Transcripts For CSPAN3 Landmark Cases Supreme Court Landmark Case Tinker V. Des Moines 20240712

Court nominations. You are watching American History tv on cspan three. My name is naomi and im 11 years old. Me and my friend carter led a walkout earner alum entry school and are on the 14th. Im a sophomore at aubergine aversive three years ago, i stood exactly where yall are today and attended my first march for life. We march for our whole generation. We are the generation. One more cases, cspans special history series. Produced in partnership with the National Constitution center. Exploring the human stories and constitutional dramas behind 12 Historic Supreme Court decisions. Mr. Chief justice, made please the court. Good evening, and welcome to cspans landmark cases. Tonights case is tinker versus Des Moines Independent Community School District. In this 1969 case, a court in a seven to two decision ruled that students First Amendment rights to free speech are still protected even when they are at school. For the next 90 minutes, we will learn more about the history of this case and its significance in our Society Today and in a year where there are lots of students voicing their opinions on issues around the country. Let me introduce our two guests at the table. Mary beth tinker as one of the namesakes of the case. She and her brother were students in 1969 when this case came to the court and she will be here to share her personal experience and her work as an adult now, to promote student free speech and Student Press freedom, thank you for being with us. Eric chaffee is the chairman of the federalist societies free speech and election low party and he has been involved in more than 100 Supreme Court and clerk for Justice Clarence thomas. Thanks for being our guest tonight. In a nutshell, when you tell young people what this case is all about. What is the headline. What do you . Because greta the Civil Rights Movement and in the end we were black arm bands to school to mourn for the dead in vietnam in 1965 and to support a Christmas Trees that was being called for by senator robert kennedy. For doing that, we are suspended. The American Civil Liberties union took the case all the way to the Supreme Court which ruled in 1969, that neither teachers nor students leave their First Amendment rights at the school house kate. You have spent a career in First Amendment issues. Why is this particular case important . I think it is important less for what the specific holding in the details of that holding were, for the great rhetoric and language and aspirational nature of the case. It really sort of signals with the force of minutes about and says, young people are not left out of that principle, even if they are maybe some issues on the margin on how to apply. I think it at least gives young people something to him for into aspire for destroy four. We will have 90 minutes at the table and we are going to learn about the court at that time, with the arguments were by the lawyers on both sides. With the decision was and what that impact is. In about 15, 20 minutes, we will start taking telephone calls and questions by twitter. Im gonna give you the phone numbers now so you can get in queue and we hope you will be part of our discussion if you live in the eastern or central time zones, two zero two seven four zero eight eight nine four zero one. A mountain of pacific time zones to zero to seven four eight eight nine zero two. If you tweet us at cspan, use the hashtag please, landmark cases. Lets first start with some fundamentals. The First Amendment case, quick review of the First Amendment. The bill of rights, Congress Shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, one of the press, or the right of the people possibly to assemble, and to petition the government for a redress of grievances. In the tinker case. There is a particular clause in the First Amendment that is pertinent, particularly pertinent. Indirectly, yes. No law abridging the freedom of speech. Tinker would clearly fall under the category of freedom of speech in a particular instance, it was a symbolic speech with a court had already recognized symbols can convey meaning an argument which is worth can. But it was up to the 14th amendment that apply to the School District, not the first. The 14th amendment which incorporated the First Amendment as against the states. The First Amendment talks about congress, but the 14th amendment applies to the states, and the basic principles of the First Amendment community flee, apply to the states as well. What regards the school before this came to the court what was the law of the . Custom there had been the case had upheld student writes thanks to schools when my think of that is a speech case but in general people had a lot of leeway to restrict kids and to maintain the discipline into do what they wanted and if you look at someone with later opinions by justices schools had almost a role of apparent to the children. So should they could do what appeared could do until them to stop talking, or whatever they wanted. Meredith tinker, your backdrop of this was that your you and your brother infelicitous protest of the vietnam war. In 1965, do you remember what you are concerned about, what was happening in 65 that brought this to the attention of u. S. Young people . Yes, i remember very well that, as i said, it really grew out of the Civil Rights Movement in many ways because right now, today, it was 23rd we are celebrating the 67th anniversary of a school walk out in motions school in virginia, Barbara Johns and her felicitous walked out of school in 1951. After that, we had the brown decision, in 1954. The little rock nine was an 18 1957. Then the Birmingham Children with the Birmingham Childrens puce it was 1963 went almost 2000 kids marched and rallied and were arrested. Martin luther king was in jail and his famous letter from birmingham jail. All of this was very inspiring to us kids, who were following this in the news and so 1965, 1964, something very important happen also involving young people, that was when cheney and goodman were murdered by the ku klux klan. And they were part of a movement there of students mississippi. The very same day that these students bodies were discovered august 4th of 1964, off the gulf of vietnam, in the gulf of tonkin a u. S. Navy ship claims that it had been attacked. As it as it turns out, it likely had not been attacked, but it did not stop the u. S. Congress men from voting almost unanimously to start escalating, even more, than they were, the vietnam war. By 1965, there was still plenty going on with Civil Rights Movement with selma and so much more, but now on the news but we saw war the vietnam war all the time the children running from their huts, the body bags, Walter Cronkite the body counts today in vietnam was ten. And after day we were hearing that by 1965. In 1965, the numbers were 184, 003, hundred and 14 u. S. Which is on the Ground Fighting a war. And that year 1912 deaths alone in vietnam. And we are want to show you a little bit for all the young people in our audience, i hope there are lots of you watching tonight as a student free speech case. I want to show you a bit of a universal news reel which is the way many people got their news back then, talking about some of the protests that were starting to erupt around the country as the war progressed. Anti war demonstrators protest u. S. Involvement in the vietnam war. In mass marches rallies and demonstrations. Central part is the starting point for the parade to the un building. The estimated 125,000 manhattan marchers include students, housewives, beat nick poets, doctors, businessmen, teachers, priests and nuns. Makeup and costumes were bizarre. Before the parade, mass grant car burning was urged. Its claimed the 200 cars were burned but there was no accurate count. Protesters protesters were jostled away on purpose. Although mostly peaceful, shouted confrontations were frequent and fiery during the course of the march. The anti war marchers were picketed by anti anti were marchers who were hawkish towards the parading droves. And that is just a bit of what was happening. Domestically in the United States. As the war continued in the United States as the war continued abroad. With this backdrop, students and des moines decided to express their opinion. We are want to tell you a little bit about how that happened in who the characters were. But to learn more about it was