The Kids Who Took Their Fight to the Supreme Court

A fascinating account of the student-led lawsuits that changed American history

10 mins read

In December 1965, the fashion police came for Mary Beth Tinker. 

The 13-year-old Iowan had worn a black armband to school in protest of the Vietnam War. The Des Moines school board freaked out when it heard about her plan, preemptively banning the bands from school. Tinker showed up to class on Dec. 16 wearing it anyway. When she refused to take it off, Tinker was suspended.  

Mary Beth and John Tinker display their black armbands in 1968, over two years after they wore anti-war armbands to school and sparked a legal battle that would make it all the way to the Supreme Court. via Getty Images

Imagine being in her shoes. What would you do? Take off the armband? Send a rudely-worded letter to the school board? Maybe organize a protest? 

Tinker took a different route. Soon after her suspension, she filed a lawsuit arguing that she had a constitutional right to wear the protest armband in school. By blocking her from protesting the war in Vietnam, the school district was trampling on her First Amendment right to free speech, she argued. 

Tinker’s lawsuit moved through the legal system all the way up to the Supreme Court. However, It would take four years for the case to finally reach the country’s highest court. 

But it was worth the wait. On Feb. 24, 1969, the court ruled 7-2 that it was illegal to suspend Tinker for wearing her armband. 

Students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” wrote the seven justices who ruled in Tinker’s favor. In other words, the students had the same right to protest the war inside school as they did outside it. 

Tinker’s case is widely regarded as the first major student-led lawsuit in the United States. Since then, young, civically-minded Americans have been fighting for their rights in courtrooms across the country. 

Fighting for diversity

In March 2010, five years before the Supreme Court legalized same-sex marriage nationwide, Constance McMillen just wanted to go to prom with her girlfriend. But when the Mississippi student asked administrators at Itawamba Agricultural High School for permission, they didn’t just say no: they cancelled prom altogether.  

The school board even encouraged students to plan a private prom, to which McMillen wouldn’t be invited. But McMillen fought back, bringing on the ACLU of Mississippi to help plead her case in court. 

“It’s shameful and cowardly of the school district to have canceled the prom and to try to blame Constance, who’s only standing up for herself,” her lawyer, Christine Sun, told a local newspaper. “We will fight tooth and nail for the prom to be reinstated for all students.”

McMillan’s case went all the way to U.S. District Court Judge Glen Davidson, who ruled that the school couldn’t prevent her from bringing her girlfriend to prom. 

“The court finds this expression and communication of her viewpoint is the type of speech that falls squarely within the purview of the First Amendment,” Davidson wrote in his ruling. 

Her case garnered international attention, and McMillan was even nominated by Glamour Magazine as one of its Women of the Year. And, while the suit didn’t force the school to hold a prom, it awarded McMillan $35,000 in damages. Most importantly, it forced the school district to update its anti-discrimination policy to include protections for sexual orientation and gender identity. 

In 2008, Abigail Fisher sued the University of Texas at Austin after the school denied her admission. Fisher, who is white, argued that the school had rejected her on the basis of her race, as its admissions process included race as a factor. Specifically, Fisher felt they had violated her Fourteenth Amendment right to equal treatment under law regardless of her race. 

A Texas court decided that UT’s policy was legal, but Fisher appealed to the Supreme Court. And when the highest court heard the case, it did something surprising: it told the lower court to try again. The Supreme Court said the case had not looked closely enough at whether UT’s affirmative action policy was furthering the government’s best interests — in this case, diversity at universities. 

On review, lower court again ruled that UT could consider race in admissions. Fisher appealed, and, again, her case wound all the way up to the Supreme Court. This time, the court was more divided. In 2016, eight years after the first case, the Supreme Court ruled that UT could indeed consider race as a factor in admissions. However, it made it clear that schools could only do so as long as the government considered diversity an important quality to maintain in higher education. While Fisher hadn’t succeeded, she’d weakened affirmative action and found significant support from justices.

Banding together

A new type of student-led lawsuit has emerged in recent years as a popular tactic for broad groups of young people to come together in pursuit of a common goal. In 2015, 21 students filed a lawsuit against the federal government, Juliana v. United States, arguing that they had a constitutional right to a clean environment. 

The suit accused then-President Barack Obama, the Environmental Protection Agency, and several other government bigwigs, alleging that the federal government had knowingly harmed the environment for decades and was therefore infringing on young peoples’ right to a liveable world.

The lawsuit has bounced around the courts for six years now and doesn’t appear likely to bring about any major policy changes. But that doesn’t mean it’s been for nothing. 

“I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society,” wrote U.S. District Judge Ann Aiken, who has ruled in favor of the students numerous times. 

Even if the students failed to enact tangible political action, they’ve raised awareness of the issue and forced millions to reckon with how current policymakers’ decisions will effect the quality of children’s lives.

In 2018, another group of Rhode Island public school students sued then-Governor Gina Raimondo, arguing that they had a right to a proper civics education in school. U.S. District Court Judge William Smith ultimately dismissed the case but heaped praise on the young plaintiffs who were getting a civics masterclass through the lawsuit process itself. He felt the courts did not have the authority to mandate a civics education but called on members of government to push for change.

“This case does not represent a wild-eyed effort to expand the reach of substantive due process but rather a cry for help from a generation of young people who are destined to inherit a country which we — the generation currently in charge — are not stewarding well,” Smith wrote in his decision. 

These suits, which pull together diverse groups of plaintiffs arguing for larger, generational claims, haven’t found the decisive victories that earlier suits like Tinker and McMillan did. But, they are testing the bounds of what kind of policy changes can be enacted through lawsuits. 

Young people have also led countless smaller legal battles for their rights. Kids and their parents have sued for and against mask mandates, for the right to wave Trump flags on campus, and to curse about how much they hate school on Snapchat. It may seem extreme, but it’s been going on for decades: if your school board won’t listen, maybe a judge will. 

Joe Lovinger

Joe is a reporter at The Real Deal based in New York City, and is a graduate of Vanderbilt University and Columbia University’s School of Journalism. He has written about topics ranging from a goat who ran for mayor in Lajitas, Texas, to the New York City real estate industry. A bourgeoning home chef (who, unfortunately, does not own a dishwasher), Joe first became interested in civics when working on a city council campaign in Nashville, Tennessee. He's leading the team creating editorial content for our youth civics magazine.

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