Despite being more sympathetic to the need for schools to keep order than some other bloggers are, I still find Thomas's Morse v. Frederick concurrence to be surprisingly bad. I don't even need to go to Prof. Colb's tangent about how schoolmasters were part of the general white adult male hierarchy that advocated wife-beating (as a gender scholar, Colb should know that wife-beating became illegal in most states during the late 1800s even before women got the vote) to consider Thomas's originalism ludicrous. The concurrence argues that "the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools." The original understanding of the First Amendment may well not have encompassed student speech in public schools.
Yet until the 20th century, part of the Thomas-touted "core of common values” that public schools instilled was Protestant Christianity. If we judge by the accepted practices of American public schools, it apparently was no part of the original understanding of the religion clauses of the First Amendment that Catholics like Thomas or the other four justices in the Morse majority should not be forced to participate in ritual Protestantism. Given how little public schooling there was at the actual drafting and passage of the First Amendment, I find using 19th century customs to prove What Would Founders Do to be shockingly bad originalism. If the overwhelming majority of schooling in 1789 occurred in the home or at private schools (UNC, the first American public university, was chartered the same year that the Bill of Rights was passed), there's no reason to think the Founders were contemplating students' First Amendment rights at all. Schooling was a private matter in which the government did not participate, so there was no fear of government censoring either political speech or religious activity.
Of course, before the Bill of Rights was incorporated to include state governments with the passage of the Fourteenth Amendment, even if the Founders would have thought that a federally-run school was subject to the First Amendment, few if any such schools existed. (I don't know if schools for Native Americans were federally run, or when the U.S. government began running schools overseas for diplomatic and military brats.) With the First Amendment inapplicable to state action until the 20th century, everything that Thomas says about how public schools constrained student speech (and though he doesn't mention it, student religion) just seems pointless. He concedes in a footnote that "the First Amendment did not apply to the States until at least the ratification of the Fourteenth Amendment," but figures he can work out what the federal free speech guarantee meant because "most state constitutions included free-speech guarantees during the period when public education expanded." I understand that Thomas is skeptical of incorporation anyway, which is fine as an intellectual matter, but his concurrence is intellectually dishonest to ignore that it wasn't just state-run schools that could trample student's federally-protected speech rights -- it was any state institution, anyone's rights, and any aspect of the First Amendment.
His list of cases in which students were disciplined for bad behavior in school is equally irrelevant. I don't know where Thomas sent his kids to school, but in my schools and in the New York public schools that I've read about in the course of researching school suspensions, nearly all of the acts that Thomas mentions in citations to Olde Timey, pre-Tinker cases -- disrespectful address of teachers, profanity, quarrels, refusal to 'fess up to misbehavior, late or nonexistent submission of work (I know that one's punishable), "distracting demonstrations in class" -- continue to be penalized today with no concern that anyone's speech rights are thereby violated.
I assume that the federal government at the Founding also could have fired anyone for the workplace equivalent of these acts. However, had a federal employee quietly, undistractingly voiced his opposition to putting down an early anti-tax rebellion, by wearing a badge that said, "Mmm... whiskey," this expression of solidarity with the makers of 'shine would be core First Amendment political speech that ought not be punished by job loss. Similarly, wearing a black armband to protest war would be core First Amendment political speech that ought not be punished by suspension.
But to get to the post title: I am confused as to how Thomas's notion of in loco parentis, in which public schools can constrain students just as much as their parents can, fits with those nutty parents who are supportive of their children's speech and fight the school's penalizing it*. Thomas's choice of citation doesn't help much; in footnote 6, he says,
At least nominally, this Court has continued to recognize the applicability of the in loco parentis doctrine to public schools. See Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 654, 655 (1995) (“Traditionally at common law, and still today, unemancipated minors lack some of the most fundamental rights of self-determination... They are subject... to the control of their parents or guardians. When parents place minor children in private schools for their education, the teachers and administrators of those schools stand in loco parentis over the children entrusted to them” (citation omitted))What in tarnation does a private school have to do with public schools? Thomas doesn't include the relevant part of Scalia's majority opinion in Vernonia:
In T. L. O. we rejected the notion that public schools, like private schools, exercise only parental power over their students, which of course is not subject to constitutional constraints. T. L. O., 469 U. S., at 336. Such a view of things, we said, "is not entirely 'consonant with compulsory education laws,' " ibid. (quoting Ingraham v. Wright, 430 U.S. 651, 662 (1977)), and is inconsistent with our prior decisions treating school officials as state actors for purposes of the Due Process and Free Speech Clauses, T. L. O., supra, at 336. But while denying that the State's power over schoolchildren is formally no more than the delegated power of their parents, T. L. O. did not deny, but indeed emphasized, that the nature of that power is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults.For once, I can join a Scalia opinion, while Thomas says,
But I see no constitutional imperative requiring public schools to allow all student speech. Parents decide whether to send their children to public schools. Cf. Hamilton v. Regents of Univ. of Cal., 293 U. S. 245, 262 (1934) (“California has not drafted or called them to attend the university. They are seeking education offered by the State and at the same time insisting that they be excluded from the prescribed course . . .”); id., at 266 (Cardozo, J., concurring). If parents do not like the rules imposed by those schools, they can seek redress in school boards or legislatures; they can send their children to private schools or home school them; or they can simply move. Whatever rules apply to student speech in public schools, those rules can be challenged by parents in the political process.You know your argument is going downhill fast when you equate college education -- mandated by no law -- with primary and secondary schooling that is enforced by truancy laws. And you know that you are one privileged person when you blithely imply that private schooling, home schooling and moving are just as easy as not attending the state university.