yourself, your brother john and Christopher Eckhart who with the defendants in this case. Tell me about you, your brother and christopher, how you walked in together. There was a group of students at Roosevelt High School and after the march in washington, some of the students have been there, when they got back to des moines, the students had a meeting in some colleges and there were some adults and they talked about what they do in des moines to speak up about the. In 1963, when the children in birmingham had been murdered by the ku klux klan in the big bombing, James Baldwin sent out a letter along with bayern rust in, who is a leader in the Civil Rights Movement, saying we should all wear black arm bands to mourn for the de children. For carroll, and he may, denise, there were four girls there and two boys that run. This would have around the country. People were black arm bands, like this. After the children were killed in birmingham in 1963. I was ten years old. So in 1965, when the war was building up in building up, there was this question what about black arm bands . And wearing those two more for the debt. The black armband was a symbol of mourning that went back through history. For many, many years. And it was a symbol of sadness and we were all feeling very said that christmas, about the war. And so that is how the idea came up. What did your parents think about your protest . Do they know about it . My father was a methodist minister and there was a favorite prayer in our house, which was lord, make me an instrument of that piece. There is hatred, let me so love. That was the way that was brought up. To try to make a more peaceful world, a more just world, also. And then later, he became involved with quakers and our whole family became more involved with the quakers. My dad didnt want to wear the arm vents necessarily, because he said, the principles have a job to do to. It is not so easy. But my mother understood more. So the students in the Unitarian Church and the quicker meetings started talking more, they heard about this idea of the black arm bands and so that is how the idea came to be. What can you tell us about the school board at the time . Or the administration of your school to help set the context for this . The principles heard about the idea. And they had a meeting and decided that it would not be allowed. To wear black urban school. The president of the school board was quoted in the Des Moines Register saying that our government has made a policy about vietnam, and we must follow it. Well, as i explained to students, now, in the schools, that is not how democracy works. And we do have rights to criticize the government and actually, that is how the First Amendment evolved through the years, it was around war and criticizing the government around war. In addition to the tankers, and the school board, the other principles in this case will be the chief Justice Earl Warren and justice abe ford who was assigned to write the opinion. As we get started here, what should people know in a big sense about these two justices . For the chief justice warren, people should know that he was actually a republican appointed by eisenhower, but turned out to be one of the more iconic and more liberal justices and certainly chief justices, that were on the bench. He was responsible indirectly or directly for some of the most iconic decisions this country has seen, board of it, New York Times was the sullivan, connecticut, tinker, of course. And many other many others, hes played an outside role, much criticized by some, much applauded by others. As for justice abe fortas, i guess what is interesting to know is that while he had a fairly short tenure on the court one of the things that distinguished him was his advocacy for children. This is one good case but there are others in the criminal context where he really fought quite hard to get certain procedural rights and certain procedural criminal rights apply to kids, who otherwise were treated as words of the state and were not given really many rites at all so he was notable to an ally as chief justices but also had a special place for kids rights. We had a chance to speak with your brother to get some of his perspectives on the story, before we watch our first clip of that. Lets go to december 16th, 1965. This is the day the protests happened. Walk us through that day. 1965, december 16th, two days earlier, the des moines registry had come out with an article and headline saying that the arm bands would be not allowed in the Des Moines Schools. Of course, i was very, very nervous because i was a shy kid anyway. And i was only 13 years old and an eighth great. So, people were talking about what to do and what to do. But i decided to go ahead and try to be brave, like the other kids that i had seen as an example. On the news and things, so i had an armband and i just had it on and i picked up my friend connie is a truly due to my way to school and she said, you better take that off. Youre going to get in trouble. And so then, when i got to school, i saw one of my favorite teachers after lunch, and he gave me a pink pass. When i went to the office, and i looked around the office and i looked at mrs. Tenor and the vice principal and they said to take off the arm bent, because it is against the rules. So as i tell the students, and the schools now, in the great stand of courage and conviction, i said okay. And i took off that armband and i gave it to them. But i learned a very important lesson then. You dont have to be the most gorgeous person in the world. You can be you. You can be scared, you can be shy and you could still make a difference because that is what happened. Listen to mary the tinkers brother tell some of his story but the protests. I was getting ready to leave the house and i didnt want to wear it on the street. I was little concerned for my safety. And as i was walking out the door, my dad said you know john, im not sure you to do that. He said, the school authorities, they think that they need to not permit it and they have a hard job to do. And im just not show so sure you should wear it and break that rule that theyve made. And i said well dad, this is just a black piece of cloth. And people are dying every day in vietnam and he said, well then, its a matter of conscience for you. And i said i guess it is. And he said well then, i support we are doing. And i walked to school, i went to lunch. And sat at the usual table with my usual group of fronts. And some kids came over and started pestering me, just oh, connie. Coward. Pink oh, the kind of thing. And this Football Player that i knew he was but we werent really france but he came up and he looked at the kids and he said, he saw what was going on. And he said to the kids, look, youve got your opinion about the war, john has his opinion about the war. John has a right to his opinion. Leave him alone. Im thinking, great. The phone rang, and the teacher answered the phone. And then he looked at me and he said, they said send john tinker to the office, so i spoke with the principal. And i explained to him why i was wearing it and why i thought the war was wrong and he said, i am going to ask you to take that armband off, and if you take it off, you go back to class. It is going to be just like nothing happened. And he said, but i dont think youre going to take it off, are you . And i said no. Im not. And he said well, im going to have to call your debt and send you home. So pick up the story from there, you took your armband off, john left his on your father was called. What happened next . Chris eckhart was suspended the same day that i was, five students were suspended from a district of about 18,000 students and so, some people started saying very mad at me, i got suspended also because the the girls advisers said well there is a rulebook against armband so even though you took it off youre getting suspended, she gave him a suspension notice and i went home and people were talking a trying to figure out what to do. Its really a story of journalism, also. We learned what was going on through the newspapers and they carry very fairly and very well, also. But some people started getting very mad at that point. Some of the other kids who had been planning the event like bruce clark, chris singer, also got suspended. And so the haters started coming out of the woodwork. And some people threw red paint at her house and they started sending us mail, hate mail and saying that