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MR. JUSTICE HARLAN, dissenting.
MR. JUSTICE WHITE, concurring.
MR. JUSTICE STEWART, concurring.
MR. JUSTICE FORTAS delivered the opinion of the Court.
MR. JUSTICE BLACK, dissenting.
The Court's holding in this case ushers in
what I deem to be an entirely new era in which the power to control
pupils by the elected "officials of state supported public
schools . . ." in the United States is in ultimate effect
transferred to the Supreme Court. 1
The Court brought this particular case here on a petition for
certiorari urging that the First and Fourteenth Amendments protect
the right of school pupils to express their political views all
the way "from kindergarten through high school." Here
the constitutional right to "political expression" asserted
was a right to wear black armbands during school hours and at
classes in order to demonstrate to the other students that the
petitioners were mourning because of the death of United States
soldiers in Vietnam and to protest that war which they were against.
Ordered to refrain from wearing the armbands in school by the
elected school officials and the teachers vested with state authority
to do so, apparently only seven out of the school system's 18,000
pupils deliberately refused to obey the order. One defying pupil
was Paul Tinker, 8 years old, who was in the second grade; another,
Hope Tinker, was 11 years old and in the fifth grade; a third
member of the Tinker family was 13, in the eighth grade; and a
fourth member of the same family was John Tinker, 15 years old,
an 11th grade high school pupil. Their father, a Methodist minister
without a church, is paid a salary by the American Friends Service
Committee. Another student who defied the school order and insisted
on wearing an armband in school was Christopher Eckhardt, an 11th
grade pupil and a petitioner in this case. His mother is an official
in the Women's International League for Peace and Freedom.
As I read the Court's opinion it relies upon
the following grounds for holding unconstitutional the judgment
of the Des Moines school officials and the two courts below. First,
the Court concludes that the wearing of armbands is "symbolic
speech" which is "akin to 'pure speech'" and therefore
protected by the First and Fourteenth Amendments. Secondly, the
Court decides that the public schools are an appropriate place
to exercise "symbolic speech" as long as normal school
functions are not "unreasonably" disrupted. Finally,
the Court arrogates to itself, rather than to the State's elected
officials charged with running the schools, the decision as to
which school disciplinary regulations are "reasonable."
Assuming that the Court is correct in holding
that the conduct of wearing armbands for the purpose of conveying
political ideas is protected by the First Amendment, cf., e. g.,
Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949),
the crucial remaining questions are whether students and teachers
may use the schools at their whim as a platform for the exercise
of free speech -- "symbolic" or "pure" --
and whether the courts will allocate to themselves the function
of deciding how the pupils' school day will be spent. While I
have always believed that under the First and Fourteenth Amendments
neither the State nor the Federal Government has any authority
to regulate or censor the content of speech, I have never believed
that any person has a right to give speeches or engage in demonstrations
where he pleases and when he pleases. This Court has already rejected
such a notion. In Cox v. Louisiana, 379 U.S. 536, 554 (1965),
for example, the Court clearly stated that the rights of free
speech and assembly "do not mean that everyone with opinions
or beliefs to express may address a group at any public place
and at any time."
While the record does not show that any of
these armband students shouted, used profane language, or were
violent in any manner, detailed testimony by some of them shows
their armbands caused comments, warnings by other students, the
poking of fun at them, and a warning by an older football player
that other, nonprotesting students had better let them alone.
There is also evidence that a teacher of mathematics had his lesson
period practically "wrecked" chiefly by disputes with
Mary Beth Tinker, who wore her armband for her "demonstration."
