Thomas' opinion considered extreme


Justice calls for overturning Tinker





Reaching back to the history of America’s public education system and a legal principle known as “in loco parentis,” Associate Justice Clarence Thomas offered the most extreme opinion in June’s Morse v. Frederick U.S. Supreme Court decision.

Relying on “in loco parentis” — meaning “in place of the parent” — Thomas claimed that because public schools historically could act in place of the parent not only in matters of education but also of discipline, they should be able to punish student speech without any limitations.

“Justice Thomas seemed highly concerned that courts and the judiciary should not be substituting their own reasoning and logic for that of school officials who, in his mind, apparently are better suited to stand in the position of the parent,” said Clay Calvert, the John and Ann Curley Professor of First Amendment Studies at Pennsylvania State University.

Thomas said given the opportunity, he would overturn the 1969 decision in Tinker v. Des Moines Independent Community School District, which famously declared that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

“In the name of the First Amendment, Tinker has undermined the traditional authority of teachers to maintain order in public schools,” Thomas wrote in his concurrence. “In my view, the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools.”

Thomas came out strongly against First Amendment rights for students at a time when the majority opinion took a narrower aim at student free-speech protections — and in a way no other justice has before.

“He’s not the first … to say the First Amendment does not apply to schools, but he is the first one to say the First Amendment does not apply to schools because the framers did not so intend,” said Ron Collins, a legal scholar at the First Amendment Center’s Arlington, Va., office.

Calvert said Thomas’ opinion, in which no other justices joined, is non-precedential and “has no real power at this stage,” but the potential remains for it to be used as guidance in decisions should the Court ever be differently composed.

“He may be trying to lay the groundwork if the Court’s composition were to ever change in a dramatic fashion,” Calvert said. “If there’s any slight, silver lining, it’s that the Court did not adopt Justice Thomas’ reasoning, which would scrap free-speech rights of students in public schools.”

Associate Justice Samuel Alito was among those who criticized Thomas’ logic.

“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 authorities,” Alito wrote in his concurrence.

Thomas’ opinion also seemed to run counter to some views expressed by administrators’ supporters.

“I … not necessarily speaking for the organization but I suspect a majority opinion of our members … feel that at this point Tinker is pretty well established law and shouldn’t be rolled back,” said Paul Houston, executive director of the American Association of School Administrators, which filed a friend-of-the-court brief in support of Morse.

“We sided with the school because we felt that administrators need the ability to maintain reasonable discipline,” he added. “But I understand that just as free speech can go too far, so can administrative oversight.”

Houston said free-speech rights have an important role in the educational process.

“Public schools were created initially by the founding fathers as places where ‘civic virtue’ would be taught,” he said. “I think that would include their learning the most basic of our rights by experiencing them.”

Houston also suggested administrator frustrations with student behavior should not be the only concern when free-speech rights are implicated in school.

“One of the best features of an American education is that our students tend to grow up questioning authority and pushing the limits,” he said. “While, as a school administrator, that can drive you a little crazy, as an American I can only applaud the spirit it implies.”

Thomas’ approach to the Morse case was certainly typical, if not expected, legal scholars said. Known as an “originalist” in terms of how he interprets the Constitution, Thomas often looks at the text of the Constitution as he considers it to have been intended by its authors, rather than by what the text seems to say in the present day.

“Justice Thomas privileges and prefers historicism and original intent as the key modes and methods of judicial analysis in First Amendment jurisprudence,” Calvert said. “He is guided by history and by the original understanding, at least what he believes it is, of the First Amendment.”

Thomas was one of five justices to write an opinion in the case and one of two to author concurrences to the majority opinion that found schools do not violate a student’s First Amendment free-speech rights by punishing speech that appears to promote illegal drug use at a school-sanctioned and school-supervised event.

In Morse, the Court reversed the 9th U.S. Circuit Court of Appeals decision by deciding that Joseph Frederick, a former student at Juneau-Douglas High School in Alaska, was not protected by the First Amendment when he held up a banner with the words “Bong Hits 4 Jesus” across the street from his school during the 2002 Olympic Torch Relay.


Fall 2007, reports