First Liberty Institute Submits Friend-of-the-Court Brief on Behalf of ’60s Student-Speech Activist, Mary Beth Tinker

April 16, 2015

Plaintiff from landmark 1969 public school student speech case takes special interest in 21stcentury off-campus speech case



Mary Beth Tinker (l) and her brother John Tinker (r)
with their armbands they wore to peacefully protest the Vietnam War in 1969.


One of the great ironies of modern American law is that the ACLU—often a fierce opponent of religious expression in public schoolshelped win a case in the 1960s that is frequently used by First Liberty Institute to advance religious freedom today(students represented by First Liberty Institute recently include Brooks Hamby, Gabriella Perez, and Kendra Turner).

The case was Tinker v. Des Moines Independent Community School District, decided in 1969 in favor of peaceful high school anti-war protesters—and chronicled in First Liberty Institute President & CEO Kelly Shackelford’s book, Supreme Ironyin which the Supreme Court famously ruled that school students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

The case began in 1965. Siblings Mary Beth Tinker (then 13 years old) and her brother John (then 15 years old) were the children of a Methodist minister and wanted to show their support of 1965 Christmas truce called for by Robert F. Kennedy in the Vietnam War. Influenced as well by their Methodist upbringing and their family’s involvement with the Religious Society of Friends (Quakers), the sister and brother decided to wear black armbands over their clothing to school topeacefully protest. But when they did, the Tinker children—along with three other students—were suspended for violating school policy against wearing black armbands.

The Tinker siblings and other students challenged the suspension as a violation of their First Amendment free speech rights. The Supreme Court agreed and in their decision struck a balance between the constitutional safeguards of free expression and the authority of school officials to maintain order and conduct in schools and make certain student safety.


The dramatic Tinker case and its implications for religious freedom in schools today is the topic of a friend-of-the-court brief (amicus brief) recently submitted by First Liberty Institute on behalf of amicus curiae, Mary Beth Tinker—supporting plaintiffs in Bell v. Itawamba County School Board—in the United States Court of Appeals for the Fifth Circuit.

Tinker, now a retired pediatric nurse in her early 60s, still remains active in student-speech issues and recently Tinker embarked on a bus tour known as the “Tinker Tour”—where she traveled over 25,000 miles by bus and spoke to more than 20,000 students and teachers at over 100 stops at schools, colleges, churches, youth detention facilities, courts, and several national conventions.

Tinker said that the goal of the tour was to “bring real-life civics lessons to schools and communities through the Tinker armband story. . . . History was made with just a simple, black armband.Can you imagine what a shy 13-year-old can do today with all of the extraordinary speech tools available?”

Tinker has strong interest in Bell v. Itawamba County School Board, explained First Liberty Institute volunteer attorney Allyson N. Ho—who also serves as lead counsel in the fight against the destruction of the Mt. Soledad Veterans Memorial Cross which the ACLU has brought a lawsuit against claiming the memorial’s cross violates the First Amendment’s Establishment Clause.

Bell involves the regulation of student speech. There are times when a case does not involve religious speech but may nonetheless have a significant impact on religious student speech. While Bell does not involve religious speech and certainly would not be a regular First Liberty Institute case, the non-profit law firm felt strongly that the Court needed to hear about the ramifications to religious speech should the Court go too far in regulating off-campus speech.


First Liberty Institute’s friend-of-the-court brief states that amicus curiae  Mary Beth Tinker is “concerned that the Tinker standard—and the vital role it plays in protecting free speech, including political and religious speech—could be weakened if stretched too far.” With the submission of this amicus brief, Tinker hopes to “respectfully assist the Court in more fully understanding the ramifications of the standard the Court chooses to apply in this case for other types of student speech, including political and religious speech.”

On behalf of Tinker, First Liberty Institute’s brief also points out that:

  • The Tinker standard is a bulwark against government censorship of speech at the heart of First Amendment concerns.
    Government school officials do not have carte blanche to regulate all student speech—especially off-campus speech. The consequences of a contrary rule would be grave for student and administrators alike, not only by curtailing the speech of students, but also by expanding the potential of administrators for liability and responsibility for off-campus speech.
  • The Tinker standard affords political and religious speech significant protection it might otherwise lack.
    Regulating off-campus speech in the absence of a threat of physical harm could well have serious and unintended consequences for the exercise of political and religious liberty—as extending the reach of school administrators can only expand the opportunities for school officials to impinge on the political and religious liberty of students (and their parents).

There are times when courts consider cases that First Liberty Institute would not take because they do not involve religious speech, but nevertheless First Liberty Institute and its clients feel compelled to file a brief explaining the impact of the case on religious speech. This is such a case. The Tinker standard is the most important legal protection for student religious speech. If any court threatens to erode the protections of the Tinker standard, First Liberty Institute must stand up to defend the law or else risk losing an important protection for religious liberty. 


“People of faith are in a fight for freedom right now—just like the families in this case were in the late 1960s,” said Shackelford in Supreme Irony.  “They, and the legal community, need to remember the Tinker case.  They need to remember the warning that suppressing freedom is, in the words of the Supreme Court, ‘totalitarianism.’  And they need to know that the law is on their side if they have the courage to stand up.”

Visit to learn more about the Tinker case and how it paved the way for the protection of freedom—including religious freedom—in the schoolhouse today.




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7 Reasons You Should Cheer Arkansas’s New Religious Freedom Restoration Act (RFRA)

About First Liberty Institute
First Liberty Institute is a nonprofit legal group dedicated to defending and restoring religious liberty across America — in our schools, for our churches, in the military and throughout the public arena. Liberty’s vision is to reestablish religious liberty in accordance with the principles of our nation’s Founders. For information, visit

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