Even a casual reading of the record shows that this armband did
divert students' minds from their regular lessons, and that talk,
comments, etc., made John Tinker "self-conscious" in
attending school with his armband. While the absence of obscene
remarks or boisterous and loud disorder perhaps justifies the
Court's statement that the few armband students did not actually
"disrupt" the classwork, I think the record overwhelmingly
shows that the armbands did exactly what the elected school officials
and principals foresaw they would, that is, took the students'
minds off their classwork and diverted them to thoughts about
the highly emotional subject of the Vietnam war. And I repeat
that if the time has come when pupils of state-supported schools,
kindergartens, grammar schools, or high schools, can defy and
flout orders of school officials to keep their minds on their
own schoolwork, it is the beginning of a new revolutionary era
of permissiveness in this country fostered by the judiciary. The
next logical step, it appears to me, would be to hold unconstitutional
laws that bar pupils under 21 or 18 from voting, or from being
elected members of the boards of education. 2
The United States District Court refused to
hold that the state school order violated the First and Fourteenth
Amendments. 258 F.Supp. 971. Holding that the protest was akin
to speech, which is protected by the First and Fourteenth Amendments,
that court held that the school order was "reasonable"
and hence constitutional. There was at one time a line of cases
holding "reasonableness" as the court saw it to be the
test of a "due process" violation. Two cases upon which
the Court today heavily relies for striking down this school order
used this test of reasonableness, Meyer v. Nebraska, 262 U.S.
390 (1923), and Bartels v. Iowa, 262 U.S. 404 (1923). The opinions
in both cases were written by Mr. Justice McReynolds; Mr. Justice
Holmes, who opposed this reasonableness test, dissented from the
holdings as did Mr. Justice Sutherland. This constitutional test
of reasonableness prevailed in this Court for a season. It was
this test that brought on President Franklin Roosevelt's well-known
Court fight. His proposed legislation did not pass, but the fight
left the "reasonableness" constitutional test dead on
the battlefield, so much so that this Court in Ferguson v. Skrupa,
372 U.S. 726, 729, 730, after a thorough review of the old cases,
was able to conclude in 1963:
"There was a time when the Due Process Clause was used by this Court to strike down laws which were thought unreasonable, that is, unwise or incompatible with some particular economic or social philosophy.
. . . .
"The doctrine that prevailed in Lochner, Coppage, Adkins, Burns, and like cases -- that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely -- has long since been discarded."
The Ferguson case totally repudiated the old reasonableness-due process test, the doctrine that judges have the power to hold laws unconstitutional upon the belief of judges that they "shock the conscience" or that they are "unreasonable," "arbitrary," "irrational," "contrary to fundamental 'decency,'" or some other such flexible term without precise boundaries. I have many times expressed my opposition to that concept on the ground that it gives judges power to strike down any law they do not like. If the majority of the Court today, by agreeing to the opinion of my Brother FORTAS, is resurrecting that old reasonableness-due process test, I think the constitutional change should be plainly, unequivocally, and forthrightly stated for the benefit of the bench and bar. It will be a sad day for the country, I believe, when the present-day Court returns to the McReynolds due process concept. Other cases cited by the Court do not, as implied, follow the McReynolds reasonableness doctrine. West Virginia v. Barnette, 319 U.S. 624, clearly rejecting the "reasonableness" test, held that the Fourteenth Amendment made the First applicable to the States, and that the two forbade a State to compel little schoolchildren to salute the United States flag when they had religious scruples against doing so. 3 Neither Thornhill v. Alabama, 310 U.S. 88; Stromberg v. California, 283 U.S. 359; Edwards v. South Carolina, 372 U.S. 229; nor Brown v. Louisiana, 383 U.S. 131, related to schoolchildren at all, and none of these cases embraced Mr. Justice McReynolds' reasonableness test; and Thornhill, Edwards, and Brown relied on the vagueness of state statutes under scrutiny to hold them unconstitutional. Cox v. Louisiana, 379 U.S. 536, 555, and Adderley v. Florida, 385 U.S. 39, cited by the Court as a "compare," indicating, I suppose, that these two cases are no longer the law, were not rested to the slightest extent on the Meyer and Bartels "reasonableness-due process-McReynolds" constitutional test.
