PRAIRIE VIEW A & M UNIVERSITY
PUBLIC SCHOOL LAW
WILLIAM ALLAN KRITSONIS, PHD
RELIGION IN THE PUBLIC SCHOOLS
TAMISHA HIGGINS DANIELS
TROY LEE DANIELS II
JULY, 27, 2009
Tamisha Higgins Daniels and Troy Daniels II
RELIGION IN THE PUBLIC SCHOOLS
There are a lot of people in America who would like to see the government provide
funding to private, religious schools. Critics argue that this would violate the separation
of church and state and sometimes the courts agree with this position.
Lemon v. Kurtzman,
403 U.S. 602 (1971)
Lemon v. Kurtzman, Earley v. DiCenso, and Robinson v. DiCenso.
This was actually three separate cases: Lemon v. Kurtzman, Earley v. DiCenso, and
Robinson v. DiCenso. These cases from Pennsylvania and Rhode Island were joined
together because they all involved public assistance to private schools, some of which
were religious. The final decision has become known by the first case in the list: Lemon
Pennsylvania’s law provided for paying the salaries of teachers in parochial schools and
assisting the purchasing of textbooks or other teaching supplies, as required by
Pennsylvania’s Non-Public Elementary and Secondary Education Act of 1968. In Rhode
Island, the 15% of the salaries of private school teachers was paid by the government as
mandated by the Rhode Island Salary Supplement Act of 1969. In both cases the teachers
were teaching secular, not religious, subjects.
These three cases from Pennsylvania and Rhode Island involved public assistance to
private schools, some of which were religious. Pennsylvania's law included paying the
salaries of teachers in parochial schools, assisting the purchasing of textbooks, and other
teaching supplies. In Rhode Island, the State paid 15% of the salaries of private school
teachers. A federal court upheld the Pennsylvania law while a District Court ruled that
the Rhode Island law fostered 'excessive entanglement'.
Arguments were made on March 3rd, 1971. On June 28th, 1971, the Supreme Court
unanimously (7-0) found that direct government assistance to religious schools was
unconstitutional. In the majority opinion written by Chief Justice Burger, the Court
created what has become known as the “Lemon Test” for deciding if a law is in violation
of the Establishment Clause.
Accepting the secular purpose attached to both statutes by the legislature, the Court did
not pass on the secular effect test, inasmuch as excessive entanglement was found. This
entanglement arose because the legislature
...has not, and could not, provide state aid on the basis of a mere assumption that secular
teachers under religious discipline can avoid conflicts. The State must be certain, given
the Religion Clauses, that subsidized teachers do not inculcate religion.
Because the schools concerned were religious schools, because they were under the
control of the church hierarchy, and because the primary purpose of the schools was the
propagation of the faith, a
...comprehensive, discriminating, and continuing state surveillance will inevitably be
required to ensure that these restrictions [on religious utilization of aid] are obeyed and
the First Amendment otherwise respected.
This sort of relationship could lead to any number of political problems in areas in which
a large numbers of students attend religious schools — just the sort of situation that the
First Amendment was designed to prevent.
DICTA FROM JUSTICE BURGER
There are three criteria that should be used to assess legislation: "First, the statute must
have a secular legislative purpose; second, its principal or primary effect must be one that
neither advances or inhibits religion; finally, the statute must not foster and excessive
government Entanglement with religion." The two statutes in question violate the third of
these criteria. The teachers whose salaries are being partially paid by the State are
religious agents who work under the control of religious officials. There is an inherent
conflict in this situation of which the state should remain clear. To ensure that teachers
play a non-ideological role would require the state to become entangled with the church.
Allowing this relationship could lead to political problems in areas in which a large
number of students attend religious schools.
This decision is especially significant because it created the aforementioned Lemon Test
for evaluating laws relating to the relationship between church and state. It is a
benchmark for all later decisions regarding religious liberty - some people love it, some
RELIGION IN THE PUBLIC SCHOOLS
Does a school district policy that requires public school teachers to lead willing students
in reciting the Pledge of Allegiance with the words “under God” violate the
Establishment Clause of the First Amendment?
