The First Amendment and Education - A Plea for Peaceful Coexistence

The F irst Amendment and Education - A Plea for Peaceful Coexistence Dan L. Johnston 0 1 2 Law Commons 0 1 2 the Religion Law Commons 0 1 2 0 Thi s Symposia is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Villanova Law Review by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. For more information , please contact 1 Dan L. Johnston, Th e First Amendment and Education - A Plea for Peaceful Coexistence , 17 Vill. L. Rev. 1023 (1972). Available at: 2 Part of the Civil Rights and Discrimination Commons, Constitutional Law Commons , Juvenile Recommended Citation - SINCE Tinker v. School District' was decided in 1969, I have been reluctant to participate in symposia such as this because of my belief that handling one piece of litigation really does not make a lawyer an expert on education. Also, I cannot, of course, speak for the United States Supreme Court. Justice Fortas ably did that in his opinion in Tinker. I can no longer speak for my clients - the students, John and Mary Beth Tinker and Chris Eckhart. Nor can I speak for the students' parents, at least some of whom believe that both the protests that they were engaged in during the Christmas season in 1965 and the decision of the Supreme Court in 1969 are now irrelevant to the changes this society needs to become democratic and to serve the interests of the people they think have to be served. Therefore, I can only express my personal opinion. For anyone who perhaps does not know the circumstances of Tinker, let me briefly restate the facts. During the Christmas season in 1965, the Students for a Democratic Society (SDS) advocated a nationwide protest against the war in Vietnam. The form of the protest, to wear small pieces of cloth in the nature of black arm bands on one's arm, seems mild, uncontroversial, and mainstream in 1972. The specific purpose of the protest, as stated by my clients, who were Quakers and Unitarians, was to express their feeling of mourning for the dead on both sides in the Vietnam war and to express their support for the proposition espoused at that time by Senator Robert Kennedy - namely, that the 1965 Christmas truce be made openended. The school authorities in Des Moines first learned of the coming protest through an attempt to publish an editorial in the school newspaper at one of the high schools. The editorial was denied or censored by the advisor to the school newspaper. The principals of the senior and junior high schools then adopted a special regulation against the wearing of these armbands, stating that students who wore armbands to school would be asked to take them off and that, if they did not comply, they would be suspended from school. Appeals were made to the school board to reverse that decision and, by a split vote, the school board, without discussing the merits, t Member of Iowa Bar. B.A., Westmar College, 1960; LL.B., Drake University, 1964. 1. Tinker v. School Dist., 393 U.S. 50 3 (1969 ). 1024 VILLANOVA LAW REVIEW said simply: "our administrators have made a decision and we have to support their decision." A suit was then filed in the United States District Court for the Southern District of Iowa, alleging a violation of the Civil Rights Act of 1871.2 The judge ruled for the school and essentially held that, although the young people were engaged in conduct that was privileged as free speech, it was not sufficiently privileged. The authority of the school to control activities within the school building outweighed, in this particular situation, the interest of the students in their right to express their beliefs.' An appeal was taken to the United States Court of Appeals for the Eighth Circuit. The case was then heard by a three-judge panel which was unable to reach a decision. We were then asked to return to St. Louis to re-argue before the court of appeals en banc. Then the court, evenly divided, affirmed.4 There were two earlier cases from the Fifth Circuit that involved the wearing of "Freedom Buttons" by black students in high schools. In one case, even though the freedom buttons caused no disruption in the school, the students were suspended. The court ruled that these suspensions were illegal and the students had to be readmitted.' In a companion case there was evidence that the wearing of buttons had disrupted the schools and the Fifth Circuit supported the school and ordered that the students not be reinstated.' It was in that context, then, that the United States Supreme Court agreed to review the decision of the Court of Appeals in the Tinker case in which the record showed no evidence of disruption. By a 7-2 vote, the Supreme Court ruled that, absent some showing by the school that there would be a material and substantial disruption of the school caused by wearing armbands, the suspension of students for wearing such armbands was in vi (...truncated)