A Fine Essay

Yesterday the Supreme Court handed down a decision on free speech for students of public schools (Morse v. Frederick, aka the "Bong Hits 4 Jesus" case). From my perspective, the decision itself was disappointingly narrow and limited, and it was yet another 5-4 split. But there's a surprising gem contained within the decision, which I read early this morning. Justice Clarence Thomas -- a first-rate thinker and communicator -- joins the opinion, and writes a separate opinion. That opinion could stand alone as a fine essay on the state of our public schools -- and he forthrightly says that he'd like to overturn the 1969 Tinker v. Des Moines Independent Community School District case that in his view is the direct cause of much of our educational system's current dysfunction. His opinion starts on page 19 of the document linked here -- it's well worth taking the time to read. I'll excerpt here just the conclusion:

In place of that democratic regime, Tinker substituted judicial oversight of the day-to-day affairs of public schools. The Tinker Court made little attempt to groundits holding in the history of education or in the original understanding of the First Amendment.8 Instead, it imposed a new and malleable standard: Schools could not inhibit student speech unless it “substantially interfere[d] with the requirements of appropriate discipline in theoperation of the school.” Inherent in the application of that standard are judgment calls about what constitutes inter-ference and what constitutes appropriate discipline. Historically, courts reasoned that only local school districts were entitled to make those calls. The Tinker Court usurped that tradi-tional authority for the judiciary.

And because Tinker utterly ignored the history of public education, courts (including this one) routinely find it necessary to create ad hoc exceptions to its central premise. This doctrine of exceptions creates confusion without fixing the underlying problem by returning to first principles. Just as I cannot accept Tinker’s standard, I cannot subscribe to Kuhlmeier’s alternative. Local school boards, not the courts, should determine what pedagogical inter-ests are “legitimate” and what rules “reasonably relat[e]”to those interests.

Justice Black may not have been “a prophet or the son of a prophet,” but his dissent in Tinker has proved prophetic. In the name of the First Amendment, Tinker has undermined the traditional authority of teach-ers to maintain order in public schools. “Once a society that generally respected the authority of teachers, de-ferred to their judgment, and trusted them to act in thebest interest of school children, we now accept defiance,disrespect, and disorder as daily occurrences in many of our public schools.”

We need look no further than this case for an example: Frederick asserts a constitutional right to utter at a school event what is either “[g]ibberish,” ante, at 7, or an open call to use illegal drugs. To elevate such impertinence to the status of constitutional protection would be farcical and would indeed be to “surrender control of the American public school system to public school students.”

I join the Court’s opinion because it erodes Tinker’s hold in the realm of student speech, even though it does so by adding to the patchwork of exceptions to the Tinker standard. I think the better approach is to dispense with Tinker altogether, and given the opportunity, I would do so.

Someone please hand that man a case he can use to overturn Tinker!