Protesting War: The Rights of the Students
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Before engaging in a discussion of the first amendment it is necessary to express some of the written beliefs of the Founding Fathers of the United States of America as well as politicians who continued upholding these beliefs. These men will serve as beacons with which it is possible to gain a better understanding of the history of the United States as well as the foundations for the civilization which has blossomed from their written set of ideals.

And what country can preserve its liberties, if its rulers are not warned from time to time, that this people preserve the spirit of resistance?
- Thomas Jefferson[1]

[W]henever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

- The Declaration of Independence

Free speech, free press, free religion, the right of free assembly, yes, the right of petition... well, they are still radical ideas.
- Lyndon B. Johnson[2]


Historic Context

The United States Constitution was written to bring the country together as a national state rather than the confederation of independent states that they were prior to 1788. The Constitution was written to outline the necessary governmental institutions.[3] There was a significant portion of the founding fathers who felt that the Constitution did not adequately secure the rights of the citizens and thus diligently worked to develop the first ten amendments to the Constitution. These ten amendments have been commonly referred to as the Bill of Rights. For the purposes of this discussion, the First Amendment will be the pinnacle of the focus.

The First Amendment states the following:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

These are rights that many citizens of the United States know on a base level but really do not understand why they are important. Some of the reasons the forefathers of the United States included these rights was to protect the citizens from an oppressive and tyrannical government similar to the government from which these men had gained independence. Most importantly by incorporating these rights into government from its establishment was a way to ensure the protection of the citizen ad infinitum.

The citizens of the Colonies of the Americas and eventually citizens of the United States of America have clung dearly to their right to peacefully assemble and protest the government. Unlike many governments at the time the United States has upheld that the educated masses will be the basis for the Government and thus are guaranteed certain rights.[4] Citizens have protested and maintain their right to protest the government because of the ideals of the founding fathers of the United States of America.

This is not to state that protests have always been welcomed by the established order, specifically by the Higher Education field. There appeared to have been a monumental shift in the Higher Education world between the 1950s as well as the early 1960s and the later 1960s and 1970s.[5] For the most part these protests had been shielded from public view and were often attempted to be hidden by the administrations.


This is a video of the anti-war protests at Harvard in the 1960s.



The collegiate setting is often one which has been regarded as a marketplace for ideas.[6] It is imperative to understand the history of the United States to understand why there is a need for focus on the role of Higher Education in establishing national order. These rights have not been guaranteed and upheld without fights. These Discussions and arguments of run through the Federal Court System within the United States of America and usually end up at the Supreme Court of the United States in Washington D.C.[7] This is an incredible step forward from the bloody revolutions that have plagued civilizations for centuries. Instead of violent revolutions, individuals are able to work with the government to allow it to adapt to society while maintaining the rights guaranteed by the Constitution.

There are a number of people who view the right to protest solely as the right to assemble with a disregard for the right to free speech and the underlying right to freedom of association. While the freedom of association has not been explicitly stated within the United States Constitution it has gained strength from a number of different court cases such as; De Jonge v. Oregon, NAACP v. Alabama, Edwards v. South Carolina, National Socialist Party v. Village of Skokie and Healy v. James. Each of these cases are essential to the right of the people not only to assemble peacefully but also to be free to associate with their groups both publicly and privately. Some of these court cases date to 1937 and another dates as recently as 2010. While only the Edwards v. South Carolina and Healy v. James cases directly related to Higher Education, all have had a profound impact on the rights of students to assemble and associate.



Important Court Cases
The aforementioned cases have had a significant impact on the climate of modern colleges and universities. For this reason it is necessary to understand the history of each case and why it has helped mold the university setting as it is currently known.




De Jonge v. Oregon 299 U.S. 353 (1937)
[8]
De Jonge v. Oregon
Background of the Case
This case was the first major court case protecting the rights of the citizens to associate with groups. Mr. Dirk De Jonge was a citizen of the state of Oregon and a member of the Communist Party. The Communist party had been planning on participating in a peaceful demonstration in protest of the treatment of striking workers by the Portland Oregon Police. The demonstration had been planned by citizens who were not members of the Communist Party. During this demonstration Mr. De Jonge was delivering a speech describing a portion of the current situation. While De Jonge was speaking the police raided the demonstration, De Jonge and others who had been working with the meeting were then arrested and taken to jail.
Outcome of the Case
The Court found that De Jonge had been arrested for participating in the peaceful demonstration and the meeting and that no crime had occurred. The Supreme Court found that it appeared the Portland Police had arrested Mr. De Jonge because of his speech and consequently found this to be a violation of his First Amendment Right.


