a meeting on campus of 300 students to express their views on
school practices. He pointed out that a school is not like a hospital
or a jail enclosure. Cf. Cox v. Louisiana, 379
U.S. 536
(1965); Adderley v. Florida,
385
U.S. 39
(1966). It is a public place, and its dedication to specific uses
does not imply that the constitutional rights of persons entitled to be
there are to be gauged as if the premises were purely private property.
Cf. Edwards v. South Carolina, 372
U.S. 229
(1963); Brown v. Louisiana,
383
U.S. 131
(1966).
MR. JUSTICE STEWART, concurring.
Although I agree with much of what is said in the Court's opinion, and with its judgment in this case, I
[393
U.S. 503, 515]
cannot share the Court's uncritical assumption that, school
discipline aside, the First Amendment rights of children are
co-extensive with those of adults. Indeed, I had thought the Court
decided otherwise just last Term in Ginsberg v. New York, 390
U.S. 629
. I continue to hold the view I expressed in that case: "[A] State
may permissibly determine that, at least in some precisely delineated
areas, a child - like someone in a captive audience - is not possessed
of that full capacity for individual choice which is the presupposition
of First Amendment guarantees." Id., at 649-650 (concurring in result).
Cf. Prince v. Massachusetts, 321
U.S. 158
.
MR. JUSTICE WHITE, concurring.
While I join the Court's opinion, I deem it appropriate to note, first,
that the Court continues to recognize a distinction between
communicating by words and communicating by acts or conduct which
sufficiently impinges on some valid state interest; and, second, that I
do not subscribe to everything the Court of Appeals said about free
speech in its opinion in Burnside v. Byars, 363 F.2d 744, 748 (C. A.
5th Cir. 1966), a case relied upon by the Court in the matter now
before us.
MR. JUSTICE BLACK, dissenting.
The Court's holding in this case ushers in what I deem to be an
entirely new era in which the power to control pupils by the elected
"officials of state supported public schools . . ." in the United
States is in ultimate effect transferred to the Supreme Court.
1
The Court brought
[393
U.S. 503, 516]
this particular case here on a petition for certiorari urging
that the First and Fourteenth Amendments protect the right of school
pupils to express their political views all the way "from kindergarten
through high school." Here the constitutional right to "political
expression" asserted was a right to wear black armbands during school
hours and at classes in order to demonstrate to the other students that
the petitioners were mourning because of the death of United States
soldiers in Vietnam and to protest that war which they were against.
Ordered to refrain from wearing the armbands in school by the elected
school officials and the teachers vested with state authority to do so,
apparently only seven out of the school system's 18,000 pupils
deliberately refused to obey the order. One defying pupil was Paul
Tinker, 8 years old, who was in the second grade; another, Hope Tinker,
was 11 years old and in the fifth grade; a third member of the Tinker
family was 13, in the eighth grade; and a fourth member of the same
family was John Tinker, 15 years old, an 11th grade high school pupil.
Their father, a Methodist minister without a church, is paid a salary
by the American Friends Service Committee. Another student who defied
the school order and insisted on wearing an armband in school was
Christopher Eckhardt, an 11th grade pupil and a petitioner in this
case. His mother is an official in the Women's International League for
Peace and Freedom.
As I read the Court's opinion it relies upon the following
grounds for holding unconstitutional the judgment of the Des Moines
school officials and the two courts below. First, the Court concludes
that the wearing of armbands is "symbolic speech" which is "akin to
`pure speech'" and therefore protected by the First and Fourteenth
Amendments. Secondly, the Court decides that the public schools are an
appropriate place to exercise "symbolic speech" as long as normal
school functions
[393
U.S. 503, 517]
are not "unreasonably" disrupted. Finally, the Court arrogates
to itself, rather than to the State's elected officials charged with
running the schools, the decision as to which school disciplinary
regulations are "reasonable."