Note: The case also raises a procedural question of Newdow’s standing, that is, whether
he has a legal stake in the case, given the fact that he was never married to his
daughter’s mother and does not have custody of the child. The Supreme Court’s oral
argument focused more on the merits of the question regarding the Establishment Clause
of the First Amendment. For the purposes of our moot court exercise, we will focus on
the substantive constitutional religion question, rather than the “standing” issue. We will
simply assume that Mr. Newdow has standing.
ELK GROVE UNIFIED SCHOOL DISTRICT v NEWDOW
on writ of certiorari to the united states court of appeals for the ninth circuit
[June 14, 2004]
ELK GROVE UNIFIED SCHOOL DISTRICT and DAVID
W. GORDON, SUPERINTENDENT, PETITIONERS
v. MICHAEL A. NEWDOW et al.
Michael Newdow is an atheist and the father (though not a custodial parent) of a minor
child who attends public elementary school. He objects to his daughter’s hearing and
voluntarily reciting of the Pledge of Allegiance in school. California law requires
“appropriate patriotic exercises” to be conducted daily in all public elementary schools
during the school year. Reciting the Pledge is one way of satisfying this requirement, and
it was the policy adopted by Elk Grove Unified School District. Congress first codified
the Pledge in 1942. Twelve years later, at the height of the Cold War, Congress amended
the text of the Pledge of Allegiance to include the words “under God.”
According to the Congressional Record, Congress “intended the inclusion of God in our
pledge … [to] further acknowledge the dependence of our people and our Government
upon the moral directions of the Creator.” According to the House Report, including a
reference to God in the Pledge would also “serve to deny the atheistic and materialistic
concepts of communism.” Anticipating a potential Establishment Clause challenge,
Congress noted the addition was not an “an act establishing a religion or one interfering
with the ‘free exercise’ of religion.” Newdow does not claim that the school district or
teacher requires his daughter to participate in reciting the Pledge. Such required
participation was prohibited by the Supreme Court in the 1943 case, West Virginia v.
Barnette, decided even before “under God” was added. Rather, he claims that his
daughter has a legally recognizable injury (that he can bring on her behalf) when she is
compelled to “watch and listen as her state-employed teacher in her state-run school leads
her classmates in a recitation proclaiming that there is a God, and that ours is one nation
under God.” Newdow argues that the 1954 modification of the Pledge by Congress, as
well as the state law and school rule requiring daily recitation, violate the First
Amendment’s Establishment Clause. He seeks declaratory and injunctive relief (i.e., a
ruling that the Pledge of Allegiance is unconstitutional with the addition of the words
“under God” and a court order prohibiting the school from requiring the daily recitation).
Michael Newdow's daughter attended public school in the Elk Grove Unified School
District in California. Elk Grove teachers began school days by leading students in a
voluntary recitation of the Pledge of Allegiance, including the words "under God" added
by a 1954 Congressional act. Newdow sued in federal district court in California, arguing
that making students listen - even if they choose not to participate - to the words "under
God" violates the establishment clause of the U.S. Constitution's First Amendment.
The district court dismissed Newdow's complaint for lack of standing, because he and the
mother of his daughter are divorced and he does not have custody. The U.S. Ninth Circuit
Court of Appeals reversed, holding that Newdow did have standing "to challenge a
practice that interferes with his right to direct the religious education of his daughter."
The Ninth Circuit ruled that Congress's 1954 act adding the words "under God" to the
Pledge and the school district policy requiring it be recited both violated the First
Amendment's establishment clause.
Does Michael Newdow have standing to challenge as unconstitutional a public school
district policy that requires teachers to lead willing students in reciting the Pledge of
Allegiance? Does a public school district policy that requires teachers to lead willing
students in reciting the Pledge of Allegiance, which includes the words "under God,"
violate the Establishment Clause of the First Amendment?
