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tv   Landmark Cases Tinker v. Des Moines  CSPAN  April 29, 2018 4:29pm-6:02pm EDT

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infrastructure as far as age infrastructure that those rural communities also need tremendous assistance. those grants are something t wht you are doing for the works next. c-span's landmark cases. looks at tinker v. des moines which affirmed free-speech rights for high-school students after that, newsmakers with representative mark thornberry. is naomi, i am 11 years old. [applause] me and my friend around our walk out of our elementary school on the 14th. [applause] sophomore at auburn university and three years ago, i stood exactly where you are
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today and one of my first march for life. ♪ >> landmark cases. c-span's special history series. produced in partnership with the national constitution center. exploring the human stories and constitutional dramas behind 12 historic supreme court decisions. >> mr. chief justice, may it please the court. good evening, welcome to c-span's landmark cases. tonight's case is tinker versus des moines independent committee schools district. in a 7-2n court decision it won't in this case that student's first amendment rights of free's reach are
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protected even when they are in school. she will be here to share her personal experience and her work as an adult to promote student's free speech and press freedom. thank you for being with us. >> eric jaffe is the chairman of the federalist society's free speech and election law practice group. he has been involved in more than 100 case before the supreme court and clerked for justice clarence thomas. thank you for being our guest tonight. in a nutshell, when you tally and people what this is about, what is the headline on it? what do you say. >> the case is about the civil rights movement, in the end, we
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wore black civil arm burns to school to mourn -- armbands to the 1960's, for the soldiers who died in vietnam. for doing that, we were suspended. the supreme court case ruled that students had free-speech rights. >> why is this case particularly important? >> i think it is important less for what the specific holding in the details were, then for the great rhetoric and language and aspirational nature of the case. the firstsignals what amendment is about, the young people are not left out of that principle, even if there may be some issues on the margin and how to apply it to them. it gives young people something to aspire for. host: we will have 90 minutes at
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thetable, we will hear what arguments were on both sides, and what the decision was. in about 15-20 minutes, we will start taking telephone calls. i will give you the numbers now, so that we can get ready. here they are on your screen. >> congress shall make no law of starting the establishment or prohibiting the exercise of religion thereof. in the tinker case get there is the particular law and the first amendment that is pertinent? works indirectly, yes.
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no law abridging the freedom of speech. in the particular instance, it was symbolic speech. he recognized that symbols can convey meaning and argument as much as words can. but that was a 14th amendment. which incorporated the first amendment against the stage. of course, the first amendment talks about congress. >> with regards to schools before this case came to the court, what was the law or the theom? >> there had been occasional case that upheld the todent rights as it applies school. that people would have to stand for the pledge of allegiance. one would think about that as much a religious case as it is a free-speech case.
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if you look at someone like justice black check our opinion for example, or later openings by other justices, he had the role of a parent of the children , such that they could do what a parent could do come and tell them to stop talking. tinker come of a backdrop of this was even your brother and other students protesting the vietnam war. you remember what you were concerned about in 1965, that brought this to the attention of young people? >> yes. as i said, a group out of the civil rights movement in many ways because right now, today, we are celebrating the 67th anniversary of a school walkout in virginia for barbara johns and her fellow students, about 400 students who walked at a school in 1951. after that, you had the town decision in a 1954, and little
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rock nine was in 1957. then, the birmingham children 's crusade was in 1963, when almost 2000 kids marched and rallied and were arrested while martin luther king was in jail, writing the famous "letter from birmingham jail." all of this was very in firing to us kids who were following this in the news. 19 54, something happen involving young people as well. that is when the two children were murdered by the ku klux klan. they were part of a movement of students in mississippi. the same day that students 19dies were discovered in thethe gulf of vietnam and gulf of tonkin, the u.s. navy ships claimed it had been attacked. and as it turned out, it likely
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had not been attacked. start with the u.s. congress and did not stop them from escalating in to war. 1965, there was still plenty going on with civil rights and the selma and so on. when now on the news, we saw war, the vietnam war all the time. cronkite, walter announcing the body count in vietnam today was 10, day after day, we were hearing that in 1965. >> in fact, in 1965, the numbers were over 100 84,000 u.s. soldiers on the ground, fighting the war. 1912 deaths alone in vietnam. we hope there are lots of young people watching tonight. we will show you a bit of a universally newsreel which is a way that many people got their news back then, talking about
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some of the protest that were happening around the country as the war progressed. ♪ >> antiwar demonstrators protest involvement in the vietnam war. citrus park was the starting point. makeup and costumes were bizarre. before the parade, demonstrators claim cars were burned. reporters and onlookers were jostled away on purpose. no accurate count could be determined. although mostly peaceful, shouted confrontations were frequent and fiery during the course of the march. the antiwar marches were picketed by anti-antiwar
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marchers who were hawkish toward the parading students. susan: that is just a bit of what was happening domestically in the united states, as the war continue to escalate with this abroad. with this backdrop, students in des moines decided to express their opinion. we will set you a little bit -- we will tell you a little bit about how that happened, and the characters involved. it was yourself, your brother john and christopher eckardt who were the defendants in this case. how did you all come together? mary beth: there was a group of students at roosevelt high school. after the march in washington, some of the students had been there. when they got back to des moines, the students had a meeting. there were some college students adults also,o -- and they spoke about what they could do to speak up about the war. in 1963, when the children of
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birmingham had been murdered by the ku klux klan, james baldwin sent out a letter saying we should all wear black armbands to mourn for the dead children. there were four girls and two boys killed. so that is what happened around the country. people wore black armbands like were, after the children killed in birmingham in i was 10 1963. years old. in 1965, when the war was building up and running of there was a suggestion, what about armbands?ck wearing those to mourn the dead? the black armband was a symbol of mourning, back through history for many years. it was a symbol of sadness. we were all feeling very sad that christmas about the war. susan: what did your parents think about your participation? mary beth: my father was a methodist minister. there is a favorite prayer in our house which is lord, make me
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an instrument of your piece. where there is hatred, let me sow love. that was the way i was brought up, to try to make a more peaceful world and a more just world. later, he became involved with the bakers. -- the quakers. my whole family became involved with them. and then later, -- my dad did not want us to where the , he said the principles of a job to do, and it is not so easy. my mother understood more. the students in the quaker meetings started talking more and heard about this idea about the black armbands. that is how the idea came to be. susan: what can you tell us about the school board at the time or the administration of your school, to help set the context? mary beth: the principles heard