Application to Higher Education
This case did not deal specifically with the freedoms that individuals in the realm of American Higher Education. However this case had laid the foundation for following court cases. This case had led to the creation of a sanctum of ideas, one which would allow the collegiate forum to become a “marketplace of ideas”. By ensuring the right of the individual to associate with a group has become a hallmark of modern day Higher Education. It is because of this case students are able to join collegiate societies such as the College Republicans or College Democrats without fear of being persecuted simply because the opposing party is in power. This court case has had an impact on many aspects of life in Higher Education including the influence that this court case has had on academic freedom. After this case it became much more difficult to punish faculty and students because of the beliefs that the individuals exercised inside and outside of the classroom.


National Association for the Advancement of Colored People (NAACP) v. Alabama 357 U.S. 449 (1958)[9]
NAACP v. Alabama


Background of the Case
The state of Alabama had enacted a law that required corporations and foreign organizations to qualify through the Department of the Secretary of the State before “doing business” within state lines. In this case there is a slight trick to the understanding of what a foreign organization means. According to the state statutes of Alabama, at the time any corporation that was not founded within the state borders of Alabama was to be considered a foreign entity. For this reason the National Association for the Advancement of Colored People (NAACP) was considered to be a foreign entity because it was headquartered not in Alabama but had merely set up a regional headquarters in Alabama. For this reason representatives of the state of Alabama attempted to obtain the member list of the NAACP because it was a foreign entity that did not procure nor maintain proper identification. The NAACP had been working with Civil Rights leaders to develop and execute a boycott of the Alabama public transportation system. Representatives of the state government of Alabama maintained that these actions were civil disobedience and outside of the law. For these reasons, those individuals who were members of the organization needed to be punished and demanded that the NAACP release the names of the members. The NAACP refused to release the records and the state of Alabama filed suit within the state courts of Alabama. The United States Supreme Court eventually ruled on the case due to the nature of the charges and finding this to be a Federal Constitutional case.

Outcome of the Case
The case was heard and the United States Supreme Court levied a decision. The Supreme Court found that it would be a violation of the First Amendment as well as the Fourteenth Amendment to the United States Constitution to force an organization to reveal the private members of the group. The Supreme Court found that forced publication of the membership of a group could be detrimental to the number of participants and thus would be detrimental to the right of people to peacefully assemble as well as an individuals right to associate with an organization.


Application to Higher Education
This case was also not centered on the education world but has grave importance to each citizen especially those who might hold controversial views. The United States has begun to work and promoting the work of the NAACP during the Civil Rights movement, it is possible to imagine these voices being silenced and progress being prohibited. This court case from 1958 further cemented the right of the students and faculty to assemble as organizations without a significant fear of persecution for holding countercultural ideals.



Edwards Et Al. v. South Carolina 372 U.S. 229 (1963)[10]
Edwards v. South Carolina

Background of Case
Similar to NAACP v. Alabama this case was centered around the Civil Rights Movement and segregation. A group of students were arrested for their participation in a demonstration against segregation. The court described the action of the police as disruptive to the community and were unlawful. South Carolinian Police Officers arrested and detained a number of citizens of South Carolina who were protesting the Segregation laws in place. This case directly affect High School and College students as they were the main members who were protesting the segregation. A group met at a local church and proceeded to express their dissatisfaction with the South Carolina legislature which was upholding segregationist and racist laws. These students wanted to gain the signatures of individuals who would support their work in ending segregation. During this time the students worked to establish secure and peaceful signatures all while allowing pedestrian and vehicular traffic to continue uninterrupted. These members were eventually arrested on charges of “breach of the peace” and were assessed a fine of ten dollars ($10) or five days in jail.

Outcome of the Case
The Supreme Court determined that these individuals had violated no laws and were unjustly punished for being within their rights. The Supreme Court decided that the Police Officers of Columbia, South Carolina had arrested these individuals who were well within their rights. The Court then went further to express that the State or Federal Government could not “make criminal the peaceful expression of unpopular views”.

Application to Higher Education
It is this last line in the above paragraph that is what has truly made a difference in the Higher Education System within the United States. By declaring that no law could “make criminal the peaceful expression of unpopular views” the Supreme Court made the protests that would be witnessed on college campuses during the Vietnam War legal. This clause is one of the most important to the anti-war movement on College and University campuses around the nation.



