TINKER V DES MOINES ORAL ARGUMENTS: TRANSCRIPT
MR. CHIEF JUSTICE EARL WARREN: Number 21, John F. Tinker and Mary Beth Tinker, minors, ext. et. al., petitioners, versus the Des Moines Independent Community School District, et. al. Mr. Johnston.
MR. DAN L. JOHNSTON: Mr. Chief Justice and may it please the court. This case is similar in some respects to the decision in the case that resulted the decision in Epperson v. Arkansas which the court just decided this morning.
This case is here on certiorari to the United States Circuit Court of Appeals for the Eighth Circuit. One major distinction between Epperson and this case is that this case involves rights of public schools students rather than public school faculty members to exercise expressions of their opinions in a non-disruptive way in the school. The case began when the United States . . .
JUSTICE ABE FORTAS: Well, this is not a religious establishment case either.
MR. JOHNSTON: No it?s not your honor. It's a First Amendment free speech case in sense of expression of views rather than worship or establishment case.
The case began with a petition for injunction of nominal damages under 42 U.S. code 1983 in the United States District Court for the southern district of Iowa. That court dismissed the petition and on appeal to the circuit the decision was split four to four.
The conduct of the students essentially was this: that at Christmas time in 1965, they decided that they would wear small black armbands to express certain views which they had in regard to the war in Vietnam.
Specifically, the views were that they mourned the dead of both sides, both civilian and military, in that war and they supported the proposal that had been made by United States Senator Robert Kennedy that the truce which had been proposed for that war over the Christmas period be made an open ended or indefinite truce.
This was the purpose that the students gave for wearing the armbands during this period.
During this period of time, of course, there were school days and they wore the armbands to school. Prior to the time when any of these petitioners wore the armbands to school it came to the attention of the school authorities that perhaps there would be some students who would express views related to the was in Vietnam in this manner during school time. The principals of the secondary schools, the high schools and perhaps the junior high schools in the city of Des Moines public school system met prior to the time that any of the armbands had been worn and enacted a policy which was not written but which was agreed upon among themselves that no student could wear an armband in the Des Moines public school system for this purpose; that if a student came to school wearing the armband he would be asked to remove it; failing that, the student's parent would be contacted and their assistance would be solicited in getting the student to remove the armbands; failing that, the students would be sent home - would be, in effect, suspended from school until such time as they were willing to return to school without the armbands.
The three students who are petitioners in this case, Christopher Eckhardt who was sixteen and in the tenth grade at Roosevelt High School in Des Moines at the time; John Tinker who was fifteen and in the eleventh grade at another high school; and Mary Beth Tinker who was thirteen and in the eighth grade determined that in spite of the policy that had been determined to the schools decided that they would wear the armbands as a matter of conscience, to express the views that they had. Christopher Eckhardt and Mary Beth Tinker wore theirs on the first day.
Mr. Eckhardt went to school, had the armband on, but knowing of the policy against the wearing of the armbands because as I stated had been announced, he went quite immediately to the office of the principal and said I?m wearing the armband. I know it is in violation of the school policy.
The principal carried out the dictates of the policy which were to tell the student to remove it. The student said that he could not in good conscience remove the armband, that he thought he had a right to wear it. The student?s mother was called and she supported her son in the activity and then young Mr. Eckhardt was suspended from school. He was out of school approximately six days, five days prior to Christmas vacation and then one day after the Christmas vacation. Mary Beth Tinker also wore her armband on that first day.
However, she wore it throughout the entire morning without any incident related to it that in any way disrupted the school or distracted. She wore it at lunch and she wore it, where there was, by the way, some conversation between herself and other students in the lunch room about why she was wearing the armband and whether or not she should be wearing it and then wore it into the first class in the afternoon and it was in the afternoon that she was called to the office and the procedure was followed for contacting her parents, apparently asking her to remove it and she did remove the armband and then returned to class.
However, in spite of the fact that she had removed the armband and returned, and was returned to class, she was later called out of class and suspended, nevertheless. John Tinker determined that, it was his belief that the armband should not be worn in open violation of the policy that the schools had adopted until some attempts had been made to try to reach an accommodation with the school board. So on the first day John Tinker did not wear the armband to school. Rather in the evening of the day when Mr. Eckhardt and John's sister Mary Beth were suspended from school, he and some other students who had worn the armbands attempted to contact the superintendent of the, uh excuse me, not the superintendent, the chairman of the board of directors of the school, the Des Moines public schools and they requested that he call a special meeting of the board of directors, of the school board as we call it, for the purpose of trying to reach an accommodation between the students, the desire?s of the students, and the policy enacted by the principals of the schools. They were refused this special meeting of the school board and then, on the next day, Friday,
John Tinker wore an armband to school, wore it throughout the morning hours without any toward incident, without any substantial or material disruption to the school, wore it at lunch where there was again some discussion about it in a period that?s generally free and open for discussion among students and then wore it into the first class in the afternoon where he was suspended.
JUSTICE BYRON R. WHITE: What if the student had gotten up from the class he went to and delivered the message orally that his armband was intended to convey and insisted on doing it . . .
MR. JOHNSTON: I think in that case . .
JUSTICE WHITE: . . . all during the hour?
MR. JOHNSTON: . . yes, in that case, your honor, we would not be here even if he insisted on doing it for only a second because he would clearly be, although he would be expressing his views, he would be doing something else.
JUSTICE WHITE: Why did they wear the armbands in the class, to express that message?
MR. JOHNSTON: . . . to express the message.
JUSTICE WHITE: . . to everybody in the class?
MR. JOHNSTON: . . . to everyone in the class, yes, your honor.
JUSTICE WHITE: . . . and everybody while they were listening to some other subject matter was supposed to also be looking at the armband and taking in that message?
MR. JOHNSTON: Well, to the extent that they would see it, but I don't believe that there was any, I don't believe that the. . .
JUSTICE WHITE: Well, they were extended to see it, weren't they?
MR. JOHNSTON: They were intended to see it in a way that would not be . . .
JUSTICE WHITE: And to understand it?
MR. JOHNSTON: And to understand it.
JUSTICE WHITE: And to absorb that message?
MR. JOHNSTON: And to absorb the message.
JUSTICE WHITE: . . . while they are studying arithmetic or mathematics, they are supposed to be taking in this message about Vietnam?
MR. JOHNSTON: Well, except that, your honor, I believe that the message the students choose in this particular incident was specifically designed in such a way that it would not cause that kind of disruption. None of the teachers who have testified who have testified at the hearing in the district court . . .
JUSTICE WHITE: You mean they were just wearing a meaningless armband?
MR. JOHNSTON: No, your honor, I believe they were . .