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about the idea and they had a meeting and decided it would not be allowed to wear black armbands to school. the president of the school board said the government has made a policy about vietnam and we must follow it. he was quoted as saying that in the des moines register. explain to the students now in schools, that is not how democracy works. we do have a right to criticize the government. that is how the first amendment evolved. susan: in addition to the tinkers and the school board, the other principles will be the chief justice. as we get started, what should people do to make sense of these chief justices? what should they know about them. erik: he was actually a a republican appointed by eisenhower, chief justice warren. he turned out to be one of the more iconic and liberal chief
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justices ever to serve on the responsible, directly or indirectly, for some of the most iconic decisions this country has ever seen. connecticut, brown v. board of education, and many others. really, he played an outside role, much criticized by some and applauded by others. , while hetice fortis had a fairly short tenure on the court, one of the things that distinguished him was his advocacy for children, oddly enough. this is one of them, but there are other cases in the criminal context where he thought really hard to get certain criminal procedural rights applied to kids, or otherwise treated as wards of the state and not given any rights at all. he was an ally of the chief justice, but he also had a special place in his heart for kids rights. susan: we had a chance to speak to your brother about his perspectives on the story. before we watch our first clip, let's go to 1965, the day the
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protest happened. walk us through that day. mary beth: december 16, 1965. the des moines register had come up with an article headlined saying that armbands would not be allowed in the des moines schools. i was very nervous because i was a shy kid anyways and i was only 13 years old and in the eighth grade. people were talking about what to do, but i decided to go ahead and try to be brave like the other kids i had seen, as examples on the news and things. i hadn't armband, i had it on and picked up my friend connie on the way to school. she told me, you better get that off, you will get into trouble. when i got will, i saw one of my favorite teachers -- when i got
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school, i saw one of my favorite teachers after lunch, and he gave me a link pass. i went to the office. i looked around the office and looked at miss tanner and the principal. they told me to take off the armband. so as i tell my students, in great courage and conviction, i said, ok. i took of my armband and give it to them, but i learned a very important lesson, then. you don't have to be the most courageous or some in the world, you can be you. you can be scared. you can be shy, and you can still make the difference. that is what happened. susan: let's listen to her brother tell his story about the protests. >> i was getting ready to leave the house. i did not want to wear it on the street. i was a little concerned about my safety. as i was walking out the door, my dad said, john, i am not sure you should do that.
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the school authorities, they think that they need to not permit it. they have a hard job to do. i'm not so sure you should wear it and break that rule that they have made. and as said, while dad, this is just a black piece of cloth. people are dying every day in vietnam. and he said well then, it is a matter of conscience for you? and i said, i guess it is. and he said well, then i support what you are doing to riyadh i walked to school and went to lunch. i sat at the usual table with my usual group of friends. some kids came over and tarted pestering me, just like calling --commie, coward -- stuff like that.
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this football player, i knew who he was, but we were not really friends. he came up, looked at the kids and he saw what was going on. he said to the kids come look, you have your opinion about the war, john has his opinion about the war john has a right to his , opinion, leave him alone. i'm thinking, great. [laughter] the teacher,g, and mr. laurie, answer the phone. he looked at me and he said, send john tinker to the office to riyadh so i spoke to the principal, john letter, and explained to him why i was wearing it and why i thought the war was wrong. know, i am going to ask you to take that armband off. if you take it off, you will go to class, it will be like nothing happened. said, i don't think
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you're going to take it off, are you? no.i said, i am not. and he said, i am going to have to call your dad and send you home. susan: pick up the story from there. you took your armband off and john left his on. your father was called. mary beth: chris eckhardt was suspended the same day i was. five students were assessed a district of about 18,000 students. i got suspended because the girl's advisers said there was a rule against armbands, so even though you took off your armband, you will be suspended anyways. so should give me my suspension notice, and i went home. people were talking and trying to figure out what to do. it is a story of journalism as well, because we learned what was going on through the newspapers, and they covered it fairly well. some people started getting very mad at that point.
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some of the other kids who had been planning the event such as bruce clark, chris here, they also got suspended. then the haters started coming out of the wood works. threw read ain't at our house, started sending us hate mail, they started saying they would hurt my father. that was probably the hardest thing of the whole experience, really. susan: here is an example of a piece of mail that came to the family. i will turn it over to the camera. what was the reaction in your household? or column about it? mary beth: we were anxious, but we had the example of all these kids in mississippi and alabama who had been bombed and threatened. some of them even killed. we kept thinking, compared to that, this is not so bad. at least our house is not being blown up. at least they are just serving red paint at us. they would call us communist. my mom would say we are not
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communist, we are methodist. so, we just got through it. the bravery of our parents and calm nature helped so much. susan: when was the decision made to appeal to the school board? mary beth: besides the people that were getting mad at us, there were also supporters. one of them was a marine corporal who sent a letter to the editor to riyad. the other group that was very supportive was the american civil liberties union. as i find out later, they go to the supreme court more than any other organization in the u.s. so one of their members in iowa heard about the story and did not think it was fair. so she talks to the other members, and they decided to come and help us. the aclu said you have to try to negotiate. the aclu said you should try
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negotiate, so we tried to riyadh we went back to the school board, we had a big meeting, lots of people came, but the school board would not change their mind. susan: we have a headline from the time that was a 5-2 vote. i will put on screen key dates in the case. so that you can see how it progressed through the process of appeal. the school board, five-to vote 1966.nuary 4, the protest was in late december of 1965. july 25 of that same year, it went to the u.s. district court to hear the case. by september 1, 1966 the complaint was dismissed by the district court. i will turn to you to ask about process. how did it get from the school board to a u.s. court? erik: somebody filed a complaint obviously. in this case, the aclu filed a complaint with the court. typically, either side makes a motion. susan: it was that the federal
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level because it was a first amendment case? erik: yes, it was an alleged violation of the constitution. it gets to go to federal court. it is called federal question jurisdiction and goes to the judge. the judge makes the decision, i imagine there was evidence introduced and steps in between. the judge makes a decision and then people get to appeal. the first decision is the first decision. healed ton it was a the eighth circuit court. they affirmed it. eight judges were on the case, the vote was for-four. when you have an even number, you risk it being a tied vote. more generally, a tide goes to