they were going to hurt my father and. That was probably the hardest thing of the whole experience, really. Heres an example of one piece of mail that came to the family. I want to turn it over here right on camera. What was the reaction in your house . Where you all anxious . Where were you come about . It we were anxious but again, we had the example of all of these kids and mississippi and alabama who had been bombed and threatened and some of them even killed. So we kept thinking well compared to that, this isnt so bad. At least our houses and being blown up, at least there just throwing red painted us. And they would call us communists and my mom would always say were not communists, were methodists. So, we just got through it, the bravery of our parents and their call nature helped so much. When was the decision made to appeal it to the school board . We finds the people that were getting very, very mad at us, there were also supporters. And one of them was a marine corporal who sent a letter to the editor, i think his name was harry quarry, and then of course, the other group that was very supportive was the American Civil Liberties union. As i found out later, they go to the Supreme Court more than any other organization in the United States. One of their members and iowa named louise noun, heard about the story and she just didnt think it was fair. So she talked to the other members and they decided to come and help us. And so of course, the aclu said first, we have to try to negotiate. They always tried to help people negotiate without going to court. That is what we did, we went back to the School Warden had a big meeting and hundreds of people came but the school board would not change their mind. And we have a headline from the time that was a fight to vote, divided over the issue about student rights. Im going to put screen im going to put on screen, the key dates in the case, so you can see how it progressed through the process of appeal. The school board five to two vote was january 4th 1966 remember the protests had been in december, late december of 65. And then july 25th, that same year, it went to the u. S. District court to hear the case. And then by september 1st, 1966, the complaint was dismissed by the district court. Im going to turn to you to ask about process. How does it get from the school board to a u. S. Court . Somebody falls a complaint. In this case, the aclu falls incomplete to the court. And then typically, either side makes a motion. And it was at the federal level because it was a first minute case. . Yes. It was about an alleged violation of the constitution and there is a statute that would allow for those kinds of cases to be brought in federal court. Regardless of the amount of money at stake. And so, it gets to go to federal court, its called federal question jurisdiction. It goes to the judge, the judge makes a decision. Imagine this case, there was some evidence introduced, there was a variety of steps in between. The long story short, the judge makes a decision, raising opinion, and then people get to appeal. Because the first decision is just the first decision. And then in fact, it was appealed to the eighth Circuit Court. Which affirmed it. Walk us through that process. The eighth circuit is interestingly enough, affirms it for a foreign, they had eight judges on the Circuit Court hearing case, these days, normally you would get three or in some cases, you get a larger panel of the court. When you have an even number, you always risk it being a tie vote. And in the law generally, a tie goes to the judge below. Its sort of out of respect for the judge who made the first decision. If you cant get a majority to say youre wrong, we will leave your position intact. Same thing as true in the Supreme Court when they were one justice down, if they tied the Lower Court Decision state intact. That is wha happened here. How did it go from that to the Supreme Court . Then, somebody has to decide to ask the Supreme Court to take the case. So hes like this, the Supreme Court is not obliged to take the case. You make a request, a petition, basically. And say, we should please take my case, it is important, etc, etc. The court has discretion to take it or not. In the warren era, the court took a lot of cases. Today, this case might not have been taken. A four four decision by lower court might of been enough to stop this court case from being taken. They wouldve waited for different case. Be issue might of been important, but they wouldve waited for a different case they presented it perhaps more definitively by the intermediate court. But here, they took it, because it was important. While all this was going on in the legal aspect, we are want to return to john tinker, to tell us a little bit more about the reaction and in the community of des moines where the tinkers lived. We got hate mail. Someone sent a home made postcard with a hammer and sickle on it, accusing us of being communists. Somebody threw red paint on the street outside, in front of our house. And somebody else, somebody i guess i dont know if maybe fit was the same person, through brick through the front of our volkswagen, our little volkswagen bud. We and one morning, my sister mary beth answered the phone and somebody said, a woman, told her, im going to kill you. There was a talk show host that did a late night talk show here in des moines. He offered on his show to lend a gun, this talk show host also had his own gun shop. He offered to lend a gun to anyone who would shoot my dad. That is john tinker, talking about the stress and pressure on the tanker family and others who supported them in the community. As this case began to work its way through the courts. Were going to get a phone calls to get people involved in the conversation, our first call is from glenn in freeland michigan freeland, michigan. Youre on the air, welcome. Thank you very much, very interesting show. We have actually had a kind of student free speech controversy in this local area, in a town called osbourne, michigan. Just over the Confederate Flag of all things. Anyway, my question is about academic work. I was thinking, that a while back, when some holocaust annoyers were creating a lot of controversy over whether they could take ads out and call in college newspapers, i was wondering if students for example had a controversial opinion like the holocaust was a big lie, for example, which is obviously ridiculous to most people. But they actually believed this and wanted to write a paper or whatever in history class, or what have you, what they have the right to do Something Like that . Or with the School Administration be able to deny them doing Something Like that, because its an established fact in all that. Its just ridiculous. But they, one of the First Amendment to free speech right, so right to write on a controversial subject that . Thanks, eric. I want to ask you to talk about it because its an academic paper, the colors posing the question. What is the rule . The way the rule has evolved lately, is that if its part of the curriculum, the school actually has a decent amount of control over it. So if the school for example says i want to write about sixties, and the kid says that rather right about holocaust, the answer is no. Youve got to write about the sixties. If the school asks you to read about the holocaust and you had an opinion that said it was lousy, you might well have a right to write that, you just might get terrible grades. There is nothing that says you have to get a good great for making that arguments. It really would depend. But overall, the overall answer is that when it is dealing with curricular aspects of the school, the school has a lot of control. We are talking about the family story, Mary Beth Tinker on twitter, wild and wonderful ask. Did this episode cause a backlash against your father in his parish . Well, my father, by that time, was working for the quakers, with the american printers committee, but it did cause a backlash. Against my father. In town among some people can i just add, by the way, with the last caller who said they had a controversy around the Confederate Flag. Just to be clear, the Confederate Flag or controversies around the country, the courts have ruled fairly consistently against Confederate Flags and school. I think one of the cases was in 2013, a recent one in virginia i believe, but those have been pretty much not allowed in schools, according to the