Tinker v. Des Moines Independent Community School District


After Barnette, the student First Amendment rights front was quiet in the courts, until the case of Tinker v. Des Moines Independent Community School District in 1969 shattered the peace and made sure there would be controversy for a long time to come. The Vietnam War was raging full force when the students at a Des Moines, Iowa, high school decided to wear black armbands to school one day to protest what they saw as an unjust struggle. The school administrators learned of their plan and passed a rule banning black armbands from the school and suspending any student caught wearing one. The students wore the armbands anyway, and as a result were suspended. They sued the school district.

In writing in favor of the students for the majority, Justice Abe Fortas wrote these iconic words: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate … School officials do not possess absolute authority over their students. Students in school as well as out of school are ‘persons’ under our Constitution. They are possessed of fundamental rights which the State must respect … In the absence of specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.”

But Fortas added an important caveat: conduct that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.” In other words, not all student conduct is First Amendment protected, only that which does not disturb the classroom environment or invade the rights of others. This standard, also known as the “material and substantial disruption test,” has basically remained the standard in which the school’s right to prescribe free speech is examined at the secondary rank as well as at public colleges and universities.

After Tinker, a host of cases were brought at the lower court level litigating public school free speech issues. Many of these came down on the side of freedom of expression for students. Many lower courts found themselves asking, after Tinker, what student speech can in fact be regulated.