JUSTICE WHITE: . . . carrying an ineffective message? They intended it to be ineffective.
MR. JOHNSTON: No, they intended it to be an effective, but . . .
JUSTICE WHITE: Then why didn't they take it off when they went to class?
MR. JOHNSTON: Well, there would be no reason to take it off when they went to class.
JUSTICE WHITE: Because it was ineffective, nobody would notice it.
MR. JOHNSTON: It was not disruptive in the class your honor.
JUSTICE WHITE: You mean physically, but how about the attention of the students?
MR. JOHNSTON: Well, there is no testimony by any of the teachers that it was in any way distracting or disruptive.
JUSTICE WHITE: Why did they wear, again, why did they wear the armband?
MR. JOHNSTON: They wore the armband to convey a message.
JUSTICE WHITE: To convey the message.
MR. JOHNSTON: That's right.
JUSTICE WHITE: They anticipated students would see it and understand it and think about it.
MR. JOHNSTON: That's correct.
JUSTICE WHITE: And when they did it in class, they intended the students to do it in class.
MR. JOHNSTON: Well, I think it's a fair assumption that the method of . . .
JUSTICE WHITE: They intended the students to think about it outside of class but not in class.
MR. JOHNSTON: I think they intended; I think they chose a message, chose a method of expression your honor, which would not be disrupting, distracting, disrupting.
JUSTICE WHITE: Physically it wouldn't make a noise. It wouldn't cause a commotion, but don't you think that it would cause some people to direct their attention to the armband and the Vietnam war and think about that rather than what they were thinking about, supposed to be thinking about in the classroom?
MR. JOHNSTON: I think, perhaps, your honor, it might for a few moments have done that, and I think it perhaps might have distracted some students just as many other things do in the classroom which are allowed from time to time. I think it might have . . .
JUSTICE WHITE: But which the school is permitted to forbid.
MR. JOHNSTON: But which the school also allows to continue. I don?t think there is any suggestion that the school attempts to regulate all things that might be distracting, especially in the sense of these, this type of activity which probably contributes something to the total atmosphere at the school, rather than distracting.
JUSTICE THURGOOD MARSHALL: The policy we have was preventing from wearing armbands any place in the building?
MR. JOHNSTON: That's correct, that?s correct.
JUSTICE MARSHALL: It's not limited to the classroom.
MR. JOHNSTON: That's right. It prohibits them from wearing the armbands to gym class, to the cafeteria, in the halls, and any time at school.
JUSTICE MARSHALL: Any place within the building?
MR. JOHNSTON: That's correct.
JUSTICE POTTER STEWART: But your contention is they were entitled to wear it in the classroom too because that's when they were removed from the school.
MR. JOHNSTON: Well, our contention is that the policy, as it was adopted, was a broad policy, which is not to distinguish, is not in any way, was directed towards disruption or distraction. It is a policy which will not stand the test of freedom of expression under the First Amendment.
JUSTICE WILLIAM J. BRENNAN, JR.: Suppose it then that a big button stopped the bombing.
MR. JOHNSTON: Well as a matter-of-fact a number of political buttons were warned at this school.
JUSTICE BRENNAN: Oh that is I'm for Humphrey or I'm for Wallace.
MR. JOHNSTON: I'm for Humphrey, I'm for, well we didn't have it at that time. I'm for, I'm for Nixon, I'm for Goldwater. Uh, the record also shows that . . .
JUSTICE BRENNAN: Suppose it was designed to stop the bombing.
MR. JOHNSTON: I don't believe, that no me would not be the sort of thing which would be designed to disrupt class.
JUSTICE BRENNAN: Suppose it was a placard with a message, across it.
MR. JOHNSTON: The, the situation I think and the problem that we have is this specific regulation directed only toward one specific kind of conduct. Now, there is in the record a document called, which was defendant's exhibit three in the trial, which is a broad statement of policy by the school related to things that disrupt, relating to disrupting conduct. The difficulty that we have with this particular policy as it was enacted is that there was no indication, no testimony by teachers, by administrators, or anyone else of any reason to believe that it would be disruptive. And when the students, in fact, did wear the armbands, the record quite clearly shows that it was not, in fact, disruptive. That the, and I believe it's interesting . . .
JUSTICE WHITE: Do you believe that a narrow, a narrower regulation says that you may not wear armbands or buttons or placards in the classroom would be sustainable under the First Amendment?
MR. JOHNSTON: I believe it would be more easily sustainable were it directed . . .
JUSTICE WHITE: Or would it be sustainable?
MR. JOHNSTON: No, I don't believe so your honor. It would not be.
JUSTICE WHITE: Do you have to take that position?
MR. JOHNSTON: Don't have to take that position in this case.
JUSTICE WHITE: But you do.
MR. JOHNSTON: I do in answer to the court's question because I have to be candid with the court.
JUSTICE WHITE: Why don't you have to sustain that position in this case?
MR. JOHNSTON: Well, because the armband regulation in this case was directed toward wearing of the armband at any time in the school whether or not there was any indication it was disrupting.
JUSTICE WHITE: But they wore it in class.
MR. JOHNSTON: They did wear it in class. There is no indication that they were suspended for just wearing it in class. For instance, Christopher Eckhardt . . .
JUSTICE WHITE: Well I know but why shouldn't the question be were they permitted to be suspended for wearing it in the class?
MR. JOHNSTON: Because the question I believe, I would suggest is before us is the question of the policy that was adopted, whether or not the policy itself will stand the test of freedom of expression under the First Amendment. Christopher Eckhardt, by the way, as I've indicated never did wear the armband to class and yet was suspended.
JUSTICE WHITE: Now the, the action that was brought was what?
MR. JOHNSTON: The action that was brought was for an injunction, for injunctive relief against and for nominal damages under the . . .
JUSTICE WHITE: Against the, against any enforcement of the regulation?
MR. JOHNSTON: Against any enforcement of the regulation which would infringe upon the student's freedom of expression.
JUSTICE WHITE: Do you think that injunction then would forbid them? Would the injunction you wanted, you think you ought to have, should forbid the school from keeping armbands out of classrooms?
MR. JOHNSTON: Unless they were kept out of there for the express purpose of preventing disruption; unless there was some showing that they would cause disruption.
JUSTICE WHITE: Well so your answer is yes? You want this injunction to . . .
MR. JOHNSTON: Yes, that's correct.
JUSTICE WHITE: And you are trying to sustain that injunction?
MR. JOHNSTON: I'm trying to, yes.
JUSTICE WHITE: So you must be arguing that the state may not keep armbands out of classrooms?
MR. JOHNSTON: On the state of this record.
