The View From 1776

The recent Supreme Court decision in the MORSE ET AL. v. FREDERICK case, better known as the “BONG HiTS 4 JESUS” case, has generated controversy, both because of the Court’s decision, and because of the concurring opinion by Justice Clarence Thomas.

Facts of the case were the following:

At a school-sanctioned and school-supervised event, petitioner Morse, the high school principal, saw students unfurl a banner stating “BONG HiTS 4 JESUS,” which she regarded as promoting illegal drug use. Consistent with established school policy prohibiting such messages at school events, Morse directed the students to take down the banner. When one of the students who had brought the banner to the event—respondent Frederick—refused, Morse confiscated the banner and later suspended him.

The Court’s ruling, expressed in the opinion of Chief Justice John Roberts, was:

Because schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use, the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending Frederick.... Our cases make clear that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 506 (1969). At the same time, we have held that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings,” Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 682 (1986), and that the rights of students “must be ‘applied in light of the special characteristics of the school environment.’

The Court’s decision was opposed by many people, particularly liberal-Progressives.

What really agitated them, however, was the concurring opinion by Justice Clarence Thomas. 

NYU Professor Jonathan Zimmerman sums up the liberal-Progressive-socialist reaction in Got Discipline?, which appeared in the June 28, 2007 edition of the Los Angeles Times:

In a free-speech ruling, Justice Thomas misstates the purpose of education.

That’s what Thomas wrote this week in his strange concurring opinion in Morse vs. Frederick...

Note first the prominent educational role Professor Zimmerman assigns to promoting social justice, which is a code term for socialistic redistribution of income from “the rich” to “the workers.” Liberals, Professor Zimmerman apparently among them, believe that breaking down the conventions of civilized society represents progress toward social justice and that discipline represents ignorance. 

In a socialized society, there are no titles of respect.  Everyone is “citizen” or “comrade.” Why should teachers have any specially privileged position empowering them to discipline classroom troublemakers?

Note second that, while Professor Zimmerman says that Justice Thomas misstates the purpose of education, Professor Zimmerman completely misrepresents Justice Thomas’s conclusion.

What Justice Thomas in fact wrote was:

In my view, petitioners could prevail for a much simpler reason: As originally understood, the Constitution does not afford students a right to free speech in public schools.... the idea of treating children as though it were still the 19th century would find little support today.  But I see no constitutional imperative requiring public schools to allow all student speech.

Justice Thomas added:

I write separately to state my view that the standard set forth in “Tinker v. Des Moines Independent Community School Dist.”, 393 U. S. 503 (1969), is without basis in the Constitution..."Tinker" effected a sea change in students’ speech rights, extending them well beyond traditional bounds. The case arose when a school punished several students for wearing black armbands to school to protest the Vietnam War.... Determining that the punishment infringed the students’ First Amendment rights, this Court created a new standard for students’ freedom of speech in public schools:

Justice Black dissented, criticizing the Court for “subject[ing] all the public schools in the country to the whims and caprices of their loudest-mouthed, but maybe not their brightest, students.” Id., at 525. He emphasized the instructive purpose of schools: “[T]axpayers send children to school on the premise that at their age they need to learn, not teach.” Id., at 522. In his view, the Court’s decision “surrender[ed] control of the American public school system to public school students....Once a society that generally respected the authority of teachers, deferred to their judgment, and trusted them to act in the best interest of school children, we now accept defiance, disrespect, and disorder as daily occurrences in many of our public schools.

Note that Justice Black was the Court’s most consistent voice of absolute freedom of speech of every kind, no matter how offensive. 

For those doubting the accuracy of his assessment, see Marc Epstein’s City Journal article Swimming with Barracudas: Violent students need to be expelled.

In his concurring opinion, Justice Clarence Thomas continued:

Because public schools were initially created as substitutes for private schools, when States developed public education systems in the early 1800’s, no one doubted the government’s ability to educate and discipline children as private schools did. Like their private counterparts, early public schools were not places for freewheeling debates or exploration of competing ideas. Rather, teachers instilled “a core of common values” in students and taught them self-control....

A review of the case law shows that ‘in loco parentis’ allowed schools to regulate student speech as well.....The doctrine of ‘in loco parentis’ limited the ability of schools to set rules and control their classrooms in almost no way. It merely limited the imposition of excessive physical punishment....

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