TINKER v. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT
In December 1965, a group of students in Des Moines held a meeting in the home of 16-year-old Christopher Eckhardt to plan a public showing of their support for a truce in the Vietnam war. They decided to wear black armbands throughout the holiday season and to fast on December 16 and New Year’s Eve. The principals of the Des Moines school learned of the plan and met on December 14 to create a policy that stated that any student wearing an armband would be asked to remove it, with refusal to do so resulting in suspension. On December 16, Mary Beth Tinker and Christopher Eckhardt wore their armbands to school and were sent home. The following day, John Tinker did the same with the same result. The students did not return to school until after New Year’s Day, the planned end of the protest.
Through their parents, the students sued the school district for violating the students’ right of expression and sought an injunction to prevent the school district from disciplining the students. The district court dismissed the case and held that the school district’s actions were reasonable to uphold school discipline. The U.S. Court of Appeals for the Eighth Circuit affirmed the decision without opinion.
Does a prohibition against the wearing of armbands in public school, as a form of symbolic protest, violate the students' freedom of speech protections guaranteed by the First Amendment?
Legal provision: Amendment 1: Speech, Press, and Assembly
Yes. Justice Abe Fortas delivered the opinion of the 7-2 majority. The Supreme Court held that the armbands represented pure speech that is entirely separate from the actions or conduct of those participating in it. The Court also held that the students did not lose their First Amendment rights to freedom of speech when they stepped onto school property. In order to justify the suppression of speech, the school officials must be able to prove that the conduct in question would “materially and substantially interfere” with the operation of the school. In this case, the school district’s actions evidently stemmed from a fear of possible disruption rather than any actual interference.
In his concurring opinion, Justice Potter Stewart wrote that children are not necessarily guaranteed the full extent of First Amendment rights. Justice Byron R. White wrote a separate concurring opinion in which he noted that the majority’s opinion relies on a distinction between communication through words and communication through action.
Justice Hugo L. Black wrote a dissenting opinion in which he argued that the First Amendment does not provide the right to express any opinion at any time. Because the appearance of the armbands distracted students from their work, they detracted from the ability of the school officials to perform their duties, so the school district was well within its rights to discipline the students. In his separate dissent, Justice John M. Harlan argued that school officials should be afforded wide authority to maintain order unless their actions can be proven to stem from a motivation other than a legitimate school interest.
Argument of Dan L. Johnston
Chief Justice Earl Warren: Number 21, John F. Tinker and Mary Beth Tinker, minors, etcetera et al., petitioners versus Des Moines Independent Community School District et al.
Mr. Johnston: Mr. Chief Justice and may it please the Court.
This case is similar in some respects to the decision and the case of result and decision in Epperson versus Arkansas which the Court decided just this morning.
The case is here on certiorari to the United States Circuit Court of Appeals for the Eighth Circuit.
One major distinction between Epperson and this case is that this case involves the right of public school students other than public school faculty members to exercise expressions of their opinions in a non-disruptive way in the school.
Case began in the United States --
Justice Abe Fortas: Well, this is not a religious establishment case here?
Mr. Johnston: No, it's not Your Honor.
It's a First Amendment free speech case in the sense of expression of views rather than a worship or establishment cases.
The case began as a petition for injunction and nominal damages under 42 United States Code 1983 in the United States District Court for the Southern District of Iowa.
That court dismissed the petition and on appeal to the Circuit -- the decision was split 4 to 4.
Conduct of the students essentially was this, that Christmas time in 1965 they decided that they would wear small black armbands to express certain views which they had in regard to the war in Vietnam.
Specifically, the views were that they mourn the dead of both sides, both civilian and military in that war and they supported the proposal that have made by United States Senator Robert Kennedy that the truce which had been proposed for that war over the Christmas period be made an open ended or an indefinite truce.
This was the purpose that the students gave for wearing the armbands during this period.
During the period of time of course, there were school days and they wore the armbands to school.
Prior to the time when any of these petitioners wore the armbands to school, it came to the attention of the school authorities that perhaps there would be some students who would express views related to the war in Vietnam in this manner during school time.
The principles of the secondary schools, the high schools and perhaps the junior high schools in the City of Des Moines, a public school system met prior to the time in any of the armbands have been worn and enacted policy which was not written but which was agreed upon among themselves that no student could wear an armband in the Des Moines public school system for this purpose that if a student came to school wearing the armband he would be asked to remove it.
Failing that, the student's parents would be contacted and their assistance would be solicited in getting the students to remove the armbands.
Failing that, the students would be set home would be in effect suspended from school until such time as they were willing to return to school without the armbands.
The three students who are petitioner in this case, Christopher Eckhardt who was 16 and in the 10th grade of Roosevelt High School in Des Moines at the time, John Tinker who was 15 and in the 11th grade at another high school, Mary Beth Tinker who was 13 and in the 8th grade determined that in spite of the policy that have been announced to the schools that they would wear the armbands as a matter of conscience to express the views that they have.
Christopher Eckhardt and Mary Beth Tinker wore theirs on the first day.
Mr. Eckhardt went to school have the armband on but knowing of the policy against the wearing of the armbands because as I say it's been announced.
He went quite immediately to the office of the principal and said, “I'm wearing the armband, I know that it is a violation of the school policy.”
The principal carried out the dictates of the policy which were to tell the student to remove it.
The student said, he could not in good conscience remove the armband but he thought he had a right to wear.
The student's mother was called and she supported her son in the activity and then young Mr. Eckhardt was suspended from school.
He was out of school approximately six days or five days prior to the Christmas vacation and then one day after the Christmas vacation.
Mary Beth Tinker also wore her armband on that first day.
However, she wore it throughout the entire morning without any incident related to it and any way disrupted the school or distracted.
She wore it at lunch and she wore it where there was by the way some conversation between herself and other students in the lunch room about why she was wearing the armband and whether or not she should be wearing it.
And then wore it into the first class in the afternoon and it was in the first class in the afternoon that she was called to the office and the procedure was followed for contacting her parents apparently asking her to remove it and she did remove the armband and then returned to class.
However, in spite of the fact that she had removed the armband and returned and was returned to class, she was later called out of class and suspended nevertheless.
John Tinker determined that it was his belief that the armband should not be worn in open violation of the policy that the schools had adopted until some attempts have been made to try to reach an accommodation with the school board.
So, on the first day, John Tinker did not wear the armbands to school rather in the evening of the day when Mr. Eckhardt and John's sister Mary Beth were suspended from school, he with some other students who had worn the armbands attempted to contact the superintendent of the -- not superintendent, excuse me, the Chairman of the Board of Directors of the school at the morning of public schools and they requested that he calls special meeting of the board of directors, the school board as we call it for the purpose of tying to reach an accommodation between the students, the desire of the students and the policy enacted by the principals of the school.
They were refused this special meeting of the school board and then on the next day, Friday, John Tinker wore his armband to school, wore throughout the morning hours without any untoward incident, without any substantial or material disruption to the school.
He wore at lunch where there was again some discussion about it in a period it's generally free and open for discussion among students.
