Mary Beth Tinker didn’t realize how momentous a U.S. Supreme Court decision in her family’s favor would be 50 years later.
During a conference on student free speech at the University of Virginia School of Law on Friday, Tinker said she picked up that the decision was a big deal because her mother bought her ice cream. Today, she sees her case in the context of human rights.
“Because the First Amendment has always been a tool that discriminated-against people can use to improve their status,” she said. “Children are certainly one of those groups.”
Tinker, the plaintiff in the landmark case Tinker v. Des Moines Independent Community School District, discussed her case and the importance of students’ right to free speech during her keynote address at the conference.
Hosted by the Virginia Law Review Online, the conference included two panel discussions about how to handle unpopular speech and the status of student rights 50 years after the Tinker decision.
At 13, Tinker and her siblings wore black armbands to school in 1965 to protest the Vietnam War, defying a school ban. Tinker was suspended for the demonstration.
The U.S. Supreme Court ruled in 1969 that students did not relinquish their rights to freedom of speech or expression when they stepped on school grounds, with the caveat that they do not disrupt the educational process.
Micah Schwartzman, director of the law school’s Karsh Center for Law and Democracy, read excerpts from the court’s decision in introducing Tinker at the conference.
“In reading Tinker v. Des Moines Independent Community School District, it’s worth remembering … how difficult it can be and how much courage it takes to stand up for one’s rights,” he said.
Children today are facing a range of challenges, from poverty to gun violence to homelessness, Tinker said.
“That’s why kids need their rights to speak up about a lot of these things because, as it turns out, when a group who is affected and who speaks out for themselves, that is the most effective,” she said.
In the 50 years since the high court ruled in Tinker’s favor, the decision has been cited to protect and limit student speech. Locally, the Albemarle County School Board has spent several meetings discussing whether a ban on Confederate flag and hate symbols would violate the Tinker case standard.
Eventually, the school division banned the symbols, saying they disrupted the school environment.
In 2018, UVa moved to limit the public’s ability to “engage in expressive activity” on Grounds following the torchlit march the night before the Unite the Right rally in 2017. The policy change did not apply to students.
Tinker said she used to be a First Amendment absolutist and believed the answer to speech you didn’t like was more speech.
But since she’s traveled around the country advocating for student rights, she has seen how the right to free speech is not equal in schools, especially for students from low-income households or children of color.
“I’ve become more sensitive and aware of the issue,” she said, adding that she’s conflicted on the issue of restricting student speech and still figuring it out.
Since 2013, Tinker has traveled around the country to talk with students about their rights. During that time, she has heard about hundreds of incidents involving hate speech. She said schools shouldn’t wait until students have hateful feelings, thoughts or actions. Rather, they should start when children are young and teach them with anti-racism programs.
“And I’ve come to believe that it is especially the responsibility of us white people to teach other white people at any age, but especially children, when they’re young, to teach kids the history of Virginia, the history of the Confederacy, the history of how we got here, the kind of violence, and to help kids understand,” she said.
On Friday, Tinker put her decision to wear the armband in the broader context of the civil rights movement of the 1960s. She was inspired by the children she saw protesting on TV and her parents also were involved in activism, travelling to Mississippi to help register African Americans to vote.
“They came back and I was starting to get the message,” she said. “This is the way you should live — to speak up for what you believe in.”
Just as she watched children protest in the South, she watched the horrors of the Vietnam War unfold during the nightly news.
“And us kids were getting sadder and sadder, much like kids today,” she said, adding that she and her friends were upset and didn’t know what to do.
They eventually decided to silently protest by wearing the armbands. Tinker acknowledged that she was nervous to take the stand and didn’t want to get into trouble.
“But I kept thinking of those Birmingham kids and how great they were,” she said.
When she wore the armband, she eventually was sent to the principal’s office and was asked to take it off, which she did.
“I learned a very important lesson that day,” she said. “You don’t have to be the most courageous person in the world. You can be you. When you do something to speak up about something that you care about, you probably will be nervous. You may be scared. But I found that even that little bit of courage went a long way.”