Rights at Risk: The Limits of Liberty in Modern America (Vintage)

by David K. Shipler

  CHAPTER EIGHT

  Inside the Schoolhouse Gate

  It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.

  —Justice Abe Fortas, for the majority in Tinker

  The schools of this Nation have undoubtedly contributed to giving us tranquility and to making us a more law-abiding people. Uncontrolled and uncontrollable liberty is an enemy to domestic peace.

  —Justice Hugo Black, for the minority in Tinker

  TINKER’S ARMBAND

  IF PUBLIC SCHOOLS were devoted to teaching children to think independently, this chapter would not have to be written. Principals would not suspend students for the mildest of political protests, school newspapers would not be censored, plays and books would not be banned, and classrooms would be sanctuaries of challenging discussion. The American roots of free speech would be nourished in a rich soil tilled by adults keen to cultivate the next generation of citizens.

  In many schools, however, order is prized above invention—not everywhere and not all the time, but it’s too often the case, especially at crucial moments of national stress. Conformity is valued over protest, harmony over discord, even apathy over activism. So confining is the territory of acceptable debate that students rarely have to consider their own ideas, much less the dissenting views of others.

  That is the way most Americans want it. Three-quarters believe that students should not be allowed to wear T-shirts that offend others, polls show. Just over half believe that school newspapers should not be allowed to report on controversial subjects without permission from school authorities, and such censorship is supported by even more teachers and principals—61 and 75 percent, respectively.1

  Students themselves care insufficiently about the freedoms contained in the First Amendment, according to a survey of more than 100,000 in 544 high schools. Although 83 percent say that “people should be allowed to express unpopular opinions” and 70 percent believe that offending song lyrics should be permitted, only 51 percent agree that the country’s “newspapers should be allowed to publish freely without government approval of stories.” Three-quarters of all students believe erroneously that flag burning is illegal.

  The more actively students participate in school media, the stronger their support for First Amendment rights, yet as financially strapped schools have closed student publications and Web sites, the organized opportunities to practice free speech have dwindled: only 79 percent of schools now have any kind of student-run media.2

  The Bill of Rights is in our culture but not in our genetic code, so it has to be relearned by every generation. Even free speech, the right Americans most actively use, is not being instilled as a compelling value by the state-required American history courses or by youngsters’ daily school experience. If the right is not taught and exercised until it becomes an intuitive ingredient of being American, it gradually succumbs to peer pressure, institutional hierarchy, and apathy.

  Furthermore, schools that deny rights harm the larger constitutional enterprise. The mission of “educating the young for citizenship,” as Justice Robert H. Jackson wrote, “is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount principles of our government as mere platitudes.”3 This is a truism, yet the courts have to keep reminding school authorities to observe the First Amendment.

  Jackson’s words came in the Supreme Court’s landmark opinion overturning a mandate that students salute the flag, the 1943 case West Virginia State Board of Education v. Barnette. Five years later, I began first grade, starting each day without ever being told that I could refuse to stand and dutifully recite the Pledge of Allegiance, my hand over my heart. The Supreme Court’s grant of free choice never reached my classrooms, or those of most other pupils in the country, I suspect. Principals and teachers don’t often advertise this particular piece of liberty.

  I might have gone along even if I’d known, and not only because I never minded saluting the flag. I revere what it represents. But also, recalcitrance comes hard when your peers are all standing, and the coercive atmosphere isn’t relieved unless school officials clearly announce that you’re allowed to go against the flow. Several North Carolina parents complained in 2006 that their children were being forced to observe the ritual, despite a state law that required the ceremony but also declared that a public school “shall not compel any person to stand, salute the flag, or recite the Pledge of Allegiance.” That’s the standard escape clause, which keeps such statutes constitutional. Only after the local American Civil Liberties Union complained did the chairman of the state board of education remind principals and superintendents that students have a choice.

  Other schools make the option clear. At Sammamish High in Bellevue, Washington, all the kids seemed to know their right, said Katie Piper, a teacher, so while everyone in her homeroom stood, she and a few others stayed silent, and nobody appeared bothered. Since about 30 percent of the students were children of foreigners, compulsion would have forced a charade as unjust and untrue as requiring an American in Paris to pledge allegiance to the flag of France. Foreign students, puzzled the first time the pledge suddenly crackled through the PA system at Sammamish, were let off the hook. “I explained what it was,” Piper recalled, “and told them they didn’t have to say it.”