CHIEF JUSTICE WARREN: I suppose you would concede that if it started fist fights or something of that kinds and disrupted that school, that the principal could prevent the use of them.
MR. JOHNSTON: The suggestion, I believe, we're making your honor is that there should not be any special rule for freedom of expression cases for schools. Now that would mean that the general Terminiello type of response that the state first has an obligation to try to move directly against those causing the disruption rather than to take away the First Amendment right to free expression would apply also. But again, we don't reach that in this case because there just simply is not that kind of evidence in the record.
CHIEF JUSTICE WARREN: (inaudiable) you go to the clear and present danger principle . . .
MR. JOHNSTON: Or as the fifth circuit in two cases, Burnside vs. Byars seems to indicate and Blackhall vs. (Isoqueena). The Byers case is sited in our brief, uh, a material and substantial disruption to the schools would justify, perhaps, the subordination of freedom of expression.
JUSTICE STEWART: Why shouldn't the Terminiello type case be applicable in the classroom?
MR. JOHNSTON: Well, the facts of the Terminiello case are not necessarily applicable to the classroom. With the kind of test; the thing, your honor, that we've been trying to deal with in this case since the trial is the concept that wholly special rules, wholly special doctrines, for some reason should be applied to First Amendment law in schools. What we suggest and we admit, as we've admitted from the beginning, that the amount of disruption that's permissible in a public hall in Chicago or in a street in New York . . .
JUSTICE STEWART: Disruption?
MR. JOHNSTON: Well, anything that prevents the state.
JUSTICE STEWART: Well, you are not talking just about violence?
MR. JOHNSTON: No, certainly not, you're talking . . .
JUSTICE STEWART: At least you are talking about that?
MR. JOHNSTON: I think that is correct, I think that is correct . . .
JUSTICE STEWART: And so there could certainly be some whispering going on, undertone in the classroom?
MR. JOHNSTON: There isn't any doubt about that in our mind your honor.
JUSTICE STEWART: And even though it wasn't disruptive or bothered anybody else at all, we didn't make anybody mad or anything. This might have made somebody a little amused.
MR. JOHNSTON: This might have impaired the ability of the school to carry out the purposes that it was there for.
JUSTICE FORTAS: Well, is there any evidence of that in this record?
MR. JOHNSTON: Your honor, there is not. As I say there was discussion from time to time at the cafeteria at lunch. There was some discussion in the halls. There is, and I'm frank to say, when John Tinker wore the armband in the first hour, they were engaged in a class which was a free discussion type of class.
The instructor of the class was outside the room and he was asked during that period about the armband and he did explain to the students why he wore it. We are urging upon the court the concept that especially in the public schools, which as this court recognized this morning in Arkansas case and it has recognized many times before that it's important that the idea of freedom of dissent and inquiry and expression be maintained in schools and there is certainly is nothing in this record which indicates that a sufficient amount, a sufficient quantum of evidence to overcome that presumption.
JUSTICE FORTAS: As I understand it, and I want to be very clear about this, in response to my brother White's question, if the record showed that the wearing of the armbands significantly or substantially or materially or whatever is the right word interfered with the business of the classroom, that is communication between teachers and students, then you would say that disciplinary action would be justified?
MR. JOHNSTON: I think that we can take that position. Now I would like to make a distinction, if I may, between the, an expression of an opinion which might itself disrupt class and the expression of an opinion which might cause someone else to disrupt class, and I believe those are perhaps two separate cases.
But also I can make a distinction between the expression of an opinion which is coupled with something else, like marching in the hallway or standing up in the class and making a speech about the war in Vietnam during mathematics class. That kind of thing, I think the court can prohibit, but we are in a situation here where the record just simply doesn't support that kind of a situation. Rather it supports the idea that before anyone wore an armband, really on the basis of pure conjecture that the policy was adopted, frankly for the purpose and the administrators and the teachers say this over and over again - it was the principle of the demonstration, the idea of expressing political beliefs that they were opposed to in this context and the students were suspended for violating that policy and not suspended for causing any disruption in the classroom.
JUSTICE FORTAS: Suppose the state passed a law, applying a ban on black armbands for protest purposes, across the board, so that it would be applied in private schools as well. Would that be constitutional?
MR. JOHNSTON: I think that would probably, your honor, interfere with some earlier decisions of this court, probably in regard to the right of individuals as citizens to establish private schools, so as long as they meet accreditation standards to educate their children as they see fit.
I believe that's probably a different kind of situation from what we have here. The situation here, as I view it, is based not so much upon the conduct of the students, whether or not it was permissible, but the conduct of the state, whether or not the conduct of the state was permissible, whether or not where we have a situation of pure expression and nothing else, which with no evidence of any material or substantial disruption of any public interest, whether or not in that situation the state can move to subordinate and to punish freedom of expression.
JUSTICE STEWART: Why isn't this case moot?
MR. JOHNSTON: The case is not . . .
JUSTICE STEWART: No one has been punished, have they? I'm reading from your brief the bottom of page eight, top of page nine showing that the petitioners returned to school at the end of the Christmas vacation, January fourth or fifth 1966, that's two and a half years ago, two and a quarter years ago without their armbands and, as far as it appears, that's the end of it. They weren't punished for it.
MR. JOHNSTON: Your honor, the students each testified in the district court, and this will appear in the record, that although they did return to school because of the obvious dire consequences to themselves if they did not return to school, that they still have these views of the war in Vietnam, they still have a desire to wear armbands to express their opposition to the war in Vietnam, and, were the policy taken away, they would wear their armbands to school. That . . .
JUSTICE STEWART: That's in the complaint is it? Or in the . . .
MR. JOHNSTON: It's in the appendix your honor. That testimony is in the record.
JUSTICE STEWART: In the complaint?
MR. JOHNSTON: Yes, it is in the complaint. Yes, it was alleged in the complaint.
JUSTICE STEWART: I just glanced at the complaint. I didn't find that.
MR. JOHNSTON: The, and in any event because we anticipated the possibility that by the time the case might be finally decided the students might no longer be in school and might no longer have that interest.
JUSTICE STEWART: Well, you sued for a dollar.
MR. JOHNSTON: That's right. We did your honor. That's what I was getting to.
JUSTICE STEWART: But isn't the jurisdictional; isn't the statute require ten thousand dollars to be in controversy?
MR. JOHNSTON: Not your honor in a case that goes under 42 U.S. code 1983 rather than under diversity. The statutes itself does not name any particular . . .
JUSTICE FORTAS: Your hope is that these children correctly understood some of our opinions on mootness.
MR. JOHNSTON: Yes your honor, it is. I've also, well, yes.