Justice Stevens wrote the majority decision, joined by Justices Kennedy, Souter,
Ginsberg and Breyer, vacating the Ninth Circuit decision striking the pledge after finding
that Michael Newdow lacked standing to pursue his claim. They held that as the non-
custodial parent, Newdow did not have control over religious or educational decisions
affecting his daughter. The decision referred repeatedly to “prudential standing,” or the
traditional but vague notion that the Court should not resolve “questions of
constitutionality unless adjudication of the constitutional issue is necessary.” It also noted
that in general the Court has “acknowledged that it might be appropriate for the federal
courts to decline to hear a case involving ‘elements of the domestic relationship,’” such
as the custody issues raised by Newdow’s standing as the father, since there are typically
dealt with in state courts.
In an opinion authored by Justice John Paul Stevens, the Supreme Court found that
Newdow did not have standing to bring suit because he did not have sufficient custody
over his daughter. "When hard questions of domestic relations are sure to affect the
outcome, the prudent course is for the federal court to stay its hand rather than reach out
to resolve a weighty question of federal constitutional law," Justice Stevens wrote.
Because it found that Newdow did not have standing, the Court failed to reach the
constitutional question. Chief Justice Renquist and Justices Sandra Day O'Connor and
Clarence Thomas all wrote separate concurrences, saying that requiring teachers to lead
the Pledge is constitutional.
8 votes for Elk Grove Unified School District, 0 vote(s) against
Justice Stevens delivered the opinion of the Court.
Each day elementary school teachers in the Elk Grove Unified School District (School
District) lead their classes in a group recitation of the Pledge of Allegiance. Respondent,
Michael A. Newdow, is an atheist whose daughter participates in that daily exercise.
Because the Pledge contains the words "under God," he views the School District's policy
as a religious indoctrination of his child that violates the First Amendment. A divided
panel of the Court of Appeals for the Ninth Circuit agreed with Newdow. In light of the
obvious importance of that decision, we granted certiorari to review the First Amendment
issue and, preliminarily, the question whether Newdow has standing to invoke the
jurisdiction of the federal courts. We conclude that Newdow lacks standing and therefore
reverse the Court of Appeals' decision.
Held: Because California law deprives Newdow of the right to sue as next friend, he
lacks prudential standing to challenge the school district's policy in federal court. The
standing requirement derives from the constitutional and prudential limits to the powers
of an unelected, unrepresentative judiciary. E.g., Allen v. Wright, 468 U. S. 737, 750. The
Court's prudential standing jurisprudence encompasses, inter alia, "the general
prohibition on a litigant's raising another person's legal rights," e.g., id., at 751, and the
Court generally declines to intervene in domestic relations, a traditional subject of state
law, e.g., In re Burrus, 136 U. S. 586, 593-594. The extent of the standing problem raised
by the domestic relations issues in this case was not apparent until Banning filed her
motion to intervene or dismiss, declaring that the family court order gave her "sole legal
custody" and authorized her to "exercise legal control " over her daughter. Newdow's
argument that he nevertheless retains an unrestricted right to inculcate in his daughter his
beliefs fails because his rights cannot be viewed in isolation. This case also concerns
Banning's rights under the custody orders and, most important, their daughter's interests
upon finding herself at the center of a highly public debate. Newdow's standing derives
entirely from his relationship with his daughter, but he lacks the right to litigate as her
next friend. Their interests are not parallel and, indeed, are potentially in conflict.
