Writing a Legal Opinion - Essay Example

Legal Opinion: Tinker v Des Moines Independent Community School District In 1965 a group and parents in Des Moines met and decided that they wanted to do something in protest against the Vietnam War. It was decided that students should wear black armbands signalling their protest at school. Learning of this decision, school officials responded by implementing a ban on the wearing of black armbands. Students wearing the armband would be asked to remove them and should they refuse to do so, they would be suspended.

Two Tinker siblings and another student (Petitioners) wore black armbands and upon being asked to remove them, refused and were subsequently suspended. The three students filed a complaint against the Des Moines Independent Community School District (Respondent) in a Federal court claiming violation of their First Amendment Right to Free expression. That suit failed and the petitioners eventually appealed to the US Supreme Court. The petitioners invoked the First Amendment to the US Constitution which essentially protects freedom of speech, freedom of religion, freedom of peaceful assembly and the right to “petition the Government for a redress of grievances” (US Constitution, First Amendment).

The main question in the Tinker Case was therefore whether or not the wearing of an armband constituted speech and if so, whether or not banning the wearing of armbands amounted to a violation of free expression/speech pursuant to the First Amendment of the US Constitution. The petitioners argued that wearing armbands was a protected First Amendment right in that it constituted expression of an opinion. The wearing of armbands in the manner conducted by the petitioners was essentially passive speech, caused no disturbance in the school’s learning and social environment and did not infringe upon the rights of others.

Thus the school’s disciplinary action was unreasonable and infringed the petitioners’ constitutionally protected right to freedom of expression pursuant to the First Amendment of the US Constitution. The respondent argued that there was a reasonable fear or apprehension that the wearing of armbands would cause disruption in the school’s learning and social environment. The respondent argued that the implementation of the ban against the wearing of the armbands was necessary to prevent disturbances at the school.

While this argument had been accepted by the lower courts, the US Supreme Court rejected this argument ruling that there was no evidence supporting the fear of disturbance and schools could not infringe student’s First Amendment rights on the basis of unsubstantiated fears or apprehensions of disturbances or disruptions in the school’s learning and social environment. The US Supreme Court’s ruling in the Tinker case is referred to as the Tinker standard (Lavarias, 2008). The ruling represents a balancing between two conflicting realities.

First, there is the idea that children of school age are just as capable as adults in terms of forming and expressing opinions on sensitive issues and thus should be accorded First Amendment rights to free expression. Secondly, there is also an appreciation of the fact that schools are places for learning and all efforts should be made to safeguard against the risk of hate speech and other modes of free expression that can disrupt the school environment. In this regard, the Tinker standard successfully balances the school’s interest in restricting free speech and the students’ interest in exercising free speech of expression (Starrett, 2009).

I agree with the Tinker ruling since the school children’s protest was decidedly passive and was not conducted in a way that would or did disrupt the school environment. If children come to school and express opinions in a way that would from the perspective of a reasonable observer likely cause a disturbance or does cause a disturbance, freedom of expression should therefore be restricted, but only in those specific circumstances. Bibliography Lavarias, J. “A Re-examination of the Tinker Standard: Freedom of Speech in Public Schools.

” Hastings Constitutional Law Quarterly, (Spring 2008) Vol. 35(3): 575-598. Starrett, B. “Tinker’s Facebook Profile: A New Test for Protesting Student Cyber Speech.” Virginia Journal of Law & Technology, (Fall 2009) Vol. 14(212): 213-254. Tinker v Des Moines Independent Community School District 393 US 503 (1969). US Constitution.