Assuming that the Court is correct in holding that the conduct
of wearing armbands for the purpose of conveying political ideas is
protected by the First Amendment, cf., e. g., Giboney v. Empire Storage
& Ice Co., 336
U.S. 490
(1949), the crucial remaining questions are whether students and
teachers may use the schools at their whim as a platform for the
exercise of free speech - "symbolic" or "pure" - and whether the courts
will allocate to themselves the function of deciding how the pupils'
school day will be spent. While I have always believed that under the
First and Fourteenth Amendments neither the State nor the Federal
Government has any authority to regulate or censor the content of
speech, I have never believed that any person has a right to give
speeches or engage in demonstrations where he pleases and when he
pleases. This Court has already rejected such a notion. In Cox v.
Louisiana, 379
U.S. 536, 554
(1965), for example, the Court clearly stated that the rights of
free speech and assembly "do not mean that everyone with opinions or
beliefs to express may address a group at any public place and at any
time."
While the record does not show that any of these armband
students shouted, used profane language, or were violent in any manner,
detailed testimony by some of them shows their armbands caused
comments, warnings by other students, the poking of fun at them, and a
warning by an older football player that other, nonprotesting students
had better let them alone. There is also evidence that a teacher of
mathematics had his lesson period practically "wrecked" chiefly by
disputes with Mary Beth Tinker, who wore her armband for her
"demonstration."
[393
U.S. 503, 518]
Even a casual reading of the record shows that this armband did
divert students' minds from their regular lessons, and that talk,
comments, etc., made John Tinker "self-conscious" in attending school
with his armband. While the absence of obscene remarks or boisterous
and loud disorder perhaps justifies the Court's statement that the few
armband students did not actually "disrupt" the classwork, I think the
record overwhelmingly shows that the armbands did exactly what the
elected school officials and principals foresaw they would, that is,
took the students' minds off their classwork and diverted them to
thoughts about the highly emotional subject of the Vietnam war. And I
repeat that if the time has come when pupils of state-supported
schools, kindergartens, grammar schools, or high schools, can defy and
flout orders of school officials to keep their minds on their own
schoolwork, it is the beginning of a new revolutionary era of
permissiveness in this country fostered by the judiciary. The next
logical step, it appears to me, would be to hold unconstitutional laws
that bar pupils under 21 or 18 from voting, or from being elected
members of the boards of education.
2
The United States District Court refused to hold that the state
school order violated the First and Fourteenth Amendments. 258 F. Supp.
971. Holding that the protest was akin to speech, which is protected by
the First
[393
U.S. 503, 519]
and Fourteenth Amendments, that court held that the school
order was "reasonable" and hence constitutional. There was at one time
a line of cases holding "reasonableness" as the court saw it to be the
test of a "due process" violation. Two cases upon which the Court today
heavily relies for striking down this school order used this test of
reasonableness, Meyer v. Nebraska, 262
U.S. 390
(1923), and Bartels v. Iowa,
262
U.S. 404
(1923). The opinions in both cases were written by Mr. Justice
McReynolds; Mr. Justice Holmes, who opposed this reasonableness test,
dissented from the holdings as did Mr. Justice Sutherland. This
constitutional test of reasonableness prevailed in this Court for a
season. It was this test that brought on President Franklin Roosevelt's
well-known Court fight. His proposed legislation did not pass, but the
fight left the "reasonableness" constitutional test dead on the
battlefield, so much so that this Court in Ferguson v. Skrupa, 372
U.S. 726, 729
, 730, after a thorough review of the old cases, was able to conclude in 1963:
"There was a time when the Due Process Clause was used by this
Court to strike down laws which were thought unreasonable, that is,
unwise or incompatible with some particular economic or social
philosophy.
"The doctrine that prevailed in Lochner, Coppage, Adkins, Burns,
and like cases - that due process authorizes courts to hold laws
unconstitutional when they believe the legislature has acted unwisely -
has long since been discarded."
