The Teens Who Fought for Free Speech

Thirteen-year-old Mary Beth Tinker and her 15-year-old brother, John, felt that they had to do something. It was 1965, and thousands of U.S. troops were fighting in the Vietnam War—a war that Mary Beth and John both opposed.

“All the time, we were seeing on the news: war, war, war,” Mary Beth Tinker, now 66, says. “The bombings, the kids running from their huts screaming—it seemed like everything was on fire.”

In December of that year, Mary Beth Tinker walked into Warren Harding Junior High School, in Des Moines, Iowa, wearing a black armband to protest the war. That didn’t go over well with the school principal, who suspended her for violating school rules. John, their friend Christopher Eckhardt, and three others who also wore the armbands to high school were suspended too.

The question was: Did suspending the students violate their First Amendment right to free speech? The Tinkers, Eckhardt, and their parents thought so. They sued the school district with the backing of lawyers from the American Civil Liberties Union (A.C.L.U.).

The case made it all the way to the Supreme Court, which in 1969 ruled 7-2 in favor of the students. The Court famously stated that students and teachers don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

The landmark case clarified that public school students have the right to voice their opinions, as long as they’re not interfering with the ability of the school to function or disrupting the right of other students to learn.

Fifty years later, Tinker v. Des Moines Independent Community School District is considered the most important case regarding students and freedom of expression. It set the standard by which all subsequent students’ rights cases are judged and paved the way for the school walkouts last year, when students across the country protested to demand stricter gun laws following the school shooting in Parkland, Florida.

Thirteen-year-old Mary Beth Tinker and her 15-year-old brother, John, felt that they had to do something. It was 1965, and thousands of U.S. troops were fighting in the Vietnam War—a war that Mary Beth and John both opposed.

“All the time, we were seeing on the news: war, war, war,” Mary Beth Tinker, now 66, says. “The bombings, the kids running from their huts screaming—it seemed like everything was on fire.”

In December of that year, Mary Beth Tinker walked into Warren Harding Junior High School, in Des Moines, Iowa, wearing a black armband. She wore it in protest of the war. That didn’t go over well with the school principal, who suspended her for violating school rules. John, their friend Christopher Eckhardt, and three others also wore the armbands. They were all suspended from their high school.

The question was: Did suspending the students violate their First Amendment right to free speech? The Tinkers, Eckhardt, and their parents thought so. They sued the school district with the backing of lawyers from the American Civil Liberties Union (A.C.L.U.).

Four years later, in 1969, the case made it all the way to the Supreme Court, which ruled 7-2 in favor of the students. The Court famously stated that students and teachers don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” 

The landmark case clarified that public school students have the right to voice their opinions. That is, as long as they’re not interfering with the ability of the school to function or disrupting the right of other students to learn.

Fifty years later, Tinker v. Des Moines Independent Community School District is considered the most important case on students and freedom of expression. It set the standard by which all students’ rights cases that have come after it are judged. It also paved the way for the school walkouts last year. Following the school shooting in Parkland, Florida, students across the country protested to demand stricter gun laws.

The Tinker case “was almost like a Declaration of Independence for students,” says Stephen Wermiel, a professor of constitutional law at American University Washington College of Law, in Washington, D.C. “It wasn’t that anybody was uniformly saying that students have no rights. But more that it was unclear what rights they had, and when, and under what circumstances.”

When the Tinkers were growing up, students were at the forefront of protests from Birmingham, Alabama, to Berkeley, California.

“Kids today say they’re woke,” Mary Beth Tinker says. “So many young people through history have been woke.”

In the South, young people were among those leading the charge in the civil rights movement—staging sit-ins at segregated lunch counters, helping organize voter-registration drives, and boycotting businesses that discriminated against blacks. 

The Tinker case “was almost like a Declaration of Independence for students,” says Stephen Wermiel, a professor of constitutional law at American University Washington College of Law, in Washington, D.C. “It wasn’t that anybody was uniformly saying that students have no rights. But more that it was unclear what rights they had, and when, and under what circumstances.”

When the Tinkers were growing up, students were at the forefront of protests. These demonstrations took place across the U.S., from Birmingham, Alabama, to Berkeley, California.

“Kids today say they’re woke,” Mary Beth Tinker says. “So many young people through history have been woke.”

In the South, young people were among those leading the charge in the civil rights movement. They staged sit-ins at segregated lunch counters and helped organize voter-registration drives. They also boycotted businesses that discriminated against blacks. 

