Monthly Archives: October 2016

Hazelwood School District v. Kuhlmeier: Principal Edit Newspaper (01/13/1988)

Hazelwood School District v. Kuhlmeier

Did the principal’s deletion of the articles violate the students’ rights under the First Amendment?

Argued: 10/13/1987

Decision Date: 01/13/1988

Decision Record: 5-3; no

Justices in Favor: William Brennan, Thurgood Marshall, Harry Blackmun

Justices Dissenting: William Rehnquist, Byron White, John Paul Stevens, Sandra Day O’Connor, Antonin Scalia

Effect of the Decision

This case clarifies that school administrators have the right to revise school newspapers if it contains content that may be inappropriate.

In Favor

In representation of the Hazelwood School District, attorney Robert P. Baine argued, “This case come before the Court to resolve the issue of whether a school-sponsored high school newspaper produced and published by a journalism class as a part of the school adopted curriculum under a teacher’s supervision and subject to a principal’s review is a public forum for the purpose of the First Amendment.

During the 1982-1983 school year, the Hazelwood East curriculum included two journalism classes, Journalism I and Journalism II.

And I think that is really the issue that is here before the Court is whether or not the school having adopted a curriculum matter in the teaching of journalism through a textbook and through a classroom setting where the teacher according to the written curriculum attended both the original teaching involving the textbook course which was Journalism I and then in Journalism II continued with that same class.”


Then in opposition, representing Kuhlmeier, attorney Leslie D. Edwards claims, “In 1777 in Philadelphia at the Public Latin School was the first student newspaper called the Students Gazette that we at least have a record of today, ten years before the Constitution, before the First Amendment was added.

Four authors for the purposes of advice both foreign and domestic for the reason of the great want of a weekly newspaper got together as students expressing their opinions, and recording who won certain political elections for the state assembly.

The essence of their ability to put out a student newspaper was their right to communicate with each other, with other students, as well as with other members of the school community.

It is an institution that existed before the First Amendment, and I think that the fact, and Mr. Baine did not mention this at all, that this is a newspaper has to have some effect upon how the Court looks at the issues.”


The majority opinion slip was written by Justice Byron White. He wrote, “We also conclude that Principal Reynolds acted reasonably in requiring the deletion from the May 13 issue of Spectrum of the pregnancy article, the divorce article, and the remaining articles that were to appear on the same pages of the newspaper.

The initial paragraph of the pregnancy article declared that “[a]ll names have been changed to keep the identity of these girls a secret.” The principal concluded that the students’ anonymity was not adequately protected, however, given the other identifying information in the article and the small number of pregnant students at the school. Indeed, a teacher at the school credibly testified that she could positively identify at least one of the girls and possibly all three. It is likely that many students at Hazelwood East would have been at least as successful in identifying the girls. Reynolds therefore could reasonably have feared that the article violated whatever pledge of anonymity had been given to the pregnant students. In addition, he could reasonably have been concerned that the article was not sufficiently sensitive to the privacy interests of the students’ boyfriends and parents, who were discussed in the article but who were given no opportunity to consent to its publication or to offer a response. The article did not contain graphic accounts of sexual activity. The girls did comment in the article, however, concerning their sexual histories and their use or nonuse of birth control. It was not unreasonable for the principal to have concluded that such frank talk was inappropriate in a school-sponsored publication distributed to 14-year-old freshmenand presumably taken home to be read by students’ even younger brothers and sisters.

The student who was quoted by name in the version of the divorce article seen by Principal Reynolds made comments sharply critical of her father. The principal could reasonably have concluded that an individual publicly identified as an inattentive parent–indeed, as one who chose “playing cards with the guys” over home and family–was entitled to an opportunity to defend himself as a matter of journalistic fairness. These concerns were shared by both of Spectrum’s faculty advisers for the 1982-1983 school year, who testified that they would not have allowed the article to be printed without deletion of the student’s name.

