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Mary Beth Tinker, fighting for your right to fight

In a couple of weeks, my Supreme Court class will be discussing freedom of expression, and when we do we will have occasion to discuss Tinker v. Des Moines, a Warren Court ruling striking a blow for the free speech rights of students. Last Monday, I was privileged to meet one of the plaintiffs in that case, Mary Beth Tinker. Tinker has devoted herself to a public speaking tour to promote the value of free expression and the need for students to act in its defense. Tinker was not the first famous (in my world, anyhow) Supreme court litigant I had met in person–Fred Korematsu holds that honor–but the prospect of meeting her punctured whatever level of jadedness I happen to be maintaining these days.

The presentation was informal, in a way that reflected Tinker’s rapport with young people that she honed during her career as a pediatric nurse, and it didn’t provide much about how the ACLU crafted a winning legal strategy on her behalf. Some of my students who had prior knowledge of the case were hoping for such inside dope (I was too, truth be told), but I gather that Tinker had tailored her presentation to reach students who were being introduced anew to the subject. I did learn how her parents’ activism on behalf of civil rights, and their willingness to pay a personal price for their actions, inspired her to protest U.S. involvement in Vietnam by wearing a black armband to school. In an era featuring little official tolerance for non-conformity in dress, never mind for student protest, this form of expression carried substantial risks, especially given the lack of due process rights available to minors then.

What I hoped my students had taken away was the importance of popular involvement in protecting civil liberties. There’s often a tendency to think that we should leave such matters to professional activists, who have both the time and wherewithal to maintain vigilance. I certainly don’t mean to downplay the role of such interest groups as the ACLU; many landmark cases, including Brown v. Board of Education and, yes, Tinker, might have failed to launch without the sponsorship of groups dedicated to advancing rights. But while interest group involvement can produce groundbreaking legal victories in the face of popular resistance, sustaining these victories over the long haul requires a movement that can overcome such resistance by building broader public support for civil liberties.

Admittedly, one could label Mary Beth Tinker a professional activist, given her current endeavor. But her career path is quite distinct from the typical path taken by legal activists. And while Tinker does not discourage students from litigating in defense of their rights, she also does not stress the courtroom as the primary venue within which students should fight. Rather, she advocates for student activism to take many different forms, few of which require the aid of legal professionals. Her message had a receptive audience among the self-selected students attending her talk, but I was disheartened not to have seen a larger crowd, even accounting for the possibility that the 9:30 AM start caused scheduling conflicts for students who might otherwise have attended. So her project has some work to do.