Then and Now: Black armbands continue to raise important speech questions for students protesting issues on-campus

Today, three Arkansas students struggle for a voice inside the schoolhouse gates

When Chris Lowry, Colton Dougan and Michael Joseph walked into their high school in Arkansas on Oct. 6, 2006, they did not expect to be filing a lawsuit against the school in federal court four days later.

And their attorney from the American Civil Liberties Union in Arkansas, Holly Dickson, did not expect to find herself in front of the very same U.S. Court of Appeals that had handled a similar case almost 40 years earlier that she thought had conclusively settled the students’ right to peaceful protest — Tinker v. Des Moines Independent Community School District.

It all started when Lowry’s mother, Wendy Crow, joined other citizens in addressing the Watson Chapel school board with concerns regarding the school dress code policy. Crow felt it was unfair to impose punishments on her son, who has Attention Deficit Disorder and sometimes could not remember to bring his name tag or belt to school.

After the meeting, parents met to discuss what actions could be taken by the students to stand up for themselves. Crow and Lowry decided to go on the Internet to find ways to peacefully protest at the high school. They found the Tinker case and immediately wanted to do the same type of peaceful protest to oppose the school’s dress code policy.

They bought black fleece and made armbands. Crow printed out the Tinker Supreme Court decision, and her children handed copies out to other students in school with the intention of teaching them their First Amendment rights.

It was nearly four decades earlier that Mary Beth Tinker, John Tinker and Chris Eckhardt were disciplined for wearing black armbands to protest the Vietnam War, challenged the discipline and won their case at the U.S. Supreme Court in 1969. The decision now protects students’ rights to express their views at school nationwide.

The only difference between the modern day case and the one 40 years ago was that Lowry, Dougan and Joseph protested the dress code policy by wearing the black armbands on their wrists, forearms or biceps. None wore the black armband over any part of their uniforms; the dress code policy allowed wristbands as long as they did not overlay the uniforms. The school even sold black rubber wristbands at a pep rally with the school’s name on it. Still, the students were suspended for wearing the anti-dress code armbands.

As Lowry v. Watson Chapel School District began its trial at the federal district court level on Sept. 11, 2007, Dickson said she was confident. On Oct. 31, 2007, the district court ruled in favor of the students. The school district appealed the case, to the Eighth U.S. Circuit Court of Appeals, arguing the district court ruled incorrectly in relying on the Tinker precedent.

“Defendants attempt to distinguish Tinker by emphasizing that the Tinker students protested the federal government’s Vietnam war policy, whereas here the protest object was merely a dress code,” the three-judge panel on the Eighth Circuit wrote in their opinion.

This point was argued also by Ivy Lincoln, an assistant superintendent of finance and compliance and civil rights coordinator with the school district, saying Tinker was being misinterpreted by the ACLU because protesting a national event was different from protesting a local event.

“If a second-grader wants to protest the War in Iraq tomorrow, then that kid won’t get in trouble here,” he said.

But the appeals court did not agree saying, “whether student speech protests national foreign policy or local school board policy is not constitutionally significant.”

Watson Chapel School Board’s attorney also argued to the Eighth Circuit that Tinker was different than Lowry because the dress code policy in place was made well before a protest even occurred. In Tinker, the policy to ban armbands was made after a school principal learned of a planned protest.

But again the Eighth Circuit disputed Watson Chapel’s argument by saying Tinker and Lowry were similar in facts.

“We hold that Tinker is so similar in all constitutionally relevant facts that its holding is dispositive,” they wrote. “In both cases, a school district punished students based on their non-disruptive protest of a government policy.”

A few days after the three-judge panel’s decision was filed, Crow said she did not think her son understood the magnitude of the case. Crow did not realize that her son’s case would be legal precedent, not just in her state, but also in six other states.

“I don’t think he understands that he’s done a really great thing,” Crow said.

Lowry said he was not nervous at all when he went to school that day and knew the other kids at school disagreed with the dress code policy.

“Everybody wanted to wear one because they didn’t like the dress code policy,” Lowry said. “And, they wanted to stand up for their rights.”

The Watson Chapel School Board appealed the Eighth Circuit’s decision at the U.S. Supreme Court in December.

“They weren’t punished for wearing the armbands, but for the message,” Lincoln said. “We are fighting to determine whether or not it’s permissible to regulate the time, place, and manner of a student protest of a school rule using apparel.”

Lowry’s case caught the eye of John Tinker, one of the litigants in the case 40 years ago. Tinker had a few choice words to say about Lowry’s case and about the school district’s position.

Lincoln said he did not agree with the way the ACLU was interpreting the Tinker lawsuit.“Tinker is not on point,” Lincoln said. “Black armbands are a logical trap.”

Tinker heard of the case and responded to Lincoln’s comment.

“Yeah they were a logical trap,” Tinker said. “And they fell for it.”

Dickson said Watson Chapel School District believed their policy was the law. She said Americans, in general, are not standing up when their rights are being violated, but in this case, teenagers broke the status quo.

“The silence is sometimes deafening when it comes to civil liberties violations,” Dickson said. “Because we have been complacent about exercising and protecting our civil liberties, you get enclaves of entities like this who certainly won’t respect them and are surprised that anyone would dare call them on a civil rights violation.”

Tinker said his lawsuit, nearly 40 years ago, gave him a degree of added confidence. Forty years later, one more person has gained a little more confidence, as well.

“It makes me want to do a lot more activism,” Lowry said. “I like standing up for myself.”

In December, the Watson Chapel School District filed a petition for certiorari to the U.S. Supreme Court asking for it to hear the case.

The school district is asking the Court to decide whether the Eighth Circuit improperly applied Tinker saying the “misapplication of Tinker can have far reaching effects” and that the Supreme Court must intervene to resolve a “split among the Eighth, Fifth and Ninth Circuit Court of Appeals concerning the application of Tinker to school dress codes.”

reports, Winter 2008-09