The Ferguson case totally repudiated the old
reasonableness-due process test, the doctrine that judges have the
power to hold laws unconstitutional upon the belief of judges that they
"shock the conscience" or that they are
[393
U.S. 503, 520]
"unreasonable," "arbitrary," "irrational," "contrary to
fundamental `decency,'" or some other such flexible term without
precise boundaries. I have many times expressed my opposition to that
concept on the ground that it gives judges power to strike down any law
they do not like. If the majority of the Court today, by agreeing to
the opinion of my Brother FORTAS, is resurrecting that old
reasonableness-due process test, I think the constitutional change
should be plainly, unequivocally, and forthrightly stated for the
benefit of the bench and bar. It will be a sad day for the country, I
believe, when the present-day Court returns to the McReynolds due
process concept. Other cases cited by the Court do not, as implied,
follow the McReynolds reasonableness doctrine. West Virginia v.
Barnette, 319
U.S. 624
, clearly rejecting the "reasonableness" test, held that the
Fourteenth Amendment made the First applicable to the States, and that
the two forbade a State to compel little schoolchildren to salute the
United States flag when they had religious scruples against doing so.
3
Neither Thornhill v. Alabama,
310
U.S. 88
; Stromberg v. California,
283
U.S. 359
; Edwards
[393
U.S. 503, 521]
v. South Carolina,
372
U.S. 229
; nor Brown v. Louisiana,
383
U.S. 131
, related to schoolchildren at all, and none of these cases
embraced Mr. Justice McReynolds' reasonableness test; and Thornhill,
Edwards, and Brown relied on the vagueness of state statutes under
scrutiny to hold them unconstitutional. Cox v. Louisiana, 379
U.S. 536, 555
, and Adderley v. Florida,
385
U.S. 39
, cited by the Court as a "compare," indicating, I suppose, that
these two cases are no longer the law, were not rested to the slightest
extent on the Meyer and Bartels "reasonableness-due process-McReynolds"
constitutional test.
I deny, therefore, that it has been the "unmistakable holding of
this Court for almost 50 years" that "students" and "teachers" take
with them into the "schoolhouse gate" constitutional rights to "freedom
of speech or expression." Even Meyer did not hold that. It makes no
reference to "symbolic speech" at all; what it did was to strike down
as "unreasonable" and therefore unconstitutional a Nebraska law barring
the teaching of the German language before the children reached the
eighth grade. One can well agree with Mr. Justice Holmes and Mr.
Justice Sutherland, as I do, that such a law was no more unreasonable
than it would be to bar the teaching of Latin and Greek to pupils who
have not reached the eighth grade. In fact, I think the majority's
reason for invalidating the Nebraska law was that it did not like it or
in legal jargon that it "shocked the Court's conscience," "offended its
sense of justice," or was "contrary to fundamental concepts of the
English-speaking world," as the Court has sometimes said. See, e. g.,
Rochin v. California, 342
U.S. 165
, and Irvine v. California,
347
U.S. 128
. The truth is that a teacher of kindergarten, grammar school, or
high school pupils no more carries into a school with him a complete
right to freedom of speech and expression than an anti-Catholic or
anti-Semite carries with him a complete freedom of
[393
U.S. 503, 522]
speech and religion into a Catholic church or Jewish synagogue.
Nor does a person carry with him into the United States Senate or
House, or into the Supreme Court, or any other court, a complete
constitutional right to go into those places contrary to their rules
and speak his mind on any subject he pleases. It is a myth to say that
any person has a constitutional right to say what he pleases, where he
pleases, and when he pleases. Our Court has decided precisely the
opposite. See, e. g., Cox v. Louisiana, 379
U.S. 536, 555
; Adderley v. Florida,
385
U.S. 39
.
In my view, teachers in state-controlled public schools are hired to
teach there. Although Mr. Justice McReynolds may have intimated to the
contrary in Meyer v. Nebraska, supra, certainly a teacher is not paid
to go into school and teach subjects the State does not hire him to
teach as a part of its selected curriculum. Nor are public school
students sent to the schools at public expense to broadcast political
or any other views to educate and inform the public. The original idea
of schools, which I do not believe is yet abandoned as worthless or out
of date, was that children had not yet reached the point of experience
and wisdom which enabled them to teach all of their elders. 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.