I deny, therefore, that it has been the "unmistakable
holding of this Court for almost 50 years" that "students"
and "teachers" take with them into the "schoolhouse
gate" constitutional rights to "freedom of speech or
expression." Even Meyer did not hold that. It makes no reference
to "symbolic speech" at all; what it did was to strike
down as "unreasonable" and therefore unconstitutional
a Nebraska law barring the teaching of the German language before
the children reached the eighth grade. One can well agree with
Mr. Justice Holmes and Mr. Justice Sutherland, as I do, that such
a law was no more unreasonable than it would be to bar the teaching
of Latin and Greek to pupils who have not reached the eighth grade.
In fact, I think the majority's reason for invalidating the Nebraska
law was that it did not like it or in legal jargon that it "shocked
the Court's conscience," "offended its sense of justice,"
or was "contrary to fundamental concepts of the English-speaking
world," as the Court has sometimes said. See, e. g., Rochin
v. California, 342 U.S. 165, and Irvine v. California, 347 U.S.
128. The truth is that a teacher of kindergarten, grammar school,
or high school pupils no more carries into a school with him a
complete right to freedom of speech and expression than an anti-Catholic
or anti-Semite carries with him a complete freedom of speech and
religion into a Catholic church or Jewish synagogue. Nor does
a person carry with him into the United States Senate or House,
or into the Supreme Court, or any other court, a complete constitutional
right to go into those places contrary to their rules and speak
his mind on any subject he pleases. It is a myth to say that any
person has a constitutional right to say what he pleases, where
he pleases, and when he pleases. Our Court has decided precisely
the opposite. See, e. g., Cox v. Louisiana, 379 U.S. 536, 555;
Adderley v. Florida, 385 U.S. 39.
In my view, teachers in state-controlled public
schools are hired to teach there. Although Mr. Justice McReynolds
may have intimated to the contrary in Meyer v. Nebraska, supra,
certainly a teacher is not paid to go into school and teach subjects
the State does not hire him to teach as a part of its selected
curriculum. Nor are public school students sent to the schools
at public expense to broadcast political or any other views to
educate and inform the public. The original idea of schools, which
I do not believe is yet abandoned as worthless or out of date,
was that children had not yet reached the point of experience
and wisdom which enabled them to teach all of their elders. It
may be that the Nation has outworn the old-fashioned slogan that
"children are to be seen not heard," but one may, I
hope, be permitted to harbor the thought that taxpayers send children
to school on the premise that at their age they need to learn,
not teach.
The true principles on this whole subject were
in my judgment spoken by Mr. Justice McKenna for the Court in
Waugh v. Mississippi University in 237 U.S. 589, 596-597. The
State had there passed a law barring students from peaceably assembling
in Greek letter fraternities and providing that students who joined
them could be expelled from school. This law would appear on the
surface to run afoul of the First Amendment's freedom of assembly
clause. The law was attacked as violative of due process and of
the privileges and immunities clause and as a deprivation of property
and of liberty, under the Fourteenth Amendment. It was argued
that the fraternity made its members more moral, taught discipline,
and inspired its members to study harder and to obey better the
rules of discipline and order. This Court rejected all the "fervid"
pleas of the fraternities' advocates and decided unanimously against
these Fourteenth Amendment arguments. The Court in its next to
the last paragraph made this statement which has complete relevance
for us today:
"It is said that the fraternity to which complainant belongs is a moral and of itself a disciplinary force. This need not be denied. But whether such membership makes against discipline was for the State of Mississippi to determine. It is to be remembered that the University was established by the State and is under the control of the State, and the enactment of the statute may have been induced by the opinion that membership in the prohibited societies divided the attention of the students and distracted from that singleness of purpose which the State desired to exist in its public educational institutions. It is not for us to entertain conjectures in opposition to the views of the State and annul its regulations upon disputable considerations of their wisdom or necessity." (Emphasis supplied.)