Newdow's parental status is defined by state law, and this Court customarily defers to the
state-law interpretations of the regional federal court, see Bishop v. Wood, 426 U. S. 341,
346-347. Here, the Ninth Circuit relied on intermediate state appellate cases recognizing
the right of each parent, whether custodial or noncustodial, to impart to the child his or
her religious perspective. Nothing that either Banning or the school board has done,
however, impairs Newdow's right to instruct his daughter in his religious views. Instead,
he requests the more ambitious relief of forestalling his daughter's exposure to religious
ideas endorsed by her mother, who wields a form of veto power, and to use his parental
status to challenge the influences to which his daughter may be exposed in school when
he and Banning disagree. The California cases simply do not stand for the proposition
that Newdow has a right to reach outside the private parent-child sphere to dictate to
others what they may and may not say to his child respecting religion. A next friend
surely could exercise such a right, but the family court's order has deprived Newdow of
RELIGION IN PUBLIC SCHOOLS
The Establishment Clause of the First Amendment ("Congress shall make no law
respecting an establishment of religion, . . .") has been interpreted as a guarantee that the
government may not (1) coerce anyone to support or participate in religion or (2)
establish a state religion or faith. Lynch v. Donnelly, 465 U.S. 668 (1984). One test
frequently used by the Court to evaluate whether a governmental practice or regulation
violates the Establishment Clause was set forth in Lemon v. Kurtzman, 403
This is the graduation case. In summary, a middle school graduation ceremony included a
service conducted by a Rabbi that acknowledged the existence of a god. A student
(Weisman) sued the school (the principal of which was named Robert E. Lee). The
government's brief was written with the aid of John Roberts.
Lee v. Weisman
505 U.S. 577 (1992)
U.S. SUPREME COURT
LEE v. WEISMAN, 505 U.S. 577 (1992)
505 U.S. 577
ROBERT E. LEE, INDIVIDUALLY AND AS PRINCIPAL OF NATHAN BISHOP
MIDDLE SCHOOL, ET AL., PETITIONERS v. DANIEL WEISMAN ETC.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT No. 90-1014
Argued November 6, 1991 Decided June 24, 1992
"Principals of public middle and high schools in Providence, Rhode Island, are permitted
to invite members of the clergy to give invocations and benedictions at their schools'
graduation ceremonies. Petitioner Lee, a middle school principal, invited a rabbi to offer
such prayers at the graduation ceremony for Deborah Weisman's class, gave the rabbi a
pamphlet containing guidelines for the composition of public prayers at civic ceremonies,
and advised him that the prayers should be nonsectarian.
Shortly before the ceremony, the District Court denied the motion of respondent
Weisman, Deborah's father, for a temporary restraining order to prohibit school officials
from including the prayers in the ceremony. Deborah and her family attended the
ceremony, and the prayers were recited. Subsequently, Weisman sought a permanent
injunction barring Lee and other petitioners, various Providence public school officials,
from inviting clergy to deliver invocations and benedictions at future graduations. It
appears likely that such prayers will be conducted at Deborah's high school graduation.
The District Court enjoined petitioners from continuing the practice at issue on the
ground that it violated the Establishment Clause of the First Amendment. The Court of
On certiorari, the U.S. Supreme Court affirmed the judgment of the United States Court
of Appeals for the First Circuit.
In keeping with the practice of several other public middle and high school principals in
Providence, Rhode Island, Robert E. Lee, a middle school principal, invited a rabbi to
speak at his school's graduation ceremony. Daniel Weisman's daughter, Deborah, was
among the graduates. Hoping to stop the rabbi from speaking at his daughter's graduation,
Weisman sought a temporary restraining order in District Court - but was denied. After
the ceremony, where prayers were recited, Weisman filed for a permanent injunction
barring Lee and other Providence public school officials from inviting clergy to deliver
invocations and benedictions at their schools' ceremonies. When the Court of Appeals
affirmed a District Court ruling against the schools, Lee appealed to the Supreme Court
and was granted certiorari.
Does the inclusion of clergy who offer prayers at official public school ceremonies
violate the Establishment Clause of the First Amendment?