JUSTICE JOHN MARSHALL HARLAN: What happens if the Vietnam war ends before we decide the case?
MR. JOHNSTON: Well, your honor, we all hope for that of course. I would say that the prayer for damages is still there. The students were still out of school for six days in the instance of two, five days in the instance of one.
I would also say to the court, speaking very frankly, that my own experience and I'm sure the court's experience is this is not an isolated problem, that the correct balance between the interest of the school in maintain discipline and decorum and the rights of the students who, because I believe of the improvement in American education, have increasingly, are increasingly moved to have opinions and to want to express opinions; that this kind of situation arises and will continue to arise, and we suggest that this case provides a good context for the court to provide guidance for . . .
JUSTICE HARLAN: What if this gets the Supreme Court of the United States pretty deep in the trenches of ordinary day to day school district . . .
MR. JOHNSTON: Your honor, I really would not think it would get you any further in that sort of thing than did Barnette vs. Board of Education of West Virginia than did the case that the court announced this morning and did a number of other cases where the court has held that whatever are the delicate functions of school boards and they are certainly delicate, especially these days, that they still have no function which can not be exercised within the purview and within the dictates of this court's decision under the First Amendment.
JUSTICE HARLAN: We didn't say such things of that kind - the majority of us. It is purely an establishment case and nothing more.
MR. JOHNSTON: I understand
JUSTICE FORTAS: May I ask you, does it matter what the expression is about? Suppose some child shows up at school wearing an outlandish costume. I don't want to particularize it and that's in violation of a regulation of the school's saying that children must come to school decently clothed and this child says that I'm wearing this outlandish costume because I want to express my strong belief that I have in the utmost freedom for the individual and, you know Kool-Aid and electronic test kit and all the things that are being written about these days, and this child says this is what I want to do.
Does that make any difference? Does he have a constitutionally protected right with respect to that kind of expression or would you limit it to oh political matters, matters of social and political importance, societal importance, as we, as the older generation conceives it.
MR. JOHNSTON: Justice Fortas I believe that the real question in that regard hinges upon whether or not the utterance is expression, as contemplated by the First Amendment, which was a finding that the district court made, as a matter of fact, that student's were engaged in expression of view privileged by the First Amendment unless it's subordinated by some other state interest.
JUSTICE FORTAS: Yes sir that's the question, what's your opinion if you care to express one?
MR. JOHNSTON: My opinion would be, in that instance, that probably, again it would depend a lot on what the student said and demeanor of the student when he expressed things of that sort, that it probably would not be within the purview of the First Amendment, but again it's just conjecture on my part. Certainly just to wear one's haircut the way wants one, way wants to may present Fourteenth Amendment problems, as arbitrariness and things of that sort, but it does not present per se a First Amendment problem such as we have here.
JUSTICE MARSHALL: Mr. Johnston, during the negotiations was the suggestion ever been made to limit the rules to not wearing the bands in classrooms?
MR. JOHNSTON: Not to my knowledge your honor.
JUSTICE MARSHALL: It never . . .
MR. JOHNSTON: It never was made.
JUSTICE MARSHALL: The board never offered that as a solution, did they?
MR. JOHNSTON: No, they did not your honor. By the time it got finally to the board, they felt the necessity, I believe, to sustain the action in their principles.
JUSTICE HUGO L. BLACK: Which school was this?
MR. JOHNSTON: This was the, generally, the public schools in Des Moines. The three schools involved . . .
JUSTICE BLACK: What grades?
MR. JOHNSTON: The, Mr. Eckhardt was in the tenth grade at Roosevelt High School. Mr. Tinker was in the eleventh grade at North High School, and Mary Beth Tinker was in the thirteenth grade at Warren Harding Junior High School, no excuse me, the eighth grade at Warren Harding Junior High School.
JUSTICE BLACK: Would your principle include to kindergarten?
MR. JOHNSTON: To the extent, your honor, that those people have views and can express them within the purview of the First Amendment it would, yes. I should not think that there would have to be a special rule for schools or any other part of our society for the First Amendment.
Now the evidence of disruption might be different but as far as the principles apply, we would like to have the same principles applied in the school, or perhaps especially in the school, that are applied elsewhere. If I may, Mr. Chief Justice, I would like to reserve the remainder of my time for rebuttal.
CHIEF JUSTICE WARREN: Mr. Herrick.
MR. ALLAN A. HERRICK: Mr. Chief Justice and Associate Justices, the respondents believe that there are two basic issues involved here. The first, the school administrators or school boards have to wait until violence, disorder, and disruption break out and the scholarly discipline of the school is disrupted or may they act when in good faith in their reasonable discretion and judgment, disorder and disruption of the scholarly atmosphere of the schoolroom will result unless they act firmly and properly.
The second issue, it seems to me, is that this court must determine how far it wants to go under the constitutional amendments for free speech in reviewing every decision of every school district made in good faith in its reasonable discretion and judgment as necessary to maintain order and a scholarly disciplined atmosphere within the classroom. A third issue might be added are disturbances or threatened disturbances in the schools to be measured by identical standards with disturbances or threatened disturbances on the streets.
Now it's the position of the respondents that the decision of the school administration and of the school board made in good faith under the circumstances existing when that decision was made was the reasonable exercise of discretion on the part of the school authorities and did not deprive petitioners of their constitutional right of free speech. Now this court has held that freedom of speech including, of course, the right of demonstration is not an absolute right to be exercised regardless of time or place.
I'm sure it isn't necessary to quote to this court its own decisions but the case of Adderley vs. the State of Florida seems particularly pertinent, where the students went from the university to the jail grounds to protest the arrest of students who had been arrested the day and their claim was . . .
JUSTICE MARSHALL: Mr. Herrick, how many students were involved in the Adderley case?
MR. HERRICK: In the Adderley case?
JUSTICE MARSHALL: Uh huh. Seven hundred, wasn't it?
MR. HERRICK: Uh, it was a large, quite a large number.
JUSTICE MARSHALL: How many were involved in this one?
MR. HERRICK: Well, there were, uh, that's a hard question, your honor, of what you mean by involved. There are eighteen . . .
JUSTICE MARSHALL: How many were wearing armbands?
MR. HERRICK: Well, there were five suspended . . .
JUSTICE MARSHALL: five
MR. HERRICK: . . . for wearing armbands.
JUSTICE MARSHALL: Well, were there any wearing armbands who were not suspended?
MR. HERRICK: Yes, I think there were two.
JUSTICE MARSHALL: That makes seven.
MR. HERRICK: They weren't accepted and I'll refer to that a little later.
JUSTICE MARSHALL: Seven out of eighteen thousand and the school board was afraid that seven students wearing armbands would disrupt eighteen thousand.
