The Black Armband And Free Speech
In 1969, three high school students secured the right for students to wear protest clothing on campuses through Tinker v. Des Moines School District, a landmark Supreme Court decision relevant today as the Israel-Hamas war rages and protests ensue on college campuses.
Reverend Doctor Henry G. Bart, dean emeritus of the Kansas School of Religion, decried the Moratorium to a sympathetic crowd of locals and military personnel gathered in a city park. “They are attacking servicemen and ridiculing what has been accomplished by soldiers from this city and those across the country.” His face became flush with anger as he paused to drive home his point and absorb approving applause.
“Today’s radical demonstration of pacifists and rebels will be an attack on us,” Bart continued. “It will be an attack on what we stand for, what we have always stood for and America itself. I can tolerate appropriate policy disagreements, but there should be a line drawn between dissent and treason.”
As unobtrusive spectators, Buffy and I observed Bart’s answer to the Moratorium, his “patriotic ceremony,” as he called it, that had been hastily organized to preempt a massive campus-wide protest march that would begin in a few hours.
His voice trembling with passion, Bart added, “And today’s dissenters are stepping over the line as are those radicals wearing black armbands to protest the war. They are stepping over the line. Shameful!”
So, what’s the problem with a black armband, anyway?
President Franklin D. Roosevelt wore a black armband following the Japanese attack on Pearl Harbor during the morning hours of December 7, 1941. The unprovoked aerial bombing claimed 2,403 American lives, and 1,178 were wounded. The Japanese also sank eighteen ships, including five battleships. All Americans killed or wounded had been non-combatants because Congress had not formally declared a state of war between the U.S. and Japan.
An unassuming piece of black fabric affixed on Roosevelt’s left arm solidified national outrage and collective mourning over so many soldiers lost during malicious air attacks. America, the “sleeping giant,” awakened, mourned, and prepared for world war. Although the black armband symbolized national mourning and resolve, the president wore it to commemorate the death of his mother, Sara Ann Delano Roosevelt, who had died 90 days earlier. The significance of the president’s black armband took on larger proportions as he signed House Joint Resolution 254, a formal declaration of war.
On December 16, 1965, three teenage students wore black armbands to school in protest of the United States’ commitment to the Vietnam War. The protesting teens included John Tinker, age 15, his sister Mary Beth Tinker, 13, and a family friend, Christopher Eckhardt, 16. The teens were then suspended from their schools as severe punishment for disobeying approved district policies.
The children’s fathers filed a lawsuit with the help of the Iowa Civil Liberties Union. The U.S. District Court upheld the policy set forth by the school board prohibiting students from wearing black armbands. On petition, the U.S. Court of Appeals for the 8th District arrived at a tie vote, which meant that the District Court’s decision would stand. The plaintiffs persisted with their suit despite a low probability of success. Known as Tinker v. Des Moines Independent Community School District, the case was finally argued before the U.S. Supreme Court in November 1968.
On February 24, 1969, the Court favored the plaintiffs with a 7–2 decision that defined the constitutional rights of students in U.S. public schools, specifically the right to free speech. In its landmark decision, this Court concluded that a black armband represents “symbolic speech” and therefore must be protected under the free speech provision of the First Amendment to the U.S. Constitution. Justice Abe Fortas, who wrote the majority decision, declared that students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Known as the Tinker Test, the Court’s judgment is still applied to assess whether a school’s disciplinary actions or prohibitions concerning matters of speech violate students’ Constitutional rights to free speech.
Chapter excerpt from 1969: Are You Still Listening?, © 2019, Brent Green & Associates, Inc. All rights reserved.