And then wore into the first class in the afternoon where he was suspended.
Justice Byron R. White: What if the student that got enough in the class he went to and delivered the message orally that his armband was intended to convey and insisted on doing it?
Mr. Johnston: I think in that case --
Justice Byron R. White: Or during the hours?
Mr. Johnston: Yes.
In that case Your Honor, we would not be here even if he insisted in doing it only for a second because he would clearly be -- although he would be expressing his views, he would be doing something else.
Justice Byron R. White: Why did they wear the armband to the class, to express that message?
Mr. Johnston: To express the message, yes.
Justice Byron R. White: To everybody in the class?
Mr. Johnston: To every one in the class, yes Your Honor.
Justice Byron R. White: And everybody while they were listening to some other subject matter was supposed to also be looking at the armband and taking in that message?
Mr. Johnston: Well, to the extent that they would see it but I don't believe there was any -- I don't believe that the --
Justice Byron R. White: Well, was it and they were intended to see it, wouldn't they?
Mr. Johnston: They were intended to see it in a way they would not be destructed.
Justice Byron R. White: And to understand it?
Mr. Johnston: And to understand it yes Your Honor.
Justice Byron R. White: And to absorb that message?
Mr. Johnston: And to absorb the message.
Justice Byron R. White: While they're studying arithmetic or mathematics, they are supposed to be picking in this message about Vietnam.
Mr. Johnston: Well, except that Your Honor I believe that the method of the students chose in this particular instance was specifically designed in such a way that it would not cause that kind of disruption.
None of the teachers who testified at the hearing in the District Court --
Justice Byron R. White: You mean they're just wearing a meaningless armband?
Mr. Johnston: No, Your Honor.
I believe they were --
Justice Byron R. White: Carrying an ineffective message and they intended it to be ineffective?
Mr. Johnston: No, they intended it to be in effective but at the same --
Justice Byron R. White: Well, why didn't they take it off when they went in the class?
Mr. Johnston: Well, there would be no reason to take it off when walking in a class.
Justice Byron R. White: Because it was ineffective nobody would notice?
Mr. Johnston: It was not disruptive in the class Your Honor.
Justice Byron R. White: You mean physically, but how about the attention of the students?
Mr. Johnston: Well, there's no testimony by any of the teachers that there was in any way --
Justice Byron R. White: Why --
Mr. Johnston: -- destructive or disruptive.
Justice Byron R. White: Why did they wear it again?
Why did they wear the armband?
Mr. Johnston: They wore the armband to --
Justice Byron R. White: Convey a message --
Mr. Johnston: Convey the message, that's right.
Justice Byron R. White: They anticipated students to see and understand and think about it.
Mr. Johnston: That's correct.
Justice Byron R. White: And when they did it in class, they intended to do it in class?
Mr. Johnston: I think it's as fair in assumption that the method of expression --
Justice Byron R. White: They intended to -- they intended to use and think about it outside the class but not in class?
Mr. Johnston: I think they intended, I think they chose the message, chose the method of expression Your Honor which would not be disruptive, destructive when they are in the class.
Justice Byron R. White: Physically, it wouldn't make a noise, it wouldn't cause a commotion but don't you think it would cause some people to direct their attention of the armband in Vietnam War and think about that rather than what they were thinking about -- supposed be thinking about in the classroom?
Mr. Johnston: I think perhaps Your Honor, it might for a few moments have done that and I think it perhaps might have distracted some students just as many other things do in the classroom which are allowed from time to time.
I think it might --
Justice Byron R. White: But which this school is permitted to forbid?
Mr. Johnston: But which the school also allows to continue.
I don't think there's any suggestion that the school attempts to regulate all sorts of things that might be distractive especially in a sense of these -- of this type of activity which probably contribute something to the total atmosphere in the school for them to stress.
Justice Thurgood Marshall: And all that we have that has prevent on wearing the armbands any place in the building?
Mr. Johnston: That's correct, that's correct.
Justice Thurgood Marshall: It's not limited to the classroom.
Mr. Johnston: That's right.
It prohibits them from wearing the armbands at gym class, in the cafeteria, in the halls at any time in school.
Justice Thurgood Marshall: Any place within the building?
Mr. Johnston: That's correct.
Justice William J. Brennan: But your contention is that the time of wearing in the classroom too because that's when they were removed from the school?
Mr. Johnston: Well, our contention is that the policy as it was adopted, that was a broad policy we do not distinguish not in any way was directed toward disruption or destruction is a policy which will not stand the test of freedom of expression under the First Amendment.
Justice William J. Brennan: Suppose it had been a big button to stop the bombing?
Mr. Johnston: Well, as a matter of fact a number of political buttons were warned at this school.
Justice William J. Brennan: Oh, that is I'm for Humphrey or I'm for Wallace.
Mr. Johnston: I'm for Humphrey, I'm for -- well, we didn't it at that time.
I'm for Humphrey, I'm for Nixon, I'm for Goldwater.
The record also shows that --
Justice William J. Brennan: Suppose it was designed to stop the bombing?
Mr. Johnston: I don't believe that, that to me would not be the sort of thing which would be designed to disrupt the class.
Justice William J. Brennan: Suppose it was a placard with the message, across it?
Mr. Johnston: The situation I think and the problem we have is this specific regulation directed only toward one specific kind of conduct.
Now, there is in the record, document called at which was defendant's exhibit 3 in the trial which is a broad statement of policy by the school are related to things that disrupt, related to disrupting conduct.
The difficulty we have with this particular policy as it was enacted is that there was no indication, no testimony by teachers, by administrators or any one else of any reason to believe that it would be disruptive.
And when the students in fact did wear the armbands, the record quite clearly shows that it was not in fact disruptive.
That the -- and I believe it's interesting --
Justice Byron R. White: Do you think that a narrow, a narrower regulation it says that you may not wear armbands or buttons or placards in the classroom would be sustainable under First Amendment?
Mr. Johnston: I believe it would be more easily sustainable or directed --
Justice Byron R. White: Well, would it be sustainable if --
Mr. Johnston: No, I don't believe so Your Honor.
It would not be.
Justice Byron R. White: Do you have to take that position?
Mr. Johnston: I don't have to take that position in this case.
Justice Byron R. White: But you do?
Mr. Johnston: I do in answer to the Court's question because I have to be candid with the Court --
Justice Byron R. White: So, why don't you have to sustain that position in this case?
Mr. Johnston: Well, because the armband regulation in this case was directed toward wearing of the armband in any time in the school whether or not --
Justice Byron R. White: Whether they wore it in class.
Mr. Johnston: -- disruptive.
They did wear it in class.
There's no indication that they were suspended just for wearing it for class.
For instance, Christopher Eckhardt --
Justice Byron R. White: Well, I know but why shouldn't the question be were they're permitted to be suspended for wearing it in the class?
Mr. Johnston: Because that the question I believe I would suggest it's before us is the question of a policy that was adopted whether or not the policy itself will stand a test of freedom of expression under the First Amendment.
Christopher Eckhardt, by the way, as I've indicated never did wear the armband to class and yet was suspended.