MR. HERRICK: I think . . .
JUSTICE MARSHALL: Am I correct?
MR. HERRICK: . . . the court plays, that that doesn't give us the entire background that builds up to what was existing in the Des Moines schools at the time the armbands were worn. Uh, the, as we view it, the right of freedom of speech or the right of demonstration in the schoolroom and on the school premises must be weighed against the right of the school administration to make a decision which the administration, in good faith, believed and its discretion was reasonable to preserve order and to avoid disturbance and disruption in the schoolroom.
JUSTICE MARSHALL: Been any disruption?
MR. HERRICK: I'll refer to that also, your honor. There had been with John Tinker, what I would call disruption. One or two of the boys who had been struck, I believe the record shows.
JUSTICE MARSHALL: Well, how many boys are struck in the Des Moines school system per day normally?
MR. HERRICK: Well, if the court please, I think the question there gets back to the first issue that I undertook in the states. Does the school if we have an aroused community have to wait until disruption occurs or may it act to prevent it?
JUSTICE MARSHALL: Well, the school system was aroused? Where is that in the record?
MR. HERRICK: I think I can point that out, if the court please. In the background of this case in November of 1965, the petitioner, Christopher Eckhardt, with his mother, who was president of the Des Moines chapter of the Women's International Chapter for Peace and Freedom, had come to Washington D.C. to participate with the Students for a Democratic Society, Dr. Spock, and others in the march, which I'm sure that court is familiar with, from the White House to the Washington Monument. Now that was in November, I think, about the Thanksgiving holiday.
On Saturday, December 11, 1965, following this march, a group which included students related to Students for a Democratic Society and some adults met at the Eckhardt home and one of the proposals that developed at this meeting was the wearing of these black armbands.
None of these petitioners were present. Now as the trial court said, and this is on page 73 of the appendix, the last paragraph, the Vietnam war and the involvement of the United States therein has been a subject of a major controversy for some time.
When the armband regulation involved herein was promoted, debate over the Vietnam war had become vehement in many localities. A protest march against the war had recently been held in Washington D.C. A wave of draft card burning incidents protesting the war had swept the country.
At that time two highly publicized draft card burning cases were pending in this court. Both individuals supporting the war and those opposing it were quite vocal in expressing their views. This was demonstrated during the school board's hearing on the armband regulation and that appears also in the record. I think some two hundred had gathered, many of them outsiders, at the time of the school board hearing. This hearing the school board voted in support of the rule prohibiting the wearing of the black armband, the wearing of armbands on the school premises.
It is against this background that the court must review the reasonableness of the regulation. Now this is the background that faced that superintended of schools. This thing had become a matter through the press and through the community and the superintendent directed Dr. Peterson,
who was the director of secondary education, to call a meeting of the principals on December 14, 1965 and with this background and at the meeting, the principals in good faith, using their discretion and best judgment decided that to maintain discipline and avoid disruption, the wearing of the armbands in the schoolroom should not be permitted. Now on page forty-six . . .
JUSTICE MARSHALL: Mr. Herrick, suppose they decided to wear black neckties, four-in-hand ties?
MR. HERRICK: Oh, I would anticipate, your honor, there probably wouldn't have been any question about it unless they had build it up to appoint where they were . . .
JUSTICE MARSHALL: Suppose there was the same build up. Instead of saying we'll wear black armbands, and in order to mourn the war in Vietnam, we will wear mourning black ties.
MR. HERRICK: I think, your honor, if we get always back to the same problem. What are, under the circumstances, it is difficult to sit in this court, or to stand in this court and say what faced the schools out in Des Moines in the enactment of this, making this decision against the wearing of armbands. It was a, an inflammatory matter at that time. Now Dr. Peterson, the . . .
CHIEF JUSTICE WARREN: Mr. Herrick, before you get off that subject, is that any different from what was going on in practically every community in this country during the last two months, during the campaign for the presidency? Weren't those things thoroughly debated and argumentatively and vociferously in almost every community in the country?
MR. HERRICK: Oh, I think that's true, your honor, but I think the place for that . . .
CHIEF JUSTICE WARREN: Do you think then that what you have read is an efficient backdrop for stopping First Amendment rights in all of these communities because of that?
MR. HERRICK: I think, your honor, that the correct answer to that is free discussion in the classroom is always permitted, always has been, if they want to come in and discuss these matters.
But the question of imposing on a captive audience moving in with an armband when it's known through the press, through the community, through the things that have happened here that the community is inflamed might disrupt the orderly conduct of schools.
CHIEF JUSTICE WARREN: What did the court have to say, the trial court, as to whether this was an exercise of a First Amendment right?
MR. HERRICK: Well, the court said this . . .
CHIEF JUSTICE WARREN: What page?
MR. HERRICK: It's on page seventy-five. After due consideration, it's the view of the court that the actions of the school officials in this realm should not be limited to those instances where there has been a material or substantial interference with the school discipline.
CHIEF JUSTICE WARREN: Now, didn't they say something before that about whether this was a First Amendment right or not?
MR. HERRICK: Yes. Uh, yes, I think, uh, immediately.
CHIEF JUSTICE WARREN: That's what I was interested in.
MR. HERRICK: Here we are. It's on page seventy-two, your honor.
CHIEF JUSTICE WARREN: Seventy-two.
MR. HERRICK: Yes. The question which must now be determined is whether the action of the officials of the defendant's school district forbidding the wearing of armbands on school facilities deprived the plaintiffs of constitutional rights secured by the freedom of speech clause of the First Amendment.
And an individual's right of free speech is protected against infringement by the Due Process clause of the Fourteenth Amendment, Gitlow vs. New York, 268 U.S. 652. The wearing of an armband for expressing for the purpose of expressing certain views is a symbolic act and fall within the protection of the First Amendment's Free Speech clause, West vs., West Virginia State Board of Education vs. Barnette. However, the protections of that clause are not absolute. The abridgment of speech by a state regulation must also always be considered in terms of the object the regulation is attempting to accomplish and the abridgment of speech that actually occurs. In each case the courts must ask whether the gravity of the evil discounted by its improbability justifies such invasion of free speech as is necessary to avoid danger.
The officials of the defendant's school district have the responsibility for maintaining a scholarly, disciplined atmosphere within the classroom. These officials not only have a right, they have an obligation to prevent anything which might be disruptive in such an atmosphere. Unless the action of the school board, uh, officials in this connection are unreasonable, the court should not interfere. Now does that answer what your honor had in mind?
CHIEF JUSTICE WARREN: Yes, that's what I had in mind.