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the judge below -- a tie vote was back to the judge below. so it was404-4. the same thing happens at the supreme court. if you remember, when they were short, they sent the decision back to the lower court. if you cannot get a majority to say you are wrong, we will leave your position intact. the same is true of the supreme court. if they tied, the lower court decision stayed intact. susan: how did it go from that to the supreme court? erik: someone has to ask the supreme court to take the case. the supreme court is not obliged to take the case. you make a request, a petition and ask to please take my case. the court has discretion to take it or not. in the warrant europe, the court -- in loss -- the warrant chief justice oearl warren's era, the court took a lot of cases. today, this case might not have been taken. the 4-4 decision might have been enough to stop the decision. they would have waited for
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different case that presented more definitively by the intermediate court. here, it was important. susan: while all this was going on, we will return to john tinker to tell us more about the reaction in the community of the des moines where they lived. john: we got hate mail. someone sent a homemade postcard with a hammer and sickle on it, accusing us of being communist. hrew read paint on outside our house. somebody threw a brick through the front of our little volkswagen bug. one morning, my sister mary beth, she answered the phone. somebody, a woman told her, i am going to kill you. host thata talkshow did a late-night talk show fear and des moines, -- did a late
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no night talk show here .n des moines he also had his own gun shop and he offered to lend a gun to anybody who would shoot my dad. susan: that was john tinker talk ing about the stress and pressure on the tinker family and anyone who supported them in the community as this case began to work its way through the court. let's go to phone calls. our first call is from michigan. caller: thank you all very much. very interesting show. we had student free-speech controversy in this local area in the town called auburn, michigan. it just recently, it was over the confederate flag. my question is about academic work. i was thinking of a time a while back when some holocaust deniers
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were creating a lot of controversy over whether they could take ads out in college newspapers. i was wondering, if a student had a controversial opinion like the holocaust is a big lie, for example, which is obviously ridiculous to most people. if they actually believed this and wanted to read it a per in history class or what have you, would they have the right to do something like that? or would the school administration be able to deny them doing something like that? because, it is an established fact and all that? and it is just ridiculous. under the first amendment, with would they have a free-speech right on a controversial subject like that? susan: eric, i will ask you to talk about it because it is an academic paper.
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le? is the ru erik: if it is part of the curriculum, the school has a decent amount of control over it. if the school says i want you to write about the 1960's and someone says they want to write about the holocaust, you can say no. if the school asks you to read write about the holocaust, and you have in the union that sa is lousy, you might be able to read about that. but you might not get a good grade. there is no law that says that you have to get a good grade. it would depend. the overall answer is that when it is dealing with curricular aspects, the school has a lot of control. susan: we are talking about the family story, mary beth tinker on twitter. did this calls a backlash with your father in his parish? mary beth: my father was working , but it diders cause a backlash against my father in town among some
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people, definitely. by the way, the last caller who was asking about the controversy around the confederate flag, just to be clear the confederate flag , controversies around the country, the courts have ruled fairly consistently against confederate flags in school. one of the cases was in 2013, a recent one in virginia. those have been pretty much not allowed in schools, according to the court. susan: next, a call from charleston, south carolina. a student there. welcome. caller: hi. i have a two-part question. i was wondering if you could please differentiate tinker from the previously held standard, and if you could differentiate inse standards from the case 1974.
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there were to be a case coming before the supreme court today, and the plaintiff for a high-school student, and disciplined by their high school from participating in the march for our lives, what kind of test do you think the supreme court today would hold? do you think they would look at that tinker test and apply that message, or refer to or brian? or do think they would come up with a new test? >> are you talking about the o'brien draft card burning case? .> yes mary beth: as a sign against the draft. first of all, they ruled against burning, and it was outside of school. and i was an adult at the time. so it was a bit different. the if our case got to court today about walkouts, i
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did ask justice alito, when the case at the tinker supreme court historical society about a year ago, the liberty institute sponsored a program there about the case. i had a chance to ask justice alito what he had to say about the ruling today. he said yes, i guess i would stand behind it became to the court today. walkouts, because of the tinker ruling, there are two things that students cannot do in school that would be covered, one is, it's substantially disrupts school, and one is to impinge on the rights of others. that is fairly clear. a lot of schools are deciding we will work with our students but we will not punish them for walkouts, even though they would legally be able to. >> i think that is probably
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right, as long as it was not based upon this view. -- if it was just about your absence, you will treated as your absent. if you literally got up in class and walked out, that would be viewed as disruptive. that probably does not get a lot of protection. i think it would be a straight application of tinker. the only time to worry about the method is if there was indication that the school was discriminating against one of the viewpoints instead of another. >> from salem, wisconsin. caller: this is a question for both. i teach at a university here in wisconsin. i serve on the school board. i teach undergraduates who want to be teachers and graduate students who want to be school principals. my question is, how do we find that balance between making sure
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students maintain their freedom of speech and expression, yet ensure the safety of all students without any substantial or material disruption? mary beth: that is always the question. thank you for calling. they have always had to balance the rights of all of us because we live in a society with many members with different needs. there is a concept of the common good that goes back to greece. all rights have limits. the first amendment has limits also. you cannot go out into the middle of a busy street and say i am going to assemble tonight because other people want to use that street. this is an issue that is coming up today, a lot with a gun laws and the second amendment issue, you have a right to the second amendment, but all rights have limits. the students are saying, we want to live, we want to go to school
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without worrying about getting shot. that is always the question. i am glad that you raised that. we have to grapple with that all of the time. my opinion is that didn't should have first say in how to find a solution to these problems and these balancing issues. susan: what would you say to those teachers in training? erik: as a normative matter, i agree that you should take student input into account. i would lean towards free speech as opposed to not. as a legal question, the minimum you should do is if you think there is going to be a substantial disruption, there is evidence of that. we often think that something will happen without any basis of knowing that it will happen. that kind of speculation, i would advise teachers and principals to avoid. they are worried about school discipline and school safety that is based on data and real facts.
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susan: gordon is in fort madison, iowa. caller: thank you for taking my call. i wanted to tell a story. i was in law school in des moines, iowa. it was 1973. the famous criminal defense lawyer was speaking. john, marybeth's brother, came to that. william counselor treated him as a great hero. we all clapped when we found out that the mr. tinker was in attendance. i was just wondering what mary -- did john ever make it through law school? i think i was a year or two ahead of him. just wondering what john was doing now.
