This is the third article in a Constitution Daily series on the constitutional legacy of the war in Vietnam, with each article focused on a theme explored last week or this week in the PBS documentary, “The Vietnam War,” by Ken Burns and Lynn Novick. This article is keyed to tonight’s episode, especially its discussion of how the increasingly violent anti-war protests in America appeared to be bordering on revolution.
Allison Beth Krause, 19 years old, and Mary Beth Tinker, who was only 13, were each opposed to the Vietnam War; they expressed it differently.
Allison, telling her boyfriend that “flowers are better than bullets,” joined an anti-war protest with consequences that would shock an already deeply agitated nation, a deadly day on Blanket Hill on the campus of Kent State University in Kent, Ohio, in 1970.
Five years earlier, Mary Beth, from a religious family that had become active in the civil rights movement, wore a black armband to school to mourn the war dead and to express support for a Christmas truce – a peaceful protest organized by several junior and senior high school students.
Both of these teenagers would take places in America’s constitutional history – a tragic place for Allison, a life-changing one for Mary Beth.
Allison Krause lost her life in a flash of National Guard rifle fire; three other students were shot dead that day; nine were wounded, one of whom would be paralyzed. Mary Beth Tinker, her 15-year-old brother John and a few of their classmates were simply sent home for disobeying a school order not to protest.
Allison and Mary Beth never knew each other, but together, their stories have been woven into the history of the years of American campus unrest in protest to the Vietnam conflict – peaceful in its beginnings in the early 1960s, more and more violent as the 1970s began. And the stories of these two young Americans linger today, more than four decades after the war in Southeast Asia ended.
The death of Allison Krause has new meaning each time a law enforcement officer somewhere in America uses too much force in a tense situation, giving rise almost every time to new outrage and, usually, a new lawsuit seeking accountability. The lawsuit filed by the Krause family and others was rebuffed in lower courts, but got some encouragement from the Supreme Court.
Now, almost every year, the Justices are faced with several cases on the constitutionality of “excessive force,” and yet they have not settled on exactly what that means. Police officers too ready to fire their guns against unarmed individuals actually gave rise to a new protest movement, “Black Lives Matter.”
The Supreme Court victory that Mary Beth Tinker won along with other students was truly a landmark ruling, making a promising advance in the long-running constitutional project of establishing the rights of public school students – a project that, in fact, had begun in the 1920s. “It can hardly be argued,” Justice Abe Fortas wrote in the Tinker case, that students “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
Over the years since, students’ constitutional rights would grow, even with occasional setbacks. It would be a continuing struggle between school boards and activist students and their legal advocates, with the deepest of their controversies reaching the Supreme Court regularly.
Allison Krause’s legacy was her family’s devotion, fighting for years in the courts for some measure of justice, ultimately winning a payment of $15,000 and a “statement of regret” from the state of Ohio. (The same amount was paid to the families of the other three students who were killed, with higher amounts for some of the wounded students.) In 2010, Allison’s sister, Laurel, and a friend would establish the “Kent State Truth Tribunal,” seeking to expose fully how the campus shooting could have happened, and who should be held to account.
Mary Beth Tinker grew up to dedicate her life to serving others, becoming a pediatric nurse, and an active public promoter of the rights of youth. The American Civil Liberties Union would rename its annual youth affairs award the “Mary Beth Tinker Youth Involvement Award.” The American University College of Law in Washington would do the same for its annual youth advocacy prize.
The stories of these two young Americans come back into public view, as the Nation – through the medium of the PBS documentary on the Vietnam War – again asks itself what lessons were learned, or not learned, from that conflict. The focus is partly on what happened militarily in Southeast Asia, but partly on what happened back home; as the war itself widened in Vietnam, anti-war sentiment spread on the homefront.
The anti-war movement may have had its actual beginning with an all-night “teach-in” on the Ann Arbor campus of the University of Michigan on March 24, 1965. All classes at the university were cancelled, and a series of seminars and speeches on Vietnam issues continued for 12 hours. Almost immediately, “teach-ins” spread to other colleges across the nation. From such benign origins, the anti-war movement would change as the war did, becoming ever more violent.
As the PBS documentary recounts, by 1969 the anti-war sentiment had grown so aggressive – at least in some of its elements -- that a group calling itself the “Weathermen” staged four “days of rage” in Chicago with the specific aim of bringing about violent revolution
In time, there was a predictable pattern to it: President Richard Nixon and other leaders would repeatedly expand the use of the military even while continuing to insist that the war was being won, and then there would be a new sign of resistance across the nation.