Justice Byron R. White: Now, the action that was brought was what?
Mr. Johnston: The action that was brought was for an injunction, for injunctive relief and for nominal damages under the --
Justice Byron R. White: Against the -- against any enforcement of the regulation?
Mr. Johnston: Against any enforcement of the regulation which would infringe upon the student's freedom of expression.
Justice Byron R. White: Do you think that would -- in your injunction then would forbid them of the injunction you wanted, do you think you ought to have, should forbid the school from keeping armbands out of classrooms?
Mr. Johnston: Unless they were kept out of there for the express purpose of preventing disruption, unless there was some showing that they would cause disruption.
Justice Byron R. White: Well, so your answer is yes?
You want the injunction --
Mr. Johnston: Yes.
Yes, that's correct.
Justice Byron R. White: -- and you're trying to sustain that injunction?
Mr. Johnston: I'm trying -- yes.
Justice Byron R. White: So you must be arguing that the school may not keep the armbands out of classrooms?
Mr. Johnston: On the state of this record.
Chief Justice Earl Warren: I suppose you would concede that if it started fistfights or something of that kind and disrupted the school, that the principal could prevent the use of them.
Mr. Johnston: The suggestion, I believe we're making Your Honor is that there should not be any special rule for freedom of expression cases for schools.
Now, that would mean that the general Terminiello the type of response that the state first has an obligation to try to move directly against the -- those causing the disruption rather than to take away the First Amendment right to free expression would apply also.
But again, we don't reach that in this case because there are just simply is not that kind of evidence in the record.
Chief Justice Earl Warren: You go to the clear and present danger principle?
Mr. Johnston: Or as the Fifth Circuit in two cases, Burnside versus Byars seems to indicate and Blackhall versus Isoqueena, Byars case cited in our brief, a material and substantial disruption to the schools would justify perhaps the subordination of freedom of expression.
Justice Byron R. White: Why should the Terminiello type case be applicable in the classroom?
Mr. Johnston: Well, the facts of the Terminiello case are not necessary applicable to the classroom with the kind of test and the thing, Your Honor, that we've been trying to do with in this case since the trial was is the concept that wholly special rules -- wholly special doctrines for some reason should be applied to the First Amendment law in schools.
What we suggest and we admit and we've admitted from the beginning that the amount of disruption that's permissible in a public hall in Chicago or in a street in New York --
Justice Byron R. White: For disruption?
Mr. Johnston: Well, anything that prevents the state --
Justice Byron R. White: Well, you are not talking just about violence?
Mr. Johnston: No, certainly not.
You're talking --
Justice Byron R. White: But why do you (Inaudible)?
Mr. Johnston: I think that's correct.
I think that's correct.
Justice Byron R. White: And so there could certainly be some whispering going on, undertone in the classroom?
Mr. Johnston: There isn't any doubt about that in our mind, Your Honor.
Justice Byron R. White: And even though it wasn't disruptive or bothered anybody else at all, we didn't make anybody mad or anything.
This might have made somebody a little amused.
Mr. Johnston: This might have been impaired the ability of the school to carry out the purposes that it was there for.
Justice Abe Fortas: Well, is there any evidence of that in this record?
Mr. Johnston: Your Honor, there's none.
As I say there was a discussion from time to time at the cafeteria at lunch.
There was some discussion in the halls, there is and I'm frank to say when John Tinker wore the armband in the first hour they were engaged in the class which was a free discussion type of class.
The instructor of the class was outside the room and he was asked during that period about the armband and he did explain to the students why he wore it.
We are urging upon the Court the concept that especially in the public schools which is this Court recognized this morning in Arkansas case as it is recognized many times before that it's important that the idea of freedom of dissent and inquiry and expression be maintained in the schools and that there are certainly is nothing in this record which indicates that the sufficient amount -- sufficient quantum of evidence to overcome that presumption.
Justice Abe Fortas: As I understand I want to be very clear about this, in response to my Brother White's question.
If the record showed that the wearing of the armbands significantly or substantially a material whatever is the right word interfered with the business of the classroom that is communication between teachers and students, then you would say that disciplinary action would be justified?
Mr. Johnston: I think we can take that position.
I would like to make a distinction, if I may, between the -- an expression of an opinion which might itself disrupt the class and the expression of an opinion which might cause someone else to disrupt the class.
And I believe those are perhaps two separate cases.
I also like to make a distinction between the expression of an opinion which is coupled with something else, like marching in the hallway or standing up in the class and making a speech about the war in Vietnam during mathematics class.
That kind of thing, I think the Court can prohibit, but we are in a situation here where the record just simply doesn't support that kind of a situation.
Rather it supports the idea that before anyone wore armband really on the basis of pure conjecture that the policy was adopted frankly for the purpose and the administrators and the teachers say this over and over again, it was the principle of the demonstration, the idea of expressing political beliefs that they were opposed to in this context.
And that the students were suspended for violating that policy and not suspended for causing any disruption in the classroom.
Justice Abe Fortas: Suppose the state passed a law applying a ban on black armbands for protest purposes, across the board, so that it would be applied in the private schools as well, would that be constitutional?
Mr. Johnston: I think that would probably Your Honor interfere with some earlier decisions of this Court probably in regard to the right of individuals of citizens to establish private schools and so long as they meet the accreditation standards to educate their children as they see fit.
I believe that's probably a different kind of situation from what we have here.
The situation here, as I view it, is based not so much upon the conduct of the students, whether or not it was permissible but the conduct of the state whether or not the conduct of the state was permissible.
Whether or not where we have a situation of pure expression and nothing else which was no evidence of any material or substantial disruption of any public interest, whether or not in that situation the state can move to subordinate and to punish freedom of expression.
Justice Potter Stewart: Why is this case moot?
Mr. Johnston: The case is not moot --
Justice Potter Stewart: Nobody has been punished, have they?
I'm reading from your brief, the bottom page 8, top of page 9 showing that the petitioners returned to school at the end of the Christmas vacation, January 4th or 5th, 1966 that's two-and-a-half years ago, two and three quarters years ago without their armbands and, as far as appears, that's the end of it.
They were punished for it?
Mr. Johnston: Your Honor the students each testified in the District Court, and this will appear in the record, that although they did return to school because of the obvious dire consequences to themselves if they do not return to school, that they still have these views in the war in Vietnam.
They still have the desire to wear armbands to express their opposition to the war in Vietnam and, where the policy taken away.
They would wear their armbands to school.
Justice Potter Stewart: That's in the complaint, isn't it?
Or in the --
Mr. Johnston: It's in the appendix Your Honor, that testimony in the record.
Justice Potter Stewart: In the complaint?
Mr. Johnston: Yes, it is in the complaint.
Yes, it was alleged in the complaint.
Justice Potter Stewart: I just glanced at the complaint.
I didn't find that.
Mr. Johnston: The -- and in any event because we anticipated the possibility that by the time the case might be finally decided.
The students might no longer be in school and might no longer have that interest.
Justice Potter Stewart: Well, you sued for dollar?