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mary beth: he did not go to law school. my other brother leonard was interested in law school but did not go either. we have certainly taken a great interest in the law because of this issue and so many others. susan: how many tinker children are there? mary beth: six tinker children. all were involved in the taker nker actions, ti even hope in fifth grade and the ones in second grade did. they said they want peace also. we had a great experience a few years ago, going back to their elementary schools to celebrate. we even met one of hope's teachers who was there at the time. susan: with the help of the aclu, there was a petition made to the supreme court. next we will learn about what the court was like in 1969. why did it take so long for the
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case to get to court? erik: it takes a while to write opinions. it takes a while to brief cases. it always takes a little while. they had more call -- they had more cases than they do today. it is the normal course. it is not that surprising if you think about starting to finishing a case. susan: this is what the court looked like in 1969. the chief justice was earl warren. appointed by eisenhower. the other eisenhower appointees, john williams, william brennan and potter's do it. johnson appointee thurgood marshall. overall, what should we know about this court? erik: this is regularly viewed as one of the most liberal and that they expanded federal power
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, individual rights and judicial power. they're responsible for some of the most iconic decisions in recent memory, but also some of the most criticized. the majority, led by chief justice warren. they were really quite powerful in terms of what they did in terms of transforming american law. susan: the court heard the case in november of 1968. what were you doing that day? mary beth: i'm not sure. i know 1968 was a very big year for the vietnam war, one of the worst years in the war. we went to st. louis. for the appeals court case. it was hard to be very happy
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about all of the proceedings because of the war. it was really taking up a lot of our feelings and our thoughts. there was so much going on with civil rights. susan: did anyone from your family go to the supreme court? mary beth: yes, we did go to the supreme court. i went, my parents went and john wanted to go but he missed the plane. chris eckardt also went. susan: what was that like? mary beth: we had just moved to a new city, st. louis, which was a big city to me, compared to des moines. i was trying to adjust to a new high school. it was november. when we went to the supreme court around that time, i was very taken up with other issues, having to do with teenage years. who i was going to spend time with, who i would be friends
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with in class and things like that. i can barely remember the supreme court being care and not remembering many details about it. susan: talk to us about the role of the aclu by the time the case gets presented to the court. what do they do in the process? erik: you write briefs. they would have written the opening briefs, waited for the other side to reply and written the answer back. then you get ready for an oral argument. it is no small task if you do it right. the interesting thing i found was that they were young and inexperienced, which, in today's world was shocking. you can ask somebody to give up -- get up and give a supreme court argument. susan: our last several cases had very inexperienced counsel
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, at least on one side. mary beth: dustin was wonderful. he was not only a wonderful lawyer, but he was a very good and comforting influence in our life at the time. he was only a year out of law school when he argued this case before the supreme court. he had just lost a bid to the iowa attorney general, a republican. susan: we're going to listen to a bit of the argument that he made. >> suppose a state passed a law applying a ban on black armbands for protest purposes across the board, so that it would be applied to the private schools as well. would that be constitutional? >> i think that would interfere with the earlier decision of this court in regard to the right of individual citizens to
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establish private schools and so long as they meet the standards. i think that is a different situation than what we see here. the situation is based not so much upon the conduct of the students, but the conduct of the state and whether the conduct of the state was permissible. whether or not if we have a situation of pure expression and nothing else which with no evidence of any material or substantial disruption of any public interest, the state did move to subordinate and punish freedom of expression. susan: unpack that argument for us. erik: the first part of that argument was a red herring. till private schools that you have to suppress speech. maybe it was not quite as obvious then, but it is obvious now. that is a nonstarter. it is a public school phenomena because it is the state that is
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for bid in from restricting speech. what i found interesting about mr. johnson's argument is the narrowness of it. he emphasizes that this is pure speech. it does not involve any other activities. there is no protesting or marching. there is no indication that it is interfering with any other aspect of school life or school discipline. that is what he hung on for the entirety of the argument. the school had no evidence that this was a problem. implicit in that is that there was evidence -- if there was evidence of something a little more, maybe you could restrict it. i think he took that tact because there was a lot of skepticism about telling school boards what they could and could not do. he wanted it to be as clean as possible. there is literally nothing here. in that instance, at least, the first amendment should win. susan: he was really basing it
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presenton the clear and danger idea and the viewpoint of discrimination, which was a winning argument. erik: in the argument itself they back off from that. the adult version of the standard, he disavowed a little bit. at some point, you said there should be rules for the first amendment that should apply everywhere. ultimately, if you see the opinion the way it came down, everyone sort of agreed, but they are not quite as big as grown-ups because the school has other concerns to worry about. he had to go there. he was getting such pushback from justice white, that in order to get justice white to come on board, he had to take a narrower approach. which i think he did. susan: in their ruling, the came up with the standard of these
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substantial disruption instead of the clear and present danger, which came directly from the mississippi freedom summer years when students wore buttons to school. they were suspended for doing that. it went to court. right around the time that we lost at the district level, students in mississippi won at the appeals level. that is because they had not substantially disrupted school. that was a burnside case. they found a way to develop this new standard, which had to do with substantial disruption for school. erik: interestingly enough, justice white, in his concurrence, the one thing he writes in his concurrence is that while they cite that case a lot, i do not agree with everything. he is trying to leave room for the next case where he decides
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maybe the school has a better point. at this case, the school had nothing to go on. susan: let's hear a bit of the argument on the other side for the des moines school district. the attorney's name was allen, he was a veteran of the world war ii. he was a leader at the methodist church. you probably know him. we are going to hear part of what his oral argument was for the school district. >> if we understand the petitioner's position in this case, it is that the school officials are powerless to act until the disruption occurs. that should not be the rule. sometimes prevention is a lot better than a pound of cure. subsequent history of such
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activities bear out the judgment of the school officials and administration. -- and their discretion. >> suppose they were a humphrey or a nixon or a wallace button, which was highly controversial and in some places inflammatory. would that be done? >> i think if it were done, as i think the record in this case shows, where they came in with a row of buttons on, it could prove deceptive. -- disruptive. >> did they come in with a whole row of bands? >> no, but would there be any question if they had walked in with a placard saying we protest vietnam war?