courts. Next is a call from charleston, south carolina. A student named shannon, welcome. Hello, i have a two part question. My first, i was wondering if you could please differentiate tinker from the previous help standard, and if you could also differentiate those standards from the washington in 1974. My second part, was there a case between the Supreme Court today and the plaintiffs were at High School Students and they were disciplined from participating in the march of our lives, what kind of tests would they hold . Do you think they would look at the radicalize desks, or defer to a buy in or with the court come up with a new test . To clarify, youre talking about the bryan draft . The draft card burning . Yes. Well, that had to do with first of all, they ruled against the draft card burning, and that was an adult and it was also outside of school, so it was a little bit different. Now, if it case got to the courts about walkouts, it depends on what would happen. I did ask the justice alito, when they featured at the historical society, deliberately institute posted a program and i had a chance to ask them what they would say about the tinker ruling today, anybody stand behind it and he said, yes, i would stand behind it if it came to the court today. Now, walkouts, which says there are two things that the students cannot do in schools is disrupt school and to impinge on the rights of others, so that is fairly clear. Of course, a lot of schools are deciding that we are going to work with students and not punish them for walkouts, even though theoretically they would be able to. Thats right. As long as it wasnt based upon we dont like this view, but walk out for a different view, it wasnt viewpoint based but if it was just about your absence, that will have the consequences it has, and if you got out i think one could do that as disruptive. That wouldnt have got a lot of protection. They bryan tests would not apply and the only time is if you have some indication that the school was discriminating. Tinker versus des moines, and steve isnt salem, wisconsin. Hello. This is for mary beth and mr. Jaffrey. I teach here and wisconsin, and serve on a school board and i teach undergraduates who want to be school principals. My question is, how do we find that about balance between making sure that students maintain their freedom of speech and yet ensure that the safety of all students without any substantial or material disruption . Thats always the question, and thanks for calling. The question is always how to balance the rights of all of us because we live in a society with many members of different needs, and theres this question of the common good that goes back to greece. So all rights have limits. The First Amendment has a right to, you cant go out in the middle of a business street and so youre going to assemble tonight because others want to use that street. Thats coming up a lot with gun laws because you have a right to the second amendment, but all rights have limits because the students are saying fine, but we want to live. We want to go to School Without worrying about being shot. Thats always a question, im glad that you raised that and we have to grapple with that all the time. My own opinion is that sudan should have some say into how to have the solution to these balancing issues. What would you say to those teachers in training . I agree that you should put them into account, lean towards free speech as opposed to not. As a legal question, at a minimum what you should do is make sure that if you think there would be substantial disruption, that that is true. That theres evidence of that. We so often think fear, something is going to happen without any real basis of knowing whats going to happen and that is the speculation i would advise you avoid and make sure that if you are worried about school discipline, its based on data and real facts rather than passive fear. Gordon is in fort madison, iowa. Hello. Thank you for taking my call. I wanted to tell just a story. I was in law school in des moines, iowa in 1973. And the famous criminal defense lawyer was speaking and john, mary beths brother, attended that. William treated him as a great hero, and of course we all clapped when we found out that the mr. Tinker was in attendance and hearing them speak. I was just wondering with mary, did john ever make it through law school . I think i was a year or two ahead of him and just wondered what john was doing now. John did not go to law school, and i think my brother learned was also interested in law school but he did not go to law school either. But we certainly taking a great interest in the law through the years because of this issue and so many others, so thanks for calling. How many children are there . There are six tinker children and all of them were involved in the tinker actions, even hope in fifth grade and paul in second granted as well, they want peach also so we had a great experience a few days ago going back to their Elementary Schools to celebrate 50 years, and we even met one of hopes teachers there who had been there at the time. With the help of the aclu, were going to learn about what the court was like in 1969. First of all, what did it take so long for the case to get to court . It takes a while to write opinions. It takes a while to brief cases, so it always takes a little while. The court was quite busy back then. They had more cases than they have today so thats just a normal course, not actually that surprising, if you think about starting to finish a case. Heres what the court looks like in 1969. The chief justice was earl warren, appointed by eisenhower. The other eisenhower appointees where jon marshall garland the second, William Brennan and part of stewart. Roosevelt appointees still on the court, you go black and william douglas. Kennedy . Brian white, and johnson appointee thurgood marshall. What do we know about this court . This was regular viewed as one of the most liberal, flak of a better word, not a great word but most liberal courts and that they expanded individual rights and federal power. They expanded judicial power and lots of different ways. Theyre responsible for some of the most iconic decisions in recent memory, but also some of the most criticize. The majority and a bunch of the later appointees really were quite powerful in terms of what they did in transforming american law. The court heard the case on november 12th november 28th, 1968. What were you doing that day . A 1968 was a very big year for the vietnam war and the worst years in the war. I know we did. We went to st. Louis for the Appeals Court case. Its hard to be very happy about all the proceedings and everything because of the war, it was taking up a lot of our feelings and thoughts. Just civil rights. Did anyone go to the Supreme Court . Yes, i went and my parents went and john wanted to go and try to go but missed the plane, what was that like . Its hard for me to remember a lot about it because we just moved to a new city, st. Louis, which was a big city compared to des moines. They were trying to adjust to a New High School and it was november when we moved in the middle of 11th grade. We were taking off with many teenagers, who was i going to be friends with, and things like that. I can barely remember the Supreme Court, and not many details about it. Talk to us about the role of the aclu by the time the case gets prevented to the court. What did they do in the process . The main thing you do is you write briefs, they would have written the opening brief, waited for the other side to apply and then wrote an answer to that. Thats the primary thing, and then you get ready for oral arguments, which is no small task. The interesting thing i found is a relatively young and inexperienced, which is shocking in todays world. Before a highly professionalize Supreme Court bar, they would have been behind the years giving a Supreme Court argument. I think they did a decent job. Our last several college would have several and im not sure he would have been in that. Johnson was wonderful, and was a comforting influence in our life. He was only a year out of lies law school, when he had just lost a bid to be i was attorney general. Well listen to just a bit of the argument he made to those nine justices. Attorney, a path that argument for us. The first was a redhead or. Could you tell private goals that you have to suppress speech, maybe it wasnt as obvious than, but its obvious today. Thats