In the late 1965, the evening news blared with news of the U.S. engagement in Vietnam, disheartening a 13-year-old Mary Beth Tinker as she ate dinner with her family. The month prior, Mary Beth’s 15-year-old brother, John, and his friend Christopher Eckhardt marched against the war in Washington, D.C. Back in Iowa, the boys thought their small circle of peace supporters were alone in the anti-war fight. But in Washington, they became inspired by the support they felt from the thousands of other Americans in attendance. The boys carried that confidence home to Des Moines, and come December, Eckhardt and the Tinker siblings discussed how they could take their stand against what they saw as an unjust war.
The plan: Wear black armbands to school in peaceful protest. Their school board promptly banned the wearing of armbands and suspended the students when they disobeyed the directive. Though simple, the young adults’ actions would cascade into what became “one of the seminal cases in constitutional law in American history” in the words of constitutional scholar David Hudson. The so-called “Tinker Test,” established 50 years ago when the United States Supreme Court ruled in Tinker v. Des Moines, forever changed the legality of school protest, for better and for worse.
The students gleaned inspiration from a group of college students and adults who had gathered in the Eckhardt family home to discuss ways Iowans could advocate for peace in Vietnam. The next day, word of the peaceful protest plan spread to a high school Liberal Religious Youth group gathered at the Eckhardt’s, and later, to the Tinker siblings. Wearing black armbands, as had been done to mourn the children murdered in the Birmingham church bombing, became the course of action. Soon, the principals of the Des Moines schools the students attended received word of the protest and hastily moved to ban black armbands from school premises. Yet, seven students – including Mary Beth, John and Chris – carried on and five were suspended, the youngest being Mary Beth.
“I had no idea our small action would lead to something so consequential,” Mary Beth now says.
News of their protest spread and retribution came swiftly. Red paint was tossed across the Tinker’s driveway, and a local talk show host encouraged people to attack family patriarch Leonard Tinker. Soon, individuals from the Iowa branch of the American Civil Liberties Union offered legal aid to the families, citing that they could sue the Des Moines school district for violating their First Amendment rights to free speech. The initial case, argued before the U.S. District Court for the Southern District of Iowa, did not end in their favor. Judge Roy Stephenson acknowledged the students’ expression was a “symbolic act” protected by the First Amendment, but argued that it should not surpass the school’s concern for “the disciplined atmosphere of the classroom.” The appeal to the U.S. Eighth Circuit Court of Appeals went no better. The eight judges were evenly divided 4-4 in their decision, upholding the lower court’s ruling, and pushing the students’ attorneys to file a writ of certiorari with the U.S. Supreme Court in a last effort to prevail.
On November 12, 1968, the case of Tinker v. Des Moines Independent Community School District came before the Supreme Court. Though preoccupied by the continuing quagmire in Vietnam, with more than 16,000 American troops killed that year alone, the Tinker family was eager for a resolution to their case. Before the justices, Dan Johnston, a lawyer working with the ACLU, argued that the balance between a school’s effort to maintain discipline and the right of increasingly politicized students to voice their opinions was “not an isolated problem… And we suggest that this case provides a good context for the Court to provide guidance…”
Three months later, on February 24, 1969, the court ruled 7-2 in favor of the students, with Justice Abe Fortas writing in the decision, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” He added, “In our system, state-operated schools may not be enclaves of totalitarianism… [students] 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.”
Hudson, a law professor at the Nashville School of Law and author of Let the Students Speak!: A History of the Fight for Free Expression in American Schools, says of the Tinker case, “It’s hard to overstate its importance.” Since 1969, the decision has been cited as precedent in practically every case having to do with free speech for public school students. And while it appeared to be a First Amendment triumph, a win for public school students across the nation, in practice, it’s been interpreted in many unexpected ways.
In defending the students’ rights, the seven justices pointed to a 1966 lower court decision: Burnside v. Byars. In that case, a group of Mississippi students wore “freedom buttons” to school in 1964, and school authorities hastily threw together a rule banning the protest. At the time, the U.S. Fifth Circuit Court of Appeals ruled it was unreasonable to believe “the mere presence of ‘freedom buttons’ is calculated to cause a disturbance sufficient to warrant their exclusion from school premises...” Thus began the age of “substantial disruption.”