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due to get would be different? >> normally, yes. but i say this, this has been extensively exploited in the press. we have a situation here where it was explosive. susan: what do you think of that exchange? erik: i think it was weak. that is what i think, actually. he is making a point that is often made that we need to take a preventive measure rather than respond to an actual, immediate threat. this comes up all the time. it comes up in brandon board on how much prevention can you do before the threat is certain? he is not doing a great job of it. what he could have done better
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is point out all the facts that made them think prevention was necessary. instead, he gets hung up in distinguishing one-button versus a row of buttons. the armband versus the placard, that was not how he was going to win this. if you wanted to win he should say we have good reason to believe in disruption. he did not quite get there. susan: he was talking about placards and buttons and armbands. we have a teacher watching this. for the benefit of ap students can you explain the concept of symbolic speech and indicate how the supreme court has dealt with that issue? marybeth: the court has well-established technology meant that symbols are speech. acknowledgment that symbols are speech. this is one of the ways that we won our case. even the iron cross to symbolize germany. they also allowed black armbands
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in the birmingham children were killed. it was symbolic speech. the court recognized it was well established by the time our case got to court. susan: time for more from calls. another family member joining us by phone. leonard tinker. welcome to our conversation. what is your question, comment or what would you like to tell us. caller: there are two points. number one, the speech in des moines in 1973, i was present and john was not. i had a chance to chat with the counselor. originally bill comes to take the case. he was a friend of my mother's. the other thing that was of interest, when allen was deposing my father, leonard junior, as part of the
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case come he kept referring to my dad as a communist. dan johnston looked at him and said if you call my client a communist one more time, this deposition is over. the reason -- one of the big reasons, i think, that the supreme court to the case is because the fifth circuit had ruled the naacp buttons were protected. in effect, the eighth circuit had ruled that black armbands were not. effectively, you have a difference of opinion from the two circuits. that probably gets the supreme court in there to resolve the difference of opinion. susan: leonard, how old were you at the time of the case? caller: when it happened, i was 20. i was in college. i was at a small college. susan: we were learning about
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the effect the case has had on your sister's life. what has been the impact on your life? caller: i still get calls three or four times a year about kids doing term papers. it is very simple. they know it came out of des moines and they know it took -- they know it involved leonard tinker. they get me instead and ask if i had kids who wore armbands in the 1960's. i will say, no i did not end they apologize for bothering me. i then say that i had a brother and sister. a couple of years ago a gal put her eighth grade daughter in a car and drove to the des moines. we spent three or four hours talking about it. i said, we could have done this on the phone and saved 500 miles
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of driving. susan: thank you very much for being part of our conversation. leonard tinker, older brother of the defendants of this case. we are talking about tinker versus des moines, 1989. next up is nathan, commerce texas school administrator. caller: my question comes from being a title ix administrator. my tension is an regards to student journalists. i want to interact with evidence him about my role requires that i keep confidence -- confidential information privileged. i want to be able to interact and engage with students come but i can see headlines such as, rate increasing double when it increases to four.
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building these trusting relationships is so essential. i have to have reports to do my job. how can i navigate this tension between building this relationship between student journalists and administrators at school? h: i meet so many administrators who are doing a good job in creating a good climate in this world. i know that one of the healthiest things a student can do is graduate high school. we want to have school be a place where kids want to be. we had huge problems with absenteeism and other problems in school. as an administrator, you can help your school to be a place where young people want to be and students want to be and promote a good climate in your school. that means test -- that means to have a respect for student voices and have avenues where students can have their voices heard. when it comes to journalism, we talking about another supreme court case called hazelwood. there is a lot going on with
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that situation, which came after our case. however, 14 states have passed legislation supporting student journalists. be proud, state can they were the last one a few weeks ago that passed legislation. a big campaign by the student press law center called new voices, who supports student journalists. you can tell your student journalists about the campaign by student press law center. check them out. i'm sure you're journalists will be interested in that. it will be helpful to you as well. susan: on that note, we have a tweet from sarah gonzales. right now, students are concerned with gun safety but are being told by administrators, no, absolutely not. what should students do? erik: i think they have
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alternative avenues to write their views and opinions. i publishstion is can it in the school newspaper, they will have a harder time because we'll newspaper is often -- the school newspaper is often treated as part of the curriculum. there are lots of avenues for students to speak that do not necessarily depend upon the curriculum. i would encourage anyone to try to use those avenues. go right to your local paper. stand up and talk to the press, do whatever you can. sometimes, you may have to not do it in this time and place, if your school is not supportive. mary beth: they have recommended that students be allowed to write in their school newspapers. as long as the articles follow good journalism, that they should not be censored about the issue that they are talking
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about and are supporting the laws in states that support student journalism. there is definitely a lot going on with student journalism and students who are interested in journalism and want to read journalism that has to do with their lives. erik: i do not mean to imply that i favor these restrictions. i am merely pointing out that under a school administrator, you should ask whether this will help or hurt the environment of the school. if the school administrators agreed that having smart journalists and training smart journalists is a good thing, they should do that. if they disagree, there are many other outlets for students as well. susan: next is a caller named buddy in new bedford, massachusetts. caller: thank you very much. i want to thank you all for taking a stand in 1969. i was in vietnam from 1968 to 1970.