a nonstarter. This is a Public School phenomenon, of course, its the states that are forbidden from restricting speech, the place they have the most interesting it will be Public Schools. What i found interesting was the narrowness of it. He emphasizes again and again this is pure speech, no jumping up and down or marching, no indication that is interfering with any other aspect of school life or discipline, and that is what he hung his hat on throughout the entirety of the argument, that the school had no evidence that this was a problem, but implicit and that was that if there were evidence of something a little bit more, maybe you can restrict it. I think he took that attacked because theres a lot of telling schoolbooks what they can and cannot do, so i wanted to be as clean as possible and say theres nothing here. He was really basing it on the clearing and present danger, and also viewpoint discrimination, which was a winning argument. In the argument itself, they back off of that, so the clear and present danger standard, the adult version of the standard was disavowed a little bit. He says there should be rules that approval everywhere, but then he backs off and says they should have different facts and concerns. You see the opinion it came down that kids have First Amendment rights but were not quite as big as grownups because the school has other concerns to worry about. I thought he had to go there. He was getting such pushback that in order to have them get on board, they had to take a narrative approach, which they did. The court in their ruling, they came up with the standard of substantial disruption, which came directly from the mississippi freedom summer years where students were buttons to school to protest them, and were suspended for doing that and went to court, and right around when we lost in 1966, the students won at the appeals level in the fifth circuit because they have not substantially disrupted schools, that was the burn side case. They found a way to develop this new standard, which had to do with substantial disruption for schools. Thats right. The court closed that case quite a bit. Does this white, and his concurrence but one thing he writes is, while the Court Decides that case a, lot and i dont agree with everything there, hes trying to leave himself some room for the next case where he decides maybe they have a better point. At this point, the school had nothing for no one. Lets hear the argument. A bit of the argument on the other side for the Des Moines School district. The attorneys name was alan heroic, a veteran of the korean war, a leader of the methodist church, did your family know him . In Downtown Des Moines and were going to hear part of what his oral argument was to the court for the School District. What do you think that exchange . I think it was a week. Hes making a point often made by governments that we need to take a preventative message rather than respond to an actual threat, and this comes up all the time on how much prevention can you do before a threat is certain. He is trying to extend that role and not doing a great job of it, when he probably could have done better is point out all of the things that made him think it was necessary. He gets hung up in distinguishing one versus another, that was not how he was going to win this. Ultimately, if you want to do when he needed to say that we had great reason to believe and disruption. He was talking about placards and buttons and arm bands, and really teacher watching that says for the benefit of students, can you please explain the concept of symbolic speech and indicate how the Supreme Court has dealt with that. Well acknowledged that symbols are speech, thats how we want our case, because the schools had allowing other symbols, and even the iron cross to symbolize germany. They had allowed the School District black arm bands as well to mourn the death of the School Spirit and had allowed black arm bands bundaberg Birmingham Children were killed. So it was symbolic speech but the court has recognized that and that was well established by the time our case got to court. Time for more phone calls. We have another Family Member the joining us by phone, letter tanker, still in des moines, welcome to our conversation. Whats your question, comment, what would you like to tell us . Those two points. Number one, the speech that was given in des moines and 73, i was president there, john was not. And i had a question to chat. Originally they offered to take the case, he was a friend of my mothers. The other thing that is of interest is that when alan was supposing my father, leonard tinker junior, he kept referring to my dad as a communist. Jim johnson looked at him and said, if you call my client a communist, this deposition is over. And the reason i think that the Supreme Court took the case was because the fifth circuit ruled the naacp were protected and had ruled that black arm bands were not. So effectively, they have the difference of opinion from the two circuits. That probably gets in the supreme and their to resolve the difference of opinion. Leonard, how old were you at the time of the case . When it happened, i was 20. Were you in university . Yes, a small college. Meeting your sister and learning about the effect they had on her life, what has been the impact on your life . I still look at phone call three or four times a year and its very simple. They know it came out of des moines and they know it involved lunar tanker, so they called for inspiration. Hes a little hard to reach by phone, so they got me instead and they asked if you had kids wearing arm bands in the sixties, and they asked to bother me but i did have a brother and sister. A girl put her eighth grade daughter in a car and drove to des moines and we talked about it. I thought that we could have done this on the phone and saved 500 miles of driving. Thank you very much for being part of our conversation and adding for our understanding of the case. Tinker versus des moines, 1969. Next up, nathan. Welcome. Hi. My question comes from being a title ix administrator and my tension is regard to student journalists. I want to interact with students but my role requires that i keep confident says confidential information privileged. I want to be able to interact and engage, but i see headlines such as rates of rape reporting double winner increases from two to four, and since building is necessary, i have to have reports to do my job. How can i build good faith relationships, particular student journalists and administrators at the school . I was advising administrators, and i speak to many, and i meet so many who are doing good jobs of creating a good climate. As a nurse i know that one of the healthiest things they can do is graduate high school. We want to have a place where kids want to be, and we have a huge problem with absenteeism. You can help your kids to be a place where students want to be and promote a good climate, that means to have respect for student voices and avenues were students can have their voices heard. Of course, when it comes to journalism, and we talk about another supreme course called hazel would, theres a lot going on with that situation, which came after our case and now 14 states have passed legislations. Washington state can be proud, they were the last one a few weeks ago that there was a Huge Campaign called new voices to support student voices. You can tell your students about that campaign and check them out, and im sure your journalist will be interested in that. On that note, we have a tweet from sara gonzalez. I see more students about gun safety, lgbt, drug issues. Right now students are at wits and with gun safety, but i told by administration, no absolutely not. What should they do . Students have alternative avenues, they can start a private newspaper. If the question is can i publish it in the School Newspaper, were going to have a harder time with that because the School Newspaper is treated as part of the curriculum, and if you have lots of avenues for students to speak that do not depend upon the curriculum. I would encourage anyone to use those avenues, go right to your local paper and stand up and talk to what you can, but you have to succumb to not being able to do it in the time. The Journalism Association as 5000 advisers, and the Society Professional Journalists that they are able to follow good journalism, had not be able to be censored for the issues that they are talking