MR. HERRICK: Now, in this case council has already referred to the fact Christopher Eckhardt went to Roosevelt High School wearing the black armband. He's the one, as I have stated, with his mother had been down here on the march. They came back and they had the meeting, which he didn't attend.
Adults held the meeting. When Christopher came to school, he was asked by a student if he knew there was a rule against wearing the armband and he said he did and he went directly to the principal's office in defiance of the rule because, as he said, he thought they might suspend him.
Now, Mr. Blackmun who was the vice principal asked Christopher to remove the armband and he refused. Now after considerable discussion Mr. Blackmun finally called Christopher's mother and told her that he would have to suspend Christopher for wearing the armband and for refusing to abide by the school's regulation and Mrs. Eckhardt?s reply was that Christopher had a constitutional right to wear the armband. Now the other two petitioners, John F. Tinker and Mary Beth Tinker, bring this action by the father, the Reverend Lendard Tinker who is secretary for Peace and Education of the American Friend's Service Committee, and I think it's of some significance here, and I don't in any sense feel that it is controlling. If a constitutional right exists, you've got it, period.
But Paul Tinker who is eight years old went to school with a black armband, Hope Tinker who is eleven years old went to school with a black armband, and the petitioner Mary Beth Tinker who is thirteen went to school with a black armband.
John Tinker who is fifteen, he went to school with a black armband. Now Reverend Tinker testified that he had to support them in what he considered the exercise of their conscience and their own constitutional rights. Now respondents do not question that the Students for a Democratic Society or that Reverend Tinker as the secretary for Peace and Education of the Friend's Society, or Mrs. Eckhardt as the local president of the International League for Peace and Freedom, are entitled to express their views under their constitutional right to free speech. But he point not at every time, not at every place, and particularly not under the circumstances that existed in this case, not in the schoolroom at a time when it might result in disruption and might even result in violence.
Now, in substance, if we understand the petitioner's position in this case, it is that the school officials are powerless to act until the disruption occurs.
Respondents believe that that should not be the rule. Sometimes an ounce of prevention is a lot better than a pound of cure and I think subsequent history of such activities bear out the judgment of the school officials and their discretion.
CHIEF JUSTICE WARREN: On that theory, could they proscribe all discussion or demonstration of interest in political matters or political candidates or, or issues of government in a school?
MR. HERRICK: Not at all, not at all. They could proscribe, I think, the classroom, the time and the place where the matters could be discussed.
CHIEF JUSTICE WARREN: Suppose they were, suppose they were a Humphrey or a Nixon or a Wallace, what in the school which might be is, was in many communities was highly controversial in some places inflammatory. Could that be done?
MR. HERRICK: Well, I think, if the court please, if it were done as I think the record in this case shows where they to come in with a whole row of buttons on or something of that sort, it could prove disruptive. It's a matter of dress.
CHIEF JUSTICE WARREN: Did they come in with a whole row of armbands?
MR. HERRICK: No, no but it would be, would there be any question if they walked in with a placard that said we protest the Vietnam war? That was, under the circumstances,
CHIEF JUSTICE WARREN: I think there was. Don't you think it would be different?
MR. HERRICK: Normally yes, your honor, but I think normally. But I say this, this thing had been extensively exploited in the press. We have a situation here where it was explosive . . .
CHIEF JUSTICE WARREN: But what evidence is there of explosiveness in the community? That's the thing I haven't gotten out of this.
MR. HERRICK: Alright, if the court please, I refer first, I think here, to the John Tinker for just a moment.
JUSTICE STEWART: What page?
MR. HERRICK: That would be on page eighteen of the appendix. It really starts possibly on the first page. He went to the first two classes.
He didn't think the instructor saw it and he said he sat in the back of the class, I believe, in the second class which was ten-thirty, before noon and he didn't think anybody saw it, and he sat . . .
CHIEF JUSTICE WARREN: That's thinking that he saw it?
MR. HERRICK: Saw the black armband, that's correct, because he sat in the back of the class. Then he went to gym class and he said that on the way to gym class there wasn't any discussion. There was hardly no one around. That's the way it's stated here.
After gym class some of the students were making fun of me for wearing it. Others, who were my friends, made remarks in the locker room that were not very friendly. After, others, who were my friends, said they did not want me to get in trouble. Two or three boys made remarks in the locker room.
I beg your pardon, that part I'm repeating. This lasted perhaps three or four meetings. They did not threaten me with any physical harm. After gym class, I had half an hour for lunch. I ate lunch in the student center with several students with whom I eat frequently.
These people warned me in a friendly manner to take the armband off. There was one student with whom I had a feud in the seventh grade who was making smart remarks for about ten minutes. There were four or five people with him standing, milling around.
There were quite a few other students standing and milling around the lunchroom. To my knowledge, there were no threats to hit me or anything like that. At no time was I in fear that they might attack me or hit me in the student center because there were too many people there.
Now, it was right after lunch, the exposure we frankly can see here on the matter of disruption was very brief because here Christopher Eckhardt went to the principal's office and this I have about given you what happened with John Tinker. But he . . .
CHIEF JUSTICE WARREN: Then you say that anything happened that happened up to this time as you have read would show any immediate danger of disruption in a school, would you?
MR. HERRICK: Well, I don't know on, let's see, on I believe it's page sixty-two . . .
CHIEF JUSTICE WARREN: How about that though, the question I just asked you?
MR. HERRICK: Well, that's a pretty close question your honor as to, I don't think this. If the court says there has to be disruption, I don't believe that's the test.
CHIEF JUSTICE WARREN: Does it show danger of disruption there?
MR. HERRICK: I feel that is does, your honor.
CHIEF JUSTICE WARREN: Any more than what would go on ordinarily in the, in the . . .
MR. HERRICK: But I feel the test goes one step further than that, in the reasonable judgment of the school administrators or school board, if in their reasonable judgment disruption were threatened, at that point, it's our idea that they are entitled to act.
CHIEF JUSTICE WARREN: Well, I agree to that, but the reasonableness of it will have to depend upon what is in this record to support it. Isn't that true?
MR. HERRICK: Uh, yes, of course that's true, of course it's true.
CHIEF JUSTICE WARREN: Well, that's what I was asking. Where is this evidence that shows this danger of disruption?
MR. HERRICK: Well, on page sixty-two and this is from the deposition of John Tinker.
CHIEF JUSTICE WARREN: What page?
MR. HERRICK: Sixty-two, toward the bottom of the page. I attended the meeting of some fifty people at the building where my father's office. And there are some accounts of some students there as to physical violence had been inflicted upon them over wearing these armbands. Either Bruce Clark or Ross - Bruce Clark was one of the suspended five - said somebody had struck him . . .
CHIEF JUSTICE WARREN: Where is that? Is that on sixty-two?