In a 5-to-4 decision, the Court held that government involvement in this case creates "a
state-sponsored and state-directed religious exercise in a public school." Such conduct
conflicts with settled rules proscribing prayer for students. The school's rule creates
subtle and indirect coercion (students must stand respectfully and silently), forcing
students to act in ways which establish a state religion. The cornerstone principle of the
Establishment Clause is that government may not compose official prayers to recite as
part of a religious program carried on by government.
Decision: 5 votes for Weisman, 4 vote(s) against
Legal provision: Establishment of Religion
"One timeless lesson is that if citizens are subjected to state-sponsored religious
exercises, the State disavows its own duty to guard and respect that sphere of inviolable
conscience and belief which is the mark of a free people. To compromise that principle
today would be to deny our own tradition and forfeit our standing to urge others to secure
the protections of that tradition for themselves."
The Supreme Court rejected the opportunity to reverse the standard it established in
Lemon. This ruling extended the prohibition of school prayer to graduation ceremonies. It
failed to accept that a student would not be harmed by standing during the prayer without
sharing the message contained in the prayer.
Thousands of public high schools across the country have used (and probably still
continue to use) prayer at graduation ceremonies. The case demonstrated once again that
the Court has not reached a firm consensus concerning the evaluation of Establishment
RELIGION IN THE PUBLIC SCHOOLS
After decades of litigation, the balance of power is increasingly clear: While
parents who can afford to do so have a right to opt out of public schooling (through home
schools or private schools), if the kids are in public schools they are essentially wards of
the state and can be subjected to all kinds of state indoctrination without parental consent.
Just check out cases where students were forced to sit through lewd sexual programs
(Brown v. Hot, Sexy, and Safer Productions), take sexually explicit and suggestive
surveys at a young age (Fields v. Palmdale School District), and even participate in
Wiccan rituals (Brown vs. Woodland Joint Unified School District).
United States Court of Appeals,
Ronald C. BROWN, et al., Plaintiffs-Appellants,
HOT, SEXY AND SAFER PRODUCTIONS, INC., et al., Defendants-Appellees.
[October 23, 1995]
Plaintiffs-Appellants: Ronald C. Brown, et. al
Defendant-Appellee: Chelmsford Public Schools
The plaintiffs are Chelmsford High School students Jason P. Mesiti
("Mesiti") and Shannon Silva ("Silva"), and their parents Ronald and Suzanne
Brown ("the Browns"), and Carol and Richard Dubreuil ("the Dubreuils"). The
plaintiffs' complaint alleges the following facts, which we take as true for purposes
of this appeal. On April 8, 1992, Mesiti and Silva attended a mandatory, school-wide
"assembly" at Chelmsford High School. Both students were fifteen years old at the
time. The assembly consisted of a ninety-minute presentation characterized by the
defendants as an AIDS awareness program (the "Program"). The Program was
staged by defendant Suzi Landolphi ("Landolphi"), contracting through defendant
Hot, Sexy, and Safer, Inc., a corporation wholly owned by Landolphi.
Plaintiffs allege that Landolphi gave sexually explicit monologues and
participated in sexually suggestive skits with several minors chosen from the
audience. Specifically, the complaint alleges that Landolphi: 1) told the students that
they were going to have a "group sexual experience, with audience participation"; 2)
used profane, lewd, and lascivious language to describe body parts and excretory
functions; 3) advocated and approved oral sex, masturbation, homosexual sexual
activity, and condom use during promiscuous premarital sex; 4) simulated
masturbation; 5) characterized the loose pants worn by one minor as "erection wear";
6) referred to being in "deep sh--" after anal sex; 7) had a male minor lick an
oversized condom with her, after which she had a female minor pull it over the male
minor's entire head and blow it up; 8) encouraged a male minor to display his
"orgasm face" with her for the camera; 9) informed a male minor that he was not
having enough orgasms; 10) closely inspected a minor and told him he had a "nice
butt"; and 11) made eighteen references to orgasms, six references to male genitals,
and eight references to female genitals.