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my question is, fast forwarding after parkland, you have a student who makes a concerning comment that has no action. yet he is punished for the event, was not criminally charged but was punished at the school. how do we incorporate or integrate laws of today with what students are now faced with today? and the social media because the social media conversation was involved. there were several cases in our area like this. i think the student was probably -- you cannot have a happy medium here based on what is going on in the world today and freedom of speech. mary beth: are you talking about
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threatening comments that students were making? is that what you are referring to? caller: it was, the frustration of students that had been bullied. what about us? it was a concerning comment, as it was publicized. as concerning as it may have been, i want to see where the limits are, based on emotions that he is having and not really being a violent person. but feelings that he is talking about out loud and doing on instagram, using social media. he was punished at school because of it. mary beth: all of those comments need to be taken very seriously and followed up. that is why we need more school
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counselors and school scott -- psychologists and more school nurses. i do not think that punishment is always the solution either. that can backfire. not necessarily lead to students having the kind of behavior that we want to see. susan: west bloomfield, michigan. caller: my question is this. how does tinker applied to the young man who refused to salute the flag? he did not interfere the football game, he made no sound and he has gotten out on the example of symbolic speech. also, this is trickled down to colleges and high schools. i think it is unfortunate that people don't realize the u.s. constitution is the supreme law of the land. it should be applicable to the schools. even though we hold our administrators responsible for
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our children, these kinds of things should be limited because they may be controversial. has we are talking about students able to publish things and newspapers about gun control and think they might be controversial. they want our children to be able to as jefferson said, it is , necessary for an educated populace to build a democracy. certainly if we are going to repress these kinds of thoughts that are outside the parameters of what most people think in children, how can we expect them to develop? mary beth: i am so glad you said the word "controversy" because that is what it is all about. we have to help students to find ways to talk about controversial issues and not just sweep them under the rug, but to talk about things with respect with each other. luckily that is what we have, is a first amendment to guide us in doing that. in our democracy we believe that all viewpoints should be
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respected and listened to. as far as kneeling for the flag salute, that is clear under barnett in 1943 that you cannot force -- that had to do with forcing students not to speak. not allowing free speech. it had to allow students not to speak and that says you cannot force students to speak. under that ruling, justice robert jackson gave one of the most beautiful comments about whether education should be -- what democracy should be, saying sixth star and our constellation of democracy is that no official can say what is orthodox with nationalism or politics or religion. that the schools are educating young minds for democracy is a reason why they should be very scrupulous in standing up for the freedom to express themselves.
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susan: we have a half hour left to go in our discussion of the 1969 tinker v. des moines. out onision came february 24, 1969. the cbs news department has been very generous in opening up their archives for us. we're going to listen as walter cronkite announces the decision. walter cronkite the supreme : court endorsed the right of student protests. so long as it does not disrupt order or interfere with the rights of others. but a dissenting justice said , the ruling begins a revolutionary era of promiscuous fostered by the judiciary. students did not leave their freedom of speech and expression at the school door. susan: that is one way the country found out about the decision. how did your family find out about it? mary beth: i think someone called my school and i came home and i did not have any idea how
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important this ruling was going to be, either for my life were -- or for the country. it took many years until it hit me how important it was. one of the first times was in nursing school some years later and the case was in high school book. susan: how is the school treating you and your siblings at that point? watching this with interest? mary beth: my new school it was pretty much ignored even when we won the case. later i thought the social studies teacher or someone said -- hey,omething something kind of interesting happened yesterday, mary beth. i think they just did not know what to make of it. so it was pretty much ignored. susan: a majority in the seven in the case, written by the justice portis chief justice , earl warren, with two concurrences, two dissents.
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they were justices black and harlan. here's an excerpt from the majority opinion by a fortis. "in our system, state operated schools may not be enclaves of totalitarianism. school officials do not possess absolute authority over their students. students in school as well as out of school are persons under our constitution. they are possessed of fundamental rights which the state must respect, just as they themselves must respect their obligation to the state and in -- and to the state every students may not a regarded as closed-circuit recipients of only that which the state chooses to communicate. they may not be confined to the expression of those sentiments that are officially approved. in the absence of a specific showing of constitutionally valid reasons to regulate the speech, students are entitled to freedom of expression in their views." what strikes me is the declaration that students are persons under the constitution.
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erik: they are persons. i don't think there is a lot of debate about that. remember, the first amendment does not talk about persons. if you think that is incorporated wholesale to the 14th amendment it may not matter , if they are persons. it is about what congress or states do. what i found fascinating is that the language is glorious. the language is lofty and beautiful. it is a peon to some the essential aspects of democracy in america. the actual holding is nothing like that. the actual holding is a pale shadow of that lovely language. they put so many qualifiers on it. they put the qualifier on it that it was pure speech, but if it was not pure speech, it may not be true. they put the qualifier on it that there was no evidence of disruption. if there was some evidence of disruption, maybe it is not true. they even went so far as to
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imply that a particular viewpoint might be rejected if -- restricted if there was evidence that it would cause disruption. what i think is lasting about the opinion and what i think is lasting about the opinion is that everyone cites this opinion because it is so beautifully the isates what we think first amendment about. when push comes to shove, it did not really go that far. mary beth: it should not just be a one-way interchange with the teachers pouring information into the student. the students have something to say, too, and it should have input, too. they should not be an enclave of totalitarianism. the schools. it is a fairly pained ruling. it does say substantial and material disruption. like i had a situation where a student was wearing a black lives matter shirt to school and this was in arizona.