1:19-1:33 in this video are important scenes from the arrests that later led to the cases of NAACP v. Alabama and Edwards v. South Carolina

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National Socialist Party of America v. Skokie, 432 U.S. 43 (1977)[11]
National Socialist Party v. Village of Skokie


This case was incredibly similar to the case against South Carolina. However this case focused on the refusal of the town of Skokie, IL to allow the National Socialist Party of America (NAZIs) to parade through the town. This was a case that was immediately decided as a violation of the rights of the group. This decision was based in part by the previous cases mentioned above. This court ruling affirmed the rights of the citizens to march and lead protests even when views are contradictory to the beliefs of society as a whole. This shows the incredible similarities to war protests and demonstrations that are often not aligned with the opinion of mainstream society.



Skokie Illinois Nazi


Background of Case

Healy v. James was a case in which College students wanted to start a chapter of the organization Students for a Democratic Society (SDS). The students were denied by the President of the University the right to organize their group because the President believed that the SDS as a whole was a violent and disruptive group at its core. The Students believe that this was an infringement upon their First Amendment rights and sued for the right to assemble as an official recognized college organization on campus.

Outcome of the Case
The Court found that the college did not have the right to discriminate against students viewpoint and that by not allowing the students to create the Students for a Democratic Society chapter on campus the school was in violation of the First Amendment rights of the students. The fear of disruption was not an adequately narrow determination for not allowing student groups to organize and be part of campus. This meant that the SDS chapter would be allowed to organize on campus.

Application to Higher Education
This Court case solidified the rights of the students to organize on campus and promote concepts that were significantly opposing some of the ideologies of the Collegiate and University Administrators. This case clearly outlined the rights of the students and their right to protest on campus. This right has been focused most notably on campus during the Vietnam War as protestors attempted to find ways to convince the Government to end the war.



Effects of these Cases//**



Each of these cases helped mold the atmospheres of Colleges and Universities to this very day. Each of these cases held a significant impact on the lives and livelihood of the campus climates of the Colleges and Universities around the United States. Each of these cases, while not all specific to Higher Education, helped lay the foundation for the rights of students to peacefully protest the United States Involvement in a War or Conflict. The cases helped create an environment of freedom of ideas and the delineation of these ideas to the surrounding communities. It has been shown that students are not stripped of their rights at the Entrance to the University, and because of this each student has been guaranteed these rights of all citizens.

This marketplace of ideas is essential to the further development of future leaders. The United States Supreme Court has protected the speech and rights of the students from oppression of the government and the extension of that government in public schools. Because of this students should have been free to peacefully protest on college campuses around the United States. Unfortunately this was not always the case as some students had been brutally murdered while protesting. While these evil deeds have occurred, more rights have been protected for the students and continue to this day.

Each institution has a right and necessity to protect the students and the administration of the campus. For these reasons many who were involved in the debates and signs of protest were punished only to be cleared later by the Highest Court in the United States. It is of the utmost importance that each member of society learns from the past mistakes of American citizens are understands his or her rights as a member of the United States of America. The reason these court cases were so important falls back onto the principles outlined by the United States' Constitution and the American ideals. The United States of America is a free nation however this freedom has borne the cost of blood, sweat, tears, hard work, determination, and a multitude of those have already been. It is through these cases that freedom has been saved and allowed to flourish, from street corners to Anti-War Protests peacefully on campus.


  1. ^

    Cox, M. (2006). "Keep Our Black Warriors Out of the Draft": The Vietnam Anti-War Movement at Southern University, 1968-1973. Educational Foundations , 20, 123-144.
  2. ^
    Halstead, Fred. Out Now! A Participant's Account of the American Movement Against the Vietnam War. New York: Monad Press, 1978.
  3. ^

    Garfinkle, Adam. Telltale Hearts: The Origins and Impact of the Vietnam Antiwar Movement. New York: St. Martin's Press, 1995.
  4. ^
    **
    Dionne, E. (1990, May 4). ackson State Remembers; 1970 Killings Overshadowed by Kent State. The Washington Post , p. 1.
  5. ^

    DeBenedetti, Charles. An American Ordeal: The Antiwar Movement of the Vietnam Era. Syracuse, NY: Syracuse University Press, 1990.
  6. ^
    **
    Bird, L. E., Mackin, M. B., & Schuster, S. K. (2006). The First Amendment on Campus: A Handbook For College and University Administrators. United States of America: NASPA.
  7. ^ Daily Oklahoman (Oklahoma City), 1 31 May 1970 and 24 April 1994. James K. Davis, Assault on the Left: The FBI and the Sixties Antiwar Movement (Westport, Conn.: Praeger Publishers, 1997).
  8. ^

    De Jonge v. Oregon, 299 US 353 (1937)
  9. ^
    **
    NAACP v. Alabama, 357 US 449 (1958)
  10. ^

    Edwards v. South Carolina, 372 US 229 (1963)
  11. ^
    National Socialist Party of America v. Skokie, 432 US 43 (1977)