about, and they are supporting these laws and and states that support student journalists now, so a lot of going on in the student journalism in states that are interest in journalism, arguing what to read journalism and what to do with their lives, they can check into these campaigns. I dont mean to imply that i favor these restrictions, im just pointing out that im the last person you should ask whether or not this is going to help or hurt the environment of the school. Its a School Administration agrees that having smart journalists is a good thing, they should do that. But if they disagree, i dont feel thats a good option. Next, a caller name but he. Youre on the program, welcome. I just want to thank you for taking that, i was in that time in 1968 in 1970. My question is, fast forwarding after the lab, you have a concerning comment that has no action to it, nothing to that effect, yet punished for the event, not criminally charged but was punished from the school. How do we incorporate or and gone to great the laws of the day, where students are faced today and with social media, because that conversation before school started, the day after parkland. I can tell you with several cases in our area like that, but i think the student was probably ostensibly punished, and you could not see how it could be a happy medium based on whats going on in the world today and freedom of speech. Are you talking about comments that are threatening that students are making, is that what you referred to . It was commons of frustration from students that have been bullied, and wow, what about us. It was a concern in comment as it was publicized. It concerning as it may have been, where the limits of the individuals had to serve, based on emotions that he was having. And not being a violent person but feelings that he is talking about out loud, and doing on instagram, using social media but he had was punished at school because of it. All of those comments need to be taken very seriously and followed up, and that is why we need more School Counselors and more psychologists and more school nurses. I dont think that punishment is always the solution either, because that can backfire and not necessarily lead to the behavior we want to see. Less bloomfield, michigan. Youre in the air. How does tinker apply to the young man who refused to salute the flag . He did not interfere at the football game, he made no sound. Is that not an example of symbolic speech . Also, this is trickle down to colleges and high schools. I think its unfortunate that people not remember that his constitution is not the law of the land, and applicable to schools. And i think that any group of people, even though we hold administrators responsible for our children in local perimeters, they should be limited because they might be controversial as we talk about students being able to publish things in newspapers about gun control and things that might be controversial. We want our children to be able to, as jefferson said, its necessary for an educated populace to build a democracy. If were going to repress these kinds of thoughts that are outside of the parameters of what people think, how can we expect them to develop . Thank you. Im so glad you said controversy. Because thats what its all about and we have to help students to talk about controversial issues and not sweep them underneath the rock, but to talk about them with respect with each other. Thats what we have, a first minute to guide us in doing that. And our democracy, we believe that all the points and everyone should be respected and listen to. As far as kneeling for the flag, its clear that you cannot force students to speak. Not allowing free speech, it had to do with allowing students not to speak and that says you cannot force didnt to speak, and under that ruling robert jackson, Justice Robert jackson gave one of the most beautiful comments about what education should be, and what democracy should be, saying that if there is anything in our consultation of democracy can say what is orthodox in matters of nationalism or politics or religion. And that the schools are educating young minds for democracy is a reason why they should be very scrupulous and standing up for the freedom to express themselves. Half an hour left to go in our discussion. The decision came out on february 24th, 1969. The cbs have been opening up and will be listening as Walter Cronkite announces on the evening news. The Supreme Court endorsed the right of student protests, as long as it does not interfere with the rights of others. But it is venting justice and was sponsored by the judiciary. Seven to decision upheld the right of three teenagers to wear black anti war arm bands to high school. The court said students would not believe that freedom of speech and expression at the door. Thats one way the country found out about the decision. How did your family find out about . It i think someone called my school and i did not understand how this was going to be for my life or for the country, it took many years until it hit me how important it was. I was in Nursing School some years later and the cases in my school book. How were they treating you . Have a new school, it was pretty much ignored, even when we won the case, and i thought about it, that we might have said Something Interesting happened, yesterday. They do not know what to make of it so it was ignored. This is the majority and written by justice for this at the chief justice, joined by douglas, Brandon White and marshall, with two concurrence is. Then to distance, justices black and justice heartland. Heres an excerpt from the majority opinion by a fortas. And our system, state operated schools may not be enclaves of totalitarianism. School officials did not possess absolute authority over their students. Students and school, as well as out of school, our persons under our constitution. They are possession of fundamental rights which the state might respect, just as they themselves must respect their obligation to the state in our system, students may not be regarded as close circuit recipients of only that which the state chooses to communicate. They may not be confined to the expression of the sentiments that are approved, in the absence of constitutionally valid reason to regulate speech, students are entitled to freedom of expression and their views. What strikes me as a decoration that students are persons under the constitution. I dont think theres a lot of debate about that although the first time it is not talk about persons. If you think that is incorporated wholesale, its about what states do. What i find fascinating is that the language is glorious, and its what is essential aspects of democracy in america. The actual holding is nothing like that. The actual holding is a failed shadow of that lovely language because they put so many qualifiers on it. They put the qualifier on it because it was pure speech, if it wasnt, that wasnt true. They put the qualifier on at that there is no evidence of disruption, but if there was some evidence of disruption, maybe it is not true. They even went so far as to imply that the viewpoint, a particular viewpoint might be restricted if it was evidence that it would cause disruption. What is lasting about the opinion is that everyone sites this because it is so beautiful articulate what it is about, but when push comes to shove, we did not go that far. It also articulate with education should be in democracy, where it should not just be a oneway interchange between with the teachers pouring information and to students. The students have something to say and input to. And they should not be an enclave of totalitarianism, the schools. But it is a fairly team ruling because it does say substantial, where i had a situation where students were wearing a black lives matter shirt to school, this was in arizona. The administration was saying there had been an argument between her and another student a few days earlier, that is not a substantial disruption, and its supposed to beat a substantial disruption, but its fairly tame. As soon as the school can use the ruling against students as well, and they do all the time saying that it causes substantial disruption and it also pretty much, prior review comes in there because if you can predict disruption now with the tinker ruling its also something things you can never do with grownups outside of the school context. You can do based upon some of the