The complaint names eight co-defendants along with Hot, Sexy, and Safer, and
Landolphi, alleging that each played some role in planning, sponsoring, producing,
and compelling the minor plaintiffs' attendance at the Program. In March 1992,
defendant Judith Hass ("Hass"), then chairperson of the Chelmsford Parent Teacher
Organization (the "PTO"), initiated negotiations with Hot, Sexy, and Safer. Hass and
defendant Michael Gilchrist, M.D., also a member of the PTO, as well as the school
physician, viewed a promotional videotape of segments of Landolphi's past
performances and then recommended the Program to the school administration. On
behalf of defendant Chelmsford School Committee (the "School Committee"), Hass
executed an agreement with Hot, Sexy, and Safer, and authorized the release of
$1,000 of Chelmsford school funds to pay Landolphi's fee.
The complaint also names as defendants two other members of the School
Committee, Wendy Marcks and Mary E. Frantz, as well as the Superintendent and
Assistant Superintendent of the Chelmsford Public Schools, Richard H. Moser, and
David S. Troughton, and the Principal of Chelmsford High School, George J. Betses.
Plaintiffs allege that all the defendants participated in the decisions to hire
Landolphi, and to compel the students to attend the Program. All the defendants
were physically present during the Program.
A school policy adopted by the School Committee required "[p]ositive
subscription, with written parental permission" as a prerequisite to "instruction in
human sexuality." The plaintiffs allege, however, that the parents were not given
advance notice of the content of the Program or an opportunity to excuse their
children from attendance at the assemble.
The district court granted defendants' motion to dismiss plaintiffs' complaint,
Plaintiffs maintain that the sexually explicit nature of Landolphi's speech and
behavior humiliated and intimidated Mesiti and Silva. Moreover, many students
copied Landolphi's routines and generally displayed overtly sexual behavior in the
weeks following the Program, allegedly exacerbating the minors' harassment. The
complaint does not allege that either of the minor plaintiffs actually participated in
any of the skits, or were the direct objects of any of Landolphi's comments
The facts alleged at bar are less severe than those found insufficient in Souza and
Pittsley. The minor teenagers in this case were compelled to attend a sexually
explicit AIDS awareness assembly without prior parent approval. While the
defendants' failure to provide opt-out procedures may have displayed a certain
callousness towards the sensibilities of the minors, their acts do not approach the
mean-spirited brutality evinced by the defendants in Souza and Pittsley. We
accordingly hold that the acts alleged here, taken as true, do not constitute
conscience shocking and thus fail to state a claim under Rochin.
The district court granted defendants' motion to dismiss plaintiffs' complaint,
pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim
upon which relief may be granted, and also dismissed the state law claims under the
supplemental jurisdiction principles of 28 U.S.C. Sec. 1367.1 The district court
deferred entry of final judgment, giving plaintiffs leave to file an amended complaint
curative of the deficiencies by February 10, 1995. Plaintiffs failed to do so, and final
judgment was entered on March 3, 1995, dismissing their claims.
The court of appeals head that: We do not hold that a one-time episode is per se
incapable of sustaining a hostile environment claim. The frequency of the alleged
harassment is a significant factor, but only one of many to be considered in
determining whether the conduct was "sufficiently severe or pervasive" that a
reasonable person would find that it had rendered the environment hostile or
Landolphi stated in her opening remarks that "[w]e're going to talk about
AIDS, but not in the usual way." These prefaces framed the Program in such a
way that an objective person would understand that Landolphi's allegedly vulgar
sexual to be considered in determining whether the conduct was "sufficiently
severe or pervasive" that a reasonable person would find that it had rendered the
environment hostile or abusive.
RELIGION IN THE PUBLIC SCHOOLS
Schools districts are concerned that religious symbols worn by students might
associate with a street gang and cause violence. But the federal district court noted in
Alabama and Coushatta Tribes of Texas v. Big Sandy I.S.D. students had worn their
rosary beads outside their shirts for several months without incident.