If schools simply take over parental power during the time that students are in the school's custody, how do we end up with conflicts between the school, which merely borrows parental power, and the parents who are the source of that power? Some parents will back their kids on the most ridiculous misbehavior that they may countenance in their homes but should not be countenanced in schools. Tinker's parents were hippies who encouraged him to wear the armband. Therefore public schools' power over children logically does not derive from an explicitly parental power, but rather from state mandates to educate children into useful citizens. Inasmuch as a student's behavior, such as calling a teacher by her first name, impedes the state-given mission, it is punishable even if the student calls her own parents Bob and Joanne. At the point where, as in Tinker, the behavior does not threaten to impede the school's educational mandate, it should not be punished.
Thomas is out there alone in his concept of in loco parentis; Alito's concurrence, joined by Kennedy, pointedly disagrees with him in strong language (emphasis added):
The public schools are invaluable and beneficent institutions, but they are, after all, organs of the State. When public school authorities regulate student speech, they act as agents of the State; they do not stand in the shoes of the students’ parents. It is a dangerous fiction to pretend that parents simply delegate their authority -- including their authority to determine what their children may say and hear -- to public school authorities. It is even more dangerous to assume that such a delegation of authority somehow strips public school authorities of their status as agents of the State. Most parents, realistically, have no choice but to send their children to a public school and little ability to influence what occurs in the school. It is therefore wrong to treat public school officials, for purposes relevant to the First Amendment, as if they were private, nongovernmental actors standing in loco parentis. For these reasons, any argument for altering the usual free speech rules in the public schools cannot rest on a theory of delegation but must instead be based on some special characteristic of the school setting.In footnote 8, Thomas declares that Tinker's citations to Meyer and Pierce do not support the notion that students and teachers do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." But he continues to miss the difference between private schools (chosen by parents) and public schools (run by the state). Meyer and Pierce, both cases in which private schools defended the right of parents to have their children educated in a manner disapproved by the state (in German and by nuns, respectively), show the Court's historic unwillingness to allow state power to supersede parental discretion when doing so does not serve a state purpose more important than a generalized right of liberty. Both cases were decided before the Court incorporated the First Amendment for states.
Also cheerfully ignored in Thomas's concurrence is the distinction the Hazelwood Court drew between punishing student speech, and refusing to sponsor student speech. I disagree with the Morse majority's decision, but would have no problem if the school had refused to run "Bong Hits 4 Jesus" in the school paper. White's Hazelwood opinion, joined by Rehnquist, Stevens, O'Connor and Scalia with no concurrences to express a different idea for the same result, states that
we conclude that the standard articulated in Tinker for determining when a school may punish student expression need not also be the standard for determining when a school may refuse to lend its name and resources to the dissemination of student expression. Instead, we hold that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.Incidentally, I think those who detect an In My Day theme beginning to run through Stevens's opinions are correct. His Morse dissent features this gem: "Reaching back still further, the current dominant opinion supporting the war on drugs in general, and our anti-marijuana laws in particular, is reminiscent of the opinion that supported the nationwide ban on alcohol consumption when I was a student." Prohibition really seems to be a major touchpoint of Stevens's youth, given that he cites it in his Granholm v. Heald dissent too.
He doesn't quite finish making one point, though. He says, "Although this case began with a silly, nonsensical banner, it ends with the Court inventing out of whole cloth a special First Amendment rule permitting the censorship of any student speech that mentions drugs, at least so long as someone could perceive that speech to contain a latent pro-drug message." Student speech that mentions drugs is actually encouraged at public schools, as long as the speech is anti-drug. As I recall, there were two different anti-drug organizations at my middle and high schools. Certainly schools can endorse some student speech while finding other speech to be disruptive: tolerance of homosexuals, good speech; advocacy of gaybashing, bad speech.
* If I seem contemptuous of such parents, it's probably at least partly envy. Had I tried to assert my First Amendment rights at school -- e.g., by objecting to having the National Honor Society induction conducted in a church, with a pastor present and religious references made -- my parents would have opened a can of whupass that even Thomas might think excessively harsh.