qualifiers. Like i said, this gets decided all the time, not for the qualifiers but for the higher principles. Our time is growing short, unfortunately. One note is that his grandson had been suspended shortly after the oral argument for publishing an article critical, and supported that suspension. Here is some of what he wrote. Its nothing but Wishful Thinking to think that young image or students will not believe its the right to control the schools, rather than the rights of the states to hire for the benefit of the people. This case is without institutional reasons in my judgment, subjects all the Public Schools to the whims and caprice of their loudest mouth, but maybe not their brightest. Your reaction . Quite disrespectful, it sounds, to me to many students and his predictions did not come true because he was saying there was going to be lions and sit in, and a revolution of student voices. Unfortunately, the opposite happened. There were more lawsuits after the tanker case, having to do with hair length and some speech issues. But there were three subsequent cases that weekend what we predicted did not happen. We have to talk about those cases and was there anything from a legal standpoint lasting about his success. At the end of the day, the concerns he raised were partly responsible for why you see a backtrack in later cases, and that is why you see cases about student newspapers and sexual innuendo, other kinds of cases where the court sided with the school rather than the student, in part because of the concerns about maintaining discipline in the specialized contacts of the school. Also, the court changed and the people change dramatically. Even for some of the people who were on the First Amendment side of tanker backed off. You could even see with Justice White and stewart, they were rather hesitant about Justice Stewart about extending the full panoply of First Amendment rights, and concerns like that with Justice Roberts. Justice thomas relatively recently has starts endured the justice black view. On all the issues, hes incredibly pro firsttime. And a few things about applications, heres one. Could this ruling be applied to military schools . And does it apply to universities . Military schools, if you mean west point or the government run military schools . I would imagine high school. Many are not run by the government, there privately owned. So those are not First Amendment rights and a private school. But if it were a government sponsored school, for example, it would apply but differently because what with disrupt would be very different from discipline and its civilian contacts. It was related to military speech rights to students speech rights and the disruption standard. The outcomes and the factors that got weighed into that might well be different as a type of disciplined to try and teach. Back to calls, and then lets listen to john tinker on what happened to him in his life after his case and his thoughts on the legacy. New york city, thank you. Congrats, a great program. I want to know why justice black, who was considered an absolutist, why did he dissent in this case . I did six greater ask me the same question not too long ago, so maybe you can justice black actually gives some explanation of this. Well he is quite absolutist about what the Words Congress will make no law means, and it was very strict about that. He did not like balancing tests it was either no or yes. He was also very reticent to have the court and jacked itself into inherently legislative, so social balancing questions, here he thought the court had no expertise or what does or does not maintain discipline, so to have judges making those calls, he was very reluctant to go there. In addition, he points out that he always thought that when you have a right to speak, you did not have a right to speak at any place or anytime you want. You cant march into a church and denounce catholics. You can march into a tunic temple and denounced jews, we can march into a school other than your eligible class. Christine mclain, virginia. Youre on the air. Hi. What do you think of the lawsuit of julie brinks man, who gave the middle finger to president trumps motorcade . Shes suing her employer for wrongful termination. What do you think the outcome will be . Unless her employer as a government agency, the outcome is likely to be that she will lose unless theres something in her contract that somehow protected her. But as a constitutional matter . Its almost a nonstarter. Unless it was a government she worked for, and i dont recall if that is the case. Jan is in nashville, tennessee. We have so little time. Jan, nashville, tennessee. Good evening. I just want to thank you for covering this way back when, my best friend and i organized armband to protests the vietnam war, and i believe it was the spring of 1970. The School Administrators threatened everybody was wearing one with suspension. At the end of the day, my friend and i went to the library and were able to find the then recent determination by the court, nevis pleased to see you play the Walter Cronkite bit, because we quoted that and the large newspaper that said the court determined that student should not be required to leave. After graduation, i had several teachers approach me and say that they said anything, but this is being discussed in the context of history. They were able to do something, because we talked about how in some ways the ruling could even be used against students, but it did change the power structure and schools, i think. We talked to many educators who believe that that the power to name exchanged. It was up to the principles and the School Boards what it was said in the schools. After this administrative were put on notice that students did have a say in the schools as well. Lets listen to john tinker talking about the decisions and its impact on him and the legacy of the decision in his life. To be associated, really, humbled by the success of the case and what that has meant to student expression in the United States since then, and you have my name associated with that case, it is really a humbling experience. And then personally, it has been a very enriching experience for me because im invited to talk to student groups, and i speak regularly to post graduate classes of prospective principles and administrators. What an honor. I mean, its a wonderful thing for me personally, but i also think that its a very good thing for society to realize that students in school are learning how we have a democracy, how we make it work. And we make it work to the extent that it works by talking about things. Speaking about things, on the phone is stephanie wager. A social studies consultant for the Iowa Department of education, family was a teacher at Roosevelt High School in des moines, and her husband taught at harding middle school, so we heard from mary beth tanker that the day it was decided, her teacher did not incorporated into a learning experience. What was a thinker case like four students now . Yes. If i were to sum it up i would say that they really talk about it from a personal level. Either they really talk about it because it had such a powerful impact on i have a history and local history, or they can talk about it being proud of that event in iowa. But they had the ability to meet other people in the case, and i think that makes it so much more personal, when they can share the context of growing up in iowa, what her family went through and the context of the time period makes it such a much more personal case for iowa teachers to talk about. In this particular time period when students are more active as speakers, what do you find in the discussion in schools and between students about the right to speak up . I think that most teachers in iowa and across the country use this case as the legacy case connecting it from 50 years ago to today, and we can still see patterns of students speaking up today, and they really constantly go back to the tanker case. So much for the bedrock case for explaining to students and making sure that they understand the impact of informed action. Thank you for being part of our discussion. Mary beth thank you, what about your relationship over the years . Yes, it has been very good. The superintendent of schools helped me to plan a big anniversary there for the fitted anniversary of being suspended, and my brother john and Chris Eckhart died, but he was not able to be part of it. My brother and sister