The Courts and the Constitution

The Silent ProtestTinker v. Des Moines Independent

Community School District

Copyright 2010 The Florida Law Related Education Association, Inc.

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If you were responsible for selecting all of the judges in Florida what would you look

for?

Knowledge

Skills

Dispositions/QualitiesTM

How are judges different from political officials?

vs.

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Calling all judges…….

• How would you write a job description or advertisement to find a good judge?

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Judicial Decision-making

• Judges cannot make decisions based on their feelings……

• Decisions must be based on the law.

• Legal reasoning

• Prior cases/ precedent

• Constitution

• Statutes

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Today, you will be a justice on the US Supreme Court and decide a real case.

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But first…

You need to know the First Amendment to the

US Constitution.

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How many rights

• How many rights are in the First Amendment?

• Can you name them?

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The first amendment—5 rights• Freedom of Speech• Freedom of Religion • Freedom of the

Press• Freedom of

Assembly• Right to petition the

government

• Note: Only 2 % of Americans could name all five rights in the First Amendment.

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First Amendment

“Congress shall make no law respecting an establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech, or of the press;

or the right of the people to peaceably assemble, and to petition

the Government for a redress of grievances.”

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Speech

• What is speech?

• Just words……or more?

• Signs, symbols, messages

• on tee-shirts, etc.

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Free speech—limits

• Should there be limits on speech ? What are some limits that you can think of?

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School Speech vs. Public Speech

• The Court has generally recognized that students do not shed their constitutional rights when they enter school.

• However, the Court has traditionally recognized that the educational mission of the school cannot be disrupted by the exercise of free speech.

• Speech rights at school differ from outside the school environment.

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The Silent ProtestNow for the case:

Read and highlight or circle

the important facts.

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Tinker v. Des Moines Independent Community School Dist.

• In 1965, three public school students protesting the Vietnam War came to class wearing black armbands with a peace symbol. They were silently protesting the Government’s policy in Vietnam.

• The principals of the school district had agreed that all students wearing armbands must remove them or face suspension.

• When they refused to remove the armbands, the students were suspended.

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The Silent ProtestWhat did the students do?

What happened to the students?

How does this involve the First Amendment?

Mary Beth Tinker

John Tinker

Christopher Eckhardt

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What rule did the students violate? Why do you think the principals created this rule?

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Should the students be allowed to wear the armbands? Were

the students causing a disturbance? Did the

students interfere with the rights of others at school?

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What can they do??

• Courts can only make decisions on cases that come before them.

• Courts are often asked to review if a law or action of the government violates their rights.

• Did the schools violate the students’ rights to free speech?

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US District Court

Southern District of IowaUS District Court

(How it appears today)

• First step in the federal trial courts:

• Students’ parents filed a legal action.

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What is an Appeal?

Appeal

US Courtof Appeals

United States Supreme

Court

US DistrictCourt

Appeal

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Precedent

• Burnside v. Byars, 363 F.2d 744 (5th Cir.1966)– African-American students in a segregated high school

wore “freedom buttons” that said “One Man One Vote.”– Students stated that they wore the buttons as a means

to encourage members of the community to exercise their civil rights.

– Fifth Circuit decided that school officials cannot infringe upon the students’ right to free expression where the exercise of such rights in the school does not “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.”

A prior legal decision that serves as an example or model for the current decision.

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Precedent

• West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943)– Students who were members of the Jehovah’s Witness

faith refused to salute the American flag.– Under the State Board of Education Code, the students

were expelled for their failure to salute. School officials threatened to send the students to reformatories for juvenile delinquents.

– The Supreme Court held that this provision of the Code violated the First Amendment because there was no claim that “remaining passive during a flag salute ritual creates a clear and present danger that would justify an effort to muffle expression.”

A prior legal decision that serves as an example or model for the current decision.

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Precedent

• Cox v. Louisiana, 379 U.S. 536 (1965)– Cox was arrested for leading a march that protested

racial segregation in businesses. – Supreme Court held that Cox’s conviction for disturbing

the peace violated the First Amendment where the assembly was peaceful and orderly and the protesters were not hostile or aggressive.

– The Court also held that Cox’s conviction for obstructing a public right of way violated the First Amendment. The Court found that city officials were selectively enforcing the broadly-worded law to only prohibit the expression of ideas with which they disagreed.

A prior legal decision that serves as an example or model for the current decision.

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Issues to be Considered

• Was the act disruptive?

• Could the act have resulted in harm to the

other students?

• Is wearing armbands a form of speech that

should be allowed?

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Should the students be allowed to wear the armbands? Were

the students causing a disturbance? Did the

students interfere with the rights of others at school?

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Question?

• Did the principal’s actions violate the students’ First Amendment freedom of speech protections?

• Yes or No

• Why or why not

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Silent ProtestQuestion before the court

(constitutional question):

Does the principals’ rule violate the students’ First Amendment rights to freedom of speech/expression?

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Silent ProtestIndividually answer the question –

Yes or No based on

• the facts of the case

• the Constitution

Give 3 reasons in writing.TM

Silent ProtestIf you answer YES…

You are deciding for the students.

If you answer NO…

You are deciding for the school board.

Des Moines School Board

Mary and John Tinker

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Does the principals’ rule violate the students’ First

Amendment rights?

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Silent Protest• Establish groups of 5• Choose a Chief Justice• Chief Justice Maintains Order• Poll the Justices. How did each one

answer the question and why?• Try to come to a unanimous decision.• You have 10 minutes to discuss then

take a final poll

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Silent ProtestAfter each Court decides:

• Bring the Chief Justices to the front of the room to report on the decision of each group

• Tally results and announce

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Silent Protest

What did the real US Supreme Court decide? Why?

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US Supreme Court

9 Justices1969

Warren Black Douglas Harlan

Brennan Stewart White Fortas Marshall

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Opinion of the Court Dissenters

Black HarlanWarren

DouglasBrennan

Stewart White

Fortas

MarshallTM

US Supreme Court Decision• The wearing of armbands

was "closely akin to 'pure speech'" and protected by the First Amendment. The principal had failed to show that the forbidden conduct would materially and substantially interfere with the work of the school or impinge upon the rights of other students.

• 7 – 2

• In favor of the students (Tinker)

• The Oyez Project, Tinker v. Des Moines Ind. Comm. School Dist. , 393 U.S. 503 (1969) available at: (http://oyez.org/cases/1960-

1969/1968/1968_21)

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