Principal Reynolds testified credibly at trial that, at the time that he reviewed the proofs of the May 13 issue during an extended telephone conversation with Emerson, he believed that there was no time to make any changes in the articles, and that the newspaper had to be printed immediately or not at all. It is true that Reynolds did not verify whether the necessary modifications could still have been made in the articles, and that Emerson did not volunteer the information that printing could be delayed until the changes were made. We nonetheless agree with the District Court that the decision to excise the two pages containing the problematic articles was reasonable given the particular circumstances of this case. These circumstances included the very recent replacement of Stergos by Emerson, who may not have been entirely familiar with Spectrum editorial and production procedures, and the pressure felt by Reynolds to make an immediate decision so that students would not be deprived of the newspaper altogether.

In sum, we cannot reject as unreasonable Principal Reynolds’ conclusion that neither the pregnancy article nor the divorce article was suitable for publication in Spectrum. Reynolds could reasonably have concluded that the students who had written and edited these articles had not sufficiently mastered those portions of the Journalism II curriculum that pertained to the treatment of controversial issues and personal attacks, the need to protect the privacy of individuals whose most intimate concerns are to be revealed in the newspaper, and “the legal, moral, and ethical restrictions imposed upon journalists within [a] school community” that includes adolescent subjects and readers. Finally, we conclude that the principal’s decision to delete two pages of Spectrum, rather than to delete only the offending articles or to require that they be modified, was reasonable under the circumstances as he understood them. Accordingly, no violation of First Amendment rights occurred.”

On the other hand, the dissenting opinion slip was written by Justice William Brennan. He wrote, “The Court opens its analysis in this case by purporting to reaffirm Tinker’s time-tested proposition that public school students “do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.'” (quoting Tinker, supra, at 506). That is an ironic introduction to an opinion that denudes high school students of much of the First Amendment protection that Tinker itself prescribed. Instead of “teach[ing] children to respect the diversity of ideas that is fundamental to the American system,” Board of Education v. Pico, and “that our Constitution is a living reality, not parchment preserved under glass,” Shanley v. Northeast Independent School Dist., Bexar Cty., Tex., the Court today “teach[es] youth to discount important principles of our government as mere platitudes.” West Virginia Board of Education v. Barnette,The young men and women of Hazelwood East expected a civics lesson, but not the one the Court teaches them today.”


My Opinion:

In this case, I agree with the majority’s decision. Yes, students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” However, student’s do not get the same breadth of their rights at school like they do outside of the schoolhouse gate. For example, students don’t get to enjoy the Second Amendment right to bear arms, nor can they leave in the middle of a school lesson in order to go attend a protesting.

The principal had the right to revise the school newspaper, especially if it consisted of content he thought was not fit for the rest of the school, who may not be mature enough to handle that section of the newspaper. This does not violate a student’s freedom of speech. If a newspaper contains an article that talks about inappropriate content that would be best if not viewed by the students, it should come as no surprise when the principal or administrator gets rid of it.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

United States v. Nixon: “Executive Privilege” (07/24/1974)

United States v. Nixon

Is the President’s right to safeguard certain information, using his “executive privilege” confidentiality power, entirely immune from judicial review?

Argued: 07/08/1974

Decision Date: 07/24/1974

Decision Record: 8-0; no

Justices in Favor: None

Justices Dissenting: Warren Burger, William Douglas, William Brennan, Potter Stewart, Byron White, Thurgood Marshall, Harry Blackmun, Lewis Powell

Justice William Rehnquist did not participate.

Effect of the Decision

This case holds that the president does not have immunity to the power of judicial review using his/her “executive privilege.”

In Favor

In representation of the United States, attorney Leon Jaworski claimed, “On March 1 last, United States District Court grand jury, set it here, returned an indictment against seven defendants charging various offenses including among them a conspiracy to defraud the United States and also to obstruct justice.

John Mitchell, one of the defendants, was a former Attorney General of the United States and also Chairman of the Committee to Reelect the President.

Another, H.R. Haldeman, was the President’s Chief of Staff.