United States Supreme Court
John F. Tinker and Mary Beth Tinker, Minors, etc., et al., Petitioners,
DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT et al.
Plaintiffs-John F. Tinker and Mary Beth Tinker, Minors, etc., et al., Petitioners
Defendants-Des Moines Independent Community School District et al.
In December 1965, Des Moines, Iowa residents John F. Tinker (15 years old), John's
younger sister Mary Beth Tinker, (13 years old) and their friend Christopher Eckhardt (16
years old) decided to wear black armbands showing peace symbols on them to their
schools (high school for John and Christopher, junior high for Mary Beth) in protest of
the Vietnam War and supporting the Christmas Truce called for by Senator Robert F.
Kennedy (brother of President John F. Kennedy). The school board apparently heard
rumor of this and chose to pass a policy banning the wearing of armbands to school.
Violating students would be suspended and allowed to return to school after agreeing to
comply with the policy. Mary Beth Tinker and Christopher Eckhardt chose to violate this
policy, and the next day John Tinker also did so. All were suspended from school until
after January 1, 1966, when their protest had been scheduled to end.
A suit was not filed until after the Iowa Civil Liberties Union approached their family,
and the ICLU agreed to help the family with the lawsuit. Their parents, in turn, filed suit
in U.S. District Court, which upheld the decision of the Des Moines school board. A tie
vote in the U.S. Court of Appeals for the 8th Circuit meant that the U.S. District Court's
decision continued to stand, and forced the Tinkers and Eckhardts to appeal to the
Supreme Court directly. The case was argued before the court on November 12, 1968.
The court's 7 to 2 decision held that the First Amendment applied to public schools,
and that administrators would have to demonstrate constitutionally valid reasons for any
specific regulation of speech in the classroom. Justice Abe Fortas wrote the majority
opinion, holding that the speech regulation at issue in Tinker was "based upon an urgent
wish to avoid the controversy which might result from the expression, even by the silent
symbol of armbands, of opposition to this Nation's part in the conflagration in Vietnam,"
and, finding that the actions of the Tinkers in wearing armbands did not cause disruption,
held that their activity represented constitutionally protected symbolic speech.
Justices Hugo Black and John Marshall Harlan II dissented. Black, who had long
believed that disruptive "symbolic speech" was not constitutionally protected, wrote
"While I have always believed that under the First and Fourteenth Amendments neither
the State nor the Federal Government has any authority to regulate or censor the content
of speech, I have never believed that any person has a right to give speeches or engage in
demonstrations where he pleases and when he pleases." Black argued that the Tinkers'
behavior was indeed disruptive and declared, "I repeat that if the time has come when
pupils of state-supported schools, kindergartens, grammar schools, or high schools, can
defy and flout orders of school officials to keep their minds on their own schoolwork, it is
the beginning of a new revolutionary era of permissiveness in this country fostered by the
Harlan dissented on the grounds that he "[found] nothing in this record which impugns
the good faith of respondents in promulgating the armband regulation."
'The First Amendment declares that Congress shall make no law respecting an
establishment of religion or prohibiting the free exercise thereof. The Fourteenth
Amendment has rendered the legislatures of the states as incompetent as Congress to
enact such laws. The constitutional inhibition of legislation on the subject of religion
has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance
of any creed or the practice of any form of worship. Freedom of conscience and
freedom to adhere to such religious organization or form of worship as the individual
may choose cannot be restricted by law. On the other hand, it safeguards the free
exercise of the chosen form of religion. Thus the Amendment embraces two concepts,
—freedom to believe and freedom to act. The first is absolute but, in the nature of
things, the second cannot be. Conduct remains subject to regulation for the protection
The U.S. Supreme Court handed down arguably the most important First
Amendment decision yet for public school students — Tinker v. Des Moines
Independent Comm. Sch. Dist., preserving the three students forever in First
Amendment lore. The case established that public school students did not "shed their
constitutional rights to freedom of speech or expression at the schoolhouse gates."