MR. HERRICK: Yes, your honor.
CHIEF JUSTICE WARREN: Where? What part of the . . .
MR. HERRICK: Well, it says portion of the deposition of John Tinker, down below there. I attended the meeting of some fifty people at the building where my father's office. And there were some accounts of some students there as to physical violence that had been inflicted upon them over wearing these armbands. Either Bruce Clark or Ross had, said somebody had struck him, could have been both of them. I was there and recall hearing somebody say that.
JUSTICE MARSHALL: Mr. Herrick, would I be correct in assuming that if that violence had occurred in any of the three schools in Des Moines, the school officials would have known about it?
MR. HERRICK: I, I wouldn't want to say that that is true because I wouldn't know. It depended on how it was brought to their attention.
JUSTICE MARSHALL: Would it be normal? And my second question would be if the school board knew about it, wouldn't they have put in evidence about it?
MR. HERRICK: That would sound reasonable, your honor. Yes.
JUSTICE MARSHALL: Now what evidence did the school board and school officials have when they adopted this resolution? Is it on paper any place?
MR. HERRICK: No. I think, your honor, that the . .
JUSTICE MARSHALL: Do we have anything more than your assertion that they used due care and were they reasonable?
MR. HERRICK: I think, as I stated before your honor, that it was a matter of the explosive situation that existed in the Des Moines schools at the time the regulation was adopted.
JUSTICE MARSHALL: And that explosive situation was that they had a meeting in Washington D.C.? What else besides this?
MR. HERRICK: Alright, this is page seventy at the top of the appendix. A former student of one of our high schools was killed in Vietnam. Some of his friends are still in school. It was felt that if any kind of a demonstration existed, it might evolve into something which would be difficult to control.
JUSTICE MARSHALL: Do we have a city in this country that hasn't had someone killed in Vietnam?
MR. HERRICK: No, I think not your honor. But, I don't think it would be an explosive situation in most, in most cases, but if someone is going to appear in court with an armband here protesting the thing, than it could be explosive. That's the situation we find here.
JUSTICE MARSHALL: It could be.
MR. HERRICK: What.
JUSTICE MARSHALL: It could be. Is that your position?
MR. HERRICK: Yes. It could be.
JUSTICE MARSHALL: And there was no evidence that it would be. Is that the rule you want us to adopt?
MR. HERRICK: No, not at all your honor. I think the rule that, maybe I can express, I think there is an Arkansas case that I have referred to that expresses what we feel should be the rule. And this is in the respondent's brief on page twenty-eight.
And this again was a case where the plaintiff was suspended from school for violating a school rule forbidding the use of face paint and cosmetics. And she brought mandamus to require her admission to school not withstanding her refusal to obey the rule.
JUSTICE BLACK: Do you believe that was symbolic speech?
MR. HERRICK: Well, I cannot answer that, your honor. It was an expression certainly.
CHIEF JUSTICE WARREN: Well, at least the court, trial court didn't find that it was expression of, free, of First Amendment rights as did the courts in this case.
MR. HERRICK: No. What was involved, your honor, is that it was disruptive of the atmosphere of the schoolroom.
JUSTICE BLACK: I'd like to ask you a question because you seem to have admitted somethings rather modestly. Do I understand that you have admitted the constitution of the United States forbids the people of a state from barring political discussion in their schools if want to do so?
MR. HERRICK: Uh, no I don't believe I admitted that your honor. I think the situation broke down the discipline in the school. If I did . .
JUSTICE BLACK: I didn't think you, I didn't think you intended to. Now does the person have any more right to have say, make symbolic speech than he does actual talk, engage in speech, which the First Amendment protects? If not, why wouldn't these boys have a right to demand that the school let them talk about Vietnam?
MR. HERRICK: Oh they would, and it's, it's in the record here that free discussion in school of these matters is permitted.
JUSTICE BLACK: And what you claim is that you have the right to run your school of the teaching of geometry, history, mathematics, grammar, and the things that people want to teach
and that the federal constitution doesn't step in and tell you that you've got to let anybody discuss any subject symbolically or otherwise as they see fit.
MR. HERRICK: I think so long as it doesn't interrupt or disrupt the atmosphere of the school.
JUSTICE BLACK: Well he would disrupt it, wouldn't he, if he broke a valid rule.
MR. HERRICK: Yes.
JUSTICE BLACK: Well, what you're arguing then is whether or not this rule is valid or if it's constitutionally protected.
MR. HERRICK: That's correct, your honor.
JUSTICE BLACK: And do you think that the constitutional prevents the school from barring the discussion of particularly acute emotional subjects such as this is and lets them, allows them to say that we will have nothing in here except the teaching of the things the schools support.
MR. HERRICK: I think within reason, that's true.
CHIEF JUSTICE WARREN: But you wouldn't say would you, Mr. Herrick, that in doing that they could pick out one particular issue, public issue, and say this you cannot do but the rest you can do.
MR. HERRICK: I'd go further than that, your honor. I would state today maybe they could, the some proposition would come up if the atmosphere was different, should be permitted.
My only claim here is that what existed here, that the school administration and the school board acted reasonably and within their discretion, at that time. It could be very different today. Demonstrations at another time might not be explicit.
JUSTICE BLACK: Well, do I understand you to be saying now it's alright for them to interrupt your grammar classes, your history classes, your mathematics classes, any other classes that the school is supposed to teach in order to talk about Vietnam?
MR. HERRICK: No, I think that that is not correct. If I have given that impression, I'm sorry.
JUSTICE BLACK: You don't think that, do you?
MR. HERRICK: No, I don't believe that. I believe the schools are there to give these children an education and I think Des Moines is one of the great spots in the nation where they have done it. And I feel that anything that threatens that type of scholarly atmosphere in the classroom ought to be prohibited.
CHIEF JUSTICE WARREN: But there wasn't any disruption here, was there?
MR. HERRICK: Well, that's a question.
JUSTICE WHITE: Well, on page twenty-nine it says the whole period of mathematics on Wednesday was taken up by this discussion of student demonstrations.
MR. HERRICK: That's correct, your honor. So, they haven't forbad it in the schools, but mathematics, after all, is what ought to be taught in a mathematics class, and I think they are entitled to regulate it. That's what this is, is a regulation.
JUSTICE STEWART: Mr. Herrick, I seem to remember in reading the briefs an answer to this argument that there was something here about other students wearing other badges or symbols, but now in glancing them over, I can't find it except in footnote two of petitioner's brief with respect to some of the students having been seen wearing iron crosses. Was there anything else in the record?
MR. HERRICK: I think that, I think there was an iron cross. I think sometimes they'd worn political buttons.