With Nixon declaring that “we live in an age of anarchy” and bemoaning the prospect of the United States becoming “a pitiful, helpless giant,” as quoted in the PBS documentary, the most aggressive leaders of the anti-war movement countered that “we had to match violence with violence.”
Even as protestors demanded peace, the Nixon Administration was holding secret peace talks with the North Vietnamese in Paris without ever telling the nation about it, so there was no let-up in the anti-war clashes, especially on the college campuses.
Looking back, few incidents in this cycle of more war and more protest aroused the nation as did the horrendous incident on May 4, 1970.
Four days earlier, President Nixon had extended the war across the Vietnam border for the first time. He ordered 30,000 U.S. troops, accompanied by 50,000 South Vietnamese soldiers, to take the battle to Cambodia. Nixon told the public that this was only “an incursion, not an invasion,” insisting that the maneuver had been undertaken solely to protect American troops remaining in Vietnam, the PBS documentary recalled.
This news re-ignited resentment on many college campuses, with calls for a nationwide student strike.
On the campus of Kent State University in Kent, Ohio, May 4 brought 2,000 students out in protest. They burned down the ROTC building, and then the National Guard – their rifles loaded with live ammunition – took a position on the brow of what the students called “Blanket Hill.” A young officer fired his pistol into the air, and a kneeling line of Guardsmen from Troop G opened fire.
The volley, lasting only 13 seconds, took the lives of Allison Krause, Jeffrey Miller, Sandra Scheuer and William Schroeder. Only Allison and Jeffrey had been in the midst of the protests; Sandra and William were shot on their way to a class. Nine other students fell to the ground, wounded; Dean Kahler, with several vertebrae fractured, was paralyzed but survived.
The next day, across the nation, front pages of newspapers displayed the photo of 14-year-old Mary Ann Vecchio, screaming as she kneeled over the body of Stephen Miller. Mary Ann had been a runaway from home, to join the anti-war effort, and just happened to be at Kent State that day. The photo, taken by journalism student John Filo, won a Pulitzer Prize that year. It remains one of the iconic images of the war’s impact at home.
Six weeks after the incident, President Nixon named a Presidential Commission on Campus Unrest, headed by former Pennsylvania governor William Scranton. Ultimately, the commission concluded that the shootings at Kent State “cannot be justified…No order to fire was given, and there was inadequate fire control discipline on Blanket Hill. The Kent State tragedy must mark the last time that, as a matter of course, loaded rifles are issued to guardsmen confronting student demonstrators.”
The Kent State tragedy, though, was not the last that year. Later, in Mississippi, two black students were killed during a protest at Jackson State University. It did not get near the publicity and attention as did the Kent State incident, leading black leaders to object strenuously.
A group of students from Kent State filed a lawsuit against the state National Guard, seeking to have the courts order reforms in the way the Guard used lethal force. They lost in the Supreme Court in a 5-to-4 decision in 1973 (Gilligan v. Morgan); the Justices in the majority concluded that they could not constitutionally put the judiciary in charge of military policy.
The families of three of the four Kent State students who had been killed fared better in the Supreme Court. In a ruling in 1974, the Justices ruled unanimously that they could go ahead with their claims that the governor and National Guard had violated the students’ rights by actions at Kent State. The decision rejecting claims of state government immunity under the Eleventh Amendment was named for the Scheuer family, but also involved the Krause and Miller families.
Eventually, in January 1979, the three families’ civil lawsuits along with separate claims by the Schroeder family and by the wounded students were settled for $650,000 and a statement of regret by state officials. The most seriously wounded student, Dean Kahler, received $350,000. Other wounded students received between $15,000 and $42,500. The Krause, Scheuer, Miller and Schroeder families whose children had been killed each received $15,000.
A series of criminal charges against eight National Guardsman ended without any guilty verdicts. Criminal charges for alleged roles in the burning of the campus ROTC building were filed against the group that came to be called the “Kent 25” – 24 students and one professor – but resulted in only one conviction and two guilty pleas.
The Kent State incident led to a nationwide student strike, leading to the temporary closing of more than 450 colleges.
At Kent State itself, in 1999, the university – at the request of the four families who lost students in 1970 – created a memorial for each, located at the exact spot where each had fallen.
Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.