Another, John Ehrlichman, was Assistant to the President for Economic — for Domestic Affairs.

The others were either on the President’s staff or held responsible positions on the Reelection Committee.

In the course of its deliberations, the grand jury voted unanimously with 19 members concurring that the course of events in the formation and continuation of the conspiracy was such that President Nixon, among a number of others, should be identified as an unindicted co-conspirator in the Bill, particular as to be filed in connection with the pretrial proceedings.

Now, although this particular decision and determination on the part of the grand jury occurred in February, it was a well-kept secret for two-and-a-half months.

The grand jury, of course, knew it.

The members of the prosecution staff knew it.

It was done so to avoid affecting the proceedings in a House Judiciary Committee.

It was so kept during these two-and-a-half months until it became necessary to reveal it as a result of the President’s motion to quash a subpoena, as I will indicate subsequently in my argument.

Now, to obtain addition evidence which the Special Prosecutor has good reason to believe is in the possession of and under the control of the President and which it is believed by the Special Prosecutor as quite important to the development of the government’s proof at the trial in United States versus Mitchell.

A Special Prosecutor, on behalf of the United States, moved for a subpoena duces tecum.

And, it is the subpoena here in question.

The District Court ordered the subpoena to issue returnable on May 2 and the subpoena, of course, called for the production of tape recordings in advance of September 9, 1972, which is a trial date.

And, this was done to allow time for litigation in the event litigation was to ensue over the production of the tapes and also for transcription and authentication of any tape recordings that were produced in response to the subpoena.

On April 30, the President released to the public and submitted to the House Judiciary Committee 1,216 pages of edited transcripts of 43 conversations dealing with Watergate.

Portions of 20 of the subpoenaed conversations were included among the 43.

Then, on May 1, the President advised counsel to file a special appearance, a formal claim of privilege, and a motion to quash a subpoena.

Now for the United States to conduct a full and appropriate hearing on a motion to quash the subpoena, it became necessary to reveal the grand jury’s finding regarding the President.

And, this was first done by the Special Prosecutor calling on the Chief of Staff, General Alexander Haig, and the President’s counsel, Mr. St. Claire, and advising them of what had occurred two-and-a-half months prior.

And then, on the following morning, advising Judge Rico of what had occurred in camera and pointing out at the necessity of this being used in connection with the arguments on a motion to quash because of their relevance and the necessity of these matters being made a part of the proceeding.

Now, the Special Prosecutor joined counsel for the President in urging that matter be heard in camera, which, was done.

Three of the defendants had joined the Special Prosecutor in moving for the subpoena.

All of the defendants, at the time of argument in camera to Judge Sirica, opposed the motion to quash.”

Then, also advocating for the United States, attorney Philip A. Lacovara argued, “If I may, I would like to advert first to procedural questions that Mr. Blackmun and Mr. Justice Stewart have raised about whether the mandamus case is properly here.

Mr. Justice, we did, in our certiorari petition, refer to the fact that we were trying to bring before the court for review before judgment in the Court of Appeals the order of the District Court which we said the President had tried to obtain review of in two ways in two cases in the Court of Appeals, and we gave the docket numbers of those two cases.

And, that certiorari petition was filed on May 24 and Judge Sirica, who was the respondent as Justice Stewart properly notes in the mandamus case in the Court of Appeals, was served with a copy of the certiorari petition as he had been served with the mandamus petition as, indeed, had all the respondents who were otherwise before the court, the defendants in United States against Mitchell.

On May 28 in accordance with a motion that was filed in a Court of Appeals, a copy of which I believe is in the files of this court, the Court of Appeals transmitted to this court the records in both of those cases, the appeal, and the mandamus cases.

Now, Mr. Justice Stewart, with respect to Judge Sirica’s appearance here, he is a party before this court and I believe there is a letter on file with the clerk of this court from Judge Sirica in which he states that he will not appear separately the United States through the Special Prosecutors appearing on behalf of Judge Sirica as, indeed, we would have in the Court of Appeals to uphold his decision enforcing our subpoena.

