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Tinker v. Des Moines Independent Community School District: Kelly Shackelford on symbolic speech

On Wednesday evening, Justice Alito hosted the fourth and final lecture in the Supreme Court Historical Society’s 2013 Leon Silverman Lecture Series.  Once again the focus of the lecture was on litigants in landmark twentieth-century cases – this time, the petitioners in the 1969 case Tinker v. Des Moines Independent Community Schools District.  As Justice Alito told the audience in his introduction, although names like “Tinker” come to represent abstract ideas and legal tests, they are also tied to actual controversies and actual people. In Tinker, those “actual people” were three Iowa students:  John Tinker, who was fifteen when the case began; his sister Mary Beth Tinker, age thirteen; and sixteen-year-old Christopher Eckhardt.

Mary Beth and John Tinker (Wikipedia)

Mary Beth and John Tinker (Wikipedia)

Kelly Shackelford of the Liberty Institute gave the evening’s lecture.  Although his litigation focuses on religious freedom rather than freedom of speech, he told the audience that he relies on the case “every week,” explaining that “[i]t’s very difficult to have religious freedom if you can’t speak” — or, for example, if you cannot silently wear meaningful pieces of clothing.  The question that the students, through their parents, brought to the Court was whether a public school prohibition against the wearing of anti-war armbands violated the students’ freedom of speech and the First Amendment.

The case began in November of 1965.  In that same year, Shackelford reminded the audience, Malcolm X was killed, U.S. forces were deployed to Vietnam, and Watts exploded into a six-day riot. Against that background, John and Mary Beth’s mother made plans to attend an anti-war march in Washington. John went with her, and on the bus ride back to Des Moines he met Christopher Eckhardt, who had attended the march with his mother.

On the bus, the two boys bonded over a shared longing for the feeling of acceptance they had felt at the march, of being in the majority rather than the minority, and they tried to think of ways to keep that feeling alive back in Iowa. They settled on the idea of wearing black armbands, which would serve as a symbol of both mourning for the war’s dead and support for Senator Robert F. Kennedy’s proposal for a Christmas Truce.  Back in Des Moines, they held a meeting among students to spread the word about the armbands.

When school administrators learned of their plan through an announcement meant for the school newspaper, the school district promptly banned armbands on the ground that “schools are no place for demonstrations.” Shackelford paused to mention that the schools had recently asked students to wear black armbands, to mourn the loss of school spirit.

Despite the prohibition, Christopher Eckhardt wore his armband to school. First a football player tried to rip it off, then school administrators, whose tactics were only somewhat gentler, told him he was risking his future because “[n]o college would accept a protestor,” and that he would get a “busted nose.” Intimidated, but not deterred, Christopher started crying but refused to remove his armband. When administrators called his mother to intervene, she refused. Not only that, but “evidently she was somewhat prescient,” Shackelford said, because she told them Christopher had a constitutional right to wear it.

John wore a dark suit to school the day he wore the armband, which was after the school board president had refused to call a meeting to reconsider the prohibition. No one noticed the camouflaged armband until gym class, at which point he had to change into a white T-shirt. When he ran into opposition from other students, a football player came to his defense.

Mary Beth was sent to the principal by her math teacher.  She and her brother had two younger siblings, ages eleven and eight. The younger Tinkers wore armbands to school too, but because the prohibition only applied to secondary school students, they were not punished. To the contrary, their teachers used the armbands as a teachable moment about diversity and the First Amendment.  “If we just did things the way elementary schools do,” Shackelford sighed, “we’d be better off.”

But over at the high school, John, Mary Beth, and Christopher were suspended. John was also banned from participating in the marching band during an upcoming parade, Mary Beth received a death threat over the phone, and red paint was thrown on the Tinkers’ house. Three years later, their case was before the Supreme Court.

One snippet from the oral argument that Shackelford highlighted was a question Justice Thurgood Marshall asked the school’s lawyer about how many students he was talking about when he argued that the protestors were a distraction to the student body. Between five and seven, came the answer. Justice Marshall, Shackelford continued, recognized that peaceful protest had been essential to the civil rights movement to which he had dedicated so much of his own career and was therefore unsympathetic to the argument that seven students wearing armbands was all it took for a school district of thousands to be thrown into chaos.

Six other Justices were also unconvinced that there was any evidence that the armbands interfered with school discipline or the rights of others. Justice Abe Fortas wrote the majority opinion (likely informed, Shackelford noted, by his opinion two years earlier in another minors’ rights case, In re Gault); the Tinkers celebrated their victory by eating ice cream and drinking ginger ale.

John Tinker, Shackelford reported, describes himself as having “majored in protest” at college, and he is still active in supporting students in their struggles against school boards. Mary Beth Tinker went on to become a piano technician and recently retired from a career in nursing. Both were in attendance for the lecture, which will be published in a forthcoming issue of the Supreme Court Historical Society’s Journal.

Recommended Citation: Kali Borkoski, Tinker v. Des Moines Independent Community School District: Kelly Shackelford on symbolic speech, SCOTUSblog (Nov. 7, 2013, 11:13 PM),