came and we went to the Elementary Schools, we went back to my middle school where they dedicated a locker to me. Now, we were planning for the ruling as well, and for student voices in general, so hes a fan of the case. We have some video of mary beth thinkers mural. Where is that . Thats not my old junior high school, because they have an arts theme there and it really has been great to be involved with them. Did you ever expect an apology . There was no apology but the roosevelt students, although the get that we won, to have johnson our lawyer to be the graduation speaker. And he was. How does this all feel to you . Seeing your picture on the wall at the school where you attended. The whole school has been quite a journey, and very unexpected. As i tell students, this was how most history was made by the small things that we do in life. You have to take your experiences and find a point you can do with him to make a better world. I found that i can share the story with students and help encourage them to speak up for the things that affect their lives. We have about eight minutes left and theres been a reference to later First Amendments. I want to put them on the screen and have you tell you about them, they include the School District versus frazier. Gals versus morneau, and morris versus frederik. Those are just his name to all of us watching it, what did it mean to all the issue . Our cases pulled back a little bit from some of the aspirations of tinker, the bigger language, and the issue was a speech that had a lot of sexual innuendo, the court for the solemnly came down in favor of the school, which punish the student from having given the sort of speech, and the language difference in that case was striking, they talk about the school being the place to inculcate values of stability and heat students what to do, even on personal sensibilities. While we would all like to be more civil to each other, its quite different from the notion of its not a Totalitarian Society telling kids what to do. The Public School system is actually teaching kids and treats kids less rational actors and more as clay that needs to be molded. The best line is that while taken where tankers armband, they cant wear the jacket. They would not be allowed to wear that in school, vulgarity, obscenity, and sexual innuendo was not allowed. What was noticeable about it is that just a sort of my or was on the panel, and wore a panel criticizing the war, calling him a chicken hawk and making references to judge an alcohol. It violated the drugs and alcohol policy. The Second Circuit said it was okay because he was against drug and alcohol, not for them, and what could possibly be the schools interest in somebody criticizing drug and alcohol use . That brings us to the last case you mentioned, morris versus frederick where a young comedian in alaska, when the olympic torch is running by, the school is let out the wave at the torchbearers. He unfold the flag and said bong hits for jesus. The Court Upholds that because they say it could be fairly interpreted as advocating drug use. So two big exceptions. One of Sexual Activity and the other one is advocating illegal activities where they are posing the illegal activities, so that was okay. How do you protests these walk backs . The most important one was the hazel would case in 1988 that had to do with student journalism, and it also talked about student sponsored speech. Unless the school has established as a public forum or the student lives and one of those 14 states, where legislation has been passed, to bypass the hazel decision it has the most impact on students. The tinker ruling also said that neither teachers or students leave their right to expression at the school house gate, so teachers rights incidents rights are very much tied up together. When it is not a good time for teachers rights, its usually not a good time for students rights. That would be now. Its not really a good time for student writes because of all of these cutbacks in rights and in cases that have limited the tinker ruling, and also they have been cases that limited teachers rights as well. Sandra is an iowa, welcome to our conversation. Im in iowa, i was a ninth grade when the Supreme Court ruled on the tinker case, and although i thought our whole glass is going to be wearing black arm bands that day, only three of us did, but we were told clearly when the ruling came down we will be kicked out of school. We had a lot of discussion that was happening in the one, and i wanted to help that with you. Five of us out of a class of 85 ended up being attorneys. I want to know what kind of an impact you had because it really did have a significant impact. My son is an attorney as well and is very much involved in politics and the law. My daughter is a journalist at the New York Times. Thats great. Thats great we inspired some attorneys. I think thats great, thanks for calling. I think weve also inspired some students who, even though its not a great time for standing for students rights, students are using their rights very much today. Its very heartening to see. Thank you. Lets talk about that. In the past two months there have been national walkouts. The most recent one just last friday. Heres a couple of headlines, texas School District threatens to suspended students to take part in gun walkouts. New york post. School to suspend students who worked out for gun protests. Similar ones in other parts of the country. Ian asks us on twitter, do you think the recent walkouts would qualify as protected speech under the tinker test as they cause lessons to be disrupted and glasses canceled . As long as both school rules are not focused on one viewpoint or the other and are fairly clear then, no, there are disruptive if youre walking out. The consequences may be exaggerated, but youre not going to class, you couldnt absence. Maybe nothing more than that. If they try to punish them for that particular viewpoint or punish them beyond what the normal policy for absence would be, then there might raise some questions. I want to point out, by the way, that this is both ways. There are cases in new jersey now of kids wearing second amendment, getting punished for referring to guns. The tanker legacy cuts both ways on the gun battle and those fights are still being had. Obviously, if a kid comes to school and says, you know, march for life on their shirt, that seems like a pretty straightforward tinker case to me. Also, students that are speaking up now with these walkouts and rallies, its so great and heartening for me to see as a trauma enters, african many years with children that have been shot. We should also remember that students are really trying to keep disruption from happening in their schools by taking a stand and having the rallies in the walkouts today, theyre trying to keep some stability in those goals where they dont have shootouts going on in their schools. And i admire them for that. Im pretty sure thats not the disruption tinker was thinking of. Student activism of whatever flavor, i think we should also encourage that. As we close, we talk about symbolic speech, we can answer the question one twitter followers had. Whats your orange ribbon . The orange ribbon is to memorialized the students that have been shot. As we know, so many of them arent shot and school but out in the community. I really admire the way that students have reached across racial, you know, boundaries to unite together because so many of the students have been shot out in the community. Thats what the orange ribbons for. And my pen is thurgood marshall, whos a hero of mine, who is the attorney with the brown decision, of course. His wife gave me a pin with his picture on it. So i like to wear when im speaking to students to remind him that he is with us and spirit and he wants students to have their rights and use them. Couple of things to tell you as we close here. Cspan has a book available, you can find it on our website. Cspan. Orgs last landmark cases with Case Summaries of the 12 cases were featuring. Also, special thanks to the National Constitution center in philadelphia, which has been our partner in this in our first installment of landmark cases. Thanks for bringing your legal expertise, and mary beth tanker . So interesting to have someone personally involved in our cases. Thanks for watching, have a good night. We have a decision. We have a decision. music the vote is 63. We win. For the honorable supreme