In the spring of 1963, thousands of students marched in the “Children’s Crusade” in Birmingham to demand an end to segregation. Police officers released dogs on them and knocked them to the ground with high-pressure hoses. Many of the young protesters were thrown in jail. But their courage would help lead to federal laws outlawing segregation.

In the mid-1960s, college campuses also erupted with protests against the Vietnam War. The U.S. began sending combat troops to Vietnam in 1965 to try to halt the spread of Communism in Asia. Though most Americans at that time supported the war, a small but loud antiwar movement was forming among people who believed that the war had no clear objective, especially college students and young people.

Mary Beth Tinker and her brother were inspired by seeing news of other teens protesting.

“We saw other young people speaking up and standing up for the things they taught us in school and in church but weren’t reality, like fairness, equality, justice, and peace,” she says. “That was a turning point for us.”

In the spring of 1963, thousands of students marched in the “Children’s Crusade” in Birmingham to demand an end to segregation. Police officers set dogs on them and knocked them to the ground with high-pressure hoses. Many of the young protesters were thrown in jail. But their courage would help lead to federal laws outlawing segregation.

In the mid-1960s, college campuses also erupted with protests against the Vietnam War. The U.S. began sending combat troops to Vietnam in 1965 to try to halt the spread of Communism in Asia. Most Americans at that time supported the war. But a small but loud antiwar movement was forming among people who believed that the war had no clear purpose. This crusade especially gained the attention of college students and young people.

Mary Beth Tinker and her brother were inspired by seeing news of other teens protesting.

“We saw other young people speaking up and standing up for the things they taught us in school and in church but weren’t reality, like fairness, equality, justice, and peace,” she says. “That was a turning point for us.”

The Tinker siblings and a group of other students came up with the idea to wear black armbands as a symbol of mourning not only for the American soldiers who’d been killed in the war, but also for the Vietnamese.

But before the students’ protest, school district officials found out about their plan and implemented a ban on armbands, threatening to suspend anyone who violated the rule.

The Tinkers decided it was important to stand up for what they believed in anyway. They didn’t think a suspension was that big a price to pay compared with what teenagers protesting for civil rights in the South faced—and they certainly never imagined their symbolic display would lead to a Supreme Court case.

“I had no idea that our small action was going to turn into such a big thing,” Tinker says.

When the Tinkers appealed the suspension to the school board, about 200 people showed up at the meeting. Some came to support the students, but others viewed the message of mourning for the dead Vietnamese as “un-American” and praised the schools for punishing them.  

The school district upheld the suspensions, so the Tinkers sued. The first court to hear the case dismissed the complaint, allowing the school district’s decision to stand. But the students and their lawyers from the A.C.L.U. didn’t stop there; they continued to appeal the case until it made it to the Supreme Court.

As the Tinker case was winding through the court system, more and more men were being drafted into the armed forces, and the antiwar movement was growing. In 1967, 100,000 people gathered on the National Mall in Washington, D.C.,
to protest the war.  

However, many people still supported the fighting in Vietnam and the Tinkers became the focus of a lot of anger. They were accused of being Communists, and their house was smeared with red paint. They received hate mail and death threats, and their car window was smashed with a brick.

The Tinker siblings and a group of other students came up with the idea to wear black armbands. This was to be a symbol of mourning. Their public display would be for the American soldiers who’d been killed in the war and for the Vietnamese.

But before the students’ protest, school district officials found out about their plan. They implemented a ban on armbands and threatened to suspend anyone who broke the rule.

The Tinkers decided it was important to stand up for what they believed in anyway. They didn’t think a suspension was that big a price to pay compared with what teenagers protesting for civil rights in the South faced. And they certainly never imagined their symbolic display would lead to a Supreme Court case.

“I had no idea that our small action was going to turn into such a big thing,” Tinker says. 

When the Tinkers appealed the suspension to the school board, about 200 people showed up at the meeting. Some came to support the students. Others viewed the message of mourning for the dead Vietnamese as “un-American” and praised the schools for punishing them.  

The school district upheld the suspensions, so the Tinkers sued. The first court to hear the case dismissed the complaint. That allowed the school district’s decision to stand. But the students and their lawyers from the A.C.L.U. didn’t stop there. They continued to appeal the case until it made it to the Supreme Court.

As the Tinker case was winding through the court system, more and more men were being drafted into the armed forces. At the same time, the antiwar movement was growing. In 1967, 100,000 people gathered on the National Mall in Washington, D.C., to protest the war.  

However, many people still supported the fighting in Vietnam. The Tinkers became the focus of a lot of anger from these supporters. They were accused of being Communists, and their house was smeared with red paint. They received hate mail and death threats, and their car window was smashed with a brick.