First suggested in Burnside and later codified in Tinker, substantial disruption asks schools to determine whether a student protest causes enough of an impediment to learning to merit discipline. The Tinker ruling established what is commonly referred to as the “Tinker test,” a barometer to measure student speech against. However, the only concrete standard established by the “Tinker Test,” was that passively wearing armbands alone was not substantial enough. This left walk-outs, signs, sit-ins and other forms of speech up for debate.
The Tinker case also laid the groundwork for “reasonable forecast.” In order to implement disciplinary actions, Hudson says, “Public-school officials don’t have to wait for an actual riot or wide-scale disruption. They can point to specific facts that certain expression will cause substantial disruption.” In other words, public schools can legally prohibit student speech, if they have reason to believe substantial disruption will result.
In March 2018, the ACLU cited Tinker to argue a Georgia school unconstitutionally suspended student Amari Ewing, who walked out of school in protest of gun violence. The usual punishment for such offense was a one-day, in-school suspension. Ewing was suspended for five days. In a letter to the school district, the ACLU wrote, “It is hardly clear how Amari’s leaving school during the break between classes without fanfare has caused a material and substantial disruption to school. If you have such evidence, we ask that you provide it immediately. Absent such evidence, the school’s overreaction to Amari’s expression appears to be nothing more than ‘an urgent wish to avoid the controversy which might result from the expression.’” Eventually, according to the ACLU of Georgia, Ewing’s suspension was reduced to an amount all parties agreed was acceptable.
The ACLU sued the Shawnee Mission School District in Kansas on behalf of students who allege their school prohibited them from mentioning “gun violence” during a planned anti-gun violence protest. The Shawnee Mission School District is also accused of stopping student journalists from covering the event and even cancelling a student rally altogether.
The ambiguous nature of student speech rights has universal impact. Madison Oster, who walked out of her Illinois school in support of gun rights in March, is similarly suing her school district for censoring her free speech. Oster alleges the school “selectively bann[ed] her viewpoint” by initially insisting she and her fellow gun supporters stage their protest near the school’s front door, far from where the crowd of anti-gun violence protesters demonstrated on the football field, and keeping them “out of everyone else’s sight or hearing.”
This is just a sampling of instances when students felt their freedom of speech has been impeded. Even more are argued outside the court house, as schools negotiate their own limits of “reasonable forecast” and “substantial disruption.” With the power to define these terms, schools can also redefine them and over-discipline students. While up for interpretation, the Tinker test still requires schools provide adequate proof of disruption. And, still “in our system, state-operated schools may not be enclaves of totalitarianism.”
Today, celebration around youth activism is abundant. Mary Beth’s protest will be honored in a 2020 exhibit at the Smithsonian’s National Museum of American History that focuses on the ways young girls have forever been on the frontlines of change.
“We tend to think about childhood as something that is isolated and pristine,” exhibit curator Nancy Bercaw says. “We think that girls are sugar and spice and everything nice. But all along major government policies have come from girls’ actions, like Mary Beth’s.”
Five years ago, Mary Beth left her career as a family nurse practitioner. “Young people aren’t going to have optimal health until they have the rights to speak up about their status,” she realized and started the Tinker Tour. She travels the country stopping at schools and teacher colleges, encouraging others to speak out for their passions.
“I show them that they can be a part of history and democracy,” she says. “And when you are, life becomes very interesting, meaningful and somedays even fun. History is going to be made one way or another, and they could have a part in making it. They should and they deserve to.”
Mary Beth believes we are living in “mighty times,” similar to the ones of her youth. To her, the voices of the current generation are vital. These new voices value Mary Beth’s too. Last February, March for Our Lives activist Emma González said in a speech, “We are going to be the kids you read about in textbooks… Just like Tinker v. Des Moines, we are going to change the law…. it's going to be due to the tireless effort of the school board, the faculty members, the family members and most of all the students.”