It was on the foregoing argument that this
Court sustained the power of Mississippi to curtail the First
Amendment's right of peaceable assembly. And the same reasons
are equally applicable to curtailing in the States' public schools
the right to complete freedom of expression. Iowa's public schools,
like Mississippi's university, are operated to give students an
opportunity to learn, not to talk politics by actual speech, or
by "symbolic" speech. And, as I have pointed out before,
the record amply shows that public protest in the school classes
against the Vietnam war "distracted from that singleness
of purpose which the State [here Iowa] desired to exist in its
public educational institutions." Here the Court should accord
Iowa educational institutions the same right to determine for
themselves to what extent free expression should be allowed in
its schools as it accorded Mississippi with reference to freedom
of assembly. But even if the record were silent as to protests
against the Vietnam war distracting students from their assigned
class work, members of this Court, like all other citizens, know,
without being told, that the disputes over the wisdom of the Vietnam
war have disrupted and divided this country as few other issues
ever have. Of course students, like other people, cannot concentrate
on lesser issues when black armbands are being ostentatiously
displayed in their presence to call attention to the wounded and
dead of the war, some of the wounded and the dead being their
friends and neighbors. It was, of course, to distract the attention
of other students that some students insisted up to the very point
of their own suspension from school that they were determined
to sit in school with their symbolic armbands.
Change has been said to be truly the law of
life but sometimes the old and the tried and true are worth holding.
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. We cannot
close our eyes to the fact that some of the country's greatest
problems are crimes committed by the youth, too many of school
age. School discipline, like parental discipline, is an integral
and important part of training our children to be good citizens
-- to be better citizens. Here a very small number of students
have crisply and summarily refused to obey a school order designed
to give pupils who want to learn the opportunity to do so. One
does not need to be a prophet or the son of a prophet to know
that after the Court's holding today some students in Iowa schools
and indeed in all schools will be ready, able, and willing to
defy their teachers on practically all orders. This is the more
unfortunate for the schools since groups of students all over
the land are already running loose, conducting break-ins, sit-ins,
lie-ins, and smash-ins. Many of these student groups, as is all
too familiar to all who read the newspapers and watch the television
news programs, have already engaged in rioting, property seizures,
and destruction. They have picketed schools to force students
not to cross their picket lines and have too often violently attacked
earnest but frightened students who wanted an education that the
pickets did not want them to get. Students engaged in such activities
are apparently confident that they know far more about how to
operate public school systems than do their parents, teachers,
and elected school officials. It is no answer to say that the
particular students here have not yet reached such high points
in their demands to attend classes in order to exercise their
political pressures. Turned loose with lawsuits for damages and
injunctions against their teachers as they are here, it is nothing
but wishful thinking to imagine that young, immature students
will not soon believe it is their right to control the schools
rather than the right of the States that collect the taxes to
hire the teachers for the benefit of the pupils. This case, therefore,
wholly without constitutional reasons in my judgment, subjects
all the public schools in the country to the whims and caprices
of their loudest-mouthed, but maybe not their brightest, students.
I, for one, am not fully persuaded that school pupils are wise
enough, even with this Court's expert help from Washington, to
run the 23,390 public school systems 4
in our 50 States. I wish, therefore, wholly to disclaim any purpose
on my part to hold that the Federal Constitution compels the teachers,
parents, and elected school officials to surrender control of
the American public school system to public school students. I
dissent.
---- Begin EndNotes ----
1 The petition
for certiorari here presented this single question:
"Whether the First and Fourteenth Amendments permit officials of state supported public schools to prohibit students from wearing symbols of political views within school premises where the symbols are not disruptive of school discipline or decorum."
2 The following
Associated Press article appeared in the Washington Evening Star,
January 11, 1969, p. A-2, col. 1:
"BELLINGHAM, Mass. (AP) -- Todd R. Hennessy,
16, has filed nominating papers to run for town park commissioner
in the March election.
"'I can see nothing illegal in the youth's
seeking the elective office,' said Lee Ambler, the town counsel.
'But I can't overlook the possibility that if he is elected any
legal contract entered into by the park commissioner would be
void because he is a juvenile.'
"Todd is a junior in Mount St. Charles Academy, where he has a top scholastic record."
3 In Cantwell
v. Connecticut, 310 U.S. 296, 303-304 (1940), this Court said:
"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."
4 Statistical
Abstract of the United States (1968), Table No. 578, p. 406.
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