So the case, procedurally, is properly before the court both with respect to the appeal and the mandamus proceedings.”


Then in opposition, representing President Nixon, attorney James St. Clair said, “My learning brothers approached this case I think in the traditional point of view, namely, this is an attempt by a Special Prosecutor to obtain what he thinks is desirable evidence in a criminal prosecution that he has a responsibility for.

Not once, however, did I heard him mention what I think is really involved, at least in a significant part and that is the co-pendency of the impeachment proceedings before the House of Representatives.

And, the realistic fusion that has taken place with respect to these two proceedings and the promise of continued fusion, as I understand my brother’s position.”


The decision, in this case, was unanimous in the side of the United States. Written by Justice Warren Burger, the opinion slip said, “In this case, we must weigh the importance of the general privilege of confidentiality of Presidential communications in performance of the President’s responsibilities against the inroads of such a privilege on the fair [p712] administration of criminal justice. [n19] The interest in preserving confidentiality is weighty indeed and entitled to great respect. However, we cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution. [n20]

On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the court. A President’s acknowledged need for confidentiality [p713] in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts, a criminal prosecution may be totally frustrated. The President’s broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases.

We conclude that, when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.”

My Opinion:

In this case, I agree with the majority decision. Nixon committed a crime, and like any criminal, he deserved to be punished. His “executive privilege” does not grant him immunity from the power of judicial review. “Executive privilege” is a power held by the president of the United States and gives him/her the “privilege” to withhold certain information to the public. However, the crime that Nixon committed did not involve any knowledge he already had; on the contrary, actually. He was attempting to gain information illegally. Therefore, his “executive privilege” was not applicable.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right


Riley v. California: Warrantless Cell Phone Search (06/25/14)

Riley v. California

Was the evidence admitted at trial from Riley’s cell phone discovered through a search that violated his Fourth Amendment right to be free from unreasonable searches?

Argued: 04/29/2014

Decision Date: 06/25/2014

Decision Record: 9-0; yes

Justices in Favor: John Roberts (RC*), Antonin Scalia, Anthony Kennedy (LC), Clarence Thomas (R), Ruth Bader Ginsburg (L), Stephen Breyer (L), Samuel Alito (R), Sonia Sotomayor (L), Elena Kagan (LC)

Justices Dissenting: None


Effect of the Decision

This case holds that warrantless cell phone searches are a violation of the Fourth Amendment.


In Favor

In representation of Riley, attorney Jeffrey L. Fisher argued, “This case involves applying the core protection of the Fourth Amendment to a new factual circumstance.

It has always been the case that an occasion of an arrest did not give the police officers authority to search through the private papers and the drawers and bureaus and cabinets of somebody’s house, and that protection should not evaporate more than 200 years after the founding because we have the technological development of smartphones that have resulted in people carrying that information in their pockets.”


Then in opposition, representing the state of California, attorney Edward C. DuMont said, “As Mr. Fisher has said, if Mr. Riley had been carrying physical photographs in his pocket at the time of his arrest, there’s no dispute that arresting officers could have looked at those photographs to see whether they contained evidence of crime.

Now, what would have been reasonable in that situation does not become constitutionally unreasonable simply because Mr. Riley instead carried his photographs in digital form on a smartphone.

The shifted digital format does not make the photographs any less his papers.”


The majority in this case was unanimous on the side of Riley. In the opinion slip, written by Chief Justice John Roberts, he said, “

Our cases have recognized that the Fourth Amendment was the founding generation’s response to the reviled “general warrants” and “writs of assistance” of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity. Opposition to such searches was in fact one of the driving forces behind the Revolution itself. In 1761, the patriot James Otis delivered a speech in Boston denouncing the use of writs of assistance. A young John Adams was there, and he would later write that “[e]very man of a crowded audience appeared to me to go away, as I did, ready to take arms against writs of assistance.” 10 Works of John Adams 247–248 (C. Adams ed. 1856). According to Adams, Otis’s speech was “the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.” Id., at 248 (quoted in Boyd v. United States, 116 U. S. 616, 625 (1886) ).

Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.”

My Opinion:

In this case, I agree with the majority. A warrantless phone search violates a person’s Fourth Amendment rights, which protects a person from unreasonable searches. The Fourth Amendment also requires a warrant in order for the police to search someone or something. Not only does a warrantless phone search violate a person’s constitutional right, but also their privacy. Unless the police has a warrant to search the phone, then searching the phone would be considered a violation of one’s privacy.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right


Swann v. Charlotte-Mecklenburg Board of Education: Federal Courts Remedying Segregation (04/20/1971)

Swann v. Charlotte-Mecklenburg Board of Education

Were federal courts constitutionally authorized to oversee and produce remedies for state-imposed segregation?

Argued: 10/12/1970

Decision Date: 04/20/1971

Decision Record: 9-0; yes

Justices in Favor: Warren Burger, Hugo Black, William Douglas, John Harlan, William Brennen, Potter Stewart, Byron White, Thurgood Marshall, Harry Blackmun

Justices Dissenting: None


Effect of the Decision

This case clarifies that federal courts are constitutionally authorized to amend state-imposed segregation.


In Favor

In representation of Swann, attorney Julius Levonne Chambers argued, “The Fourth Circuit adopted a new reasonableness test, approved the plan of the District Court for the junior and senior high schools, and vacated the decision and directed further consideration of a plan for the elementary schools requiring that the District Court apply a reasonableness test.

The plaintiff’s petitioned this Court for certiorari, this Court granted certiorari in Number 281 on June 30, reinstated the District Court’s plan of desegregation and authorized further hearing by the District Court as had been directed by the Fourth Circuit.

The District Court conducted further hearings during July 1970.

And on August 3, 1970, applying the Fourth Circuit’s new test of reasonableness found a plan and had directed in February 1970 to be reasonable and reinstated its February 5th order.

The school board appealed to the Fourth Circuit and petitioned this Court for certiorari prior to the decision by the Fourth Circuit.

This Court granted that petition on October 6th, along with the petition of the school board to review the plan of the court with respect to the junior and senior high schools which the Fourth Circuit had approved as reasonable.

The court therefore has before it, the complete plan of the District Court which had been directed in February 1970, and re-approved by the District Court on August 3rd, 1970.

We think that the decision of the District Court can be sustained under the equitable discretion of that court as authorized by Brown.

We submit however, that the constitutional principles by which the District Court was guided particularly the requirement for the elimination of all Black and racially identifiable Black schools.

On this record and under the circumstances of this case, we’re clearly correct and should be sustained by this Court.”


Then in opposition, representing the Charlotte Mecklenburg Board of Education, attorney Erwin N. Griswold claims, “It has been a long road, we’ve made substantial progress and this is evidenced by the fact that few today question the central rightness of the decision which was reached by this Court in Brown against the Board of Education 16 years ago.

It’s true that 16 years have passed, but in this connection that may be observed that the Brown case itself was twice argued in this Court, and before the initial decision, that it was pending here for two-and-a-half years before it was decided.

It was also here in additional year or a total of three-and-a-half years when the case was set down for further argument with respect to remedy.

For many years, there was a serious problem simply in getting the decision accepted.

I need not recall Little Rock and Oxford in the confrontation at the University of Alabama.

All of that is in the past now, and fortunately and wisely so.

Because of this situation, the court has only recently had occasioned to consider the many problems of detail, which arise in the application of the Brown decision.

On the basis of a careful survey, I find that there are 25 school cases which have been decided on the merits by this Court in the 16 years since Brown was decided.

Many of these are per curiam decisions.

One was Cooper and Aaron which arose out of the Little Rock situation.

Other cases involved various aspects of so-called massive resistance and interposition, such as Bush against the Orleans Parish School Board.

Then only six years ago, in Griffin against Prince Edward County, the court held the schools could not be closed while public money was meant to support private White only schools.