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the administration was saying there had been an argument between her and another student a few days earlier. well, that is not a substantial disruption. it is supposed to be a substantial disruption. as soon as the school can use the ruling at times against students -- and they do all the time, saying it was a substantial disruption. it also pretty much, prior review comes in there, because if you can predict a disruption now with the tinker ruling, it is also something -- erik: things you could never do with grown-ups, to restrict grown-ups speech outside of the school context. you can do based on some of the qualifiers in tinker. this gets cited all the time, not for the qualifiers, but for the higher principles. in the loftier principles. susan: our time is growing
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short, unfortunately. one personal note about justice black, he had a personal story. his grandson sterling black junior had been suspended shortly after the oral argument for publishing an underground newspaper critical of his school's administration. justice black supported that suspension. here is some of what he wrote. "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 people's. this case wholly without -- titutional reasons their loudest mouths but maybe another brightest students. reaction? mary beth: it sounds to me, many students who he is calling loudmouth, his predictions did not come true because he was saying there would be a
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ins and ad sit revolution of voices. unfortunately the opposite happened. there were more lawsuits afterwards about hair length and some speech issues. there were three subsequent cases after tinker that weakened the ruling as well. what he predicted and worried about certainly did not happen. susan: we will have a chance to talk about those cases before we finish. here is a headline on that dissent. an angry dissent on armbands. is there anything from a legal standpoint lasting about his dissent? erik: at the end of the day the concerns he raised i think are partly responsible for why you see a backtracking in later cases, and that perhaps is why you see cases about newspapers, cases about sexual innuendo, other cases where the court sides with the school rather than the students. in part because there are concerns about maintaining discipline in the specialized context of the school. mary beth: also because the
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court changed. the people who were on the court changed dramatically. erik: even for some of the people who were on the side of first amendment tinker i think backed off some of it. you can see with justice white and justice stewart, they are rather hesitant about extending the full panoply of first amendment rights to students. you see concerned about that with justice roberts. justice thomas relatively recently has largely endorsed justice black's view. another first amendment issues he is incredible he susan: we first amendment. are getting a few questions about applications. here's one. could this ruling be applied to military schools? another one asks if it applies to university. erik: on military schools, if i that you meet west point or
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government-run -- susan: i would imagine a high school. erik: many military schools are private military schools. in that context of course there are no first amendment rights at a private school. if it were a government-sponsored school, it would apply, but it would apply differently because what would disrupt discipline in the military context would be different than what would disrupt discipline a civilian context. mary beth: military speech rights to civilian speech rights and the destruction standard. erik: the standard would apply. the outcomes of the factors that got weighed in my be different. it is a different type of discipline they are trying to teach. susan: let's listen to john tinker once again to him and his life after this case and some of his thoughts on the legacy. welcome. caller: congrats. i just want to know what justice black, who was considered a
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first amendment absolutist, why did he dissent in this case? mary beth: i had a sixth grader ask me that same question not too long ago who was doing a history day project. erik: justice black actually gives some explanation. while he is quite absolutist about what the words "congress shall make no law" means and did not like balancing tests -- either no law or yes law. he was also very reticent to have the court inject itself into inherently legislative, social balancing questions. here he thought the court has no expertise on what does or does not maintain discipline. so to have unelected judges making those calls instead of school boards and states he was , very reluctant to go there. in addition he points out in his dissent that while you have a right to speak you don't have , the right to speak anytime and anyplace you want. you cannot march into a church
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and announce catholics. you cannot march into a jewish temple and denounced jews. you cannot march into a school and do something other than your algebra class. susan: christine and mclean, virginia. caller: hi. what do you think of the lawsuit by julie brinkman who , gave the middle finger to president trump's motorcade while she was by playing alongside it. she lost her job to do or action. now she is suing her employer for wrongful termination, claiming political speech. what do you think the outcome will be? erik: unless her employer is a government agency, the likely is she is likely to lose unless there's something in a contract that somehow protected her. but as a constitutional matter, it is almost a nonstarter. unless it was the government she worked for. i don't recall the facts of the case. susan: i don't want to get off on a tangent on that case. dan, nashville, tennessee.
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caller: good evening. i wanted to call in and thank you for covering this way back when. my best friend and i organized armbands to protest the vietnam war, to try to bring the soldiers home. in i believe the spring of 1970. the school administrators threatened everybody who was wearing one with suspension. at the end of the day my friend and i went to the library. they were able to find the then-recent determination by the court and i was pleased to see you play the walter cronkite clip. we quoted that in the city posey largest newspaper that the court determined students should not be required to leave their opinions at the school door. after graduation i had several teachers approach me and say they agreed. they were fearful for their jobs. i'm fascinated to hear this case being discussed in this perspective of history. mary beth: that's encouraging you are able to use it to do something. we were talking about how in
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some case, the ruling could be used against students. it did change the power structure in schools, i think. i have talked to many educators that agreed that the power dynamic changed. before then it was up to the principles and the school boards what was said in the schools. after this, administrators are put on notice that schools had a that students did have a say in the schools as well. susan: we're going to listen to john tinker talking about the decision and its impact on him and the legacy of this decision in his life. john tinker to be associated, : really humbled by the success of the case, and of what that has meant to student expression in the united states since then, and to have my name associated with that case, it is really a humbling experience. and then personally, it's been a very enriching experience for me because i am invited to talk to
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student groups. and i speak regularly to postgraduate classes of prospective principles and administrators and teachers. what an honor. it's a wonderful thing for me, personally. but i also think it is a very good thing for society to realize that students in school are learning how we have a democracy, how we make it work. and we make it work to the extent that it works by talking about things. susan: speaking of talking about things, on the phone with us is stephanie wager, a social studies consultant for the iowa department of education. she was a teacher at roosevelt high school in des moines, where christopher accor went to school.
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her husband also taught. we heard the day the case was decided her teacher did not incorporate it into a learning experience. what is the tinker case like for students in your school district now? stephanie i think if i were to : sum it up they think about it from a personal level. either they talk about it because it has such a powerful impact on iowa's history and local history and they can talk about it as being proud of that event happening in iowa. they also most of them have had , an opportunity to meet mary beth or john or somebody else involved in the case, and a think that really makes it so much more personal. mary beth shares the context of growing up in iowa, the context of what her family went through. just the context of the time period.
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i think that makes it such a more personal case for iowa teachers to talk about and cover. susan: in this particular time period when students seemed to be getting more active as speakers, what are you finding in the discussion in schools and between students and the teachers about their right to speak up? nie: i think most teachers in iowa and across the country use this case as really a legacy case connecting it from 50 years ago to today. we can still see patterns of students speaking up today, and they really constantly refer back to the tinker case. i hear this so much from iowa teachers as the bedrock case for explaining to students in making sure they understand the impact of informed actions into the schools. susan: thank you very much for being part of our discussion tonight. interesting to hear how it's talk when it is a local history story.
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mary beth what about your , relationship with the des moines school board? mary beth: it's been very good. the superintendent helped me to plan a big anniversary a few years ago for the 50th anniversary of being suspended. my brother john -- unfortunately chris died and was not able to be a part of it but bruce clark , came, and my brother and came and weand paul , went to the elementary school, five high schools. we went back to my middle school with a dedicated a locker to me. now the superintendent, we're planning a celebration for the 50th anniversary of the ruling as well. he has a great admiration for the ruling. and for student voices in general. he's a fan of the case. susan: we have some video of a mary beth tinker mural. where is that? mary beth: that is at my old junior high school. warren harding junior high school.