  The country is a crazy quilt of conformity and rebellion, observance and indifference. Even at the height of nationalistic fervor following September 11, only one of twenty-five students in a class at West High in Madison, Wisconsin, “stood at attention during a tinny rendition of ‘The Star-Spangled Banner,’ ” Mark Singer observed in The New Yorker. “Four boys made a point of leaving the room before the music began. Two others walked in a bit tardily, self-consciously surveyed the scene for a few seconds, and then slid into their chairs.” Patriotism didn’t rely on ritual, one student told Singer: “I’m probably thinking more about my country than those who stand. I’m thinking that I’m grateful to live in a nation where I have the ability to sit or stand.”4

  Nevertheless, in this and other forms of free speech, principals and boards of education routinely ignore Supreme Court precedent, usually without challenge. They set limits that most students never test, and few youngsters who hit obstacles take the trouble to sue. The visible cases are just small outcroppings, leaving a vast bedrock of enforced orthodoxy beneath the surface. Few want to go to court and sacrifice time, money, and comfort. Students who bring a tremor to the foundation of a town’s unquestioned assumptions are sometimes subjected to ridicule and threats, sometimes even to the penalty of lowered grades.

  John Tinker learned that lesson at age fifteen. Soon after the United States committed ground troops to Vietnam in 1965, he journeyed by bus from Des Moines to a protest march in Washington. He came from a family distinguished in such matters—a mother, Lorena Jeanne, repelled by the raw racism she had seen as a child in segregated South Texas, who grew into a civil rights and peace activist; a father, Leonard, a Methodist minister who had been dismissed by two congregations for standing on integrationist principles that seem sturdy today but were shaky platforms half a century ago.

  In Atlantic, Iowa, where the only black family in town was excluded from the municipal swimming pool, John’s mother led the church youth group in an appeal to the city council to admit the family. The council refused, “and my father’s church asked him to leave because they said that he was causing trouble,” Tinker recalled.5 Relocating to an all-white church in a racially mixed Des Moines neighborhood, John’s mother again sparked controversy by inviting black residents to services. When some came, whites in the congregation showed the good reverend that door, too. He went to work as the peace education secretary for the American Friends Service Committee.

  So young Tinker had absorbed the spirit of protest. On the bus home from the 1965 march in Washington, he and
others brainstormed on how to keep the issue alive, picking up on an idea they’d heard from college students: black armbands to mourn the war deaths. After Senator Robert F. Kennedy then urged a Christmas truce, John and his friends thought the symbol could carry that call as well. They were innocently oblivious to the reaction the gesture might provoke, and never imagined that they were setting the stage for a landmark Supreme Court case that would record the name Tinker in the annals of constitutional law.

  Meeting in groups with their parents, about a dozen students decided to wear simple black pieces of cloth on their sleeves, only to be dealt a preemptive blow. When one of them wrote for his school newspaper about their plans, the faculty adviser notified the principal, who mobilized the five high school principals in Des Moines to issue an advance order banning armbands under penalty of suspension.

  No announcement was made to students; John learned of the ban from an article in The Des Moines Register, and it made him hesitate. “That morning I tried to call people and see if we should put it off a day,” he said, in the hope that they could meet to discuss their plans before proceeding. But he was too late. “Several had already gone to school with armbands and got kicked out.” One of them was his younger sister, Mary Beth, an eighth grader who was told to remove the armband, complied, and was then suspended anyway. Years later, Mary Beth still remembers that the girls’ adviser “was real nice” as she told of her own family’s Quaker background while writing out the suspension notice.

  The plain gesture of protest stirred passions, mobilized friendships, and realigned allegiances. Threats of violence were made in advance, according to Christopher Eckhardt, the third student in the court case. At his school, Roosevelt High, an enraged coach decreed that instead of chanting “Beat East High! Beat North High! Beat Lincoln High!” during calisthenics, his gym classes would mark the day of protest by switching to “Beat the Vietcong!” Eckhardt said. “The coach said anyone wearing a black armband tomorrow will be considered a pinko sympathizer.” So after class, a few rough boys confronted a friend who knew of Eckhardt’s plans but had no intention of participating himself. “Thug elements came up to him and said, ‘You better not wear a black armband tomorrow or you will find my foot up your ass and my fist in your face,’ ” Eckhardt remembered. “He was brave enough to not point me out.” Certain moments in life are burned into memory.

  The next morning, after his father dropped him at school, Eckhardt took off his coat to reveal a black band pinned to his camel jacket, “very noticeable,” he said. As he walked toward the principal’s office to complete his act of civil disobedience and accept the consequences, he heard threats. The football captain tried to rip the armband off, dissuaded only when a companion said, “Let him be, he’s turning himself in.” Nobody on school grounds took up the coach’s implicit call for violence, but two students were beaten at a pizza place.6

  In the office, Eckhardt waited forty-five minutes in full view of the hallway. A couple of passing students taunted him: “You’re dead.” Finally, the assistant principal appeared, asked him to remove the armband, got the expected refusal, and warned, “Do you want a busted nose? That’s how the seniors are going to see it,” as Eckhardt recalled the words. Then he was turned over to the girls’ adviser, who “said, ‘You better start looking for another high school to go to because you’ll never be welcome at this high school,’ ” and that “I would never go to college because colleges refuse to accept protesters.”