During these years, many hundreds of cases were decided in lower federal courts and great determination and courage was shown there.

Not until recently, however, has this Court had occasioned to focus on detailed aspects of the problem.

At first in the Brown case, there was only the start question, whether legally enforced segregation was consistent with the constitution.

This Court rightly held that it was not.

The problem was inappropriately remitted to the school boards and the local courts to work out the details.

As might be expected, it has been found to be a vastly complex problem.

One can look at it first with a glass, and then with the microscope, and the complexities and the infinite variations soon appear.

Actually, it has been only in the past few years that this Court has had occasion to deal with any of these matters of application in detail.

For many years, school boards and the courts too, to a considerable extent had felt that compliance was reached under freedom of choice plans.

It was only two years ago last May that the court held that freedom of choice plans alone were not adequate when they did not achieve a unitary school system.

As for one reason or another, they almost never do.

And it was only a year ago last June in the Montgomery County Board of education case that the court held for the first time, that a District Court could properly require allocation of White and Black faculty members in equal proportions to all schools.

And there is nothing which more clearly marks a school as Black as that it has a wholly Black faculty.

Now, we have another problem, in the application of the Brown decision, an extremely important and difficult problem.

I think I can put the issue this way without too much over simplification.

What is the standard to be applied, or the objective to be sought by a school board or by a court in reviewing what the school board has done is the standard or objective to achieve racial balance?

Or on the other hand, is the standard or objective to disestablish a dual school system and to achieve a truly unitary system.

Our position is that the latter is the correct formulation of the objective.

We cannot find more in the constitutional command of Equal Protection of the laws or of Due Process of law which as far as I know, are the only constitutional provisions and likewise the most specific constitutional provisions involved in this case.

Before going further, I would like to make it as plain as I can that this not a retreat.

There must not be a retreat in this area, where so much has already been done to redeem the promise of America.

I recognized too that determining what is truly a unitary school system may in actual cases present practical problems of very great difficulty.

My central position is that there is not any basis for saying that this can only be achieved through racial balance.

At this point, I would like to observe that counsel for the petitioners disclaim the phrase racial balance, both in their briefs and in the argument today, but I find a passage in a brief which was filed late last week.

Actually it’s in number 436, the Mobile case which will be argued tomorrow, this is a supplemental brief for the petitioners in Mobile on page three, where at the bottom of the page, the same counsel say, petitioners submit that Mobile’s experience under the Fifth Circuit plan underscores and this is — it seems to me, their statement of their contention.”


The majority in this case was unanimous in the side of Swann. In the opinion slip, written by Chief Justice Warren Burger wrote, “The Court of Appeals, searching for a term to define the equitable remedial power of the district courts, used the term “reasonableness.” In Green, supra, this Court used the term “feasible,” and, by implication, “workable,” “effective,” and “realistic” in the mandate to develop “a plan that promises realistically to work, and . . . to work now.” On the facts of this case, we are unable to conclude that the order of the District Court is not reasonable, feasible and workable. However, in seeking to define the scope of remedial power or the limits on remedial power of courts in an area as sensitive as we deal with here, words are poor instruments to convey the sense of basic fairness inherent in equity. Substance, not semantics, must govern, and we have sought to suggest the nature of limitations without frustrating the appropriate scope of equity.

At some point, these school authorities and others like them should have achieved full compliance with this Court’s decision in Brown I. The systems would then be “unitary” in the sense required by our decisions in Green and Alexander.

It does not follow that the communities served by such systems will remain demographically stable, for, in a growing, mobile society, few will do so. Neither [p32] school authorities nor district courts are constitutionally required to make year-by-year adjustments of the racial composition of student bodies once the affirmative duty to desegregate has been accomplished and racial discrimination through official action is eliminated from the system. This does not mean that federal courts are without power to deal with future problems; but, in the absence of a showing that either the school authorities or some other agency of the State has deliberately attempted to fix or alter demographic patterns to affect the racial composition of the schools, further intervention by a district court should not be necessary.