Mr. Johnston: That's right, we did Your Honor.
Justice Potter Stewart: But --
Mr. Johnston: That's what I was getting to.
Justice Potter Stewart: -- isn't the jurisdictional -- isn't the statute require $10,000.00 to be in controversy?
Mr. Johnston: Not Your Honor in a case that goes up under the -- under 42 United States Code 1983 rather than under diversity.
Statute itself does not name any particular --
Justice Abe Fortas: And your hope is that these children correctly understood some of our opinions on mootness?
Mr. Johnston: Yes, Your Honor it is.
Justice Abe Fortas: Test and --
Mr. Johnston: I've also -- well, yes.
Justice John M. Harlan: What happens if the Vietnam War ends before we decide the case?
Mr. Johnston: Well, Your Honor we'll hope for that of course.
I would say that the prayer for damages is still there.
The students were still out of school for six days in the instance of two, five days in the instance of one.
I would also say to the Court to speaking very frankly that my own experience and I'm sure the Court's experience is that this is not an isolated problem, that the correct balance between the interest of the school in maintaining discipline and decorum and the rights of the students who, because I believe of the improvement in American education, have increasingly moved to have opinions and to want to express opinions, that this kind of situation arises and will continue to arise.
And we suggest that this case provides a good context for the Court provide guidance for the --
Justice John M. Harlan: What if this gets to the Supreme Court of the United States pretty deep in trenches of ordinary day to day school district?
Mr. Johnston: Your Honor, I really would not think it would get you any further in that sort of thing then in Barnette versus Board of Education of West Virginia than did the case that the Court announced this morning.
They did a number of other cases where the Court has held that whatever are the delicate functions of school boards and there are certainly delicate, especially these days, that they still have no function which cannot be exercised within the purview and within the dictates of this Court's decision under the First Amendment.
And that's --
Justice John M. Harlan: Suppose we didn't say such things of that kind, the majority of us.
It is purely an establishment case and nothing more.
Mr. Johnston: I understand.
Justice Abe Fortas: May I ask you, does it matter what the expression is about?
Suppose some child shows up at school wearing an outlandish costume I don't want to particularize it and that's in violation of a regulation of the schools saying a children must come to school to decently clothed and then this child says that I'm wearing this outlandish costume because I want to express very strong belief and I have in the utmost freedom for the individual you know Kool-Aid and electronic test kit and all of the things that have been written about these days.
Now, this child says that's what I want to do.
Does that make any difference?
Does he have a constitutionally protected right with respect to that kind of expression or would you limit it to all political matters, matters of social and political importance, societal importance --
Mr. Johnston: Mr. Justice --
Justice Abe Fortas: -- as we, as the older generation conceives it?
Mr. Johnston: Mr. Justice Fortas, I believe that the real question in that regard hinges upon whether or not the utterance is expression, as contemplated by the First Amendment which was a finding that the District Court made, as a matter of fact that students were engaged and the expression of views privileged by the First Amendment unless it's subordinated by some other state interest.
Justice Abe Fortas: Yes sir, that's the question, what's your opinion if you care to express one?
Mr. Johnston: My opinion would be, in that instance, that probably, again it would depend a lot upon what the students said and demeanor of the student when he expressed the things of that sort that that probably would not be within the purview of the First Amendment, but again it's just conjecture on my part.
Certainly just to wear one's haircut the way wants one, and way wants to may present Fourteenth Amendment problems, as arbitrariness and things of that sort.
But it does not present per se First Amendment problems such as we have here.
Justice Thurgood Marshall: Mr. Johnston, during the negotiation was the suggestion ever been made to limit the rule to not wearing the bands in classroom?
Mr. Johnston: Not to my knowledge, Your Honor.
Justice Thurgood Marshall: It never was?
Mr. Johnston: Never was made.
Justice Thurgood Marshall: The board never offered that as a solution, did they?
Mr. Johnston: No, they did not Your Honor.
They -- by the time they got finally to the board, they felt the necessity I believe to sustain the action of their principles.
Justice Thurgood Marshall: Which school was that?
Mr. Johnston: This was the, generally, the public schools is Des Moines.
Three schools involved.
Justice Thurgood Marshall: What grade?
Mr. Johnston: The -- Mr. Eckhardt was in the 10th grade Your Honor at Roosevelt High School.
Mr. Tinker was in the 11th grade at North High School, and Mary Beth Tinker was in the 13th grade at Warren Harding Junior High School.
No, excuse me the 8th grade at Warren Harding Junior High School.
Justice Thurgood Marshall: Would your principle include to kindergarten?
Mr. Johnston: To the extent, Your Honor that those people have views and can express them within the purview of the First Amendment it would, yes.
I should not think that there would have to be a special rule for schools or any other par of our society for the First Amendment.
Now, the evidence of disruption might be different but as far as the principles apply, we'd like to have the same principles applied in the school or perhaps especially in the school that are applied elsewhere.
If I may Mr. Chief Justice, I would like to reserve the remainder of my argument for rebuttal.
Chief Justice Earl Warren: Mr. Herrick.
Argument of Allan A. Herrick
Mr. Herrick: Mr. Chief Justice and Associate Justices.
The respondents believe that there are two basic issues involved here.
The first, the school administrators are school boards have to wait from until violence, disorder and disruption break out and scholarly discipline of the school is disrupted or may they acted when in good faith in their reasonable discretion and judgment, disorder and disruption of scholarly atmosphere of the schoolroom will result unless they act firmly and properly.
The second issue it seems to me is that this Court must determine how far it wants to go under the constitutional amendments for free speech in reviewing every decision of every school district made in good faith in its reasonable discretion and judgment as necessary to maintain order and scholarly discipline atmosphere within the classroom.
The third issue, might be added, are disturbances or threatened disturbances in the schools to be measured by identical standards with disturbances or threaten disturbances on the streets.
Now, it's the position of the respondents that the decision of the school administration and of the school board made in good faith under the circumstances existing when that decision was made was the reasonable exercise of discretion on the part of school authorities and did not deprive petitioners of their constitutional right of free speech.
Now, this Court has held that freedom of speech including of course the right of demonstration is not an absolute right to be exercised regardless of time or place.
I'm sure it isn't necessary to quote to this Court its own decisions but a case of Adderley versus the State of Florida seems particularly pertinent, where the students went from the university to the jail grounds to protest the arrest of students who had been arrested the day before and their claim was --
Justice Thurgood Marshall: Mr. Herrick, how many students were involved in the Adderley case?
Mr. Herrick: In the Adderley case?
Justice Thurgood Marshall: Uh-huh.
Seven hundred, wasn't it?
Mr. Herrick: It was a large quite a large number.
Justice Thurgood Marshall: How many were involved in this one?
Mr. Herrick: Well, there were -- that's a question Your Honor, of what you mean by involved.
There are 18 --
Justice Thurgood Marshall: How many will wear an armband?
Mr. Herrick: Well, there were five suspended --
Justice Thurgood Marshall: Five?
Mr. Herrick: -- who are wearing armbands Your Honor.