  She was wrong. Eckhardt went to six colleges in three states and got his B.A. in 1994.

  John Tinker left his armband off that first day, and after school met with other kids and their parents at Eckhardt’s home. Trying to avoid confrontation, they called the board of education president, whose secretary told them that he wouldn’t lift the order. Students who hadn’t been suspended decided to go ahead anyway.

  The next morning, John walked nervously to North High School, leaving his armband in his pocket out of fear of what someone driving past might do. His two youngest siblings, Hope and Paul, wore armbands to elementary school without any problems from teachers or administrators.

  John eased into his protest gradually. He got to school right at the bell, “and I didn’t have time to put it on. I was self-conscious about having somebody see me do it, so after homeroom I went to the restroom and tried to pin it on. I was having trouble, actually, kind of a one-handed operation, and a fellow came in, saw me working on it, and helped me put it on.”

  The immediate impact was nil. He had decided to look respectable, so he wore a suit and tie, making the black armband inconspicuous against his dark jacket. “I went to morning classes without any mention of it,” he said. “Teachers, if they saw it, they didn’t say anything. I kind of think that some of them thought it was a silly policy, and they didn’t see any point in making it an issue.”

  After gym class he shed his jacket and accentuated the armband by pinning it to his white shirt, then went to lunch in the cafeteria. “There was discussion around the table,” John remembered. “I had friends who supported me; I had friends who disagreed with me about the war but thought I should have the right to do it. Some people came over and gave me a hard time about being a communist or a coward. One guy on the football team, who I barely knew, came over and defended me, and it was really touching. I don’t think he had an opinion one way or the other about the war, but it was a free speech issue.”

  The educational occasion for searching debate over big issues of war and speech didn’t last long. The discussion was cut off when “one of the office workers saw me and reported me,” John said.

  Tinker’s principal, “quite decent” and “somewhat patronizing but not in a bad way,” tried to help him see his error, coaxed him to understand how important supporting the country was in times of war, and urged him to recognize “that I’d been influenced by people I should not be trusting.… I had the impression that he was trying to do the best by me. It was a long conversation, and he said, ‘I’m going to ask you to take it off, but I suspect you won’t take it off.’ I said, ‘Right.’ ” So the principal requested that John leave school, and the boy walked home.

  Christmas break, which began a few days later, was filled with meetings among students, parents, and members of the peace community, and after New Year’s the kids returned without armbands but dressed all in black for the rest of the semester. “To me it was a wonderful example of how you can’t stop communication by stopping a symbol,” John said. “You just find another symbol.”

  Few families were willing to take up the ACLU’s offer of a legal challenge, so the lawsuit bore just three names, John’s, Mary Beth’s, and Chris Eckhardt’s. They asked for only $1 in damages and a declaration that the school policy was unconstitutional. Students at North High, at least, displayed “an amazing lack of any personal rancor,” Tinker recalled, although “some of my teachers were abusive. A teacher said to the class, protesters should be hung up by the thumbs. I know I was graded down in some of the classes,” a penalty that was balanced by a history grade that went from a B to an A when the teacher gave him extra credit for his constitutional exercise. “He told me he was proud of me.” Eckhardt returned to Roosevelt but was denied permission to run for student council president.

  By the time the case reached the Supreme Court in 1969, the public’s support for the war in Vietnam had eroded, and the justices voted 7–2 for a ringing declaration of students’ rights to free speech. Writing for the majority in Tinker v. Des Moines Independent Community School District, Abe Fortas crafted the famous line “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” a principle weakened somewhat by subsequent decisions.7

  Fortas rejected the school authorities’ argument that the potential for disruption gave them the right to censor speech. Officials had worried that friends of a recent graduate killed in the war might react. Schools were no
place for demonstrations. Political opinions should be expressed at the ballot box.

  “In our system,” Fortas ruled, “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, and our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.”

  He noted also that the ban targeted a particular symbol while other students were allowed to wear political buttons and even the Iron Cross of Nazism. “In our system, state-operated schools may not be enclaves of totalitarianism,” Fortas declared for the majority. “School officials do not possess absolute authority over their students.”

  Yet in one sentence, the Court also listed three reasons that expression could be limited in schools: behavior 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.”

  None of those conditions existed in the armband protest, “a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners,” the majority found, with “no evidence whatever of petitioners’ interference, actual or nascent, with the schools’ work or of collision with the rights of other students to be secure and to be let alone.” Administrators must show “something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”