For the reasons herein set forth, the judgment of the Court of Appeals is affirmed as to those parts in which it affirmed the judgment of the District Court. The order of the District Court, dated August 7, 1970, is also affirmed.”

My Opinion:

In this case, I agree with the majority. The lower courts should be allowed to attempt to solve for state-imposed segregation. They have the authority to make those type of decisions. The state-imposed segregation should not have been “imposed” in the first place. The Fourteenth amendment specifically states that all citizens have equal protection of the law. Segregation would be a violation of that. Therefore, federal courts should be constitutionally authorized to rectify state-imposed segregation.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right


Tinker v. Des Moines: Protesting At School With Armbands (02/24/1969)

Tinker v. Des Moines

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?

See First Amendment for more.  

Argued: 11/12/1968

Decision Date: 02/24/1969

Decision Record: 7-2; yes

Justices in Favor: Earl Warren, William Douglas, William Brennan, Potter Stewart, Byron White, Abe Fortas, Thurgood Marshall

Justices Dissenting: Hugo Black, John Harlan


Effect of the Decision

This case protects students’ constitutional right to the First Amendment when they are at school.


In Favor

In the affirmation side, representing Tinker, attorney Dan L. Johnston argued, “This is 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 petitioners 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 had been announced to the schools that they would wear the armbands as a matter of conscience to express the views that they had.

Christopher Eckhardt and Mary Beth Tinker wore theirs on the first day.

Mr. Eckhardt went to school, had the armband on, knowing of the policy against the wearing of the armbands, because as I say it had 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 it.

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, 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 had 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 – the Des Moines public schools and they requested that he call a special meeting of the board of directors, the school board as we call it, for the purpose of trying 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.”


On the side of the opposition, Des Moines Independent Community  School, attorney Allan A. Herrick claimed, “The respondents believe that there are two basic issues involved here.

The first, the school administrators, or school boards have to wait until violence, disorder and disruption break out and the scholarly discipline of the school is disrupted or may they act when in good faith in their reasonable discretion and judgment, disorder and disruption of the scholarly atmosphere of the schoolroom will result unless they act firmly and promptly.

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.”


The majority opinion slip was written by Justice Abe Fortas. He wrote, “The record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred. These petitioners merely went about their ordained rounds in school. Their deviation consisted only in wearing on their sleeve a band of black cloth, not more than two inches wide. They wore it to exhibit their disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them. They neither interrupted school activities nor sought to intrude in the school affairs or the lives of others. They caused discussion outside of the classrooms, but no interference with work and no disorder. In the circumstances, our Constitution does not permit officials of the State to deny their form of expression.

Then in the dissenting side, Justice Hugo Black wrote, “The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws. The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus, the Amendment embraces two concepts — freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society.”

Also in dissent, Justice John Harlan wrote, “I certainly agree that state public school authorities, in the discharge of their responsibilities, are not wholly exempt from the requirements of the Fourteenth Amendment respecting the freedoms of expression and association. At the same time, I am reluctant to believe that there is any disagreement between the majority and myself on the proposition that school officials should be accorded the widest authority in maintaining discipline and good order in their institutions. To translate that proposition into a workable constitutional rule, I would, in cases like this, cast upon those complaining the burden of showing that a particular school measure was motivated by other than legitimate school concerns — for example, a desire to prohibit the expression of an unpopular point of view, while permitting expression of the dominant opinion.

Finding nothing in this record which impugns the good faith of respondents in promulgating the armband regulation, I would affirm the judgment below.

My Opinion:

In this case, I would have to agree with the majority opinion. The students were merely using their right of expression. Students’ First Amendment rights should not be taken away because they are at school. The First Amendment clearly grants every citizen the freedom of speech and assembly. 

Not allowing these students to express their thoughts would be violating their constitutional right, which goes completely against the constitution. Therefore, these students had the right to wear armbands and protest, and the school contravened that right by suspending them.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right