At the center of the Tinker case was the First Amendment, which guarantees the right to free speech and the right to peacefully “assemble, and to petition the Government.” It was unclear how the First Amendment should apply to students.

“Students were supposed to go to school and do what they were told,” says Wermiel, the law professor. “So I think Tinker changed the paradigm. It changed the way we thought about what kids were supposed to do . . . to think critically for themselves and to express themselves and voice their views.”

The Tinker ruling ensured that students have free speech rights in public school—but only up to a point. It doesn’t mean you can do or say anything. The justices said that school officials must balance students’ First Amendment rights with the school’s need to maintain order, so as long as an act of expression doesn’t cause a “substantial disruption” or infringe upon the rights of others, it’s allowed. Legal experts often refer to this as the Tinker standard.

In three cases since Tinker, the Supreme Court has grappled with how to strike that balance between allowing free speech and maintaining order in school. In each one, the Court has sided with the schools (see “Key Students’ Rights Cases,” below).

“The Supreme Court has pretty consistently since 1969 limited the scope of Tinker,” says Wermiel.

Still, courts at all levels continue to apply the Tinker standard when ruling on student speech (see “Can Your Instagram Post Get You Suspended?”). Tinker v. Des Moines has been cited in court decisions at the local, state, and federal levels more than 2,000 times.

At the center of the Tinker case was the First Amendment. It guarantees the right to free speech and the right to peacefully “assemble, and to petition the Government.” It was unclear how the First Amendment should apply to students.

“Students were supposed to go to school and do what they were told,” says Wermiel, the law professor. “So I think Tinker changed the paradigm. It changed the way we thought about what kids were supposed to do . . . to think critically for themselves and to express themselves and voice their views.”

The Tinker ruling ensured that students have free speech rights in public school, but only up to a point. It doesn’t mean you can do or say anything. The justices said that school officials must balance students’ First Amendment rights with the school’s need to maintain order. That means that as long as an act of expression doesn’t cause a “substantial disruption” or infringe upon the rights of others, it’s allowed. Legal experts often refer to this as the Tinker standard.

In three cases since Tinker, the Supreme Court has grappled with how to strike that balance between allowing free speech and maintaining order in school. In each one, the Court has sided with the schools (see “Key Students’ Rights Cases,” facing page).

“The Supreme Court has pretty consistently since 1969 limited the scope of Tinker,” says Wermiel.

Still, courts at all levels continue to apply the Tinker standard when ruling on student speech (see “Can Your Instagram Post Get You Suspended?”). Tinker v. Des Moines has been cited in court decisions at the local, state, and federal levels more than 2,000 times.

Last March, thousands of high school students across the country followed in the Tinkers’ footsteps when they walked out of their classes to demonstrate for stricter gun control.

Schools wrestled with how to respond to the walkouts. Some supported and even helped their students protest. Others threatened to punish students with suspensions. 

Before the protests, the A.C.L.U. posted a guide on its website for students. It said that schools could discipline students under attendance guidelines. But what schools couldn’t do, the legal experts said, was “discipline you more harshly because of the political nature of or the message behind your action.”

Last March, thousands of high school students across the country followed in the Tinkers’ footsteps. They walked out of their classes in demonstrations calling for stricter gun control.

Schools wrestled with how to respond to the walkouts. Some supported and even helped their students protest. Others threatened to punish students with suspensions. 

Before the protests, the A.C.L.U. posted a guide on its website for students. It said that schools could discipline students under attendance guidelines. But what schools couldn’t do, the legal experts said, was “discipline you more harshly because of the political nature of or the message behind your action.”

The idea that school officials can’t punish students simply because they don’t agree with a certain viewpoint comes directly from the Tinker case.  

On the morning of the walkouts, Mary Beth Tinker, now a retired pediatric nurse who continues to speak out about First Amendment rights, joined students in McLean, Virginia, who’d stepped out of class to protest. In a park near McLean High School, she encouraged them to continue standing up for what they believe in.

“When you find an issue that you care about, that affects your life, and you join up with a group of others to take action,” she says, “then life becomes so meaningful.”

The idea that school officials can’t punish students simply because they don’t agree with a certain viewpoint comes directly from the Tinker case.

Mary Beth Tinker is now a retired pediatric nurse. She continues to speak out about First Amendment rights. On the morning of the walkouts, she joined students in McLean, Virginia, who’d stepped out of class to protest. In a park near McLean High School, she encouraged them to continue standing up for what they believe in.

“When you find an issue that you care about, that affects your life, and you join up with a group of others to take action,” she says, “then life becomes so meaningful.”