The true principles on this whole subject were in my judgment
spoken by Mr. Justice McKenna for the Court in Waugh v. Mississippi
University in 237
U.S. 589, 596
-597. The State had there passed a law barring students from
peaceably assembling in Greek letter fraternities and providing that
students who joined them could be expelled from school. This law would
appear on the surface to run afoul of the First Amendment's
[393
U.S. 503, 523]
freedom of assembly clause. The law was attacked as violative
of due process and of the privileges and immunities clause and as a
deprivation of property and of liberty, under the Fourteenth Amendment.
It was argued that the fraternity made its members more moral, taught
discipline, and inspired its members to study harder and to obey better
the rules of discipline and order. This Court rejected all the "fervid"
pleas of the fraternities' advocates and decided unanimously against
these Fourteenth Amendment arguments. The Court in its next to the last
paragraph made this statement which has complete relevance for us
today:
"It is said that the fraternity to which complainant belongs
is a moral and of itself a disciplinary force. This need not be denied.
But whether such membership makes against discipline was for the State
of Mississippi to determine. It is to be remembered that the University
was established by the State and is under the control of the State, and
the enactment of the statute may have been induced by the opinion that
membership in the prohibited societies divided the attention of the
students and distracted from that singleness of purpose which the State
desired to exist in its public educational institutions. It is not for
us to entertain conjectures in opposition to the views of the State and
annul its regulations upon disputable considerations of their wisdom or
necessity." (Emphasis supplied.)
It was on the foregoing argument that this Court sustained
the power of Mississippi to curtail the First Amendment's right of
peaceable assembly. And the same reasons are equally applicable to
curtailing in the States' public schools the right to complete freedom
of expression. Iowa's public schools, like Mississippi's university,
are operated to give students an opportunity to learn, not to talk
politics by actual speech, or by "symbolic"
[393
U.S. 503, 524]
speech. And, as I have pointed out before, the record amply
shows that public protest in the school classes against the Vietnam war
"distracted from that singleness of purpose which the State [here Iowa]
desired to exist in its public educational institutions." Here the
Court should accord Iowa educational institutions the same right to
determine for themselves to what extent free expression should be
allowed in its schools as it accorded Mississippi with reference to
freedom of assembly. But even if the record were silent as to protests
against the Vietnam war distracting students from their assigned class
work, members of this Court, like all other citizens, know, without
being told, that the disputes over the wisdom of the Vietnam war have
disrupted and divided this country as few other issues ever have. Of
course students, like other people, cannot concentrate on lesser issues
when black armbands are being ostentatiously displayed in their
presence to call attention to the wounded and dead of the war, some of
the wounded and the dead being their friends and neighbors. It was, of
course, to distract the attention of other students that some students
insisted up to the very point of their own suspension from school that
they were determined to sit in school with their symbolic armbands.
Change has been said to be truly the law of life but sometimes the
old and the tried and true are worth holding. The schools of this
Nation have undoubtedly contributed to giving us tranquility and to
making us a more law-abiding people. Uncontrolled and uncontrollable
liberty is an enemy to domestic peace. We cannot close our eyes to the
fact that some of the country's greatest problems are crimes committed
by the youth, too many of school age. School discipline, like parental
discipline, is an integral and important part of training our children
to be good citizens - to be better citizens. Here a very small number
of students have crisply and summarily
[393
U.S. 503, 525]
refused to obey a school order designed to give pupils who want
to learn the opportunity to do so. One does not need to be a prophet or
the son of a prophet to know that after the Court's holding today some
students in Iowa schools and indeed in all schools will be ready, able,
and willing to defy their teachers on practically all orders. This is
the more unfortunate for the schools since groups of students all over
the land are already running loose, conducting break-ins, sit-ins,
lie-ins, and smash-ins. Many of these student groups, as is all too
familiar to all who read the newspapers and watch the television news
programs, have already engaged in rioting, property seizures, and
destruction. They have picketed schools to force students not to cross
their picket lines and have too often violently attacked earnest but
frightened students who wanted an education that the pickets did not
want them to get. Students engaged in such activities are apparently
confident that they know far more about how to operate public school
systems than do their parents, teachers, and elected school officials.