Justice Thurgood Marshall: Well, were there any wearing armbands who were not suspended?
Mr. Herrick: Yes, I think there were two --
Justice Thurgood Marshall: That make seven?
Mr. Herrick: They weren't accepted and I'll refer to that a little later.
They were --
Justice Thurgood Marshall: Seven out of 18,000 and the school board was afraid that seven students wearing an armband would disrupt 18,000.
Mr. Herrick: I think if the Court --
Justice Thurgood Marshall: Am I correct?
Mr. Herrick: -- please that that doesn't gives us the entire background that builds up to what was existing in the Des Moines schools at the time the armbands were worn.
The -- as we view it the right of freedom of speech or the right of demonstration in the school room and on the school premises must be weighed against the right of the school administration to make a decision which the administration in good faith believe in its discretion was reasonable to preserve order and to avoid this disturbance and disruption in the school room.
Justice Thurgood Marshall: Then any disruption?
Mr. Herrick: I'll refer to that also Your Honor.
There had been with John Tinker what I would call disruption.
There were one or two of the boys who have been struck, I believe the record shows.
Justice Thurgood Marshall: Well, how many boys were struck in the Des Moines system per day normally?
Mr. Herrick: Well, if the Court please, I think the question there is and gets back to the first issue that I undertook in the states.
Does the school if we have an aroused community have to wait until disruption occurs or may it act to prevent it?
Justice Thurgood Marshall: Well, the school system was aroused?
Where is that in the record?
Mr. Herrick: I think I can point that out, if the Court please.
In the background of this case, in November of 1965, the petitioner, Christopher Eckhardt with his mother who was president of the Des Moines Chapter of the Women's International League for Peace and Freedom, had come to Washington D.C. to participate with the students for Democratic Society, Dr. Spock and others in the march, which I'm sure this Court is familiar with from the White House to the Washington Monument.
Now, that was in November I think about Thanksgiving holiday.
On Saturday, December 11, 1965 following this march, a group which included students related to the students for a Democratic Society and some adults met at the Eckhardt home and one of the proposals that developed this meeting was the wearing of these black armbands.
None of these petitioners were present.
Now, as the trial court said and this is on page 73 of the appendix, the last paragraph, that Vietnam War and the involvement of the United States therein has been a subject of a major controversy for some time.
When the armband regulation involved herein was promulgated, debate over the Vietnam War had become vehement in many localities.
A protest march against the war had recently been held in Washington D.C.
A wave of draft card burning incidents protesting the war had swept the country.
At that time, two highly publicized draft card burning cases were pending in this Court both individual supporting the war and those opposing it were quite vocal in expressing their views.
This was demonstrated during the school board's hearing on the armband regulation.
And that appears also in the record, I think some 200 had gathered who were many of them are outsiders at the time of the school board hearing.
This hearing the school board voted in support of the rule prohibiting the wearing of the black -- wearing of armbands in school premises.
It is against this background.
The Court must review the reasonableness of the regulation.
Now, this is the background that faced the superintendent of schools.
This thing had become a matter through the press and through the community and the superintendent directed Doctor Peterson who was the director of secondary education, to call a meeting of the principals on December 14, 1965.
And with this background and at this meeting, their principals in the good faith, using their discretion in best judgment decided that to maintain discipline and avoid disruption, the wearing of the armbands in the schoolroom should not be permitted.
Now, on page 46 --
Justice Thurgood Marshall: Mr. Herrick, suppose they decide to wear black neckties, four-in-hand necktie?
Mr. Herrick: Oh!
I would anticipate, Your Honor, that probably would've been any question about it unless they had build it up to a point where they were --
Justice Thurgood Marshall: Suppose they used the same build up instead of saying we wear black armbands, it said and in order to mourn the war in Vietnam you wear a mourning black ties?
Mr. Herrick: I think, Your Honor, if we get all these back to the same problem whether under the circumstance it's difficult to set in this Court or to stand in this Court and say what faced the schools out in Des Moines in the enactment of this -- making this decision against the wearing of armbands.
It was a -- an inflammatory matter at that time.
Now, Dr.Peterson, the --
Chief Justice Earl Warren: Mr. Herrick, before you get off that --
Mr. Herrick: Yes.
Chief Justice Earl Warren: Does that -- is that any different from what was going on in practically every community in this country during the last two months during the campaign for the presidency?
Weren't those seems thoroughly debated and argumentatively and vociferously and almost every community in the country?
Mr. Herrick: Oh!
I think that's true Your Honor.
But I think the place for that --
Chief Justice Earl Warren: Do you think then that what you have read is to be a sufficient backdrop for stopping First Amendment rights in all of these communities because of that?
Mr. Herrick: I think, Your Honor, that the correct answer of that is free discussion in the classroom is always permitted, always has been if they want to come in and discuss these matters.
But the question of imposing on a captive audience moving in with an armband when it's known through the press, through the community, through the things that have happened here that the community is inflamed might disrupt the orderly conduct of schools.
Chief Justice Earl Warren: What did the Court have to say the trial court, as to whether this was an exercise of First Amendment right?
Mr. Herrick: Well, the Court said this, --
Chief Justice Earl Warren: What page?
Mr. Herrick: It's on page 75.
After due considerations, it's the view of the Court that the actions of the school officials in this realm should not be limited to those instances where there's been a material or substantial interference with the school discipline.
Chief Justice Earl Warren: Now, didn't they say something before that --
Mr. Herrick: Yes.
Chief Justice Earl Warren: -- whether this was a First Amendment right or not?
Mr. Herrick: Yes, I think that's --
Chief Justice Earl Warren: That's what I was --
Mr. Herrick: -- immediately.
Chief Justice Earl Warren: -- interested in.
Mr. Herrick: Here Your Honor, it's on page 72 Your Honor.
Chief Justice Earl Warren: Seventy-two.
Mr. Herrick: Yes.
The question which must now be determined is whether the action of the officials of the defendant school district forbidding the wearing of armbands on school facilities deprive the plaintiffs of constitutional rights secured by the Freedom of Speech Clause of the First Amendment.
And an individual's right of free speech is protected against infringement by the Due Process Clause of the Fourteenth Amendment, Gitlow versus New York, 268 U.S. 652.
The wearing of an armband for the purpose of expressing certain views is a symbolic act and falls within the protection of the First Amendment Free Speech Clause, West Virginia State Board of Education versus Barnette.
However, the protections of that clause are not absolute.
The abridgment of speech by state regulation must also -- always be considered in terms of the object, the regulation is attempting to accomplish and the abridgment of speech that actually occurs.
In each case, the courts must ask whether the gravity of the evil discounted by its improbability justifies such invasion of free speech as is necessary to avoid danger.
Officials of the defendant's school district have the responsibility for maintaining a scholarly, disciplined atmosphere within the classroom.
These officials not only have a right, they have an obligation to prevent anything which might be disruptive for such an atmosphere.
Unless the actions of school boards -- officials in this connection are unreasonable, the Court should not interfere.
Now does that answer what Your Honor had in mind?