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they have an art scene there. it's been great to be involved with them. susan: did you ever expect an apology from the school board? mary beth: no. there was no apology but the roosevelt students all voted to have dan johnson our lawyer in the graduation speaker, and he was. susan: how does this all feel to you, seeing your picture on a wall at the school where you attended? mary beth: the whole story has been crazy, quite a journey, and very, very unexpected. as i tell students, this really is how most history is made, by the small things that we do in life. so you have to take your , experiences and find what you can do with them to make a better world. i have found that i can share this story with students and help encourage them to speak up for the things that affect their lives. susan: we have about eight minutes left. there has been referenced by both of you to later first amendment decisions that have
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affected schools. i'm going to put them on the screen and have you tell us a little more about them. they include bethel school district versus frazier in 1986. guiles v. marineu in 2007, and morse v. frederick in 2007. what does mean to the issue? both bethel and morse the , issue was a speech at a school assembly that had a lot of sexual innuendo. the courts pretty solidly came down in favor of the school which punished a student for , giving that sort of speech. the language difference in the case of striking. they thought about the school being a place to have values of stability, to teach students what to do even on personal , sensibilities. while we would all like to be more civil to each other, that
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is quite different from the notion that it is not a totalitarian society telling kids what to do. here, the public school system is actually teaching kids, and it treats kids less as rational actors as more that clay that needs to be molded to become citizens. the best line is that kids can't where the armband, they cannot cohen'san's jacket -- jacket. they would not be aware to wear that in school. full garrity sexual innuendo not y sexual innuendo , not allowed. it's a 2nd circuit case. justice sotomayor was on the panel. the student was criticizing president bush and the war, calling him a chicken hawk in making references to drugs and alcohol. he was told to cover up the references to drugs and alcohol. it violated the drug and alcohol policy. the second circuit said it was ok to wear that shirt because he was against drugs and alcohol, not for them, and that would possibly be the school's interested in someone criticizing drug use?
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that brings us to the last case, morse v. frederick. in the other one, a young comedian in alaska when the olympic torch was running by, he unfurled a flag that said bong hits for jesus. the court uphold it it because it could be fairly interpreted as advocating drug use. there are two exceptions to tinker. what is sexual activity and one , exceptating activities where he is opposing illegal activities and that is ok. susan: how do you process these erosions or walk backs? mary beth: probably the most important one of the cases was the hazelwood case in 1988. it had to do with journalism and also talked about student sponsored speech. unless the school establishes a public forum or the newspaper
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establishes it is a public forum unless the student lives in one , of those 14 states were legislation has been passed to bypass the hazelwood decision, it has the most impact on students. the tinker ruling also said that neither teachers or students leave their right to expression at the school gate. teachers' rights and students' rights are very much tied up together. when it is not a good time for teachers rights it is not a good time for students right. and that is now. right now it is not a good time for student's writes because of all these cutbacks with rights. there've also been cases that limited teacher's rights as well. susan: sandra is in iowa, welcome to the conversation. caller: hello.
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maclachlan. ra i was in 9th grade at the time. i thought our whole class would wearing black armbands that day, but only three of us did. we were told clearly when the ruling came down we would be kicked out of school. we had a lot of discussion that came out of but was happening in des moines. i just wanted to share that with you. five of us out of about 85 ended up being attorneys. i want you to know what impact you have because it really had significant impact. my son is an attorney as well and is very much involved in politics and the law. and my daughter is a journalist at the new york times. mary beth: great to inspire some attorneys. i think that is great. thanks for calling.
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i think we have also inspired some students who, even though it might not be a great time for standing for student's rights, they're using their rights very much today. it is very heartening to see. thank you. susan: let's talk about that. in the past two months there have been national walkouts, the most recent one just last friday. here are a couple headlines. texas school district threatens to suspend student to take part in gun control walkouts. 14,york post on march school to suspend students who walk up for gun protest. there are similar ones in other parts of the country. ian asks us, do you think the recent walkouts would qualify under -- as free speech under the tinker test? erik: i think as long as rules are not focused on one viewpoint or the other and are fairly clear, no, of course they are disruptive if you're walking
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out. the consequences may be exaggerated, but if you are not going to class here at you can get an absence. it may be nothing more than that. if they tried to punish them beyond what the normal policy for an absent might be even they might raise questions. i want to point out this cuts both ways. there are cases in new jersey of kids wearing second amendment shirts who are getting punished for referring to guns. the tinker legacy cuts both ways on this gun battle. and those fights are still being had. obviously, i think of the kit comes to school and says march for life on their shirt, that seems a pretty straightforward tinker case to me. mary beth: also students that is -- that are speaking up now these walkouts and rallies, it is so heartening for me to see as a trauma nurse. i worked with many years with children who have been shot. i think we should remember the students are trying to prevent -- keep disruption from happening in their schools by
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taking a stand and by having rallies and walkouts. they are trying to keep some stability going in their school where they don't have shootouts going on in their schools. i admire them for that. erik: i am pretty sure that is not the disruption tinker was thinking of, but yes, student activism of whatever flavor i think we should always encourage. susan: as we close since we talked about symbolic speech, what is your orange ribbon? mary beth: oh, the orange ribbon is to memorialize the students who had been shot. as we know, so many of them are not shot in school, but out in the community. i really admire the way the students have reached across racial boundaries to unite together because so many students have been shot out in the community. that is what the orange ribbon is for. my pin is thurgood marshall, who is a hero of mine. he was the attorney with the
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brown decision. his wife gave me a pin with his picture on it so i like to wear it when speaking to students to remind them he is with us in spirit. the wants students to have their rights and use them. susan: a couple of things to tell you as we close here. c-span has a book available on her website at landmarkcases. if you're interested in some background. special thanks of the national constitution center in philadelphia, which is been our partner in this and the first installment of landmark cases. thank you so much for being -- bringing your legal expertise to the conversation. mary beth, so interesting to have someone involved in our cases. thank you for watching and have a good night. ♪
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[captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit] [captions copyright national cable satellite corp. 2018] ♪ >> monday on landmark cases, new york times v. united states, better known as the pentagon papers case. ellsbergdaniel released a top-secret pentagon study to the new york times and the washington post which fought the nixon administration the published. brought journalists first amendment protections. our guest to discuss this
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article the nations top litigators, floyd abrams representing the new york times in its case, and ted olsen, a former u.s. solicitor general under president george w. bush. watch landmark cases monday at 9:00 eastern on c-span, and join the conversation. follow us at c-span. we have resources on a website for background on each case. the landmark cases companion book, a link to the national constitution center's interactive constitution, and the landmark cases podcast at newsmakers is pleased to welcome the chairman of the house armed services committee, mac thornberry, republican of texas. the subcommittees of his committee have been working on next year's pentagon spending with a total of $716 billion.


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