It is no answer to say that the particular students here have not yet
reached such high points in their demands to attend classes in order to
exercise their political pressures. Turned loose with lawsuits for
damages and injunctions against their teachers as they are here, it is
nothing but wishful thinking to imagine that young, immature students
will not soon believe it is their right to control the schools rather
than the right of the States that collect the taxes to hire the
teachers for the benefit of the pupils. This case, therefore, wholly
without constitutional reasons in my judgment, subjects all the public
schools in the country to the whims and caprices of their
loudest-mouthed, but maybe not their brightest, students. I, for one,
am not fully persuaded that school pupils are wise enough, even with
this Court's expert help from Washington, to run the 23,390 public
school
[393
U.S. 503, 526]
systems
4
in our 50 States. I wish, therefore, wholly to disclaim any
purpose on my part to hold that the Federal Constitution compels the
teachers, parents, and elected school officials to surrender control of
the American public school system to public school students. I dissent.
[
Footnote 1
] The petition for certiorari here presented this single question:
"Whether the First and Fourteenth Amendments permit officials
of state supported public schools to prohibit students from wearing
symbols of political views within school premises where the symbols are
not disruptive of school discipline or decorum."
[
Footnote 2
] The following Associated Press article appeared in the Washington Evening Star, January 11, 1969, p. A-2, col. 1:
"BELLINGHAM, Mass. (AP) - Todd R. Hennessy, 16, has filed
nominating papers to run for town park commissioner in the March
election.
"`I can see nothing illegal in the youth's seeking the elective
office,' said Lee Ambler, the town counsel. `But I can't overlook the
possibility that if he is elected any legal contract entered into by
the park commissioner would be void because he is a juvenile.'
"Todd is a junior in Mount St. Charles Academy, where he has a top scholastic record."
[
Footnote 3
] In Cantwell v. Connecticut,
310
U.S. 296, 303
-304 (1940), this Court said:
"The First Amendment declares that Congress shall make no law
respecting an establishment of religion or prohibiting the free
exercise thereof. The Fourteenth Amendment has rendered the
legislatures of the states as incompetent as Congress to enact such
laws. The constitutional inhibition of legislation on the subject of
religion has a double aspect. On the one hand, it forestalls compulsion
by law of the acceptance of any creed or the practice of any form of
worship. Freedom of conscience and freedom to adhere to such religious
organization or form of worship as the individual may choose cannot be
restricted by law. On the other hand, it safeguards the free exercise
of the chosen form of religion. Thus the Amendment embraces two
concepts, - freedom to believe and freedom to act. The first is
absolute but, in the nature of things, the second cannot be. Conduct
remains subject to regulation for the protection of society."
[
Footnote 4
] Statistical Abstract of the United States (1968), Table No. 578, p. 406.
MR. JUSTICE HARLAN, dissenting.
I certainly agree that state public school authorities in the
discharge of their responsibilities are not wholly exempt from the
requirements of the Fourteenth Amendment respecting the freedoms of
expression and association. At the same time I am reluctant to believe
that there is any disagreement between the majority and myself on the
proposition that school officials should be accorded the widest
authority in maintaining discipline and good order in their
institutions. To translate that proposition into a workable
constitutional rule, I would, in cases like this, cast upon those
complaining the burden of showing that a particular school measure was
motivated by other than legitimate school concerns - for example, a
desire to prohibit the expression of an unpopular point of view, while
permitting expression of the dominant opinion.
Finding nothing in this record which impugns the good faith of
respondents in promulgating the armband regulation, I would affirm the
judgment below.
[393
U.S. 503, 527]
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