Chief Justice Earl Warren: Yes, that's what I had in mind.
Mr. Herrick: Now, in this case, counsel has already referred to the fact.
Christopher Eckhardt went to Roosevelt high school wearing the black armband.
He is the one as I have stated with his mother have been down here on the march.
They came back and they had the meeting at which he didn't attend.
Adults held the meeting.
When Christopher came to school he was asked by a student if he knew there was a rule against wearing the armband that he said he did and he went directly to the principal's office in defiance of the rule because, as he said, he thought they might suspend him.
Now, Mr. Blackmun who was the vice principal asked Christopher to remove the armband and he refused.
Now, after considerable discussion, Mr. Blackmun finally called Christopher's mother and told her that he would have to suspend Christopher for wearing the armband and of refusing to abide by the school's regulation.
And Mrs. Eckhardt's reply was that Christopher had a constitutional right to wear the armband.
Now, the other two petitioners, John F. Tinker and Mary Beth Tinker bring this action by their father Reverend Leonard Tinker who is Secretary for Peace and Education of the American Friend's Service Committee.
And I think it of some significance here.
I don't in any sense feel that it is controlling the constitutional right exists you've got, period.
But Paul Tinker who was eight years old went to school with a black armband, Hope Tinker who was 11 years old went to school with a black armband, and the petitioner Mary Beth Tinker who was 13 went to school with a black armband.
John Tinker is 15, he went to school of a black armband.
Now Reverend Tinker testified that he had to support them in what he considered the exercise of their conscience and their own constitutional rights.
Now, respondents do not question that the Students for a Democratic Society or that Reverend Tinker as the Secretary for Peace and Education of the Friend's Society or Mrs. Eckhardt as the local President of the International League for Peace and Freedom are entitled to express their views under their constitutional right of free speech.
But the point is not at every time, not at every place and particularly not under the circumstances that existed in this case, not in the schoolroom at a time when it might result in disruption and might even result in violence.
Now, in substance if we understand the petitioner's position in this case it is that the school officials are powerless to act until the disruption occurs.
Respondents believe that should not be the rule.
Sometimes per an ounce of prevention is a lot better than a pound of cure and I think subsequent history of such activities bear out the judgment of the school officials in their discretion.
Chief Justice Earl Warren: On that theory, could they proscribe all discussion or demonstration of interest in political matters or political candidates or issues of Government?
Mr. Herrick: Not at all.
Chief Justice Earl Warren: In the school?
Mr. Herrick: Not at all.
They could proscribe I think the classroom and the time and the place where the matters would be discussed and that if the --
Chief Justice Earl Warren: Suppose they were a Humphrey or a Nixon or Wallace button in the school which might be is, was in that a community is highly controversial in some places inflammatory.
Mr. Herrick: Well, --
Chief Justice Earl Warren: Could that be done?
Mr. Herrick: I think if the Court please, if it were done as I think the record in this case shows where they come in or the whole row of buttons on something of that sort that it could prove disruptive.
It's a matter of dress.
Chief Justice Earl Warren: Did they come in with a whole row of --
Mr. Herrick: No.
Chief Justice Earl Warren: -- armbands?
Mr. Herrick: No, but it would be any what -- would there be any question if they walked in of a placard and said, we protest the Vietnam War and that was --
Chief Justice Earl Warren: That there would.
Mr. Herrick: That -- under the circumstances --
Chief Justice Earl Warren: Won't you think it would definitely be different?
Mr. Herrick: Normally yes, and but I think normally but I say this, this thing had been extensively exploited in the press.
We had a situation here where it was explosive.
Chief Justice Earl Warren: Well now, what evidence is there of explosiveness in the community?
That's the thing that I haven't gotten out of this (Voice Overlap) yet.
Mr. Herrick: Alright, if the Court please, I refer first, I think here to the John Tinker for just a moment.
Justice Potter Stewart: What page?
Mr. Herrick: That would be on page 18 of the appendix.
It really starts possibly on the first page.
He went to the first two classes.
He didn't think the instructor saw it and he said, he sat in the back of a class, I believe, in the second class which was 10:30 before noon and he didn't think any body saw it.
And he said, that's in the bottom of page of --
Chief Justice Earl Warren: Didn't think that he saw it?
Mr. Herrick: Saw the black armband, that's correct, because he sat in the back of a class.
Then he went to gym class and he said that on the way to gym class, there wasn't any discussion.
There was hardly no one around.
That's the way it's stated here.
“After gym class, some of the students were making fun of me for wearing it.
Others who were my friends made remarks in the locker room that were not very friendly.
After others who are my friends said, they didn't want me to get in trouble.”
Two or three boys made remarks in the locker room, I beg your pardon, it was that part I'm repeating.
“This lasted perhaps three or four meetings.
They did not threaten me with any physical harm after gym class, I had half an hour for lunch.
I ate lunch in the student's center with several other students with who I meet frequently.
These people warned me in a friendly manner to take the armband off.
There was one student whom I had a feud in the 7th grade who was making smart remarks for about 10 minutes.
There were four or five people with him standing milling around.
There were quite a few other students standing and milling around the lunchroom.
To my knowledge, there were no threats to hit me or anything like that.
At no time was I in fear that they might attack me or hit in the student center because there were too many people there.”
Now, it was right after lunch, the exposure we frankly concede here on the matter of disruption was very brief because here Christopher Eckhardt went to the principal's office and this to have about given you what happened to John Tinker.
But he said he want --
Chief Justice Earl Warren: Do you want to say that anything happen -- that happened up to this time as you have read would show any --
Mr. Herrick: Well, --
Chief Justice Earl Warren: -- immediate danger of disruption in the school, would you?
Mr. Herrick: I don't know and I see I believe it's page 62.
Chief Justice Earl Warren: How about that will the question I just asked you?
Mr. Herrick: Well, that's a pretty close question Your Honor as -- I don't think this, if the Court says there has to be disruption, I don't believe that's the test.
Chief Justice Earl Warren: Does it shows danger of disruption there.
Mr. Herrick: I feel that it does, Your Honor.
Chief Justice Earl Warren: Any more than what would go on ordinarily in the, in the --
Mr. Herrick: But I feel the test goes one step further than that.
In the reasonable judgment of the school administrators and the school board, if there are reasonable judgment disruption were threatened.
At that point, it's our idea that they are entitled to act.
Chief Justice Earl Warren: Yes.
Mr. Herrick: Without --
Chief Justice Earl Warren: I agree to that but the reasonableness of it will have to depend upon what is in this record to support it, isn't that true?
Mr. Herrick: Yes of course.
Chief Justice Earl Warren: Well, that's what I was asking.
Mr. Herrick: Of course it is.
Chief Justice Earl Warren: Where is this evidence --
Mr. Herrick: Well on page --
Chief Justice Earl Warren: -- to show that the danger of disruption --
Mr. Herrick: Sixty-two and this is from the deposition of John Tinker.
Chief Justice Earl Warren: What page?
Mr. Herrick: Sixty-two toward the bottom of the page.