JUSTICE STEWART: Does that show in the record that you remember?
MR. HERRICK: It does your honor.
JUSTICE STEWART: It does.
MR. HERRICK: Yes.
JUSTICE FORTAS: What do you do with Meyer against Nebraska and Bartels against Iowa?
MR. HERRICK: Uh, well, of course, Meyer against Nebraska is the forbidding of teaching the German language, as I recall it.
JUSTICE FORTAS: Yes, so is Bartels in substance.
MR. HERRICK: Well, I . . .
JUSTICE FORTAS: Those were decided in 1923.
MR. HERRICK: Surely. Again, your honor, I have to come back to the situation that your, that the court really doesn't sit down in the situation that the school administration and the school board does. They have got to say, is this so unreasonable as to violate a constitutional right?
JUSTICE FORTAS: But it that the test you'd really say, that is the court makes a judgment as to whether it's so unreasonable, and if we think it is so unreasonable, by which I suppose you mean excessively unreasonable then we say it's a violation of the Due Process clause of the Fourteenth Amendment and we tell the school board what it can or cannot do.
MR. HERRICK: I think we are getting . . .
JUSTICE FORTAS: That's your argument? I'm asking for your opinion.
MR. HERRICK: My opinion is that if the court undertakes to go that far, you are getting into a very difficult field of trying to say in every instance . . .
JUSTICE FORTAS: Well, I agree with you.
MR. HERRICK: whether a regulation is or is not a violation of the constitutional rights and I think some things have got to be left to the judgment of the administrators.
JUSTICE FORTAS: You would have to agree with me then, wouldn't you, that Meyer and Bartels present very serious obstacles . . .
MR. HERRICK: Uh.
JUSTICE FORTAS: because certainly those cases stand for the proposition that denial of uh, that a state criminal law, state law making it a criminal offense ont to teach German is unreasonable and that, although that's the state law and state exercise of state power over state schools, this court declared that the law is unconstitutional in 1923.
MR. HERRICK: I say this, your honor, I think every case must be reviewed on its own facts and I think that's the difficulty in this court getting into the situation or trying to regulate it.
JUSTICE STEWART: This was a public, this was a public school, wasn't it?
MR. HERRICK: It is your honor.
JUSTICE STEWART: Did Meyer have some reservation about public schools? They were private schools in that case.
MR. HERRICK: That's correct, your honor.
CHIEF JUSTICE WARREN: Mr. Johnston you have a few moments to rebut.
MR JOHNSTON: Thank you your honor. I would just like to point out, uh, may it please the court, Mr. Chief Justice, one of the things which I believe has been mentioned but needs to be mentioned more currently and that was that there was in this school no general prohibition against political emblems of this nature.
JUSTICE BLACK: Well, do you deny that under the law of Iowa, the school was acting within the authority of the state law?
MR. JOHNSTON: The school was acting, your honor, under a very broad state statute which gives . . .
JUSTICE BLACK: Well, well, is there any question about that? Do we have to look into that?
MR. JOHNSTON: No, your honor. The question . . .
JUSTICE BLACK: We have to accept that as being the law of Iowa.
MR. JOHNSTON: Yes, I think that's true.
JUSTICE BLACK: They were engaged in doing what the law gives them the right to do.
MR. JOHNSTON: Gives them the power to do, yes your honor. But I, the point I would like to impress upon the court at this time is that on pages forty-four and fifty and fifty-one of the record it's very amply stated by respondents that other kinds of political insignia, including the iron cross were worn in these schools, that they were not covered by this policy, that there was no policy covering them, that it was simply this one policy against the wearing of the armbands in this context.
Now council indicates that there was some sort of explosive situation which made this a special circumstance. I cannot of course recite to the record to prove the negative. I can just simply say that I don't believe that the record supports that kind of a situation.
JUSTICE BLACK: Well, if that's a valid rule, it was an explosive situation and a disruption, was it not? If it's a valid rule.
MR. JOHNSTON: Yes your honor, it is. But, our point is that the rule is not valid because it's based . . .
JUSTICE BLACK: That's right. It gets back to that issue.
MR. JOHNSTON: because it's based solely upon a Fourteenth Amendment alone type stand of reasonableness and this court . . .
JUSTICE BLACK: I must say I agree with some of the implications of my brother Fortas about that reasonableness rule. I don't think that case has been cited approvingly in many many years and I think the court was very careful to say this morning that it wasn't citing that case.
MR. JOHNSTON: Well, for instance, in the case of, in the Barnette case, which we cited in the brief, which was the case of the compulsory flag salute, this court specifically said that mere Fourteenth Amendment test of reasonableness are not sufficient in the schools when the students are engaged in something, or when the conduct involves something that's privileged under the First Amendment. That's the suggestion we have here. Now the reasons for the school board establishing the regulation are set out in page seventy of the record, at quite some length, by a document promulgated by the school board itself; council referred to them. Those reasons, which were by the way passed or at least reduced to paper, after the suspensions, in a week after the suspensions, simply to my reading of the decisions of this court do not provide sufficient grounds for the subordination of freedom of expression. Now . . .
JUSTICE BLACK: Well is it your view that your state of Iowa is with that power, if it sees fit, to bar political discussion in the school hours where children are being taught?
MR. JOHNSTON: It would not, it has that power. I believe it has the power but it's not necessary in this case because that's not what they've done your honor. They've banned only the discussion in one specific instance and that's all there is. Now I . . .
JUSTICE STEWART: You have almost an equal protection argument now.
MR. JOHNSTON: Excuse me your honor.
JUSTICE STEWART: You have something close to an equal protection argument.
MR. JOHNSTON: In addition to the other argument that I want to make and that, I believe the stronger argument is not the equal protection argument, not the censorship by discrimination argument, as Justice Black has called it, but as a matter of fact, the stronger argument is that they interest the state sought to protect, whatever that may have been as set out in page seventy of the record, simply was not sufficient, whereas it might have been sufficient to justify the suppression of something that was not privileged under the First Amendment.
JUSTICE BLACK: Well now you have the real interest that the state is trying to protect is the right of the state authorities and teachers to run the schools and establish the rules for teaching, rather than the pupils. Isn't that the interest it's trying to protect?
MR. JOHNSTON: Your honor I don't read that from the record. I believe that, I believe from the record that what the school wants . . .
JUSTICE BLACK: Which do you think has the most round about control in the schools, the pupils, in the policies and teaching, the pupils or the authorities that are running the schools?
MR. JOHNSTON: The authorities that are running the school under the authority given to them by the Constitution of the United States and within the provisions of that Constitution. And the whole nub of our case says that, of course that they have exceeded their powers under that. Thank you.