“I attended the meeting of some 50 people at the building where my father's office and there is some accounts of some students there as to physical violence had been inflicted upon them over wearing these armbands.”
Either Bruce Clark or Ross, Bruce Clark was one of the suspended five said somebody had struck him --
Chief Justice Earl Warren: Is that on 62?
Mr. Herrick: Yes, Your Honor.
Chief Justice Earl Warren: Where -- what part of that?
Mr. Herrick: Well, it says portion of the deposition of John Tinker down below there.
“I attended the meeting of some 50 people at the building where my father's office and there were some accounts of some students there as to physical violence that had been inflicted upon them over wearing these armbands.
Either Bruce Clark or Ross had some but said, somebody had struck him could've been both of them.
I was there and recall a hearing somebody say that.”
Justice Thurgood Marshall: Mr. Herrick, would I be correct in assuming that if that violence had occurred in any of the three schools in Des Moines, the school officials would've known about it?
Mr. Herrick: I wouldn't want to say that that is true because I wouldn't know depending on how it was brought to --
Justice Thurgood Marshall: Would it be normal?
And my second question will be, if the school board knew about, wouldn't they put in evidence about it?
Mr. Herrick: That would sound reasonable, Your Honor.
Justice Thurgood Marshall: Now, what evidence did the school board and the school officials have when they adopted this resolution?
Is it on paper any place?
Mr. Herrick: No, I think Your Honor that the --
Justice Thurgood Marshall: Do we have anything more than your assertion that they used due care and they were reasonable?
Mr. Herrick: I think as I've stated before, Your Honor that it was a matter of the explosive situation that existed in the Des Moines schools at the time the regulation was adopted.
Justice Thurgood Marshall: And that explosive situation was that they had to meet in Washington D.C.?
What else besides this?
Mr. Herrick: Alright.
This is page 70 at the top of the appendix.
A former student of one of our high schools was killed in Vietnam.
Some of his friends are still in the school.
It was felt that of any kind of a demonstration existed, it might evolve into something which would be difficult to control.
Justice Thurgood Marshall: Do we have a city in this country that has and had someone killed in Vietnam?
Mr. Herrick: No, I think not Your Honor.
But I don't think it would be an explosive situation in most cases but if someone who's trying to appear in the court with an armband here protesting the thing that it could be explosive, that's the situation we find.
Justice Thurgood Marshall: It could be.
Mr. Herrick: What?
Justice Thurgood Marshall: It could be, is that your position?
Mr. Herrick: Yes, sir.
It could be.
Justice Thurgood Marshall: And there was no evidence that it would be?
Is that the rule you want us to adopt?
Mr. Herrick: No, not at all, Your Honor.
I think the rule that maybe I can express, I think there's an Arkansas case that I have referred to that expresses what we feel should be the rule and this is in the respondent's brief on page 28.
And this again was a case where the plaintiff was suspended from school for violating a school rule forbidding the use of paint -- face paint and cosmetics.
And she brought the mandamus to require her admission to school notwithstanding her refusal to obey the rule.
Justice Hugo L. Black: Did she claim that was symbolic speech?
Mr. Herrick: Well, I can't answer that Your Honor.
It was an expression certainly.
Chief Justice Earl Warren: Well, at least the court -- trial court didn't find that it was expression of free -- of a --
Mr. Herrick: No.
Chief Justice Earl Warren: -- First Amendment rights as did the Court in this case.
Mr. Herrick: What was involved though, I think Your Honor, is that it was disruptive of the atmosphere of the schoolroom and it's --
Justice Hugo L. Black: I'd like to ask you a question because you seem to have admitted something -- well, that bothers me.
Do I understand that you have admitted the Constitution of the United States forbids the people of a state from barring political discussion in their schools if they want to do so?
Mr. Herrick: No, I don't believe I admitted that Your Honor.
I think if the situation broke down the discipline of the school --
Justice Hugo L. Black: I didn't think you intended to.
Mr. Herrick: If I did, I could --
Justice Hugo L. Black: Now, does the person have any more right to have let say make symbolic speech and he does actually to talk and engaged in speech which the First Amendment protects?
If not, why wouldn't these boys have a right to demand that the school let them talk about Vietnam?
Mr. Herrick: Oh!
They would and the -- you assume the record here that free discussion in school with these matters are permitted.
Justice Hugo L. Black: And what you claim is that you have the right to run your school for the teaching of geometry, history, mathematics --
Mr. Herrick: Yes.
Justice Hugo L. Black: -- grammar and the things that people want to teach and that the Federal Constitution doesn't step in and tell you that you got to let anybody discuss any subject symbolic or otherwise if they see fit.
Mr. Herrick: I think so long as it doesn't interrupt or disrupt the atmosphere in the school.
Justice Hugo L. Black: Well, he did disrupt it wouldn't he if he broke a valid rule?
Mr. Herrick: Yes.
Justice Hugo L. Black: Well, what you are arguinging then is whether or not this rule is valid of its constitutionally protected?
Mr. Herrick: That's correct, Your Honor.
Justice Hugo L. Black: And do you think that the Constitution prevents the schools in barring the discussion of particularly acute emotional subjects such as this is and lets them, allows them to say that we will have nothing in here except the teaching of the things that the schools bar?
Mr. Herrick: I think within the reason that's true.
Chief Justice Warren: But you wouldn't say, Mr. Herrick, that in doing that they could pick out one particular issue, public issue and say, this you cannot do but the rest you can do.
Mr. Herrick: I'd go further than that Your Honor.
I would say today maybe they could the same proposition come up if the atmosphere is different should be permitted.
My only claim here is that what existed here, that the school administration and the school board acted reasonably and within their discretion, at that time it could be very different today demonstrations at another time that might not be explosive.
Justice Hugo L. Black: Well, do you -- I don't understand you to be saying now.
It's alright for them to interrupt your grammar classes, --
Mr. Herrick: No, sir.
Justice Hugo L. Black: -- your history classes, your mathematic classes and any other classes that the school is supposed to teach in order to talk about Vietnam?
Mr. Herrick: No, I think that that is not correct.
If I've given that impression I'm sorry.
Justice Hugo L. Black: You don't think that, do you?
Mr. Herrick: No, I don't believe that.
I believe the schools are there to give these children an education and I think Des Moines is one of the great spots in the nation where they've done it.
And I feel that anything that threatens that type of scholarly atmosphere in the classroom ought to be prohibited.
My time is up.
Justice Hugo L. Black: But there wasn't any disruption here, was there?
Mr. Herrick: Well, that's a question.
Justice Byron R. White: Well, on page 29, it says the whole period of mathematics on Wednesday was taken up by this discussion of students and demonstrations.
Mr. Herrick: That's correct Your Honor.
So, they haven't forbad it in the schools but mathematics after all was ought out to be taught in a mathematics class.
And I think they're entitled to regulate it.
That's what this is as a regulation.
Justice Potter Stewart: Mr. Herrick, I seem remembering reading the briefs and that's where this argument that there were some thing here about other students wearing other badges or symbols but now glancing them over I can't find it except in footnote 2 of petitioner's brief with respect to some of the students having been seen wearing iron crosses.
Mr. Herrick: I think that's true.
Justice Potter Stewart: Is there anything else?
Mr. Herrick: I think there was a --
Justice Potter Stewart: In the record?
Mr. Herrick: -- iron crosses, I think some times they've worn political buttons --
Justice Potter Stewart: Does that show in the record that you remember?
Mr. Herrick: It does Your Honor.
Justice Potter Stewart: It does.
Mr. Herrick: Yes.
Justice Abe Fortas: What do you do with Meyer against Nebraska and Bartels against Iowa?
Mr. Herrick: Well, of course, Meyer against Nebraska is forbidding and teaching the German language, as I recall it, yes.
Justice Abe Fortas: Yes, so is Bartels in substance.
Mr. Herrick: Well, I --
Justice Abe Fortas: Those were decided in 1923.
Mr. Herrick: Surely.
Again, Your Honor, I have to come back to the situation that your -- that the Court really doesn't sit down in the situation that the school administration of the school board does.
They've got to say, is this so unreasonable as to violate the constitutional right?
Justice Abe Fortas: But is that the test you'd really say, that is a court makes a judgment as to whether or it's so unreasonable, and if it so -- if we think it's so unreasonable, by which I suppose you mean excessively unreasonable then we say to violation of the Due Process Clause of the Fourteenth Amendment then we tell the school board what it can and cannot do.
Mr. Herrick: I think we're getting very --
Justice Abe Fortas: Is that your argument, I'm asking for your opinion?
Mr. Herrick: My opinion is that if the Court undertakes to go that far, you're getting in to very difficult field of trying to say in every instance --
Justice Abe Fortas: Well, I agree with you.
Mr. Herrick: -- whether a regulation is or is not a violation of the constitutional rights and I think some things have got to be left, judgment of the administrators.
Justice Abe Fortas: You would have to agree with me then, wouldn't you that Meyer and Bartels present very serious obstacles because certainly those cases stand for the proposition that denial of -- that a state criminal laws, state law making in a criminal offense not to teach German is unreasonable and that although that's the state law and state exercise of power of a state schools, this Court declared that laws unconstitutional of 1923.
Mr. Herrick: That's correct.
I say this Your Honor I think every case must be reviewed on its own facts and I think that's the difficulty in this Court getting into the situation.
I'm trying to regulate it --
Justice John M. Harlan: This was a public school, wasn't it?
Mr. Herrick: It is, Your Honor.
Justice John M. Harlan: Did Meyer have something reservation about public school?
There were private schools in those cases.
Mr. Herrick: That's correct Your Honor.
Chief Justice Earl Warren: Mr. Johnston, you have a few moments to rebut.
Rebuttal of Dan L. Johnston
Mr. Johnston: Thank you Your Honor.
I would just like to point out, may it please the Court, Mr. Chief Justice, one of the things which I believe it's been mentioned but needs to be mentioned more firmly and that was that there was in the school no general prohibition against political emblems of this nature.
Justice Hugo L. Black: Well, do you deny that under the law of Iowa the school was acting within the authority of the state law?
Mr. Johnston: The school was acting, Your Honor, under a very broad state statute which gives --
Justice Hugo L. Black: Well, is there any question about that, do we have to look into that?
Mr. Johnston: No, Your Honor.
The question --
Justice Hugo L. Black: You have to accept that it's being a law of Iowa?
Mr. Johnston: Yes, I think that's true.
Justice Hugo L. Black: They were engaged in doing what the law gives them the right to do.
Mr. Johnston: It gives them the power to do, yes Your Honor.
But I, the point I'm -- I'd like to impress upon the Court this time is on pages 44 and 50 and 51 of the record.
It's very amply stated by respondents that other kinds of political insignia including the iron cross were worn in the schools that they were not covered by this policy, that there was no policy covering them, that it was simply this one policy against the wearing of the armbands in this context.
Now, counsel indicates that there was some sort of explosive situation which made this as a special circumstance.
I can't of course recite to the record to prove a negative.
I can just simply say that I don't believe that the record supports that kind of a situation.
Justice Hugo L. Black: But if that's a valid rule it was an explosive situation and a disruption was it not?
If it's a valid rule.
Mr. Johnston: Yes, Your Honor it is but our point is that the rule is not valid.
Justice Hugo L. Black: That's right.
Mr. Johnston: Because it's based --
Justice Hugo L. Black: It gets back to that issue?
Mr. Johnston: -- and because it's based solely upon a Fourteenth Amendment alone type stand of reasonableness.
And this Court --
Justice Hugo L. Black: But I must say I agree to some of the implication of my Brother Fortas about that reasonableness rule.
I don't think that case has been cited approvingly in many, many years.
And I think the Court was very careful to say this morning that it wasn't citing that case to allow.
Mr. Johnston: Well, for instance in the case of -- in the Barnette case which we've cited in the brief which was the case of the compulsory flag salute.
This Court specifically said that mere Fourteenth Amendment test of reasonableness are not sufficient in the schools when the students are engaged in something or where the conduct involves something that's privilege under the First Amendment.
That's the suggestion we have here.
Now, the reasons for the school board establishing the regulation are set out in page 70 of the record at quite some length by a document promulgated by the school board itself.
Counsel referred to them, those reasons which were by the way passed or at least reduced the paper after the suspensions in a week after the suspensions.
Simply to my reading of the decisions of this Court do not provide sufficient grounds for the subordination of freedom of expression.
Justice Hugo L. Black: Well, is it your view that your State of Iowa is without power if it sees fit, to ban political discussions in the school hours where children are being taught?
Mr. Johnston: It would not -- it has that power.
I believe it has the power but it's not necessary in this case because that's not what they've done, Your Honor.
They've banned only the discussion in one specific instance and that's all there is.
Now, I --
Justice Hugo L. Black: Yes.
Justice Potter Stewart: You have almost an equal protection argument now.
Mr. Johnston: Excuse me, Your Honor.
Justice Potter Stewart: You have something close to an equal protection argument?
Mr. Johnston: In addition to the other argument that I want to make and that is -- and I believe the stronger argument is not the equal protection argument, not the censorship by discrimination argument Mr. Justice Black has called it.
But as a matter of fact the stronger argument is that the interest of the state sought to protect whatever that may have been it's set out on page 70 of the record simply was not sufficient where as it might have been sufficient to justify the suppression of something it was privileged under the First Amendment.
Justice Hugo L. Black: Well, now you have the real interest that the state is trying to protect is the right of the state authorities and the teachers to ran the schools and establish the rules for teaching rather than the pupils.
Isn't that the interest it's trying to protect?
Mr. Johnston: Your Honor, I don't read that from the record.
I believe that -- I believe in the record to what the school wants.
Justice Hugo L. Black: Which do you think has the most right about control in the school, the pupils and their policies and teaching, the pupils or the authorities that are running the school?
Mr. Johnston: The authorities that are running the schools under the authority given by them by the Constitution of the United States and within the provisions of that Constitution.
And the whole number of our case is that they of course that they've exceeded their powers under that.